The Commissioners appointed to proceed to France, to take further testimony in this cause, having made their report, and the matter having been submitted upon all the proofs, after a very full and elaborate argument, it becomes my duty to pronounce final judgment.
It is proper, in the first place, to examine the facts which appear in the return of the Commissioners. Witnesses were examined at Biert, Massat, and St. Girons. Jeanne Icart was born at Pau, in 1777, and after her father’s decease, removed to Biert, her mother’s domicil of origin. She remained there until 1796, when she left for Massat; and again, in 1798, she changed her abode to St. Girons.
I. Biert lies south from St. Girons, about sixteen miles, and is a mere hamlet, containing about a hundred souls.
*67Servat, the first witness examined at this place, seventy-two years of age, stated that he knew Jeanne Icart and her mother; did not know when or where the mother died; was not aware of anything against the reputation of Jeanne, or that she had been married or had a child.
Marie Pages, sixty-eight years of age, makes about the same statement as the preceding witness, except that she adds: “ I have heard that she was married in the neighborhood of Bordeaux, after she left here. . . I have heard that Jeanne had a bastard son. I don’t know when it was born. It was at nurse near St. Girons. This I only know by tradition. It was public report, and known by all. I don’t know who were the parents of this child. I don’t know, to whom the infant was attributed. She left this part of the country, and after she was gone a long time from here she returned, as they said, to search for her child. It was not until after her return to this place that I had heard that she had had a child.”
Lafitte, seventy-three years of age, testifies, that he knew Jeanne well, and also her mother; that Jeanne left Biert about sixty-three years ago; and afterwards “ came back dressed like a lady.” He says, “ I do not think she was ever married, but I know nothing about it. I never heard any reproach against her reputation while she lived here. I heard that she had had a child. "When she returned here, after her absence, she came back to seek a child. I never saw the child, but I heard a report that she had been to America, and had come to look for the child.”
Anne Marie Noble, seventy-five years of age, was acquainted with Jeanne and her mother. She states, “the mother died here. I saw her die. I don’t know when she died. I was young. I can’t recollect when Jeanne lived here. I was young, and slept with her for two months; she was housekeeper. She remained here some time, and then went to live at Massat, at service. She remained here for one month after the death of her mother, and I stayed with her at her mother’s house. . . When she resided here she was not mar*68ried. I have heard she had a child. . . Her reputation was good when she lived here. I only heard that she had a child, after she came hack from America. . . I saw her when she came back from America. She did not speak of her child. She said nothing as to the cause of her return.”
Benoit Carajolle, one of the claimants to the succession, was examined by the Commissioners. I must reject his testimony—with the less regret, however, from the circumstance that he knew nothing of the facts except as gathered by hearsay from his mother, when Jeanne returned from America in 1815, to reclaim Ferrié.
This is the substance of the proof taken at Biert. So far as it goes, it shows' that Jeanne had a fair reputation while she remained at home; that she removed to Massat shortly after her mother’s death; that no repute of her intercourse or marriage with Valentin Ferrié ever reached Biert, and the birth of her child was not known there, even by rumor, until after her return from the United States.
It must be observed, however, that these witnesses show very little intimacy with the family of Jeanne. Hone of them were aware that she had brothers, and although Biert is one of the smallest of villages, they were all, except Anne Marie Noble, ignorant that her mother died at that place. It does not appear from this evidence that after her removal from St. Girons, where she formed her connexion with Valentin Ferrié, Jeanne ever returned to Biert until 1815; nor does any report even of her residence at St. Girons, seem to have reached her former home. In this state of general ignorance then, the absence of a special report as to her marriage is not surprising. The major includes the minor. Nothing was known or heard of her; and the basis, therefore,' of any particular reputation was wholly wanting. From such a blank of information it would be quite as reasonable to presume she was dead as that she was not married.
II. We will now proceed to Massat, a village four miles from Biert, of about one thousand inhabitants, where this *69young woman had a domicil after the decease of her mother. Espagnac, a witness seventy-one years of age, testified that he knew Jeanne as a servant with Espagnac, a notary, and subsequently in the family of Adone, the father-in-law of the witness. He says, “ she lived here very modestly, and led a virtuous life,” and “ had no intimate relationship with the young men of the village.” He never heard of her being married, nor until lately, that she had had a child. Adone, sixty-six years of age, states that Jeanne came from Biert, and lived at his father’s house one or two years, and then went to St. Girons. He says, “just before coming to live at my father’s house as a servant, she gave birth to the child in the neighborhood of St. Girons. The child was born about two years before coming to our house to live, during which time the child was at nurse. The fact of her having had a child was known to my family at the time she was a servant at my father’s. The reputed father of this child was one Espagnac. . . After she left Massat, she returned to it twenty years afterwards, and lived at my father’s house for a month, not as a servant, but as a guest and acquaintance. . . She went to the environs of St. Girons to find her child, and had it brought to our house, where I saw it. She stated to the family that ’twas her child. . . She stated to us on her return that she was married in the United States, and that her husband himself had sent her to get this child, because they themselves had none. She said that her husband knew that this child was hers. I do not remember what name this child passed by. At the time of her return the child was nine or ten years old. Her general reputation was light. . . I never knew her to call the child in question anything but her son.” Jeanne Lescoulie, eighty-two years of age, deposed that she knew J eanne Icart about sixty years ago, when living at Espagnac’s. She says: “ She was about the same age as myself, and was a comrade of mine when I was a girl. . . Her general reputation was that of a gallant, loose girl. .. I knew Jean Espagnac; he was not married; his father sent Jeanne away from the house, because he discovered relations *70of intimacy existing between them. I knew Jeanne was gallant at that time, because she was the same age as myself, and gave me her confidences.” Magdelaine Benazet, seventy-two years of age, was acquainted with Jeanne sixty years since. She testifies, “ She was my friend. . . During the time she was at Massat she lived in no other family but M. Espagnac’s. I knew her well all the time she lived at Massat, from her first arrival here... . Her character during the time that I knew her, and while in this part of the country, was always good, and that of a modest girl. I know that her reputation in Massat and the neighboring village was irreproachable. I knew Jean Espagnac formerly. I do not know of any liaison between him and Jeanne, and never heard of any such rumor.” Rogale, seventy years of age, states his acquaintance with Jeanne, and then says: “Her character was good. I never heard anything against her reputation. I have heard it said she had had a child. I don’t know what became of that child.” Hone of these witnesses ever heard of the decedent’s marriage or cohabitation with Ferrié; but there could not have been any repute of that connexion when she was living at Massat, because her residence there, 1796-8, preceded her intimacy with Ferrié from two to four years. And as to subsequent repute, no information in respect to her abode at St. Girons appears to have reached Massat, and consequently there was no basis for a particular reputation. Nor had any of these witnesses ever heard until recently that Jeanne had given birth to a child—• except Adone. He tells a strange story, to the effect, that she had a child two years before coming to live at his father’s house, by Jean Espagnac, in the neighborhood of St. Girons; and Jeanne Lescoulie says there was some intimacy between Jeanne Icart and Jean Espagnac. Lescoulie is related to one of the French claimants to the succession. The tale is refuted, however, upon the face of Adone’s own testimony, for he distinctly says, “ she came from Biert to reside with us, and remained with us one or two years. She left for St Girons at the termination of that period.” All the *71proofs agree with this—that she came directly from Biert to Massat, and in 1798 went to St. Girons. The child was born in 1800, and yet Adone would have it born in 1794, at St. Girons, when she was living with her mother at Biert. But Adone was only nine years old in 1798, and his brother-in-law Espagnac, who was then fourteen, and lived in the same house with him, never heard the rumor, but on the contrary, gives Jeanne an excellent character. Magdalaine Benazet knew Jean Espagnac; Daffis was well acquainted with Espagnac, the father; but neither of them heard of this pretended intimacy. Adone is strangely contradictory on another point. The child, he says, was born about two years before Jeanne came to Massat, say in 1794; she remained there one or two years, then left, and returned twenty years afterward, and the boy was then nine or ten years old. No dependence is to be placed upon a witness so ignorant or careless. Upon the whole, then, the clear preponderance of testimony is in favor of Jeanne’s good character while residing at Massat.
III. The proofs taken at St. Girons require a more critical examination, as we here approach the theatre of the events upon which the elucidation of the case intimately depends. To judge properly the bearing of this testimony, it is necessary to keep in mind a few dates. In 1798, Jeanne went to St. Girons, and entered the family of M. Anere, as a domestic. Her son was born in 1800. She subsequently went to Bordeaux and formed an intimacy with Henri Du Lux, came to the United States in 1806, and did not return to France until 1815, when she sought out her son, and placed him with Anere, at St. Girons, to be educated. With these landmarks in view, we shall be able to see in some measure how far the witnesses speak from knowledge or from hearsay.
In the house immediately adjoining that of M. Anere at St. Girons, where Jeanne was domesticated, lived Balthazar Ferrié, a tanner. His son Valentin became attached to Jeanne, their love was mutual, they yielded to its impulses, *72and became the parents of the child,. who now, after the lapse of fifty-six years, claims the succession to his mother’s, estate.
Gerons Victor Ferrié, whose father was cousin to Valentin, was born in 1813, and yet he speaks very freely of events that occurred before he was born, and says, that Jeanne “ lived at M. Anere’s as a servant; . . I know that she had a child by a person named Ferrié; . . I knew the applicant Ferrié when he lived as a servant with Anere (1816-1821), when he first went there ’twas as a servant.” The witness was only three years old when Ferrié was placed with Anere, and eight when he went to Bordeaux.. As to tradition, he says, “ I have always heard that he was illegitimate. It was my father who told me that' Jéanne Icart had had a child by a person named Ferrié. . . I cannot recollect any one who told me he was illegitimate except my father. It is principally since the death of his mother, that I have heard it said that he was illegitimate.”
Vidal, born in 1805, testified as follows:—“ I remember Jeanne Icart. I think I saw her in my youth at M. Anere’s. I never knew her parents. I don’t recollect how long since Jeanne Icart lived here. I only remember her when she left St. Girons. She lived no where else but at M. Anere’s to my knowledge. She lived at M. Anere’s as a servant.” Now Jeanne arrived in New York in 1806, and there is no proof that she ever returned to St. Girons between 1804 and 1815; and the period at which she was living with Anere “ as a servant,” was before this witness was born. Vidal claims to have been an intimate friend of Ferrié, mentions the place he was put to nurse from “ general report,” and also says “ his supposed mother was Jeanne Icart, and his supposed father was Valentin Ferrié. I never heard of any report of marriage between the parents. . . I have heard he was a natural son of Jeanne Icart. I heard it from all the world; it was the report at this place, before he left here for Bordeaux. I can’t remember any one who told me so.” Pauline Bigourdan, born in 1805, testifies, that she made the acquaintance *73of Jeanne when she came to hunt up Ferrié in 1815. The witness was niece of Anere, and frequently saw Ferrié at his house. She says, “ I heard that the child was illegitimate. I heard it when she came to seek the child. I heard that this woman, who had been a servant here, had had a child, and had come to take it away. I can’t remember any one who told me so. I have heard my uncle speak of the child as illegitimate. I have heard my aunt speak of the child as illegitimate.”
Daffis, seventy years of age, deposed that he knew Jeanne Icart; “ she lived here at St. Girons, opposite to me, at hi. Anere’s, a couple of years or so—I don’t know how long exactly—she was a servant there. I don’t know that she was ever married to any one named Ferrié or to any one else. She lived here with a man named Ferrié; I cannot recollect exactly how long, but was one or two years, I think. She had a child by him. It was born and baptized at St. Girons. I don’t recollect when it was born; I don’t know in what house it was born. . . She bore the name of Jeanne Icart during her residence here. Valentin Ferrié was the father of the child. I say he was the father because he and Jeanne kept company together. Valentin Ferrié was born here. He was six years older than I was. I knew him well; he was a tanner by trade. I don’t know whether he was married to Jeanne Icart. He did not live with Jeanne Icart as her husband at the time I knew them. His father was opposed to his marriage with Jeanne. He stole leather from his father to provide money for Jeanne. He died in Spain—was assassinated. He went to Spain to carry on his trade, in 1808-9-10. . . I knew him all the time till he left for Spain. We were associates and tanners together. As to John P. Ferrié, I don’t know when he was born, but I believe it was between 1800 and 1802. When his mother was about to be delivered, she left M. Anere’s house to give birth to the child. I knew that she left M. Anere’s for that purpose, because I was then opposite neighbor, and on inquiring for Jeanne, I was told she had gone next door to be delivered, and *74the next day I inquired, and was told she had had a hoy. Some of the neighbors told me she had gone next door, and it was the neighbors told me she had had a boy. I don’t know whether he was placed at nurse or where. The child lived at Balthazar Ferrié’s. . . The child was called Ferrié here. . . I don’t know whether there was any reputation of the marriage of his parents. . . I don’t know whether the child was legitimate or illegitimate. The general report was ’twas a natural child. The father of the child never spoke to me of his relations towards the child. He never told me that he was married to Jeanne Icart, or that he was not married to her. He never said anything to me about it. I can say from my own knowledge that she was the ‘ bonne amié of Femé, whether she was his wife or not, I do not know. My. reason for saying that she was his ‘ bonne amié was because when she went to Biert, Valentin Ferrié accompanied her. I have no other reason than that for saying so. . . I knew Jeanne Icart all the time she lived at Anere’s, and Ferrié during the same period. . . After I left St. Girons I never saw Ferrié or Jeanne. . . Ferrié was a respectable young man, industrious, and a good worker. I never knew that he had had any children, or intimate relation with any other woman than Jeanne Icart. Jeanne had no relation with any other man than Valentin Ferrié. I never heard anything against her reputation with reference to other men here. Valentin Ferrié’s father alluded to her as his son’s bonne amie.’ . . The position of Ferrié’s family was much better than Jeanne’s. Valentin Ferrié’s father was very much opposed to his son’s marriage with Jeanne. The position of Ferrié’s family was very comfortable. I never heard of any thing said of a pro-nosed marriage between Jeanne Icart and Valentin Femé.” Margot Labat De Galai, about eighty years of age, deposed that she knew Jeanne Icart, and her mother when she came to see Jeanne at Anere’s. I never knew her father. I don’t know when or where her mother died. I cannot say when Jeanne Icart lived here. She lived at M. Anere’s, I don’t know for how long a time. She was servant there. I don’t *75know that she was ever married to John P. Ferrié or any other person. She lived with Ferrié here a long time at M. Benoz’, at St. Girons, at the entrance of the city. She went there to be confined. They lived together there. She cohabited with him there. They had an infant named John Pierre. The child was born at H. Benoz’. The infant was baptized at St. Giron’s. I don’t know when she left here. The only name she bore was Jeanne Icart. The father of this infant which was born of Jeanne Icart was Valentin Ferrié. I don’t know the name of the mother of Valentin. His father’s name was Alexis. Valentin was bom and resided at St. Girons. He was a tanner. I don’t know if he was married to Jeanne Icart. I don’t know that he cohabited with her as husband. Valentin lived with her some time before and some time after the accouchement. They lived together at that time as if they were husband and wife. I don’t recollect precisely, but it was over two months. . . I know the child of Jeanne Icart. He was born at the house of M. Benoz. The child was sent to nurse. I don’t know how long the child stayed at nurse, but it was sent on the morning after the birth, and Jeanne made the bargain and paid the nurse. I don’t know in whose name the child was sent, as they, Valentin and Jeanne, were both together what----- sent. .. The parents were Jeanne Icart and Valentin Ferrié. I understood they wished to be married; whether they were married or not I don’t know. He only passed as her son at St. Girons. He saw Jeanne Icart often. He was treated by her as a kind mother. The child of Jeanne Icart, I don’t know if it was legitimate or not. I don’t know if they passed as husband and wife or as lovers. I never heard of a marriage existing between them. I came to Jeanne Icart immediately after the accouchement, and found Ferrié there with the midwife. I was there a moment after the accouchement. The midwife was named Pujuquet. The midwife is dead. I remained there an hour or an hour and a half. I visited Jeanne Icart often. I don’t know who paid the costs of the accouchement, whether it was Ferrié or Jeanne, as they were *76both there together. I heard Jeanne Icart speak often of Ferrié. I can’t remember if she called Ferrié her husband or her lover, I have heard her called by the name of Jeanne Ferrié. I have heard Ferrié speak of her by the name of Ferrié. I knew Jeanne Icart after that, two or three months. I don’t know how long after that, before Ferrié left here. I recollect very well that they both went to see the child at nurse; and they went to Bordeaux together. I don’t know if they returned or not. I have heard people call her Madame Ferrié many times. I don’t know if they were married or not. I was a companion and intimate friend of Jeanne. The people of the quarter in which she lived called her Madame Ferrié. I don’t know how old I was when that accouchement took place. I was employed by Madame Anere to take things to Jeanne Icart; that is the reason I was there at the time of her accouchement. I am not yet eighty years old, but pretty near it. When Madame Anere sent me with things to Jeanne Icart, she told me to take these -things to Jeanne Icart’s. I have heard Madame Anere call Jeanne Icart by the name of Femé many times, and M. Anere called her by that name. Ferrié never called Jeanne Icart to me by the name of Ferrié, because he always spoke of her to me as Jeanne. I don’t know if Valentin Ferrié ever addressed Jeanne Icart by the name of Ferrié. I never stayed there to hear their conversation. I don’t know, if when Ferrié. spoke of Jeanne Icart, he spoke of her as his wife, or his bonne amie or as Madame Ferrié.”
Balthazar Ferrié, forty-six .years of age, a cousin of the claimant, and son of Alexis, Valentin’s brother, could, of course, only speak of reputation. He was but six years old when Jeanne returned to St. Girons, in 1815 ; and although he says she called Ferrié “her son,” he also deposes, “I can’t remember when Jeanne Icart left St. Girons. I can’t say whether she ever returned.” He was about twelve years old when Ferrié went to Bordeaux. He states that Ferrié’s supposed parents were Valentin Ferrié and Jeanne Icart, and that “ the child was reputed illegitimate.”
*77Catharine .Femé, the sister of Valentin the claimant’s father, sixty years of age, testified that Valentin was twenty years older than herself. She says “ Valentin remained at St. Girons a long time, and then left for Spain. I don’t know if he was married to Jeanne Icart. I don’t know if he ever associated with Jeanne Icart as husband and wife. He was killed on the road between Spain and France, coming with a cart. He was killed by brigands on the road.” She was ignorant of “the time and circumstances” of Ferrié’s birth; whether “ he was placed at nurse, if he was baptized, who were his reputed parents, or anything about him,” but says she is sure Valentin was not married, “ because Valentin quitted the house and occupied a chamber with a woman who was a servant next door, and my father was opposed to this marriage. This Jeanne during this time was the bonne amie of my brother Valentin. My family recognized her as the bonne amie and not as the wife of my brother, and were opposed to that. I resided at St. Girons during the whole time my brother was connected with this woman. I have said they disappeared together about the same time. I can’t say precisely when. I can’t say when my brother left St. Girons, I was so young then. I don’t know where he went then. I don’t know if he went to Spain, or where he went. I have not heard of my brother having a son. He had a child by Jeanne, which died young, I have heard it said. My reason for saying the child died was because I heard so. I cannot recollect any one who told me. The child was not recognized at all, as it died right away. . . After Valentin left his father’s house he never returned to it again to live. His father refused to hold any relations with him. Valentin wished to marry Jeanne. His father did not wish him to many Jeanne, and his father would not hear it spoken of, and forbid the children to go to see him after he left the house. Valentin wished to marry her before he left the house. I was too young for him to talk to me about it, but it was well known in the family and discussed. Valentin worked at his occupation with his father, but after his flight from the *78house he worked with him no longer. He worked with some of his brothers, who were of the same trade and had tanneries. I know of no other objection that his father had to the marriage, than that she was a servant. On that account the family were opposed to it. Valentin’s character was very good. He was not a dissipated, wild young man. I never knew or heard of his having any connection with any other woman than Jeanne. He was industrious and steady. I don’t know if he provided Jeanne with money. Jeanne had a good reputation. I never heard it said or knew of her having any intimate relations, or being connected with any other man than my brother Valentin. I never heard her called anything but Jeanne.” This witness stated that she was married forty years ago, and it must have been “ ten years or thereabouts,” before her marriage, that Valentin and Jeanne disappeared. “ She disappeared first, and at the end. of some days he disappeared.” Ribat, sixty years of age, knew Valentin Ferrié, and says “I cannot recollect distinctly when he died. I think they told me ’twas in 1811.” He states that he last saw Valentin in December, 1811, at the city of Bayonne. “ He came to Bayonne for goods, to take into Spain. I left there for Toulouse; he left for Spain. I left St. Girons in 1809 to go to Spain. Valentin Ferrié had left more than two years before me.”
IV. This completes substantially the parol testimony taken under the commission. A large portion of it is entirely unimportant, and as to the remainder, it is manifestly unsafe to rely upon many parts relating to material points. From fifty to sixty years have passed since the occurrence of the events, in respect to which the memory of these witnesses has been invoked. But few of the acquaintances of the parties have been found living. Suppose a marriage consummated fifty-six years ago, between a young artisan, and a poor domestic, each dependent for their livelihood upon the labor of their hands, without the means of establishing a home, and compelled by their poverty to live separately and *79to place their offspring in the charge of strangers. Let these events occur in a city of over five thousand souls, and how could it be expected after this lapse of time to find any distinct traces of the habit and repute of the parents as husband and wife. The period of their intercourse was brief; they soon disappeared from the scene; there was nothing remarkable in the circumstances to attract attention and impress the mind; the father and mother of Valentin are dead; the family in which Jeanne lived, are dead; and most of those who have been called upon to throw light on the transaction were either casual acquaintances, or were of such tender age at the time as would exclude them from the sphere of reliable testimony. A certain degree of dependence may be placed upon the recollection of young persons, and it lies in the experience of every one to remember some events of very early childhood, which stand out along the course of our remotest reminiscences, like luminous points. Conceding this to the fullest extent, it is obvious that in respect to matters of no special interest, having no domestic connection, and which relate rather to repute and hearsay than to actual occurrences, it is very dangerous to depend upon the testimony of persons quite young at the time, and now after an interval of some fifty or sixty years, to determine important rights upon evidence of conversations where slight variations from accuracy would materially affect the issue.
But let us examine the proofs more closely, and in doing this distinguish between evidence of facts—reputation at the time of Ferrie’s birth—and reputation subsequent to 1815, when he was living with Anere. There are but four witnesses who speak as to contemporaneous facts and repute, Daffis, De G-alai, Ribat and Catharine Ferrie. Of the others one witness was born in 1813, two in 1805, and one in 1809. Ribat does not appear to know anything about the case, except that he last saw Valentin Ferrie in 1811. The evidence then is narrowed down to three; Daffis an acquaintance of the Ferriés, De Galai, an attendant on Jeanne at the accouchement, and Catharine, a sister of Valentin. Daffis *80was then from 13 to 15 years old, and he says Valentin was six years his senior. Though they were associates together, Valentin never spoke to him of his relations towards the child or its mother,—whether Jeanne was Valentin’s wife or not he does not know, hut he says she was his “ bonne amie” If by this term he intends to indicate an illicit connection, the reason he gives for it is insufficient; “ my reason for saying that she was his bonne amie, was because when she went to Biert, Valentin Ferrié accompanied her.” He heard nothing from Valentin on the subject. He learned from Valentin’s father, however, that the young man stole leather to provide Jeanne with money, and says he spoke of her as his son’s “bonne amie” and was very much opposed to their “ marriage.” This is the sum of Daffis’ information at the time as derived from the parties. Giving the words “ bonne amie” their worst signification, there is nothing in this evidence inconsistent with the marriage in 1800, for no doubt before that period Jeanne and Valentin had unlawful intercourse, and to give any materiality therefore to the declarations of the father on this point they must appear to have been made after the date of the alleged marriage. Daffis, it is true, states that Valentin did not live with Jeanne as "her husband, but then again he says she lived with Ferrié one or two years, that Valentin never spoke to him on the subject, and whether Jeanne was his wife or not he does not know. He understood the child was born in the next house to Anere’s, but does not know whose house it was—though he lived opposite. At one stage of his examination he says that Jeanne left for Bordeaux and he knew Valentin till he went to Spain, and at another he says, “ after I left St. Girons I never saw Ferrié or Jeanne.” He stated also that there was a Balthazar Ferrié living at St. Girons who was the godfather of the child, and when the supposed sponsor was produced, it turned out that he was born in 1809.
Catharine Ferrié, the sister of Valentin, was born in 1195, and was only five years old when Ferrié was born. It hardly seems worth while to discuss the evidence she has given, for, *81from the nature of the case, it can only consist of impressions derived from an early period of childhood. Ho doubt some dependence is to be placed upon the general tenor of these impressions, and in the main they agree with the facts otherwise indicated, but it would be unwise to lay much stress upon them at this distance of time. As a guard against confidence in the accuracy of such family traditions, we are confronted "with the assertion by this witness, that “ the child died young,” “ right away,” a species of proof which would disprove Ferrié’s existence as well as his legitimacy.
If we pass now to De Galai, we find quite as much room for criticism. She says she knew Jeanne’s mother when she came to see her at Anere’s, and yet the mother was buried three or four years before. She states that Valentin’s father’s name was Alexis, instead of Balthazar; and that Ferrié’s mother visited him at Anere’s after he was brought back from nurse, whereas she was never at Anere’s with the child, unless on her way to Bordeaux, after she had found him in the Pyrenees.
It is obvious to my mind after a careful examination of the evidence, that the witnesses, including the three now under review, mingle in a greater or less degree information derived from hearsay, or from facts developed in this country before the commission was issued, with their own knowledge and recollections. It is difficult, if not impossible, to distinguish between these sources, and the greatest caution is necessary therefore in judging of their testimony. Still there are certain leading and prominent facts in regard to which it would be unreasonable to make question. Here was a young and attractive if not beautiful woman, of good reputation, living in an adjacent house, as a domestic: Valentin Ferrié forms an attachment for her which is reciprocated: his parents frown upon the affair, but as one of the witnesses expresses it “ there was a wall between them—that is all”—and their intercourse was continued. They desired to marry, the father was opposed to it, and Valentin left his home and occupied an apartment with Jeanne. Before their child was born *82bans of the proposed marriage were published. The child was placed at nurse, and about a year afterwards Jeanne leaves St. Girons. Catharine, the sister of Valentin says, “he occupied a chamber with a woman who was servant next door, and my father was opposed to the marriage.” De Galai says, “Valentin lived with her some time before and some time after the accouchement; they lived together at that time as if they were husband and wife; I don’t recollect precisely, but it was over two months,” and Daffis states “ she lived here with a man named Ferrié, I cannot recollect exactly how long, but it was one or two years I think.” These in substance are about all the facts of consequence elicited, excluding mere hearsay and repute.
That for a time this couple were consorting together without the sanction of the matrimonial celebration is undoubted, that they were anxious to remove this blot is equally clear, and there can be no question that at one period Valentin’s father was opposed to the match. Daffis states that he does not know whether there was any reputation of the marriage, but the general report was that the child was illegitimate. He mentions no person who told him so, and though professing considerable intimacy with Valentin, admits that he never spoke to him concerning his relations to the child or its mother. It is somewhat remarkable, had much intimacy existed between them, that he does not refer to the bans of marriage published before the birth of the child. I have already noted several errors in his testimony and am inclined not to place much stress upon his assertion of a “ general report” fifty-six years ago, which is not traced to the friends, or the family, or the acquaintances of the parties. Catharine Ferrié who was only five years old at the time, says she never heard any thing as to the legitimacy of the child, and she understood it had “ died right away.” She denies the marriage, and on this point she possibly expresses the belief of Ferrié’s family. De Galai is ignorant of the marriage, but she expresses no contrary reputation. She states, however, that the people of the quarter in which Jeanne lived, called *83her Madame Ferrié, and she heard M. and Mde. Anere call her by the same name. It is difficult upon such a state of facts to say that the evidence on the subject of repute is satisfactory either for or against the marriage.
Passing over the intermediate period down to 1815, when Jeanne again appeared and as Madame Du Lux reclaimed Ferrié as her son, we find fresh statements on the subject of reputation. She then publicly recognized the child and declared that her husband knew it was hers. She assumed the duties of maternity, and the boy was placed with her old master Anere, under the family name of his father. Under all the circumstances attending this strange and singular case, it is not surprising that a rumor should have arisen as to his illegitimacy. His mother made no secret of the relationship, but still her desertion both of father and child, and her subsequent connection with M. Du Lux would naturally have originated suspicions unfavorable to her fair fame. This is not a kind of repute which possesses much force. There are only two witnesses who profess to have received information on this point from parties who were living at the time Ferrié was born—Victor Ferrié and Pauline Bigourdan. The former says his father told him Ferrié was illegitimate, and the latter that she heard a similar statement from M. and Mde. Anere; but I am not clear upon the face of the testimony whether these witnesses meant to state that any thing more was communicated, than that Jeanne when she lived at St. Girons, “ had had a child by a person named Ferrié.” Pauline Bigourdan was from ten to sixteen, and Victor Ferrié from two to eight years old, when Ferrié the claimant was living at St. Girons.
V. With these facts before us, let us next proceed to the consideration of the documentary evidence, and to the determination of the legal principles by which all the proofs are to be tested in their judicial weight and estimate.
A question of marriage and legitimacy is always deeply interesting, leading to the investigation of the most tender and intimate intercourse of life, laying bare the secrets of the *84heart, unveiling domestic privacy, and involving relations which lie at the very basis of natural and social right. It concerns our common humanity, for there is no class or condition beyond the reach of occurrences which may call for judicial determination upon the claims of husband, and wife, and children; and there should always therefore be the most grave and considerate care, that in deciding the particular case in view, the mind should be kept as free as possible from specialties, and incline rather to such broad and catholic rules as are adapted to all classes and all cases, from being founded upon the fundamental principles of our nature, and a just view of the constitution of civil society, the rights of its members, and their mutual happiness and well-being.
Before proceeding to the examination of these rules I would observe that there is no conflict in this cause, among children claiming under different marriages. There are cases in which the contest has been between the fruits of a previous marriage, kept secret, and the offspring of a subsequent ceremonial marriage. But it is not so here; there are no dormant rights to establish against other children; no hard claims to set up against innocent parties standing in the same relation towards the deceased; but the question is whether Jeanne Icart’s son shall succeed to her estate, or whether it shall pass to remote collaterals.
It is an established maxim that the presumption is always in favor of marriage. Semper præsumitur pro matrimonio. (Steadmam vs. Powell, 1 Add. R., 58.) There are certain legal rules in relation to presumptive evidence, which are approved by reason, sound policy, the common sense of mankind, and for the honor of jurisprudence, I may add, charity. They are not accidental rales, but have their basis laid broad and deep in the immutable principles of morality and equity, and their observance is largely conducive to the order, happiness, and welfare of society. There are also degrees in the weight or force of different presumptions; and here again the law is not so cold, nor so regardless of humanity, as to reject with stoicism the claims of charity and the appeals of help*85less orphanage. Some presumptions are especially favored, and among them may be classed the presumption of innocence, and that all things have been rightly done. For example, the mere cohabitation of two persons of different sexes, without any proof one way or the other to characterize the connection, affords an inference of marriage, the preference being given in favor of the moral rather than the immoral nature of the intercourse. (Taylor vs. Taylor, 2 Lee, 274.) So likewise where the evidence shows filiation, simply, without indicating the status, legitimacy will generally be presumed, the implication of law being that the intercourse to which the birth of the child must be referred was lawful. (Best on Presumptions, p. 57, 58; Hubback on Successions, p. 248, 250.) These presumptions may of course be rebutted, but in this respect there exists a distinction as to the degree of evidence required to repel particular classes of presumptions. The benevolence of the law is nowhere exhibited more abundantly than in favor of marriage and legitimacy. If there are conflicting claims of marriage, they may so neutralize each other, as to prevent any application of the rule, but otherwise, the legal presumption may be resorted to, and its force becomes greatly increased by the remoteness of the affair which forms the subject of inquiry. It is manifest that when the transaction is recent, the parties are living and the evidences are all at hand, it is wiser to be governed and guided by the light which may thus be afforded, than to trust to mere inference. But where from the antiquity of the event, and the death of the parties, we cannot feel any degree of confidence that the proofs are complete; when from the imperfection of the human memory it becomes dangerous to rely upon testimony of ancient occurrences; and when by accident the clue to an elucidation of the whole truth may have been lost; then presumptions come in with great and controlling force, and impel the investigator, groping as it were in the dark, to seize hold upon those favorable conclusions which the law draws for the protection of man. This view cannot be more conveniently illustrated than by the case of Piers vs. Piers, in *86the House of Lords. (H. L. C., 331.) Two persons who had long been living in concubinage were desirous of marriage, in expectation of the birth of a child; and a marriage was alleged to have been celebrated in form by a clergyman, but no license was shown nor any entry found in the Marriage Register. The bishop deposed that he had never granted a license; six years subsequently the parties performed another nuptial ceremony, in the certificate of which the wife was described by her maiden name; a child born after the first and before the second marriage was baptized as the child of the wife by her maiden name; and still the House of Lords held that so strong was the presumption in favor of marriage, that it was not rebutted by these circumstances. The principle established in this case was that the question of the validity of a marriage cannot be tried like any question of fact which is independent of presumption, for the reason that the law presumes strongly in favor of marriage, particularly after the lapse of a great length of time. The court seemed to adopt the doctrine laid down by Lord Lyndhurst in Morris vs. Davies, 5 Cl. & Fin., 163, that “ the presumption of law is not lightly to be repelled; it is not to be broken in upon or shaken by a mere balance of probability; the evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.” Or as Lord Cottenham stated’ the proposition, “ A presumption of this sort in favor of a marriage, can only be negatived by disproving every reasonable possibility,”—“ you should negative every reasonable possibility.” The particular case to which this principle was applied in Piers vs. Piers, involved only a question of form, the evidence of the marriage itself being deemed satisfactory, but still the same rule may be laid down, though perhaps not so strongly, in favor of the presumption of the marriage contract itself. For example, in Fenton vs. Reed, 4 John. R., 52, the Supreme Court of this State held that when parties had married during the life time of the wife’s first husband and continued to cohabit after his death, though the marriage at -its inception was void, yet after the death of *87the first husband a new contract might be inferred from cohabitation and reputation. In Starr vs. Peck, 1 Hill, 270, a child born ten days before a marriage ceremony between its parents, was declared to be legitimate. There was no evidence of previous cohabitation as husband and wife, though it was probable the parties had agreed to be married. The court refused to disturb the verdict of the jury, saying, “ we are to presume against a notorious act of immorality almost as strongly as we would against the commission of a legal crime.”
The presumption thus charitably entertained by the law in favor of marriage operates with the greatest force when children alone are interested. In such cases it has not been customary in the ecclesiastical courts of England to require such strict proof as would be demanded were the parents living. (Taylor vs. Taylor, 1 Lee’s Cas., 571; Lady Mayo vs. Brown, 1 Lee, 271.) The children at least are innocent, if there has been any irregularity. They have not the same means of knowledge which were possessed by the parties in chief; objections which the parents might readily have answered, suspicious and mysterious circumstances which they possibly could have cleared up' and explained, the children may be utterly unable to solve or elucidate, and the same inferences ought not to be drawn from their failure to do so, as might with propriety be deduced against the parents. “ It is certain,” says Sir William Scott, “ that the illegitimacy of a child may be proved by probable evidence, perhaps by reputation only, but then the reputation must be clear and undoubted, it must be uniform, for if a reputation has existed both ways, the conclusion would be in favor of the marriage.” And again, “ the law is at all times very unwilling to bastardize children.” (Fielder vs. Fielder, 2 Hagg. C. R., 195.) The question of marriage, remarks that distinguished Civilian, d’Aguesseau, “ should be examined in a different manner, when it concerns the validity of the engagement between the contracting parties themselves, and when it concerns the status of their children. After death has broken the bond of unión, less *88rigorous attention is paid to formalities, in order to pronounce in favor of possession, the most sure and inviolable law, when the matter relates to the status of parties.” This same principle pervades the French jurisprudence, down to the time of the adoption of the Code Napoleon, in which an express provision was incorporated, requiring a less strict line of proof in respect to children when the parents are deceased, than in cases where they are living. (Art. 194, 197, Toullier, l. 1 tit. 5, § 608.)
VI. It should not be forgotten, however, that the marriage now under consideration must be tested as to its validity by the French law existing at the time; and though I cannot hope to make such an investigation with the learning and ability it would receive, were the case before a French tribunal, nevertheless it becomes my duty not to shrink from the effort. It will be. seen that the same broad and enlightened principles pervade the jurisprudence of France, which characterize the common law of other civilized nations, on the subject of marriage—the line of judicial thought is similar, and the-streams of justice flow in the same channels. There is little if anything peculiar or exceptional, and this parallelism, which vindicates so admirably the reason of the law as a science, aids the student in his explorations and search after the truth.
The essence of the marriage contract consists in consent. Nature places it upon this pure and simple foundation. Words and forms are only the external indications of this agreement, and are not requisites to its validity. The ceremony may he expedient and becoming, but adds nothing to the intrinsic sanctity and force of the obligation. Before man it may increase its apparent solemnity, but in the sight of God, the vital power of the institution resides in the mutual covenant singly. It consists in “ the present consent, whereby the parties accept each other as husband and wife, whether by words expressed, or tacitly by marital cohabitation or. acknowledgment.” (Stair’s Inst., L. 1., Tit. 4, § 6.) Beyond this, whatever is required by legislation, has the force *89only of a positive civil regulation. The proof of the existence of the marriage, however, depends largely upon the forms required by the local law. Among the Romans, marriage could be contracted without any public formalities, by the mere agreement of the parties, and its proof therefore was drawn from exterior signs. Cohabitation as husband and wife was the ordinary evidence invoked for its judicial establishment. By the Canon law, which was the basis of the ancient general law of Christendom on this subject, consent alone was of the essence of the contract, and this has been the rule in every civilized and Christian community, except as modified by positive regulation. The public solemnity, even when prescribed, was only matter of order; and irregular marriages, including promises to marry, if followed by enjoyment of the privileges of marriage, were sustained as valid contracts. (Dalrymple vs. Dalrymple, 2 Hagg. C. R., 54.) The Canon law, consequently, for a long time authorized the presumption of marriage from cohabitation, until the Council of Trent prescribed the presence of a priest and three witnesses, and the preservation of registers of marriage in all the parishes. This was only an ecclesiastical regulation, but it was confirmed in France by the ordinance of Blois, in 1579; and when that law went into execution, about the year 1600, marriage was no longer presumed merely from cohabitation, where the parties were living, and could point to the time and place of celebration. Still there was no rule limiting the establishment of the marriage to evidence from the register, or prohibiting absolutely a resort to testimonial proof. On the contrary, the ordinance of 1667 expressly permitted testimonial proof, when it was shown that the registers had been destroyed, or had never been kept; and in respect to children, whose parents were deceased, it was eventually settled by a series of decisions, whose authority never was shaken, that there was no necessity of proving the actual celebration of the marriage, whether by the register or otherwise, provided the fact could be reasonably established by other testimony. This exception in favor of children was founded in *90reason and humanity, for it were hard to visit upon the offspring the taint of bastardy, for ignorance of a fact which occurred before their birth. Thus the law stood, until by the edict of Louis XVI. in 1787, the Constitution of 1791, and the act of the National Assembly in 1792, marriage was again recognized merely as a civil contract, the necessity of religious solemnities was dispensed with, and although certain public forms were prescribed, they were not made essential to the validity of the contract, except in enumerated cases. (Toullier, L. 1., Tit. V., § 501.) The Code Civil closed finally the legislation on this subject, and introduced into the statute law provisions regulating the mode of proof, which anterior to that time had been left, untrammeled by positive precepts, to the discretion of the tribunals, under the application of such principles as were approved by justice and sound reason. Even under the Code, however, the children of deceased parents are not put to strict proof of a ceremonial marriage by the production of the register, but when their parents have lived together as man and wife, they may show their legitimacy by proof of their status, if'it be uncontradicted by the aete of birth. In such case there is a presumption of law that the parents were legally united and the children are ignorant of the place of their marriage. (Duranton, L. 1, Tit. 7, § 109, 110, Code, Art. 197.) Although it has been thought that the article of the Code on this point was merely a statutory recognition of the common law previously prevailing, the candid mind must be satisfied, upon an examination of the decisions, that since the Code there is a greater degree of rigor exacted in the production of testimonial proof, than was required before. Ferrié was not, however, born under the dominion of the Code,, and it is more just to illustrate his case by the ancient jurisprudence, than by laws enacted after his status was determined. The most famous of the decisions exhibiting the old law as to the proof of legitimacy, by children whose parents are dead, is one in which the celebrated Cochin was conspicuous, whose argument is quoted by the French jurists, as containing the principles upon which it was *91determined. The children of Barthélemi Bourgelat, son of Pierre Bonrgelat and an Italian woman, made a claim of succession to the estate of their grandfather Pierre, and the question was whether Pierre had been lawfully married, and Barthélemi was his legitimate son. No acte of marriage was produced, nor was it indicated where the rite had been performed, although the place where the parties had first met and subsequently lived, was proved. It appeared that the mother of Barthélemi had, whilst enceinte, submitted to be taken towards a lying in hospital for unchaste females, without any resistance until the last moment, when she declared she was married, and exhibited a paper in Italian, which the officer having her in charge supposed to be a marriage contract, and he dismissed her home. It was also shown that Pierre Bourgelat, the father, had settled upon his son Barthélemi a pension, calling him in the settlement “ mon fils naturel,” and the latter had accepted the grant, styling the donor “pére naturel,” and acknowledging “ une entiere connaissance de ma naissatice et de mon état,” an entire knowledge of his birth and status. These writings had been confirmed repeatedly by acquittances for the pension during a great number of years. Against all these grave facts the claimants had only Barthélemi’s acte of baptism, and the testament of his mother, which gave to his father the title of husband. Notwithstanding, he was declared legitimate, and a decree was pronounced in 1729, in favor of the claimants. This judgment, says Merlin, “ is one of those which have most contributed to strengthen the inviolable rampart of all legitimate children, deprived of the acte of celebration of marriage of their parents, against the rapacity of collaterals.” Nor does it stand alone. There are various other cases in the French courts sustaining legitimacy, on the acte of birth and possession of the status, without proof of the celebration of the marriage of the parents; for example, the arrets in the matter of Potier, by the Parliament of Paris, in 1772; Robin, in the year 12, by the Court of Paris, affirmed by the Court of Cassation, in 1806 ; and Thiériot, decided in the Court of Appeal of Grenoble, in 1807. (Merlin, tit. Legitimite, Sect. 1, § 2.)
*92The inscription, of an infant on the register with the quality of legitimate, is without doubt on the part of the father and mother an important fact, contributing to form the possession of the status of marriage, but it cannot form it alone. (Merlin, ibid.) Other circumstances are requisite, and here it is, the distinction lies between the ancient jurisprudence and the provisions of the Code. Formerly the determination as to the nature and character of the proof to show marriage, was reposed in the judgment of the tribunals; under the Code this discretion is limited by an express provision, requiring evidence that the parents lived publicly together as man and wife. (Art. 194, 197.) The consequence has been that several decisions have been rendered under the Code, applying its regulations in regard to the proof, to marriages contracted before ; and on the other hand, there are conflicting cases, where this retrospective effect has not been given, but the law existing at the time of the marriage has been applied. (Merlin, Tit. Légitimité, Sect. 1, § 2., Quest, vii.) From the investigation I have been able to make, it seems to me that the special circumstances of each particular case have affected more or less the inclination of the court to the modern and more rigorous, or to the ancient and more liberal rule. Ho doubt exists that under the Code the acts of birth only proves filiation and not legitimacy. (Toullier, L. 1., Tit. 7, § 846, 851.) but still there are decisions where very little more than the acts of birth has been received as proof of the marriage of the parents.
VII. B is very clear, then, that to prove legitimacy under the laws of France, the child is not put to ceremonial proof, and is exempted from producing the acts of marriage of his parents. But still the records of St. Girons have been examined, and the failure to find there any acte of marriage is urged against the legitimacy of Ferrié. It is entirely sufficient to answer that the law does not demand such proof. There are some circumstances, however, which are deserving of notice in this connection.
*93It is certified that a fire occurred on the night of 5th-6th Nivose in the year seven, the 25th-26th of December, 1798, which destroyed the public records of the Etat Civil of the Commune of St. Girons. In one of the certificates the date of the fire is said to be “ in the year seven or the year eight and it is also stated that no records exist in the registry office further back than the year eleven. Another certificate declares “ that the registers containing the acts of the civil state from the year 1770 up to 1800, or at least to 1799, were burned at a fire which happened in December, 1798.” These statements are carelessly made, but still the fact appears that no records of an earlier date than the year eleven, commencing in September, 1802, exist in the archives of the District of St. Girons. Of course there could be no acte of marriage applicable to Jeanne Icart and Valentin Ferrié, and no acts of birth applicable to the claimant, before the year eleven, and so it is certified. Some records however appear to have been preserved at the Mayoralty, and among them actes of baptism in 1790 and 1791, and actes of birth, actes of marriage, and publications of marriage, from the year seven. From these records no acte of marriage between Valentin Ferrié and Jeanne Icart has been produced, nor the acte of birth of Ferrié, the claimant, although it is not certified that a search has been made for the latter.
On the fourth of May, 1800, the following notice of publication appears to have been entered in the register of the Mayoralty of St. Girons. “ This day, the fourteenth Floréal, the year eight of the French Republic, I, the Municipal Agent of the Commune St. Girons, have published aloud by word of mouth, before the outer and principal door of the Municipal Hall of St. Girons, in execution of the law of the twentieth of September, seventeen hundred and ninety-two, old style, that Valentin Ferrié, nineteen years of age, son of Balthazar Ferrié, and of Frances Gazes, tanner, resident of St. Girons, and Jeanne Icart, twenty-one years of age, daughter of Jean Icart and Magdalene Riviére, native of Massat, resident of St. Girons, intend to execute the aote of their marriage on *94the twentieth of the current month, at ten o’clock in the morning, before the President of the Municipal Administration of the Canton of St. Girons: and I have caused this present publication to be posted up by copy before the door.” On the margin of this record the word “ neant” was written, apparently as ancient as the body of the instrument, and a cross was drawn over the face of the acte. Hone of the actes in the book were signed.
Was this acte of publication annulled by proper authority in consequence of the refusal of the father of Valentin to consent to his marriage? The law of 1792 required actes of publication to be signed by the public officer. None of the actes contained in this volume of records were so signed. When marriage was opposed by the parties whose consent was required, there should have been an acte of opposition signed by the opponent, and “ a summary mention of opposition made by the public officer on the register of publicationsand when the validity of the opposition was determined, the officer was required to note the judgment “ in the margin of the record of opposition on the register of publication.” The act also declares that all opposition aside from the cases and forms designated “ shall be regarded as not offered, and the public officer may proceed to the acte of marriage.” It seems obvious therefore that if the word “ neant” written on the margin of the acte of publication in question was designed as a record on the ground of parental opposition, the provisions of the law were not complied with. The records themselves are irregular from wanting the signature of the officer, and the acte of nullification, if founded on opposition, was irregular, from not noting the opposition and the judgment. Nor are there any searches produced for the actes of opposition or the judgments thereupon, so as to afford the means of seeing whether the publication was annulled on that ground. We have nothing more than an ancient record crossed, and the word “ null” written in the margin, without knowing when, by what authority or under what circumstances this was done. We do “ know, however, that it was not annulled in legal form.
*95But it is said no acte of marriage has been found. True, but the records are not indefectible. The Code Napoleon (Art. 46, Toullier, liv. 1, tit. V., § 599, 884,) provides for the contingency of the destruction of registers, and in such event admits parol proof of marriage and birth; and it has been decided that the provision relates to partial mutilations. The following case illustrates this'point. After the decease of Jacques Saboués, Frangoise Sanade claimed to be his wife by a marriage contracted in the year 1809, before the Mayor of the Commune of Renung, and the claim was contested by the father of the deceased. On examining the registers, the actes of publication and celebration could not be found. It appeared subsequently that Saboués during a severe illness had been married privately, that on being restored to health, he was fearful his marriage would be declared null for defect of the consent of his father, and during the absence of the secretary of the municipality had entered his office, extracted the leaves of the register relating to the marriage, and altered the marginal paging—which mutilation he after-wards confessed. The court decreed that the marriage could be proved otherwise than by production of the acte, and that it was not invalid because it had not been celebrated publicly. (Duranion, Cours de droit Francais, Liv. 1, Tit. 5, § 249.) This instance shows that the mutilation of the records is quite supposable, and it suggests a motive which might have existed in respect to the records of Ferrié’s marriage. There is also the case of Jeanne Marie Caniven whose marriage with Jean Antoine Rivayran, in 1793, was celebrated before the curate of Castres, and also before the civil officer of the Commune, but the latter had omitted to inscribe the marriage upon the public register. The fact was proved by five witnesses, and the marriage was confirmed by the Royal Court of Toulouse. This was under the law of 1792, and in the same quarter of France where the claimant was born. Of course, the mutilation of documents will not be presumed, but there certainly should have been such an examination of these records of marriage as would have removed the possibility of doubt as to *96their integrity. At this distance of time we are ignorant of the manner in which the registers were originally made up, and it does not follow inevitably, that if the act of marriage was performed, it was recorded, or the record kept. In the case of Piers vs. Piers, in the House of Lords, a marriage by license was presumed, though the bishop testified no license had been granted, and there was no entry in the registry of marriages. In the present case we have proof of the baptism of the claimant Femé, and although the law was just as imperative in respect to actes of birth as to aetes of marriage, no acte of birth is produced. And yet we cannot doubt the birth and the baptism. Duranton says, “ The declaration of the birth of an infant may have been neglected to have been made. In disregard of the law it may have been written upon a loose leaf, which has been lost or torn out. It is possible also that in consequence of invasion, civil troubles, or contagion, no registers have been kept, or that by some accident those which have existed are lost or that the acte of birth has been suppressed by fraud. In all these cases the infant deprived of title will not nevertheless be despoiled of his status. If contested, he can prove it by the possession in which he has lived.” (Liv. 1, Tit. 7, § 127.) These hypotheses maybe indulged as well in regard to the acte of marriage as to the acte of birth. From some cause unknown we have not the latter; is it too violent a presumption to attribute the absence of the acte of marriage to a like cause ? That under the new system introduced at the Revolution there should have been irregularities by the public officers, is quite probable, especially in the country, and it was not till the year twelve, that the Minister of the Interior addressed forms of the actes to the various functionaries in order to prevent these irregularities. (Duranton, Liv. 1, Tit. 2., § 290.) The records at St. Girons have been subjected to one of the calamities foreseen by the Code Civil. The fire which occurred in the year seven, destroyed the larger portion of the registers. The records of the Mayoralty from that time are existing, but for some reason unexplained, those of the Tribunal of the First Instance do not reach further back than the beginning of the year eleven: *97so that the means do not exist of correcting any possible error or irregularity in those remaining at the Mayoralty. I conclude then upon this branch of the case, from the existence of actual irregularities; such as the default of the officer in not signing the actes of publication, and the loose, unattested and unexplained act of the nullification of the bans; from the absence of the acte of birth, and from the destruction of the records which might have led to detection of defects in the registers of the Mayoralty, that it is not impossible that there may have been a public act of celebration of marriage. It is true the presumption of law favors the rule that all things have been rightly done—but the presumption for marriage is so much stronger that, as in the case of Piers vs. Piers, the silence of the register is not enough to prevail against it.
If it be said that there is no proof of the publication of the bans—supposing for the moment that the bans produced in evidence were properly annulled—I answer that this provision of the law was merely directory, and an omission to comply with it is not ground of nullity. Even under the Code Civil marriages not contracted in the Maison Commune, nor before the proper officer, nor on previous publication of the bans, are not void, though they may be attacked and annulled for irregularity. (Art. 191, 192, Duranton, Liv. 2, Tit. 5, § 333, 334, 335, L. 1, Tit. 5, § 124.) The single question therefore in all this class of cases is, whether the marriage was contracted before a priest or civil officer—a failure in which respect is the only ground of nullity. Prior to the act of 1792, the marriage might be shown by testimonial proof, when it could not be otherwise established. If the aote itself could not be produced, and circumstances excused the omission, it was allowable to have recourse to evidence of a different nature. There was no special rule prescribed by the law of 1792, and as that law, in relation to the ceremony, merely substituted the civil officer in place of the priest, the principles of evidence previously existing, in the absence of any new rule, were not changed. (Merlin, Mariage, Sect. 1V., § 1, Art. 1, Quest. § 2 ; Sect. 5, § 1.) It was accordingly decided *98in the case of Barbier, that a marriage celebrated in June, 1798, but not inscribed on any public register, was not void, but other proofs might be invoked to show its celebration. (Journal du, Palais, XI., p. 177.) So also in the case of Lanefranque, where the marriage was celebrated at the house of the bride’s father, the acte was inscribed upon a loose sheet of paper and afterwards transferred to the register, the Court of Cassation held, that under the law of 1792, the marriage was not void in default of solemnization at the Maison Commune or for want of inscription upon the stamped register ; and this ruling was placed on the ground that the law of 1792 had not attached the pain of nullity to the provisions requiring these forms. (2 Journal du Palais, p. 717.) In Bertrand vs. Delatinne, the marriage was contested for want of the previous publications demanded by the act of 1792, but was held valid. (2 Journal du Palais, 476.)
VIII. It is thus satisfactorily established that, to sustain his legitimacy, Ferrié is not compelled to prove a ceremonial marriage by the production of the acte, nor to show that the formalities of previous publication were performed.
But it is urged that Valentin Ferrié was a minor, and the consent of his father was indispensable to the validity of the marriage. The bans published on the fourth of May, 1800, recite that Valentin was nineteen years of age, and Jeanne Icart twenty-one. The latter was, in fact, then twenty-three, and a similar mistake as to the former would have placed him at the legal age. The acte of his birth has not been produced, and there is no certainty as to his age. Daffis says he was six years older than himself, and that would have made him twenty-one. His sister Catharine states that he was twenty years older than herself, which would make him twenty-five in 1800. Can we be entirely safe and positive against this evidence, and on the faith of the bans, declare that he was not of age. But it is said that his father was opposed to the marriage. When? Doubtless at the commencement of their intimacy, but whether his opposition was con*99tinued when a child was about to be born, or was inc bated in the formal manner the law required, who can say?
There is a fact in connection with Ferrie’s acte of baptism which is not unworthy of notice in this connection. Two of the Ferrié family appeared as godfather and grandmother. The child was named Balthazar Ferrié, the sam i name as his grandfather, and the godfather was Baltházar Ferrié. This act was in itself a declaration of legitimacy, and was attested as such by those who assisted at the ceremony, In a similar case, Sir William Scott remarked on the conduct of a witness who deposed against the existence of a marriage. “ He had himself attested the legitimacy of the child by a solemn act in the house of God—that of being godfather to her,” and as “ the daughter of Thomas and Mary Nelson.” (Fielder vs. Fielder, 2 Hagg. C. R., 196.) How who was the Balthazar Ferrié who assisted at this baptismal ceremony ? Was it the child’s grandfather ? The claimant, Ferrié, says his uncle was his godfather, but he is evidently mistaken, his uncles being named Peter and Alexis. Daffis states, “ Hiere is a Balthazar Ferrié here, who was the godfather of the child,” but when tháu Balthazar Ferrié was produced, he proved to be the son of Alexia Ferrié, and to have been born in 1809. A witness was examined named Victor Ferrié, who testified that his father and Valentin Ferrié were cousins german, and it is pos ible that his father was named Balthazar. But this is mei e conjecture. If the godfather who assisted at the ceremony t as ,the father of Valentin Ferrié, the fact would be proof nconly of consent, but also of the legitimacy of the child in the case of Barbier, already cited, the grandfather had insisted a the acte of birth of his son’s child, and the court he'd that he by this had recognized and approved of the marriage.”
But upon this point I think the law is with the claimant, Ferrié, even if Valentin was under age, and his father was opposed to the marriage.
The consent of parents to the marriage of minors, though by the ecclesiastical practice a requisite to -he formal *100celebration, was not required by the Canon law as essential to the formation of the contract, nor was it demanded by the regulations established at the Council of Trent. (Merlin, Empechemens de Mariage, Sect. 5, Art. 2.) “ Nothing can be more clear,” says Sir William Scott, “ than that by the universal matrimonial law of Europe before the Reformation, the consent of parents was not required de necessitate to the validity of the contract.” (Horner vs. Liddiard, 1 Hagg. C. R., 352. See Fielder vs. Fielder, 2. Hagg. C. R. 194.) By the ancient jurisprudence of France, want of parental consent was only cause of relative nullity and not absolute, and therefore it could be proposed only by the parents, whose authority had been offended. (Merlin, Tit. Bigamie, No. 2.) The same rule continued to be applied to marriages contracted under the law of September, 1792, which governs the status of Ferrié. This is illustrated by the case of Barbier, indicted for bigamy, who pleaded the invalidity of. his first marriage, which took place in June, 1798, for the reason that it had not received the consent of his father. The plea was overruled, on proof of subsequent approbation on the part of the parent. (Journal du Palais, xi., p. 177.) The consent of parents, however appropriate and convenient it may be deemed, is in point of form and strict right, the mere creature of positive enactment,—a restriction upon marriage, superadded to the requisites of natural law—a limitation imposed by the civil authority beyond the demands of social and natural obligation. It is therefore to be construed strictly. . (Hodgkinson vs. Welkie, 1 Hagg. C. R., 262.) In applying a similar provision in the English marriage act, the courts have generally acted upon this principle. The language of that statute explicitly declares that the marriage shall not be valid, without the consent first had and obtained, and yet the leaning in favor of marriage is so strong that subsequent acquiescence has been taken as proof of consent. (Osborn vs. Goldham, 1 Phill., 298 ; Selby vs. Selby, ibid, 299.) The decisions have gone the length of presuming consent, where the courtship was known and not forbidden,, and *101of requiring the negative of consent to be proved in the plainest terms. (Smith vs. Huson, 1 Phill. 296; Balfour vs. Carpenter, 1 Phill., 221.) The onus probandi lies on the party assailing the marriage, “ who must prove clearly not only the minority but also the want of the requisite consent.” (Days vs. Jarvis, 2 Hagg. C. R., 173 ; Hodgkinson vs. Welkie, ubi sup.; Stoney vs. Terry, 1 Phill., 298.) In one of the cases cited, the language was, “ the court presumes consent, unless dissent is proved;” and in another it is said, “ the party who prays the sentence of nullity must prove the fact of the marriage having been had without the consent of the father. The presumption of the law is in favor of the marriage. Semper prmsumitur pro matrimonio. Where a marriage has been solemnized, the law strongly presumes that all the legal requisites have been complied with. Consent is presumed until the contrary is shown.” Under the Code Civil the father is not receivable to attack the marriage for want of consent, if it was approved tacitly, or if a year has been allowed to pass without objection, after notice. Nor can the minor avail himself of the irregularity, when he has permitted a year to elapse posterior to his majority without reclamation. (Art. 183, Duranton, Liv. 1, Tit. 5, §§ 124, 285, 297, 302, 303.) The principle of waiver is very justly applied in these cases, and the marriage is valid ab initio, where there has been an actual or constructive waiver, or default in reclamation within the proper period. Cohabitation, after the minor has come of age, beyond the year, and tacit approbation on the part of the parents, close the door against reclamation, and cure the previous irregularity. A year passed after knowledge, without parental objection, constitutes tacit approbation. Silence, in the judgment of the law, is a witness of assent. (Toullier Liv. 1., Tit. 5, § 619 ; Duranton, ubi sup.) To prevent the ceremony, parental dissent must be exhibited by an aote of opposition, in default of which the marriage stands good until annulled. (Merlin, Empechemens de Mariage, Sect. 5, Art. 2, § 1.) Want of consent being an impediment only by positive regulation, is simply prohibitive *102and not ground of nullity. It does not ipso facto detract from the validity of the contract, but in order to have the marriage vacated, the party whose consent was requisite, or the minor, must demand judicial interposition. The contract in such cases is not void, but only voidable at the instance of the person whose consent was required, or of the minor interested. How in the present instance, if Valentin Terrié was under twenty-one years of age, he was still beyond all question far beyond the age of legal consent, and had in judgment of law the legal capacity to form a matrimonial engagement, and his marriage cannot be annulled at this remote period by parol proof of dissatisfaction and opposition on the part of his parent." In other words, as the authorities show, minority and opposition are not of themselves sufficient ground of nullity, in case of failure to invoke judicial interposition.
IX. The case, then, is narrowed down to the single question, stripped of all technicalities, and all formal requirements of law, whether upon the whole evidence there is sufficient ground for declaring the claimant Ferrié illegitimate.
It is clear that his parents were anxious a marriage should be celebrated. Jeanne was then enceinte, and the natural desire of her heart must have been to legitimatize the child, and diminish her shame. Her previous conduct had been good, her intercourse with Valentin was still subsisting, he had attached her affections, and was still the object of her love. On his part he had exhibited his ardor and constancy by clinging to her in spite of all obstacles, he had forsaken his parents and his home rather than forsake her. He was no profligate libertine, but for aught that appears, this was the first and single engagement of his heart. The publication of the bans shortly before the birth of the child leaves no doubt that these young people had agreed to be married, and were desirous of consummating the agreement with the forms of a public ceremonial. There is a case which occurred in the year four of the Republic, showing the deductions which under such circumstances may be drawn merely from a con*103tract to marry. Poutiant received into his service Marguerite Guy, who became enceinte. Two months before her accouchement a contract of marriage was made between her and Poutiant. There was no acte evidencing the celebration of the marriage upon the register, but the actes of birth of two of her children styled Marguerite the wife of Poutiant, and she was buried with the same title. It thus appeared that after connection, the parties had agreed to espouse each other, but there was no proof that this had been followed by public celebration. The legitimacy of the children being contested, after the decease of their parents, it was held, under the Code Civil, that the contract of marriage, and the actes of birth, and of the burial of the mother were sufficient evidence of the legitimacy of the children. (Poutiant, c., Poutiant, 8 Journal du Palais, 293.) His is a decision in point. In Ferrié’s case there was a contract of marriage, evinced in the public proclamation of intention, but, as in the matter of Poutiant, there is no acte of marriage on the register. The silence of the register does not positively prove there was no marriage at St. Girons, any more than the absence of Ferrié’s acte of birth proves he was not born at St. Girons. And grantmg even that the proposed ceremony was prevented at the Commune, is it impossible that the rite may have been performed elsewhere, by another functionary and at another time—irregularly perhaps, but still performed.*
Now let us look at the status of the child. The Code Civil indicates the nature of the facts which tend to establish the status of legitimacy, but it does not demand absolutely the concurrence of all of them, rather leaving it to the judgment of the tribunals to determine how far they shall be conjunctively required. “ It is apparent,” says Duranton, “ that the *104same character of proof cannot be demanded in every case— for example, with regard to a child who has lost his parents at an early age, who does not know his name and is not yet received into society, . . in the facts constituting possession in such a case, the courts should demand less.” (Liv. 1, Tit. 7, § 132.) The status is determined by name, reputation, and treatment—nomen, fama, et tractatus.
As to treatment when he was of tender age, Ferrie’s case is one demanding the broadest charity of the law. His parents were in humble circumstances, and probably unable to sustain an establishment however moderate. It became necessary for the child to be sent to nurse, and the mother to resume her labors as a domestic. There was no home where the character of their mutual relations could be exhibited to the world. Prevented by the necessities of their condition from constant living together, an essential element of habit and repute was wanting. But still so long as the parents continued to live at St. Girons, the persons with whom the child had been placed would demand compensation for its nurture, and there is no reason to suppose that Valentin failed in this obligation. And as to Jeanne, certain it is that as soon as she could hear of the death of Valentin, and was no longer in danger of being called to account for her connection with Du Lux, she made an earnest effort to resume her long neglected maternal duties. The new evidence obtained by the Commission justifies me in correcting an opinion expressed in my previous judgment, as. to the desertion of this child. There is not only no proof showing desertion on the part of the father, but as he continued to reside at St. Girons, at various intervals, nearly to the time of his death, and was doubtless known to the child’s foster-parents, the fair presumption is that he was not permitted to neglect his paternal duty, even if he had the inclination. Under the circumstances, therefore, there could not have been, from the nature of the case, any proof at St. Girons, of the status of the child, other than his aote of baptism; and as to the place of his *105nurture, until discovered by his mother and brought to St. Girons, there does not appear any clue to guide our investigations. The last that was seen or heard of Valentin Ferrié was at Bayonne, in December, 1811, and he was shortly after-wards killed by brigands whilst crossing the Pyrenees. As soon as the news could reach her, the mother institutes inquiries for the recovery of her child, and when they eventuate unsuccessfully, herself crosses the ocean, proceeds to the scene of her early life, discovers and recognizes her son, and from that period assumes the offices of maternity. Why then should we presume that Valentin Ferrié failed to recognize and provide for his son, up to the time of his decease ? How can we affirm that he did not call him by his own name, nor recognize his status as legitimate?
The reputation of being illegitimate, which some of the witnesses declare attended Ferrié at St. Girons, after he was placed with Andre, in 1815, might have existed without knowledge, and as a species of that gossip which attends unusual or mysterious circumstances connected with the social position of young people. His father was dead, his mother bore another name, and he had been left since his birth among strangers. Jeanne suddenly appears as a fine lady, and though assuming his charge and acknowledging him as her son, remains reserved perhaps in regard to the events of her early and obscure life.
There is one circumstance, however, in regard to which there is no doubt, and which stands out prominently through all Ferrié’s history. He has always borne his father’s name. This is one of the most important tests of his status. The name of the father is a constant, enduring declaration to society and the world, of the child’s lawful origin. It is given to him at his entrance into life, when the parent’s heart is most widely open to the claims of his helpless offspring, —it accompanies him ever after, proclaiming the paternal recognition. The bastard is nullius filius—the child who bears his father’s name from the baptismal font and retains it, *106without contradiction, is presumptively patris filius, and has a strong presumptive claim to legitimacy.
And here we approach a fact, which, in my judgment, so aids, supports, and corroborates the various arguments in favor of Ferrie’s legitimacy, as to overcome all opposing conjectures, and determine the balance of probability against them. His mother, as already appears, declared him to be her son. From the evidence of De Galai there can be no doubt that his father recognized him as his son; and from his baptismal certificate, now for the first time produced, it is certain he bore his father’s name just after his birth. This recognition on the part of both his parents, standing alone, and in the absence of sufficient proof to show his bastardy, is enough to establish his legitimacy—that is to say, from an admission of paternity or maternity, without qualification, the law implies legitimacy.
X. As to the effect of a simple declaration of filiation, one of the earliest instances is that contained in the 117th novel of Justinian, which declared that whosoever having a son or daughter by a free woman, with whom marriage could exist, should state in writing by a public officer, or subscribed by his own hand, or in the presence of three witnesses, or by his testament, or in public acts, the fact of filiation, huno aut homo filium suum esse aut filiam, and should not add that they were natural, et non adgeoerit natwalem, they were to be esteemed legitimate, no other proof should be demanded of them, and they should enjoy all the rights of legitimate children, hujusmodi filios esse legítimos et nullam probationem ab iis quwri, sed omni firm eos jwe quod legitimis filiis nostrae conferunt leges.
This principle of recognition is thus stated by Mornac. (Merlin Légitinité, Sect. 1, § 2.) Satis est ut quis normnetw filius et p ublioe agnosoatur, passimque hdheatw et credatur apud omnes. The reason of the rule consists in the unwillingness of the law to indulge in other than charitable presumptions, its readiness to protect the rights of children, and yield them the *107status the parents have assigned, and its interpretation of the acts of mankind in harmony with common understanding and usage. When a person declares another to be his son, legitimacy is implied. Upon that basis all the affairs of the world and all social intercourse are conducted.
Ferrié was baptized the same day he was born.
The following is the extract from the baptismal records of the parish of St. Girons:—
Year 1800.
“ Balthazar Pierre Ferrié, son of Valentin and of Jeanne Icart, was born and baptized the thirtieth of June, eighteen hundred. Godfather, Balthazar Ferrié. Godmother, Bose Ferrié. In proof of this—Baque, Cure of Ledor. Signed on the record.”
Besides the publication of the bans, this is the only record handed down to us throwing light upon the events we are now struggling to elucidate. What inferences are fairly to be deduced from it ? The baptismal record, if the parents were privy to it, and certainly that would be the ordinary presumption, is evidence that the parties acknowledged the child to be theirs. Under all the circumstances in this case, there can be no doubt on that point. (Wood vs. Wood, 2 Curteis, 516 ; Mayo vs. Brown, 2 Lee, 391.) But does it prove anything more ? I am aware that it has been held under the Code Oivil, that the acte of birth is evidence only of filiation and not of legitimacy, but it must be remembered that the Code prescribes the rules of proof in this class of eases, and has the force of a statutory regulation, which the courts are not at liberty to vary. Evidence, however, is not governed by foreign law; its weight and admissibility depend upon the lex fori, the law of the forum in which justice is administered. Besides, the effect to be given to this acte of baptism must be controlled, if we are to regard the French law at all in this connection, rather by the value of the acte at the time of its inscription than by artificial rules subsequently adopted. *108What then were the worth, force and effect of such an acts as this, when the claimant Ferrié was carried to the baptismal font, and what was the construction which would then have been given to its terms, according to contemporaneous usage and judicial interpretation ? These may safely be our guides, in establishing the presumptions to be derived from it.
All the authorities, ancient and modern, concur in ascribing to such an aote as this, proof of filiation. That point is clear, and from the fact that Ferrié was the son of Jeanne Icart, we are thus promoted another step, and find that he was the son of Valentin Ferrié. Does the record afford any presumption of legitimacy ?
It is observable that this certificate of baptism represents the mother of the child by her maiden name, Jeanne Icart. That, however, is a common occurrence in, if not the usual form of, actes of baptism. The records returned by the Commission, as well as numerous cases in the French courts, show this very satisfactorily. Even in England, where the custom is quite uniform as to the wife bearing her husband’s name, a similar certificate of baptism, representing the mother by her family name, long after an alleged marriage, has not been esteemed as impeaching the legitimacy of the child. (Piers vs. Piers, ubi sup.)
The next criticism upon the terms of this certificate relates to its failure to represent the parents as married, or the child as legitimate. The answer is that if such terms had been contained in the certificate, the proof of legitimacy would not in point of form, have been strengthened a particle. Such terms are mere surplusage ; the law does not demand them. Their presence or absence is a matter of indifference, and affords no ground of presumption or inference for or against legitimacy. The article of the Code Civil on this subject (Art. 57,) supposes that the infant is legitimate, and hence requires the name of the father as well as of the mother to be stated. To name the parents is all the requisite substance of the acte of birth of a legitimate child. The law requires nothing more, and of course permits no presumption to arise from the absence of what it *109does not require. Consequently, if the child he not described as legitimate, no suspicion attaches; and if it he described as legitimate, the presumption in favor of the child is in no degree strengthened. (Duranton, L. 1. Tit. 7, § 108, 116 ; Tit. 2, § 305, 308.) This principle has been judicially asserted in the case of Gabriel Huret, who declared in the acte of birth of his daughter, that she was the child of himself and Elizabeth Eoyer, his lawful wife, when the latter was only his concubine. (An xii., Sirey tome iv., part 2, p. 44.) But the Code Civil was adopted subsequently to the birth of Feme, and it is necessary, therefore, to see what was the anterior rule existing. By the law of 1792, the acte of birth was required to contain the day, hour and place of birth, the designation of the sex of the infant, its Christian name, the Christian name and surname of the father and mother, their profession and domicil. Bo thing is there said of the legitimacy of the child, and anything on that head in the acte would of course be surplusage. But in the case of Ferrié, we have not the acte of birth, and of necessity are compelled to have recourse to the baptismal certificate. In this respect, however, I shall show that the same rales apply.
Merlin places among the proofs which are ordinarily advanced of the possession of a legitimate status, the acte of baptism, which he says with almost all Christian people holds without contradiction the first rank. This is certainly a strong statement and from high authority. Cochin announces this principle in the following emphatic manner:—C’est pear ces registres epulón fait son entrée dans le monde. “ It is by these registers one makes his entrée into the world. The law wills that one should give entire faith to these registers as depositories of the status of men.” If we are to give them entire faith, let us examine the law which governed their inscription. The ordinances issued to regulate actes of baptism were those of 1539, 1667, and 1736. The first directed the register to contain the time and the hour of nativity; the second, the day of the birth, the names of the child, the father and mother, godfather and godmother; the third, which was *110the work of the Chancellor d’Aguesseau, added various formalities. But none of these laws demanded the necessity of giving to the child his quality of legitimacy or illegitimacy, and the absence of a form not required could not, therefore, create any presumption against the subject of the acte. Still it may be said that usage supplies such a presumption. To this may be replied the language of Merlin: “ We know that there is commonly added to the names of infants the quality of legitimate children; but this usage which should only be regarded as a superfluous precaution, cannot make an acte not legal which wants this quality. No person has a right to add to the dispositions of the law, much less to erect into legal obligations usages purely facultative. It is sufficient that our ordinances have not prescribed the insertion in baptismal actes of the word legitime, so that the omission of this word does not attaint the legitimacy of children.” He then mentions several qualifications of illegitimacy, and states that when these are absent, and the acte contains “ the names of the child, the father, mother, godfather, and godmother, it imports necessarily and by force of law a presumption of legitimacy.” A few cases will illustrate this position. Isaac Combes had been baptized under the name of “fils d'Etienne de Combes, et d'Elisabeth Puchf the word Mgitime being omitted. He did not allege any acte of celebration of marriage of his parents, but the Parliament of Toulonse, in 1153, sustained his legal status. Pierre Dufour was baptized as “fils de, Guillaume, et de Judith de NegrierP It was not said that the parents were married, nor that the child was legitimate, and the father was not present at the baptism, nevertheless, by a decree of the Parliament of Paris in 1182, it was adjudged that Pierre Dufour was legitimate. Thérése Perrin was baptized as “ Thérése Perrin, filie de Francois, et de Marguerite Espagnet.” The certificate did not state that she was legitimate or that her parents were married. She was taken from the baptismal font to the house of Antoine Laugier, and was educated and maintained by him. By the will of Laugier and by her own contract and acte of marriage *111she was described in the same manner as in the acte of baptism. There was consequently no possession of her by father or mother. After Laugier’s death her legitimacy was contested, and she was alleged to have been his daughter by an illicit commerce. There was no proof of the marriage of her parents, or that any such persons as were named in the certificate of baptism had in point of fact any existence. Neither the pretended father nor any other relation was present at the baptism. Still, notwithstanding these grave circumstances, it was held that the party seeking to impeach her legitimacy was bound to show affirmatively that the pretended parents never had existed, or that if there were really any such persons, they never had been married, in order to rebut the presumption arising from the certificate of baptism and the subsequent possession of a status, in conformity with it. The Parliament of Provence in 1738, found in her favor, and M. de Gneidan, in giving the reasons for the judgment, says:— “ The registers of the priests are the sacred depositories of public faith, it is there the children find incontestable titles, of which neither the injustice of man, nor the succession of time, nor even the disavowal of fathers, can deprive them. If the baptismal extract of Hiérese Perrin does not state expressly that she was legitimate, it does not state that she was a natural daughter. It does not specify as it ought, the condition, station, or domicil of the godfather and godmother, and these sorts of omissions are but too ordinary with the priests. It is the effect of an inconsideration which cannot be sufficiently blamed, in the exercise of a ministry where every thing is of consequence. But the child ought not to suffer. The simple quality of daughter of Francois Perrin and of Marguerite Espagnet which is given her, supposes that she is legitimate.” Finally, under such a state of the law and of the evidence as has now been exhibited, what should be the conclusion of the court upon the claim of Ferrié to the administration of the estate of his mother. ? That he was her son is undoubted— nothing can be more certain:—is the evidence sufficient to bastardize him ? The transaction is ancient. It occurred at *112a period when with the changes of law and the disorders of revolution, official regularity and the accuracy of records were exposed to unusual chances. It occurred in a considerable town, where the affairs of an obscure and humble couple were not likely to attract much attention. But three contemporaries having knowledge of the circumstances, are living, and one of these was then a child of five years. The parties and their immediate relatives are all dead. Time and circumstance have thus shrouded much of the history in darkness, and it is now in vain we strive to raise the veil.— There are doubts and uncertainties which the candid mind must confess, but are we to indulge these—are we to be astute in spelling out defects and flaws, harboring suspicions, and promoting conjectures—shall the law, with cold and merciless argument, be intent upon following with the probe every humane presumption, and be careful to magnify every opposing fact—against a child claiming his maternal succession, and in behalf of distant collaterals ? Certainly not. We approach, then, this question with the well settled rule and presumption of law in favor of marriage and legitimacy, a presumption not lightly or easily to be repelled. The evidence to overturn it must be clear and satisfactory, and irreconcilable with any other hypothesis than legitimacy. There must not be a mere balance of probabilities, slightly preponderating, but the opposing weight must be controlling.
Jeanne’s desertion of her child and its father—her forming the acquaintance with Du Lux as a maiden, and her styling Ferrie, nephew, in her correspondence and occasionally in society, are not such controlling facts. Standing alone, they would have much force. But they do not stand alone, and moreover, are not unsusceptible of explanation. It is not difficult to see how they became consequent upon her first step from the path of rectitude after she had become a mother. Thread after thread of entanglement is woven in the web of human fortune, when concealment is once begun, until we hardly know where to find the clue. Again, the exclusion of a poor, friendless boy, from the succession to his grand*113father’s property, doubtless tends to show he was not recognized as a part of the family, but that sometimes happens to orphans. These facts, in connection with the bans of marriage, and the parol evidence taken in France, as I have indicated it, are not in my judgment sufficient to countervail against the opposing proofs. The latter may be briefly stated as follows.
1. Ferrié, the claimant, is the son of Jeanne Du Lux, the intestate. 2. Valentin Ferrié was his father. 3. The parents were of good character. 4. They desired marriage. 5. They entered into a contract to marry. 6. They cohabited together. 7. The child was baptized as a legitimate child. 8. The child was baptized in his father’s name. 9. Two members of the Ferrié family were sponsors. 10. The son through life has borne his father’s name. 11. Valentin, the father, never formed another matrimonial engagement. 12. Jeanne, the mother, though living with Henri Du Lux, from 1804, never entered into a ceremonial contract of marriage with him until the summer of 1812, after she had time to hear the tidings of Valentin’s death. 13. Immediately on her marriage with Du Lux, the latter proceeds to France and institutes an investigation for the purpose of discovering the child. 14. The mother herself, in 1815, makes a similar attempt in which she is successful, and at the place of his birth, recognizes him as her son, and provides for his maintenance and education. 15. She ultimately receives him at Hew York, and admits him to be her son. Nine of her associates have sworn to this fact. 16. She also declared him to be her heir and entitled to her property in case of intestacy. 17. She stated that she had been married to his father at the time of the French Devolution.—With all the presumptions of the law in favor of children and their legitimacy to aid these facts, even were the countervailing circumstances stronger, more numerous, and imposing than they are, I should be compelled to find in behalf of the claimant, and his title to the estate of his mother. There must, therefore, be sentence accordingly.
As the French law then stood, even if the marriage had been subsequent to the birth, Ferrié would have been legitimate. Natural children were legitimated by the marriage of their parents, so that the stain of their birth was effaced, without any vestige remaining, and the offspring were equalled in every respect to children born in wedlock. (Toullier, Liv 1, Tit. 7, & 922; Merlin, Legitimation, Sect. 2, § 2, 3, Id.; Batard, Sect. 1, § 1.)