dissenting. A contract, if valid in the country where it is made, is valid everywhere, because the law of the place is the law of the-contract. But this general rule has its exceptions. A contract against good morals, religion or the policy and institutions of the State where it is sought to be enforced, will not be recognized and pronounced valid, although it may be held valid in the country where it was made.
A contract for fulure prostitution; a contract to promote or reward the commission of crimes, and a contract for obscene publications are examples of the class founded in moral turpitude.
“Contracts made in a foreign country to procure loans in our own country, in order to assist the subjects of a foreign State in the prosecution of war against a nation with which we are at peace; contracts by our citizens or others to carry on trade with the enemy, or to cover enemy property, or to transport goods contraband of war; contracts to carry into effect the African slave trade,” are examples of contracts *582opposed to national policy and institutions. Such contracts are excepted from the general rule, because they are prejudicial to the interest of the nation and are repugnant to its policy. Story on Conflict of Laws, sections 32, 36, 38,* 245, 258, 259, 324; 13 Pet. 519.
The general rule that the contract of marriage, if good in the country where it is celebrated, is good everywhere, has likewise exceptions. An adulterous or incestuous marriage will not be ¡recognized in this country, though valid where it was contracted, because it is against the policy of the State and the solid interest of society.
If an inhabitant of Turkey should emigrate with several wives to this State, his women would not have the slatus of wives here, although legally married at home, because our law condemns polygamy. When Caballero, a citizen of this State, married his colored concubine, Carolina Yisinier, at Havana, in April, 1856, such marriage was prohibited, because the policy of this State was against the marriage of white and colored persons. C. C. 95. This marriage, though celebrated in the dominion of Spain and valid by its laws, can not be recognized as valid here.
In Dupre v. Executor of Boulard, 10 An. 411, it was held that: “The courts of Louisiana will not give effect to a marriage or to a marriage contract entered into in France between a white person and a person of color.” Suppose, instead of seeking the dominion of Spain to make the contract of marriage with his colored concubine, which he was prohibited from making at home, Caballero had gone with a dozen of white concubines to Turkey and there married them, and after an absence of three years had returned with his women to this State, would they be entitled here to the status of married women, although at the time of the marriage it was contemplated that Turkey should be their future home and the marriage was valid by tbe laws of that empire ? Is polygamy to be forced upon this State by such devices 1 Surely not. Foreign contracts can not be sanctioned and enforced where they are prejudicial to our own country or its citizens. The policy of the State and the safety of its institutions are considerations paramount to the courtesy due to laws of other countries or contracts made in conformity therewith.
The policy of our law, announced in article 95 C. C., prohibiting and declaring void marriages “ contracted by free white persons with free persons of color,” is in my opinion superior to any obligation founded on the comity of nations, to give effect to the laws of Spain or to the marriage contracted in conformity therewith by Caballero with his colored concubine, Carolina Yisinier, in the year 1856.
But it is urged that the policy of this State has been changed, and there is nothing now repugnant to the marriage of such persons. If this be granted it would not affect the validity of a marriage con*583tracted and subsequently terminated by the death of the parties before, this change of policy.
Caballero left this State in 1856 for the undoubted purpose of marrying, in the dominion of Spain, Carolina Visinier, a native of this State,, with whom he had lived in concubinage for many years. After an .absence of three years they returned to this city and lived the remainder of their lives, Carolina dying in lfc'60 and Caballero in 1866.
What was the status of Carolina Visinier at the time of her death in 1860 9 Was she the concubine of Caballero or was she his lawful wife 9 Her status must be determined by the law in force at the time of her death. If she was his wife she was entitled to half the community property, and by succession transmitted it to her heir, the plaintiff, Mrs. Conté. If she was his concubine she was possessed of no legal rights, and was incapable of receiving even a donation from Caballero.
In my opinion the status of Carolina Visinier was that of a concubine by the laws of this State, of which she was a native, notwithstanding the marriage and three years residence in Spain, because no residence or contract made in a foreign land could give her, a native, a better status at home than she was capable of receiving by its laws, and because ti.e contract of marriage, though lawful in Spain, was utterly without effect in this State, being at the time in contravention of its policy.
The change in our laws, under the constitution of 1868, can not be considered in determining the validity of the contract of marriage made in 1856 and terminated by death in 1860, which was by law at the time prohibited and declared void. C. C. 95.
As laws have no retroactive effect, the omissio.i to incorporate article 95 of the Code of 1825 in the Revised Code of 1870 is of no consequence. It was the law prevailing at the time of the marriage and at the time of the death of both the spouses.
The law of this State must also determine the status of the plaintiff .Mrs. Conté, who was born in this city in 1840, the illegitimate daughter of Caballero and Carolina Visinier. Her legitimation was pro-hibited by the law of this State, and no contract of marriage between her parents, nor any agreement on their part to change the place of their domicile, could alter her status and give her a better position at home than she was capable of acquiring. ^The law of this State at the time of her birth, at the time of the pretended marriage of her parents, .and at the time of their death, gave her the status of a bastard, incapable of being legitimated, because the.offspring of an illicit cohabitation between a white person and a person of color. An incestuous or ■adulterous bastard, born in this State, will always have the same status, notwithstanding the subsequent marriageof his parents, either at home *584or abroad.. The law of the domicile of birth fixes the status of the person suing at that domicile, regardless of the status acquired by him in another country.
The plaintiff holding by the laws of Louisiana, the domicile of her origin, the status of a bastard, incapable of legitimation and incapable of inheriting, seeks to be declared by the courts of this State the legitimate daughter of Caballero, solely because she has acquired that status in Spain, a foreign country. She seeks to annul the will of a citizen of Louisiana and to be put in possession as heir of his succession, notwithstanding her incapacity to inherit according to the law of this State, where she was born and where her parents lived and died.
She points to the contract of marriage made by her parents when she was sixteen years old, in the dominion of Spain, and to the ex parte decree of her legitimation by a tribunal-of that country, and insists that by the comity of nations this court should'give effect thereto and maintain her demand as the legitimate heir of Caballero, notwithstanding such marriage and legitimation were prohibited-and declared void by the law of this State, and notwithstanding the record shows that at that time her parents were citizens of this State, being then only absent from it about thirty days./ The law of this State, the domicile of the deceased, must control in determining the capacity of his heirs, and foreign laws must yield to our own infixing the personal status of the plaintiff, because this is the domicile of her birth/ Mr. Justice Story in his work on the Conflict of Laws, page 91, section 93, says: “ It is plain from what has been already stated and, indeed, is directly established by their positive declarations, that those of the foreign jurists already mentioned who affirm the general doctrine of the universality of the rule that capacity and incapacity depend upon the law of the domicile of birth, and that it equally applies to movable and immovable property situate in foreign countries, would hold the same rule applicable to the question of legitimacy or illegitimacy in regard to the inheritance of real property in all foreign countries.”'
* * * * * * * * * * *
In the celebrated Scotch case referred to by Judge Story, where the question was whether a son born of Scottish parents in Scotland before-marriage, but who afterwards married there, could inherit lands in England as heir — a case tried in the House of Lords and in which was. employed the first talents o^England — -it was conceded on all sides, that legitimacy was a status to be determined by the law of the-party’s birth-place.
“ Another question (says Judge Story) also has arisen in England,, whether a child born before marriage in one country, of parents, domiciled in that country, by whose laws a subsequent marriage would not legitimate him, would by a marriage of his parents in another *585country, by whose laws such, subsequent marriage would legitimate him, become legitimate so as to inherit lands in the latter country. It has been held by the House of Lords that the mere fact of marriage in such country, where there was no change of domicile, would not give him such a capacity to inherit land, and that the stain of illegitimacy by his birth was nt>t wiped away by- such marriage. And it was intimated that under the like circumstances in other respects the change of the domicile of the parents to the country where the marriage was celebrated would not have given any better title to inherit, as the stain of illegitimacy would be indelible. The converse case has been decided in France, where it has been held that if a child is born in a country (France) where he \tould become legitimate by a subsequent marriage, he will become legitimate by such subsequent marriage, although the marriage should take place in a country (England) where a different law prevails, and where a subsequent marriage would not have the effect of rendering him legitimate. The result of these two cases seems to be that the law of the place of birth of the child, and not the law of the place of the marriage of the parents is to decide, whether a subsequent marriage will legitimate the child or not.” Story on Conflict of Laws, p. 91, section 93.
Judge Story says, also, that the same doctrine is maintained by Hertins, by Bonhier, by Boullenois, and by Merlin, viz: “That the law of the place of the birth of the child gives the rule as to legitimacy by a subsequent marriage.”
Now, if the marriage of Caballero and Carolina Visinier, although valid in Spain, is held to have had no effeet in Louisiana, then the plaintiff’s claim,- as the legitimate heir of Caballero, falls to the-ground. But to defeat her pretensions it is not necessary to decide that that marriage was without effect in Louisiana, because legitimation is merely an incident — it is not of the essence of the contract of mariiage. A marriage contracted in England subsequently to the birth of a son would not legitimate him, although such marriage would unquestionably be valid.
Tlie marriage of English subjects domiciled in France, and there-valid, would be recognized in England ; but such marriage would not, in England, have the effect to legitimate an illegitimate child born of such persons in that country before going to France. Why ? Because the law of the domicile of birth Axes the statirs of the child. This is unquestionably so when the adjudication of the question is sought iu the courts of that domicile. I venture the assertion that there is no-respectable authority to be found which maintains that the courts at the domicile of birth are required to look beyond the laws of th¿ place in order to flx the status of the child.
It is the right of every country to determine by its own laws and for-*586itself what status it will give to the children of its subjects or citizens , born within its own limits.
No change of domicile and no act or contract between the parents of ■an illegitimate child can give it at the domicile of birth a better status •than it is capable of acquiring by the laws thereof.
It would be vain to fix the order of successions, and to establish the rule of the capacity or incapacity of heirs born in this State, if foreign laws or foreign contracts are to be admitted to defeat their operation.
It results, therefore, both from principle and upon authority that, as ■the marriage of Caballero with Carolina Visinier, if made in this State, would not have legitimated the plaintiff, their illegitimate daughter, the marriage which they contracted in the dominion of Spain in 1856 did not legitimate her.
Their marriage here would not have legitimated her, because of the ■operation of article 95 C. C., which prevailed till after the death of both her parents. It would not have legitimated her even if Caballero had befen a colored man, because she was neither acknowledged by ■him in a notarial act nor at the registry of birth or baptism. Thomas-■son v. Raphel’s Executor, 11 La 128../
Much has been said of the benevolent purpose announced in article 219 C. C., which declares that: ‘‘ Children legitimated by asubsequent marriage have the same rights as if they were born during the marriage.” That it should be liberally construed because its purpose was to encourage marriage by holding out the strong inducement of legitimation to the parents of illegitimate children, as the means by which to repair the wrong inflicted on them. That this was its purpose I have no doubt, because concubinage is reprobated by law, and marriage is a highly favored institution. But this article was only intended to encourage the marriage of such perspns as are capable of contracting it under tile laws of th¿s State. It ’was not intended to invite the marriage of “ a free white person with a free person of color,” ■because such marriage was prohibited by article 95 C. C. Nor was it intended to invite persons prohibited from marrying at home to ■seek a ioreign country and there contract a marriage prohibited by ■our law.
It would be a reproach to the authors of our Code to say in adopting article 219 they intended to invite the marriage of white persons with persons of color, either at home or abroad, because a marriage of that .character is expressly condemned and declared void by article 95 C. C. It results, thereiore, from a fair interpretation of article 219 that a marriage of the character of that contracted by Caballero with Carolina Visinier in 1856 was not such a marriage as was intended to be embraced in its meaning. To hold that the marriage of a white per*587son with a person Of color, either at home or abroad, falls within the provision of article 219, would violate its spirit and obvious purpose, and would, as Judge Story says, be keeping the letter of the law to the ear •and breaking it to the sense.
There being, therefore, no law in this State to legitimate by subsequent marriage the child of a white person with a person of color, because such marriage is not embraced in the meaning of article 219, the marriage of Caballero with Carolina Visinier, in the dominion of Spain, in April, 1856, did not legitimate the plaintiff, their illegitimate daughter, who was bom in this city, in 1840.
Legitimation being merely an incident of marriage and not of the ■essence of the contract, the marriage of her parents might be held to be valid and yet the legitimation of the plaintiff would not be a necessary consequence./
The laws of this State not giving legitimation to a subsequent marriage like that of her parents, their marriage in Spain did not have the •effect to legitimate her, because the rule is “ the law of the place of birth of the child, and not the law of the place of the marriage of the parents, is to decide whether a subsequent marriage will legitimate the ■child or not.” Story "on the Conflict of Laws, page 91, section 93.
But it is urged that this rule is contradicted by Justice Story, in section 103 of the same work. Let this section be read with section 105, and in connection with the preceding ones, especially sections 73 and 93, and not the least contradiction will be found. The learned author has stated the rule clearly in section 93, and he is not weak •enough to contradict himself flatly in the tenth section following.
It is also contended, on the authority of Scott v. Key, 11 An. 238, that this court ought to recognize the plaintiff as legitimate, because she acquired that status by the marriage of her parents in Spain.
The authority cited does not maintain the position, nor does it in the least contradict the rule that “the law of the place of the birth of the child, and not the law of the place of the marriage of the parents, is to decide whether a subsequent marriage will legitimate the child or not.”
As the concurring opinion of Mr. Justice Spofford in the Scott case will show what was decided, I will copy it in full, it being very brief. It is as follows :
“ It was competent for the Legislature of Arkansas, the domicile of Ms origin, to fix the status of William Estill. In substance and effect that Legislature gave him the status of a legitimate son of Samuel Estill. The Arkansas statute legitimating William Estill was a personal statute. Therefofe the status of a legitimate son of Samuel Estill would accompany William Estill into whatever country he might go. He came hither with the status. He inherited by our law from *588his father Samuel Estill, because he was to all intents and purposes a legitimate son, having become so by the law of the domicile of his origin, and not in fraud of our law nor in violation of its policy.”
How an authority, recognizing the legitimation of a party at the domicile of his origin in a case not in fraud of our law, nor in violation of its policy, can support the case of the plaintiff, who was not legitimated at the domicile of origin and whose legitimation by the marriage of her parents was prohibited by our law and in violation of its policy,” I can not imagine.
In Barera v. Alpuente, 6 N. S. 69, a case analogous to the one before us, Judge Porter, the organ of the court, said : “ The general rule is that the laws of the domicile of origin govern the state and condition of the minor into whatever country he removes.”
In Brosnaham et al. v. Turner, 16 La. 469, this court, in speaking of a foreign statute, said : “ Nor can we examine the validity of the legislative act, where it operates on property within their jurisdiction^ or authorizes acts of its own officers. But its extra territorial effect is a different affair, which we protest against admitting when it comes to operate on the right of real property withip the State, or even supposing it to be what plaintiff contends it to be, a mere'removal of a personal incapacity. If this incapacity relates to the inheritance of real estate in Louisiana, we are bound to say they can have no effect.”
In conclusion, therefore, I maintain that the marriage-at Havana, in April, 1856, being repugnant to our law, was utterly without, effect in this State ; and the marriage being without effect the legitimation of the plaintiff as an incident thereof was also' without effect. But whether the marriage was without effect or not, the legitimation of the plaintiff was not a necessary consequence, and it did not result from the marriage, because the plaintiff was incapable of legitimation by the law of her,domicile of birth; that in suing for the succession of her father she can not set up a foreign status of legitimation as a ground for inheriting, because that status was not acquired at the domicile of her origin,, and, on the contrary, is repugnant to its policy.
The status of the plaintiff is fixed by our law, because her parents, were citizens of this State, and this is the domicile of her origin. She-can not expect this court to recognize a foreign status prohibited by the law of her birth-place.
I therefore think that the plaintiff’s demand should be rejected, and the will of Caballero ought to be maintained; and for the reasons given I dissent in this case.