dissenting. From the year 1854 to the day of his death, which occurred in 1869, E. C. Hart lived in concubinage with the plaintiff in this suit. She was a colored woman, and his slave. By her he had several children. In November 1867, he married her. None of the children were born after the marriage. They were, I believe, all born while the mother was a slave. Subsequent to their marriage the children were baptized. They were baptised as the children of Hart. The testimony is conclusive that before and after the marriage Hart treated these children as his own; that he admitted them to be his; that he desired to legitimate them, and that the priest who performed the marriage ceremony between the plaintiff and himself, advised him that marriage would legitimate them.
Under this state of facts the first question to be disposed of, in my opinion, is, can children born from parents so situated be legitimated under the laws of Louisiana? I think not.
Article 217 of the Civil Code of 1825 declares that “children born out of marriage, except those who are born from an incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before their marriage or by the contract of marriage itself. Every other mode of legitimating children is abolished.” By the statute of twenty-fourth March, 1831, p. 86, so much of this article as abolished all other modes of legitimation, *101except by marriage, was repealed, and natural fathers and mothers were permitted to legitimate their natural children, by acts declaratory of their intention, made before a notary and two witnesses. It was, however, provided in the same act that nothing contained therein should be so construed as to enable a white parent to legitimate a colored child, nor to prevent a free person of color to legitimate his colored children. It was also provided that legitimation could only take place if the natural children were the issue of parents who might, at the time their children were conceived, have contracted marriage. By the same Code free persons, without reference to color, and slaves, and free white persons and free people of color, were incapable of contracting marriage together. C. C. 95. This was the law when Hart’s children by the plaintiff were conceived, when he married her, and when he died. As they are the issue of parents who, at the time they were conceived, could not have contracted marriage, they can not, in my opinion, be legitimated.
It is held by the majority of the court that what is known as the Civil Rights bill obliterates all State laws creating distinctions between inhabitants of the State on account of race, color or previous condition, and therefore the marriage between Hart and the plaintiff was not prohibited by the State laws at the time of their marriage, and the marriage legitimates the children under the acknowledgments to be found in the record. I do not so read that law. I understand it to give to all citizens of the United States of overy race and color without regard to any previous condition of slavery the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, etc., and to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizen?.
Marriage is, with us, a civil contract, inheritance is regulated by law. White persons and persons of color may by this act contract marriage; colored children may inherit. This proposition I do not dispute. But I deny that the act in question professes to regulate the legitimation of children, or that it provides how the fact of legitimation shall be established, or what acts constitute legitimation, or that it pretends to alter our laws upon the subject of inheritance. It simply does away with all distinctions on account of race, color or previous condition. The question of race or color does not in my opinion occur in the case. I treat the plaintiff and her children precisely as if they were white and free born. But I say that they are governed by the same laws that white persons are; and I say that as the law prohibited her marriage with Hart at the time their children were conceived, and as the law in existence when they were conceived declared that no child could be legitimated who was conceived when its parents could *102not contract marriage, the children of Hart and the plaintiff could not be legitimated.
The Civil Code declares between whom marriage is permitted, and between whom it is prohibited. It also declares what children shall and what children shall not be legitimate, and what children born out of wedlock may, and what children may not, be legitimated. These are questions which belong exclusively to our domestic life, with which Congress, in my opinion, did not seek to interfere when it passed the Civil Rights bill. It endeavored to, and it did, put every citizen upon a common footing as regards his civil rights, but it in no manner' that I can see, changed or attempted to change the laws of Louisiana with regard to the legitimation of children born of her citizens.
By our laws marriage between uncle and niece is prohibited. But this law might be repealed. Suppose that, with the law as it stands, an uncle has a child by his niece, and after the birth of the child the law prohibiting marriage between uncle and niece is repealed, and the father and mother of the child marry, acknowledging it in the act of marriage, is the child legitimated ? I think not. By the amendment to the Code above recited (217) children conceived by a woman between whom and the father marriage was prohibited were placed in the same category with children born of an incestuous or adulterous connection. A child conceived in adultery is adulterous, although at its birth its parents were free to marry. Marriage with acknowledgment does not legitimate the child so conceived. See Sirey, Codes Annotés, art. 331, p. 169.
Admitting, however, that plaintiff’s children could have been legitimated, a second question then arises. It is this: Have they been properly acknowledged? Acknowledgment, as I understand the law to legitimate a child, must be made in the form and manner prescribed by law, else it has no effect, just as certain formalities are required in the making of valid testaments, donations, etc.
Assume that Hart and the plaintiff were both white, and that when her children were conceived there was no impediment to her marriage with Hart, how, and how alone, could they have been legitimated? I think the question is answered by the terms of the law. They must have been legally acknowledged as their children, either before their marriage or by the contract of marriage itself. It is not pretended that the act of marriage contains the acknowledgment; and the act of twenty-fourth March, 1831, page 86, gives to natural fathers or mothers the power to legitimate their natural children by acts declaratory of their intention, made iflfore a notary and two witnesses. There is no such act as this in the record. In my opinion, if the parties in interest in this case were whites, the article 217 of the Code and the act of *103•twenty-fourth March, 1831, would prohibit their legitimation except under the forms therein prescribed.
The article 217 of the Code of 1825 is a reprint of the article 331 of the Code Napoleon, and the views which I have here expressed are sustained by Toulier, vol. 2, p. 132; by Marcadé, vol. 2, p. 43; by Demolombe, vol. 5, p. 339, No. 362; by Duranton, vol. 3, p. 174; by the Court of Cassation, Rep. G-en’l, supplément, vol. 2, p. 337, verbo Legitimation ; by the decision of Judge Martin in the case of Pigeau v. Duvernay, 4 Martin, 263.
The majority of the court seem to find authority for a contrary ■doctrine in the dissenting opinion of Mr. Justice Rost in the case of Dupré v. Caruthers, 6 An. p. 156. I have examined that ease, and judge Rost’s opinion with all the care which I can bestow upon it, and with all the attention which his acknowledged abilities command; I can not find in it any expression even which would, in my opinion, justify the conclusion that he thought children born out of wedlock could be legitimated in any other manner than those prescribed in article 217 of the Code of 1825, and the act of twenty-fourth March, 1831. The question was not before him. What he had to pass upon was not legitimation as the result of acknowledgment or marriage. The question was whether natural children could take by inheritance the property of a deceased parent if they had not been duly acknowledged, and it arose under arts. 913,916 of the Code. ' In my opinion, the vice of the opinion of the majority of the court consists in this, that the article relied on by them to support their conclusions is found under the second section of the third chapter of the Code, and relates to the acknowledgment of illegitimate children ; while the subject of legitimation is treated of in the first section of the same chapter. There is, I think, a wide distinction between legitimation and the acknowledgment of an illegitimate child. The laws which regulates their respective rights and duties are different. Every legitimate or legitimated child is an acknowledged child, ^but every acknowledged illegitimate child is not a legitimated child, for “illegitimate children, though duly acknowledged, can not claim the rights of legitimate-children.” This is the language of the 224th article of the Code which follows, in the same section, the article 221 relied on.
This case is of great importance, not so much on account of the interests involved, which are large, as on account of the principle which it settles. It has been twice before the court, and most ably argued, orally and by brief, by the counsel engaged on either side. It has been patiently and maturely considered by the court, and the result of our deliberations are now and finally given to the world. It is with regret that I find myself constrained to differ from my brothers. But *104the law and the authorities, as I read them, are plain before me, and I have nothing to choose from. I must go in the face of them all to agree with them, and this my duty forbids.
I know it seems hard that collateral kindred should be permitted to inherit in preference to the children of his body, no matter how begotten, and that such children should suffer from the result of a sin of which they were innocent, and which they could not prevent. But the law has put its ban upon them, white and black, and I have not the power to remove it. Hart knew when he was begetting these children what the consequences would be to them. If they suffer, it is from his fault, and not the laws, civil and moral, which he defied-Upon this subject I agree to what was said by Judge Preston in the case of Dupré:
“We know the object of the Legislature is, in the first place, to honor matrimony, which is of such incalculable importance to society; and, in the next place, to discourage concubinage, which is the cause of so much dissoluteness and evil. To prevent it the Legislature hold out the strongest motive, which can influence a parent — the legal disinherison of his offspring, unless he avows his shame before a notary public and witnesses, or in the face of the church. It is true,” continues this judge, “that legislation has ever failed in its object, for probably no one was ever deterred from concubinage by the consideration that his innocent offspring would be the victim of his guilt. And the only effect has been that the guilty parents have eaten the grapes, while the innocent children’s teeth, with tears-in their eyes, have been set on edge. But still it is the law, and must be obeyed until it is repealed.”
I therefore dissent from the opinion expressed by the majority of the court.