persons within their purview are necessarily determinable by Congress. When we say that private property in the Philippines cannot be taken for public use without compensation according to the Fifth Amendment, and that at present no one can acquire land there under the Homestead Act, we do not suggest an inconsistency, but attribute to the organic principle and to the circumstantial statute the proper function of each.

3. All other laws of annexed territory stand until changed by the personal or delegated authority of Congress; and the Supreme Court will take judicial notice of them as though they were the laws of a State.1

The conduct of Congress in regard to the old body of law will be judged quite as much by the things it leaves untouched, as by its enactments. To point my meaning I cite a recommendation from a report of the Insular Commission on Porto Rico, as being animated by a provincial and destructive spirit from which Congress should be free: "The Spanish "system of laws and procedure," say the Commissioners, "while not all bad, differs so radically in principle and structure as well as in methods and "forms from our own, that in our judgment the best way to Americanize Porto Rico is to give them [sic] "the benefit of our complete system."" And they recommend the abolition of "all the Spanish laws, "civil and criminal code, code of civil and criminal

1 Fremont v. U. S., 17 Howard 542, 557.

2 Page 61. (The italics are mine.)

"practice, and all royal decrees applicable to Porto "Rico," and the substitution of a system based upon what they call "the common law as adopted by the "States of the Union and construed by the courts "thereof."

The sneer at a system of jurisprudence, the greater part of which was devised for Spain and her colonies alike, and has been lately revised;1 which is akin to the systems of western Europe, and, like these, is founded upon the most enduring work of civilization, -the Roman law,- argues a provincialism and want of judgment that go far toward discrediting the report of the Commissioners as a whole, and the “full "code of laws" they promise to submit.

The proposal to force the common law upon the people of Porto Rico is contrary to the practice of the country whence comes the common law. English colonists going to an uninhabited country take the common law with them as the law of the land; 2 and when they go to a barbarous country they take it as the law for themselves, and for the natives who become members of their community. But when England extends her sovereignty over a land wherein a civilized system is established she usually accepts it as the basis of law. Thus we find the Roman-Dutch law in Ceylon; the old French law in Quebec; the

* 5

1 See Address of Hon. William Wirt Howe, 60 Albany Law Journal 101.

2 See Falkland Islands Co. v. The Queen, 2 Moore P. C. C.,

N. S. 266.

3 See Advocate-General 'v. Ranee Surnomoye Dossee, 2 Moore P. C. C., N. S. 22.

4 Lindsay v. Oriental Bank, 13 Moore P. C. C. 401.

5 See Exchange Bank v. The Queen, 11 App. Cas. 157.

French Civil Code in Mauritius; the old Norman law in Jersey.'

3

Examining the practice of the United States we find that they have carried the common law to sparsely peopled districts in derogation of existing systems as in the case of the Mississippi territory; 3 but they have never uprooted the law of an important community. The case of Louisiana is especially instructive: Congress did not supplant the civil law, and, while the people of the Territory soon adopted the common law as the rule in criminal cases, they retained the old law as the basis of their general jurisprudence. And the present Civil Code of Louisiana is described as being "quite like that of Spain and France, with some provisions, however, "introduced from New York and England. The "code of procedure resembles the procedure of "France and Spain, and is essentially the practice "of the late Roman law adapted to modern con"ditions." 4 The common law supplanted the old system in Florida and California, but not by order of Congress. The inhabitants, acting through a Territorial legislature in one case, and a State legislature in the other, soon changed much of the law to conform to the usage of the dominant race.

The body of Spanish law is partly repugnant to our Constitution, especially in the criminal branch. It may be partly unsuited to the new conditions.

1 Lang v. Reid, 12 Moore P. C. C. 72.

2 La Cloche v. La Cloche, 3 L. R. P. C. 125.

3 Pollard v. Hagan, 3 Howard 212, 227.

4 See Mr. Howe's Address above cited.

Federal courts will administer in the islands, as elsewhere, a general commercial law for the United States; but so far as this Spanish law is the basis of personal and property rights in the Philippines, let it be amended in the interests of the islanders, if need be, not supplanted because it is irksome to a few Americans. In thus respecting the local law we shall act in harmony with the spirit of our Constitution. "In the future growth of the nation," said the Supreme Court, just before the beginning of the late war, "as heretofore, it is not impossible that Con'gress shall see fit to annex territories whose jurisprudence is that of the civil law. One of the con"siderations moving to such annexation might be "the very fact that the territory so annexed should enter the Union with its traditions, laws, and "systems of administration unchanged. It would be "a narrow construction of the Constitution to require them to abandon these, or to substitute for a "system which represented the growth of genera"tions of inhabitants a jurisprudence with which "they had had no previous acquaintance or sym"pathy."1

66

Language

The Insular Commission says in its report on Porto Rico: "The official language of the island to "be the English language, but temporarily the pleadings and proceedings in the first three named "courts to be called 'Porto Rican' courts may be in "Spanish and in the Federal and Supreme Courts in 1 Holden v. Hardy, 169 U. S. 366, 389.

English. An official interpreter shall be provided "for each court.'

"1

Naturally, English will be the medium of intercourse between the Federal Government and the governments of the islands, and the official language of the federal courts. But these requirements will not affect the islanders generally, and the inconvenience of translation and interpretation must be accepted as an inevitable result of annexation. But the recommendation that English shall be the "official language of the island" suggests a hardship that perhaps the Commissioners did not intend, and Congress surely will never inflict. "Official "language" in its broad meaning is the language in which a government conducts all the public business, publishes the laws, and communicates with the people through officials of every degree, and it is the language of all documents of record. Now we may

hope that the necessary employment of English, the obvious advantage of acquiring it, and the encouragement of our Government will promote its use in Porto Rico and the Philippines, but we should not attempt to force it upon either, directly or indirectly. A just government will respect the mother tongue of a people over whom it assumes dominion. The persistency of mother tongue has overcome most brutal efforts to supersede it.

So far as sweeping changes in law and language would promote the interests of American officeseekers, and the convenience of a few American settlers, they are not worthy of consideration. As they would impose qualifications for local office that 1 Page 66.