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would exclude islanders generally, and for know ledge of local affairs that would make them strangers in their own country, they are altogether vicious. Yet if these changes be seriously considered, the motive will not be consciously bad, but rather an enthusiastic notion that we ought to “ Americanize " the islanders by process of law. Whereas we should rely upon a wise policy and, above all, upon the example and tact of the men who develop it personally to the islanders to lead them to a better estate.

Religious Institutions

Our attitude toward religious institutions in the annexed territory involves problems of great interest, and some of serious difficulty.

Excepting the self-explaining prohibition of any religious test as a qualification for office, the position of religion under the Constitution is defined by the clause: “Congress shall make no law respecting an “establishment of religion, or prohibiting the free “exercise thereof." “ Free exercise" does not mean unbridled license. “It was never intended or sup

posed,” said the Supreme Court, “ that the Amend“ment could be invoked as a protection against "legislation for the punishment of acts inimical to “the peace, good order, and morals of society”;1 and so the Mormon Church was not permitted to plead polygamy as a protected tenet of religion. Whether the Mohammedans of Sulu would have a

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1 Davis v. Beason, 133 U.S. 333, 342. See also Mormon

Church v. U. S., 131 U. S. 1.

legal right to object to an act of Congress forbidding polygamy I do not discuss, because its abolition should be sought through moral influences and not by repressive laws. The sufficient reason for distinguishing polygamy in Sulu from polygamy in Utah is that the Mohammedans are, like our tribal Indians, a separate people, a peculiar community who may maintain this traditional institution without affecting the great community of the republic. Our Government, however, has the right to forbid practices so brutal that no plea can be permitted to excuse their perpetration, and it has sometimes exercised this right in the case of tribal Indians.

The provision that Congress “shall make no law “respecting an establishment of religion ” plainly forbids all legislation in support of ecclesiastical work and instruction, but lately it has been decided that Congress may appropriate money for hospital buildings for the reception of poor patients at the public charge, the hospital being a secular corporation under the management of a Roman Catholic sisterhood.1

Whether this provision operates to dissolve a relation between church and state existing in territory prior to its annexation has never been determined judicially, but this is its accepted and true effect, because under the new régime the state cannot perform the duties imposed by such a relation. The Roman Catholic Church no longer enjoys in our new possessions exclusive recognition, nor a right to aid from the state, though, perhaps, under the rule

1 Bradfield v. Roberts, 175 U. S. 291.

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in Bradfield v. Roberts, assistance may be given to worthy public charities managed by religious organizations.

The critical ecclesiastical question in our new possessions concerns the friars in the Philippines. While awaiting full information for a thorough understanding of this question, the fact of discontent with the friars is patent enough to justify some comment and suggestion.

Any discontent caused by the exercise of temporal power, or by the influence of a privileged class, should disappear with the divorce of state from church, and the abolition of class privilege. Discontent arising from any abuse of spiritual power involves ecclesiastical matters placed by our law beyond state interference.

The possession of large tracts of land by the friars seems to be the main source of their power, and it is charged that they have not a valid title to the greater part of their holdings. This, I believe, is the first time the United States have been confronted with so serious a question of this kind in new possessions, the mission lands in California having been readily determined to be held in trust for the public because Mexico had secularized them prior to the cession. A clause in the Eighth Article of the Treaty of Paris has been criticized, on the erroneous supposition that it assures to the Roman Catholic Church the possession of all property in its occupation. In fact, the clause simply affirms the moral, ques

1 See U. S. v. Cervantes, 18 Howard 553; Faxon v. U.S., 171

U. S. 244.

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and, in our case, the constitutional obligation to respect vested rights of property, leaving open the very question of present interest, whether the friars have a legal title. President McKinley has instructed the Philippine Commission to investigate this tion, though not, as I understand, to adjudicate it, for this can be done only by a competent tribunal. It would seem, however, that Congress might adopt a report of the Commission as the basis of a suit before a regular court.?

If after a just settlement of the land question the presence of the friars in the Philippines should be really inimical to the peace of the islands, it is to be hoped that the Church will transfer them to congenial fields and relieve the United States of a vexatious, perhaps an insoluble, problem. Other countries have, at times, found no difficulty in expelling objectionable religious orders and even in confiscating their property, but the United States are bound to respect both religion and property: They are forbidden to interfere at all with the one; they are empowered to take the other only for public use and upon payment of compensation.

1 See message of December 3, 1900. 2 See U. S. v. Ritchie, 17 Howard 525.

CHAPTER V

THE ALIENATION OF THE PHILIPPINES

I have investigated the status of the Philippines, and I find that our title to them is as perfect in law as our title to the city of Washington, and that, like that city, they are part of the United States.

I have investigated the position of the Constitution with regard to the Philippines, and I find that, being a part of the United States, they are within the purview of many important provisions.

I have considered the governing of the Philippines, and I find no want of legitimate power, yet an actual preference for illegitimate power in the intrusion of the President into the domain of Congress.

Mainly, I have written as though there were no question of our renouncing the sovereignty of the islands, for the reason that opportunity for renunciation in no wise excuses us from respecting the status quo and its obligations; yet the technical legitimacy of our possession neither palliates its real offense, nor suggests its permanence. The annexation of the Philippines is not a cross to be borne - which seems to be the best that can be said for it. It is a blunder to be retrieved.

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