1 French Civil Code in Mauritius; the old Norman law in Jersey. 2 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 conditions." 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 Congress shall see fit to annex territories whose juris"prudence 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 re'quire 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 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 Page 66. 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 1 Davis v. Beason, 133 U. S. 333, 342. See also Mormon 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. |