Bosque v. United States/Opinion of the Court

by Melville Fuller

United States Supreme Court

209 U.S. 91

Bosque  v.  United States

 Argued: January 29, 1908. --- Decided: March 23, 1908

Plaintiff in error contends: (1) That his right to practise law in the Philippine Islands was expressly guaranteed by article 9 of the treaty of Paris and recognized by § 13 of the Philippine Code of Civil Procedure; (2) that the supreme court of the Philippine Islands had no power, jurisdiction, or authority to deny or deprive a lawyer of his right to practise his profession, except for the reasons and in the manner provided in the Civil Code; (3) that plaintiff in error's right so to practise was a vested right, of which he coduld be deprived only by due process of law.

Article 9 of the treaty of Paris (30 Stat. at L. 1754) provided:

'Spanish subjects, natives of the Peninsula, residing in the territory over which Spain, by the present treaty, relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining, in either event, all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.

'The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.'

The record shows that plaintiff in error left the Philippines for Europe on May 30, 1899, and remained away until January 11, 1901. In the affidavit accompanying his petition for rehearing he states that the reasons for his departure from the islands were the unsettled conditions prevailing there and the state of his health; that while abroad he lived in France and Spain, residing for the most part in Barcelona; that he did not return sooner to the Philippines because of newspaper reports as to personal unsafety in Manila. In his first petition he claims to have lost his Spanish nationality because he had not made the necessary declaration of intention to preserve his allegiance to Spain; but that requirement was meant only for those who remained in the territory, and was not necessary in his case, since he removed from the islands.

In the opinion of the Philippine supreme court he carried his Spanish nationality with him on his departure, and it could only be lost by continuous residence in the islands and failure to declare his intention of retaining it within the time specified. But plaintiff was absent from the Philippines during the whole of the period allowed for making such declaration, and remained away several months after its expiration. It follows that he did not become a citizen of the islands under the new sovereignty, but that he continued to remain a Spaniard. The fact that he intended to return does not affect this conclusion. It was not necessary, in order to retain his Spanish nationality, that he should remain away permanently, and he was absent for more than a year and a half.

The question whether aliens were permitted to practise law in Spain and her colonies is elaborately argued, but it is quite unnecessary to pass upon it, since it is manifest that the words in article 9 of the treaty, 'such laws as are applicable to other foreigners,' referred not to the Spanish law, but to the laws enacted by the new sovereignty. Spaniards only became 'foreigners' after the cession of the islands; and it is obvious that the words meant such laws as shall be applicable to other foreigners.

We think it evident that plaintiff, under the laws and regulations on the subject put in force in the Philippines, first by the military and then by the civil authorities, was not entitled to the privilege which he sought.

On July 19, 1899, the military governor promulgated, in respect to the admission of lawyers, certain regulations, known as 'general orders No. 29, series of 1899,' § 2 of which provides as follows:

'Any resident of the Philippine Islands, not a subject or citizen of any foreign government years, of good moral character, and who possesses the necessary qualifications of learning and ability, is entitled to admission as attorney and counselor in all of the courts of these islands.'

By § 3 every applicant is required to produce satisfactory testimonials of good moral character and to undergo a strict examination in open court by the justices of the supreme court. If, upon examination, he is found qualified, he shall be admitted to practice in all the courts of the Philippine Islands, and a certificate of the record of the court's order to that effect shall be given him, which certificate shall be his license. (Sec. 4.) Section 5 is as follows:

'Every resident of these islands, not a citizen or subject of any foreign government, who has been admitted to practise law in the Supreme Court of the United States, or in any circuit court of appeals, circuit court, or district court thereof, or in the highest court of any state or territory of the United States, may be admitted to practise in the courts of these islands upon the production of his license. Likewise all persons duly accredited as lawyers in the Philippine Islands on the 31st day of January, 1899, who are residents of said islands, and not subjects or citizens of another government, may be admitted as attorneys and counselors in all the courts of the islands: Provided, That all applicants under this section shall furnish satisfactory evidence of good moral character and professional standing and take the prescribed oath: And provided further, That the court may, if it deems advisable, examine the applicant as to his qualifications.'

Every person, upon admission, must take an oath of allegiance to the United States. (Sec. 6.)

It is conceded that plaintiff did not become a member of the bar under the provisions of this law.

General orders No. 29 was followed by act No. 190 of the Philippine Commission, being the Code of Civil Procedure for the Philippine Islands (1 Pub. Laws, p. 378), § 13 of which is as follows: 'The following persons, if not specially declared ineligible, are entitled to practise law in the courts of the Philippine Islands:

'1. Those who have been duly licensed under the laws and orders of the islands under the sovereignty of Spain or of the United States, and are in good and regular standing as members of the bar of the Philippine Islands at the time of the adoption of this Code.

'2. Those who are hereafter licensed in the manner herein prescribed.'

It will be perceived that the applicants must be 'in good and regular standing as members of the bar of the Philippine Islands at the time of the adoption of this Code.' This description does not apply to plaintiff in error. The Civil Code was enacted August 7, 1901, to take effect September 1, 1901. He had been denied permission to practise law by the supreme court of the Philippines on July 27, 1901, upon the ground that he did not possess the political qualifications required by law. He was not, therefore, at the date of the adoption of the Code, in good and regular standing as a member of the bar.

It is true § 13 declares 'those who have been duly licensed under the laws and orders of the islands, under the sovereignty of Spain,' ect., are entitled to practise law, but that applies only to persons 'not specially declared ineligible;' and plaintiff in error was declared ineiligible because a citizen or subject of a foreign government.

Reference may well be made in this connection to § 14 of the act, which reads:

'Any resident of the Philippine Islands, not a subject or citizen of any foreign government, of the age of twenty-three years, of good moral character, and who possesses the necessary qualifications of learning and ability, is entitled to admission as a member of the bar of the islands, and to practise as such in all their courts.'

Section 19 provides for the admission without examination of any resident, not a citizen or subject of any foreign government, who has been admitted to practise in any of the courts of the United States.

It seems clear from the provisions of general orders No. 29, and of the Code, that the intention was, and has been from the first, to require all members of the bar to be either citizens of the United States or those enjoying the status of natives of the Philippines, and to exclude all foreigners from the legal profession in the islands.

If it be conceded that plaintiff in error possessed the privilege of practising his profession in the islands at the time Spain surrendered her sovereignty over them the enjoyment of that privilege ceased by virtue of the stipulations of the treaty of Paris and the subsequent laws and regulations of the new sovereignty inconsistent therewith; and the effect of the decision in the present instance was not to deprive plaintiff in error of that privilege. Counsel for plaintiff in error cite various sections of the Code which prescribe the grounds upon which a lawyer may be deprived of the right to practise, but they relate to the removal or suspension from the bar of attorneys already practising, and have no application to the case of one who has been denied admission to practice at all.

The 8th article of the treaty of Paris declares that the cession of sovereignty 'cannot in any respect impair the property or rights which, by law, belong to the peaceful possession of property of all kinds,' etc., but that stipulation does not relate to the rights connected with trades and professions. The word 'propiedad' used in the Spanish text is defined by Escriche as the right to enjoy and dispose freely of one's things in so far as the laws do not prohibit it. 4 Escriche, 736. The same word appears in article 9, providing that Spanish subjects may retain, whether they remain or remove from the territory, 'all their rights of property, including the right to sell or dispose of such property or of its proceeds.' Clearly, the right to practise law was not referred to as 'property' there, and they are followed by the words 'and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to other foreigners.'

We concur with the conclusions of the Supreme Court of the Philippines, and its judgment is affirmed.

Notes