In re Bosque

A Spanish subject who departed the Philippine Islands during the eighteen-month option period under Article 9 of the Treaty of Paris retained Spanish nationality and could not be admitted to the Philippine bar, because as a foreigner he was prohibited from practicing law under both prior Spanish law and the Code of Civil Procedure in force.

Petitioner J. Garcia Bosque was a Spanish subject residing in the Philippine Islands at the time of the cession of the archipelago to the United States under the Treaty of Paris of December 10, 1898. Article 9 of that treaty accorded Spanish subjects residing in the ceded territory the right to elect either to leave the country — thereby preserving their Spanish nationality — or to remain, in which case the expiration of eighteen months without an express declaration of intent to retain Spanish nationality would result in its loss and the acquisition of the nationality of the new sovereign. The eighteen-month period ran from April 11, 1899, the date of the exchange of ratifications, and expired on the corresponding day of October 1900. Native-born inhabitants of the territory were not accorded this right of option. The legal regime governing the practice of law by foreigners in the Philippines had been established under Spanish legislation — specifically the Law of Foreigners for the Ultramarine Provinces of July 4, 1870, and Article 27 of the Spanish Civil Code — and was continued under the Code of Civil Procedure in force at the time of the petition.

J. Garcia Bosque was a Spanish subject residing in the Philippine Islands at the time the archipelago was ceded to the United States under the Treaty of Paris of December 10, 1898. Article 9 of the treaty accorded Spanish subjects in the ceded territory the right of option: they could leave the country and thereby preserve their Spanish nationality, or they could remain in the territory, in which case the expiration of eighteen months from the exchange of ratifications — that is, from April 11, 1899 — without an express declaration of intent to retain Spanish nationality would result in the loss of that nationality and the acquisition of the nationality of the new sovereign. Native-born inhabitants were not accorded this right of option; they became Filipino subjects regardless of their wishes.

The petitioner absented himself from the Islands on May 30, 1899, and remained absent during the entire eighteen-month option period, which expired on the corresponding day of October 1900. He returned to the Islands only in January 1901. By departing the territory, he carried his Spanish nationality with him and was not subject to the presumptive change of nationality that arose from continued residence coupled with failure to make an express declaration of intent to preserve Spanish nationality within the treaty period.

Upon his return, the petitioner filed a petition for admission to the practice of law in the Philippine Islands. The legal profession, however, was one for the practice of which the law required a diploma of proficiency granted by the Spanish authorities. Under the Law of Foreigners for the Ultramarine Provinces of July 4, 1870, foreigners were authorized to engage in any industry or practice any profession for which the law did not require such a diploma, but the legal profession was expressly excluded from this authorization. Article 27 of the Spanish Civil Code provided that foreigners in Spain would enjoy the rights accorded to Spaniards, subject to the limitations of the constitution, which imposed the same restriction. The Code of Civil Procedure in force at the time of the petition likewise prohibited foreigners from practicing law. The Court found that the petitioner, having retained his Spanish nationality, stood on the same footing as other foreigners and therefore lacked the qualifications necessary for admission to the bar.

• Nationality Status: Whether the petitioner, by departing the Philippine Islands on May 30, 1899, and remaining absent during the entire eighteen-month option period under Article 9 of the Treaty of Paris, retained his Spanish nationality or acquired Filipino subject status.
• Admission to the Bar: Whether the petitioner, as a Spanish subject, was qualified for admission to the practice of law in the Philippine Islands.

• Nationality Status: Yes, the petitioner retained his Spanish nationality. By absenting himself from the ceded territory during the entire option period, he elected the first course under Article 9 of the Treaty of Paris — departure with preservation of Spanish nationality — and was not subject to the presumptive change of nationality arising from residence and failure to declare.
• Admission to the Bar: No. As a Spanish subject, the petitioner stood on the same footing as other foreigners, who were prohibited from practicing law under both prior Spanish legislation and the Code of Civil Procedure then in force, because the legal profession required a diploma of proficiency granted by the Spanish authorities.

• Nationality Status: Article 9 of the Treaty of Paris accorded Spanish subjects in the ceded territory two courses: to leave the country, thereby freeing themselves of subjection to the new sovereign and preserving their Spanish nationality, or to remain, in which case the expiration of eighteen months without an express declaration of intent to retain Spanish nationality would result in its loss. The conditions giving rise to the presumptive change of nationality were residence in the ceded territory and the lapse of eighteen months without an express declaration to the contrary. The petitioner departed on May 30, 1899, and remained absent throughout the entire option period, which ran from April 11, 1899, to October 1900. Because he was not resident in the territory during the option period, the conditions for presumptive change of nationality were not fulfilled. His departure constituted an election of the first course; he carried his Spanish nationality with him and could not be regarded as a Filipino subject by either the Government of Spain or that of the United States. The ordinary provisions of local law regarding the effect of absence upon retention of residence or domicile could not be relied upon, because the dates fixed by the treaty were part of the contract between sovereign nations and not within the control of individual subjects. The Spanish Government's royal decree of May 11, 1901, confirmed that natives or residents of ceded territories could not claim Spanish nationality preserved or recovered under that decree except with the consent of the new Government or under treaty stipulations.

• Admission to the Bar: The American Commissioners, in the negotiations preceding the Treaty of Paris, stated that Spanish subjects who elected to remain would have the right to carry on their industry, commerce, and profession, "being subject in respect thereof to such laws as are applicable to other foreigners." The laws applicable to other foreigners at the time of the treaty were the Law of Foreigners for the Ultramarine Provinces of July 4, 1870, and Article 27 of the Spanish Civil Code. The Law of Foreigners authorized foreigners to practice any profession for which the law did not require a diploma of proficiency granted by the Spanish authorities; the legal profession was one that required such a diploma. The Code of Civil Procedure in force at the time of the petition likewise prohibited foreigners from practicing law. Spanish subjects were thus in every respect on the same footing as other foreigners. Since the petitioner retained his Spanish nationality and had not been naturalized — a matter on which no legislation then existed — he could not be regarded as possessing the qualifications necessary for admission to the bar.

• Treaty of Paris — Right of Option for Spanish Subjects — Under Article 9 of the Treaty of Paris, Spanish subjects residing in the ceded territory were accorded the right to elect either to leave the country, thereby preserving their Spanish nationality, or to remain, in which case the expiration of eighteen months from the exchange of ratifications (April 11, 1899) without an express declaration of intent to retain Spanish nationality would result in its loss and the acquisition of the nationality of the new sovereign. Native-born inhabitants were not accorded this right of option. The Court applied this doctrine to hold that the petitioner, by departing the Islands during the option period, elected to preserve his Spanish nationality and did not acquire Filipino subject status.

• Presumptive Change of Nationality — The presumptive change of nationality under Article 9 of the Treaty of Paris depended on two conditions: residence in the ceded territory and the lapse of eighteen months without an express declaration of intent to preserve Spanish nationality. Absent residence, the declaration was of no significance, as it was established for the express purpose of overcoming the effect of continued residence, which implied subjection to the new sovereign. The Court held that because the petitioner was absent from the territory during the entire option period, neither condition was fulfilled and no change of national status occurred.

• Foreigners and the Practice of Law — Under the Law of Foreigners for the Ultramarine Provinces of July 4, 1870, and Article 27 of the Spanish Civil Code, foreigners were prohibited from practicing professions for which the law required a diploma of proficiency granted by the Spanish authorities. The legal profession was one such profession. The Code of Civil Procedure in force at the time of the petition likewise barred foreigners from practicing law. Spanish subjects who retained their nationality under the Treaty of Paris stood on the same footing as other foreigners and were equally prohibited.

• "Having left the islands he had no occasion to make any declaration of his intention to preserve his Spanish nationality, which he carried with him on his departure. This nationality could be forfeited only by a continued residence in the ceded territory and a failure to make a declaration of intention to preserve it within the term fixed therefor." — This passage articulates the ratio decidendi on nationality: departure from the ceded territory constituted an election to preserve Spanish nationality, and the presumptive change of nationality required both residence and failure to declare.

• "The conditions which gave rise to the presumptive change of nationality were residence and the lapse of eighteen months without express declaration to the contrary; these two conditions not being fulfilled there was no change of national status." — This states the two-element test for presumptive change of nationality under Article 9 of the Treaty of Paris, a formulation frequently cited in subsequent jurisprudence on the Treaty of Paris.

• "if other foreigners could not then engage in the practice of law, and by the express prohibition of the Code of Civil Procedure in force can not do so at the present time, neither can Spanish subjects do so, they being in every respect upon the same footing as other foreigners." — This passage defines the equal-footing principle: Spanish subjects retaining their nationality under the treaty were treated identically to other foreigners with respect to the right to practice law.

• Article 9, Treaty of Paris (December 10, 1898) — Accorded Spanish subjects in the ceded territory the right of option: to leave and preserve Spanish nationality, or to remain and, failing an express declaration within eighteen months, lose Spanish nationality and acquire that of the new sovereign. Applied to determine that the petitioner retained Spanish nationality by departing during the option period.
• Article 1, Royal Decree of May 11, 1901 (Spanish Government) — Confirmed that native-born subjects of the ceded territory could not be regarded as other than Filipino subjects. Cited to show that the right of option was not available to native-born inhabitants.
• Article 5, Royal Decree of May 11, 1901 (Spanish Government) — Declared that natives or residents of ceded territories could not claim Spanish nationality preserved or recovered under the decree except with the consent of the new Government or under treaty stipulations. Cited to underscore that the dates fixed in the treaty were part of the contract between sovereign nations.
• Article 39, Law of Foreigners for the Ultramarine Provinces (July 4, 1870) — Authorized foreigners to engage in any industry or practice any profession for which the law did not require a diploma of proficiency granted by the Spanish authorities. Applied to exclude foreigners, and by equal footing Spanish subjects, from the practice of law.
• Article 27, Spanish Civil Code — Provided that foreigners in Spain would enjoy the rights accorded to Spaniards, subject to the provisions of the constitution. Applied to confirm that foreigners faced the same restrictions as Spaniards regarding professions requiring official diplomas.
• Article 2, Spanish Constitution of 1876 — Established the same restriction or limitation as the Law of Foreigners regarding the rights of foreigners. Cited as the constitutional basis for the limitation on foreigners' professional rights.
• Code of Civil Procedure (in force at the time of the petition) — Expressly prohibited foreigners from practicing law. Applied as the current statutory bar to the petitioner's admission to the bar.

Torres, Cooper, Willard, and Mapa, JJ., concurred. Ladd, J., did not sit in this case.