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MALCOLM; November 29, 1920

Points to consider:
1. Difference between Civil Law and Common Law
2. Distinguish strains of common law: What are the bases?
3. How did the Court arrive at the conclusion that there is Anglo-
American tradition?
4. What system is in place?
5. References to American jurisprudence
6. Laws superseded or modified
7. Identify what is that important question the Court needed to
resolve and how it helped solve the Shoop case.

- Max Shoop is applying for admission to practice law in the
Philippines under Par. 4 of the Rules for the Examination of
Candidates for Admission to the Practice of Law. It was shown in
his application that he was practicing for more than 5 years in the
highest court of the State of New York.
- The said rule requires that:
New York State by comity confers the privilege of admission
without examination under similar circumstances to attorneys
admitted to practice in the Philippine Islands. (Aside from comity,
the satisfactory affidavits of applicants must show they have
practiced at least 5 years in any (district or circuit or highest) court
of the US or territory of it. But admission is still in the discretion of
the court.)
- The rule of New York court, on the other hand, permits admission
without examination in the discretion of the Appellate

Division in several cases:
1. Provided that the applicant also practiced 5 years as a member of
the bar in the highest law court in any other state or territory of
the American Union or in the District of Columbia
2. The applicant practiced 5 years in another country whose
jurisprudence is based on the principles of the English Common
Law (ECL).

WON under the New York rule as it exists the principle of comity is

- The Philippines is an UNORGANIZED TERRITORY of the US, under a
civil gov't. established by the Congress.
- In interpreting and applying the bulk of the written laws of this
jurisdiction, and in rendering its decisions in cases NOT covered by
the letter of the written law, this court relies upon the theories
and precedents of Anglo-American cases, subject to the limited
exception of those instances where the remnants of the Spanish
written law present well-defined civil law theories and of the few
cases where such precedents are inconsistent with local customs
and institutions.
- The jurisprudence of this jurisdiction is based upon the ECL in its
present day form of Anglo-American Common Law to an almost
exclusive extent.
- New York permits conferring privileges on attorneys admitted to
practice in the Phils. similar to those privileges accorded by the
rule of this court.
- Petition granted. Decision is based on the interpretation of the NY
rule; doesnt establish a precedent with respect to future


a. Comity would exist if we are a territory of the US
b. We are NOT an organized territory incorporated into the United
States but
c. We are NOT a "foreign country" or "another country" either
d. Like Puerto Rico, we may not be incorporated but we are a
territory since the US Congress legislates for us and we have been
granted a form of territorial government, so to that extent we are
a territory according to the US Atty. Gen.
e. It is not believed that the New York court intended the word
"territory" to be limited to the technical meaning of organized
territory or it would have used the more accurate expression.
f. Therefore, We have a basis of comity to satisfy the first
requirement since the full phraseology indicates a SWEEPING
INTENTION to include ALL of the territory of the US.

On COMMON LAW jurisdiction:
(On what principle/s is the present day jurisprudence based?)
g. In most of the States, including New York, codification and statute
law have come to be a very large proportion of the law of the
jurisdiction, the remaining proportion being a system of case law
which has its roots, to a large but not exclusive degree, in the old
English cases.
h. In speaking of a jurisprudence "based on the English Common
Law" it would seem proper to say that the jurisprudence of a
particular jurisdiction Is based upon the principles of that
Common Law if its statute law and its case law to a very large
extent includes the science and application of law as laid down by
the old English cases, as perpetuated and modified by the
American cases.
i. Common Law adopted by decision:
i. In the US, the ECL is blended with American codification and
remnants of the Spanish and French Civil Codes. There a legal
metamorphosis has occurred similar to that which is
transpiring in this jurisdiction today.
ii. New York uses the phrase "based on the English Common
Law" in a general sense
iii. And that such Common Law may become the basis of the
jurisprudence of the courts where practical considerations
and the effect of sovereignty gives round for such a decision.
iv. If in the Philippines, ECL principles as embodied in Anglo-
American jurisprudence are used and applied by the courts
to the extent that Common Law principles are NOT in conflict
with the LOCAL WRITTEN laws, customs, and institutions as
modified by the change of sovereignty and subsequent
legislation, and there is NO OTHER FOREIGN case law system
used to any substantial extent, THEN it is proper to say in the
sense of the New York rule that the "jurisprudence" of the
Philippines is based on the ECL.
i. The extent of the English or Anglo-Am Common Law here has
not been definitely decided by the SC. But there is a similarity
to the quotations from the American decisions cited with
reference to the ECL.
ii. Alzua & Arnalot vs. Johnson: we apply Anglo-Am
jurisprudence only in "xxxso far as they are founded on
sound principles applicable to local conditions, and are not in
conflict with existing law; nevertheless, many of the rules,
principles, and doctrines of the Common Law have, to all
intents and purposes, been IMPORTED into this jurisdiction, a
RESULT of the enactment of new laws and the organization
of new institutions by the Congress of the USxxx"
iii. The Spanish judicial system was abrogated replaced with a
new one modeled after the judicial systems of the US.
Therefore, those Spanish doctrines and principles in conflict
with the new one were abrogated.
iv. US. v. De Guzman: For proper construction and application
of the terms and provisions we borrowed from or modeled
upon Anglo-Am precedents, we review the legislative history
of such enactments.
v. US. v. Abiog and Abiog: The courts are constantly guided by
the doctrines of Common Law. Neither ECL or American
Common Law is in force in this Islandssave only in so far as
they are founded on sound principles applicable to local
conditions and aren't in conflict with existing law."
vi. What we have is a PHILIPPINE COMMON LAW influenced by
the ECL or American Common Law.
vii. A great preponderance of the jurisprudence of our
jurisdiction is based upon Anglo- American case law
precedents-exclusively in applying those statutory laws
which have been enacted since the change of sovereignty
and which conform more or less to the American statutes,
and-to a large extent in applying and expanding the
remnants of the Spanish codes and written laws.
i. The chief codes of Spain that were extended to us were as
follows: Penal Code, Code of Commerce, Ley Provisional,
Code of Criminal Procedure, and Code of Civil Procedure,
Civil Code, Marriage Law, Mortgage Law, Railway laws, Law
of Waters.
ii. There were also special laws having limited application.
iii. The foregoing written laws had acquired the force of statute
law by change of sovereignty.
iv. There was no properly called Case Law of Spain since
Spanish jurisprudence does not recognize the principle of
Stare Decisis.
1. Manresa' s discussion of Art. 6 of the Civil shows how far
from a case law system is jurisprudence. Spanish courts are
governed by:
a. 1st, by written law
b. 2nd, by the customs of the place (derives its force
because it is the acknowledged manner on how things
are done and not jurisprudence)
c. 3rd, by judicial decision (when in practice, these were
considered last; the development of case law was
impeded because the courts were free to disregard any
information or decisions of other courts.)
d. 4th, by general principles of law
i. All portions of political law were abrogated immediately with
the change of sovereignty
ii. All Spanish laws, customs, and rights of property inconsistent
with the Constitution and American principles and
institutions were superseded.
iii. It was as if Congress had enacted new laws for the
Philippines modeled upon those same Spanish statutes.
i. It appears that the bulk of present day Statute Law is
derivative from Anglo-American sources; derivative in a
sense of having been COPIED, and in the sense of having
been enacted by Congress or by virtue of its authority.
ii. In all of the cases, Anglo-American decisions and authorities
are used and relied upon to a greater or less degree.
Although in many cases, the use is by way of dictum,
nevertheless, the net result is the building up of a very
substantial elaboration of Anglo-American case law.
i. We use Anglo-Am cases in interpreting and applying the
remnants of the Spanish statutes thus showing how
permanent the hold of the Anglo-Am Common Law has on
our jurisprudence.
ii. Anglo-Am case law plays a very great part in amplifying the
law on those subjects, which are still governed by the
remaining portions of the Spanish statutes, as exhibited in
the groups of cases cited in the footnotes.
iii. Anglo-Am case law has entered practically every field of law
and in the large majority of such subjects has formed the sole
basis for the guidance of the Court in developing
iv. The result is that we've developed a Phil. Common Law
which is based almost exclusively, except in cases where
conflicting with local customs and institutions, upon Anglo-
Am Common Law.
i. There are no digests of Spanish decisions to aid the study of
Bench and Bar vs. The abundance of
digests/reports/textbooks on English/Am. courts.
ii. There is a prolific use of Anglo-Am authorities in the
decisions of the court, plus, the available sources for study
and reference on legal theories are mostly Anglo-Am
iii. Therefore, there has been developed and will continue a
common law in our jurisprudence (i.e. Phil Common Law)
based upon the ECL in its present day form of an Anglo-Am
CL, which is effective in all of the subjects of law in this
jurisdiction, in so far as it does not conflict with the express
language of the written law (where the remnants of the
Spanish written law present well-defined civil law theories)
or with the local customs and institution.