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April 30, 1947

Petition of SMITH

The opinion of the court was delivered by: FAKE

The petitioner is a native of England. He filed his petition here seeking naturalization. The government contends that he is not of good moral character because he obtained a Mexican divorce, and neither he nor his wife in that proceeding were Mexican residents at the time, nor did either of them appear personally at the trial in Mexico and thereafter he entered into a ceremonial marriage in New Jersey with Evelyn M.

This court has heretofore on at least one occasion held, syllogistically, that such a divorce being invalid, a subsequent marriage was bigamous and it followed therefore, as a matter of logic, that petitioner was of bad moral character. There was something interesting in the attitude and demeanor of the petitioner in this case, perhaps it was his integrity and his old-fashioned, fearless tenacity in insisting upon his rights as he understood them. It will be noted that here I have come to the conclusion that this applicant is, notwithstanding his Mexican divorce and subsequent marriage, a man of good moral character. It appears from the record that petitioner has successfully qualified for admission to citizenship as to each of the other tests required by that statute.

 Petitioner is a chemical engineer with a degree from the University of London, a man of culture and refinement. He migrated from England to this country in the year 1930 to better his financial condition, leaving behind him a wife and two infant children. His wife refused to accompany him on the journey and has since continuously refused to join him in a marital domicile here. For some years after leaving England however, he supported his wife on the other side and he also supported his children as long as they needed support or were willing to acknowledge the receipt of support. He is now about 57 years of age and, I gather, has at all times desired the comforts of a home and the companionship afforded by the marital relation. The refusal of his wife to join him here was unjustified and after the lapse of some years he met and became interested in Miss Evelyn M., with a view to matrimony. He then considered the subject of divorce with the thought of freeing himself from his English wife as quickly as possible so he might lawfully enter upon another marriage. He advised with lawyers and found, so he says, that to obtain a divorce in New Jersey, where he resides, would involve a further delay of two years. The lady of his choice was nearing an age when offspring would be impossible and she desired to have children. He then proceeded, on the advice of counsel and in good faith so far as he was concerned, to obtain a divorce in Mexico where such actions are dealt with speedily and without the expense and inconvenience of a change of domicile. No fraud was involved in the Mexican proceeding. He received a decree of absolute divorce issued out of the Mexican court on July 21, 1939. Shortly thereafter in August, he contracted a ceremonial marriage with Evelyn M.

 It is urged by the government that in obtaining the Mexican divorce and being charged in law with knowledge of its invalidity in New Jersey and then deliberately marrying another wife, he evidenced bad moral character.

 As bearing upon the question of moral character, it is well to examine into the criminal law of New Jersey to ascertain whether petitioner has committed a crime under the law of the state and if so, the nature of that crime in so far as moral turpitude is a factor. There can be no doubt that the decree of divorce obtained in Mexico is, as such, invalid in New Jersey since the Mexican court was without jurisdiction '* * * dOmicile of at least one of the parties is indispensably necessary to confer jurisdiction on a court to grant a divorce * * *.' Cox v. Cox; 1945, 137 N.J.Eq. 241, 44, A.2d 92, 96.

 It appears that petitioner, since the marriage ceremony with Evelyn M., has resided with her and they have held themselves out as husband and wife in the community in which they live. Is this a bigamous relation? The New Jersey criminal statute, in so far as pertinent, provides as follows:

 'Any person who, having a husband or wife living, marries another person, shall be guilty of bigamy, and punished by a fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding ten years, or both.

 'Nothing in this section contained shall extend to:

 'a. Any person whose husband or wife shall be continually remaining without the United States for the space of five years together; or b. * * * c. * * * d. * * *.' N.J.S.A. 2:113-1.

 It appears here that petitioner's English wife had remained continuously without the United States for a space of five years. His relationship with Evelyn M. is therefore not bigamous within the intent of the criminal law of this state.

 Is the relationship in this case adulterous? No. Since that crime depends upon a sexual relation with a married woman and the woman in this case was a feme sole. The New Jersey statute on the subject is very brief, 'Any person who shall commit adultery shall be guilty of a misdemeanor.' N.J.S.A. 2:106-1. This 2:106-1. leads to the case law of New Jersey for a definition of adultery. Mr. Justice Ford, sitting in the New Jersey Supreme Court in the year 1838, went into the subject of adultery exhaustively in the manner of an analytical scholar. State v. Lash, 16 N.J.L. 380, 32 Am.Dec. 397. That opinion is indeed illuminating and should be read in connection with this case. He there rules: '* * * adultery can be committed only with a married woman' and he goes back to the 'imperishable commentaries of Blackstone' and even earlier for source material. That definition remains unchanged to this date.

 As to fornication: It appears, as has been stated, that petitioner is living with Evelyn M. and they are holding themselves out as husband and wife. The evidence shows that this includes all the privileges incident to the marital relation. The present statute on fornication reads as follows:

 'Any person who shall commit fornication shall be guilty of misdemeanor, and punished by a fine not exceeding fifty dollars, or imprisonment not exceeding six months, or both.' N.J.S.A. 2:133-1.

 Here again it will be noted that further definition is necessary. During the reign of Queen Anne and in the year 1704, a criminal statute was enacted in the Colony of New Jersey making fornication an offense without expressly defining fornication and inflicting a penalty only when issue was born of the offense. This left the way open for judicial interpretation and Mr. Justice Kinsey in Smith v. Minor, 1 N.J.L. 16, in the year 1790 construed the law in a slander case, in the following language: '* * * I am fully satisfied from the whole tenor of the section, which is very inaccurately worded, that nor fornication unless that consequence (birth of issue) does follow is indictable under this act and that such was the intention with which it was made, because * * * 4, when the act proceeds to point out the punishment to be inflicted upon the man it cannot be construed to extend to any other fornication than such as is followed by issue.' In dealing further with the subject, Justice Kinsey said, ' * * * it would subject behavior perhaps at worst merely ...

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