Mr. Hay to Mr. Dodge.
Washington, May 5, 1904.
Sir: I have to acknowledge the receipt of Mr. Tower’s No. 31 of the 5th ultimo, in regard to the case of Emil Vibert, for whose return to Germany to visit his father for a period of six months permission was sought by the embassy and refused by the German Government, on the ground that as the naturalization treaties of the United States do not apply to the Imperial provinces of Alsace and Lorraine, Vibert is still a German subject, and was condemned by the court in Zabern, on April 5, 1897, to pay a fine of 600 marks or to undergo an imprisonment of forty days, with the costs, for nonperformance of military duty, which sentence has as yet not been carried out.
It appears from your dispatch that Vibert, who was born in St. Quirin, Lorraine, February 1, 1874, emigrated to the United States in 1886, since when he has not once returned to Germany, but has lived continually in this country, where he was naturalized as a citizen of the United States in November, 1895.
Mr. Vibert has, therefore, been absent from Germany for a period of from seventeen to eighteen years, and would seem to have lost his German allegiance, according to the North German law of June 1, 1870 (extended to Alsace-Lorraine by the Imperial law of January 8, 1875), by a residence of more than ten years abroad.
It was apparently on this account that in the somewhat similar case of Casimir Hartmann (Foreign Relations, 1897, pages 230 and 231) Hartmann was recognized as a foreigner and released from military service; and while this Government does not concede the contention of the German Government as to the nonapplicability of the naturalization treaties to Alsace-Lorraine, but leaves that question open to discussion, the Department is of the opinion that intervention in Vibert’s behalf, both as to his return to his native place for a visit and for a rescission of the fine and sentence against him, [Page 320] would be successful if, in addition to his American citizenship, such intervention was based on the forfeiture of his German allegiance under the law alluded to, by his absence of more than ten years.
For information on this point the Department invites your perusal of the instructions sent by Mr. Olney to Mr. Jackson on March 3, 1896, and printed in the volume of Foreign Relations for that year.
I am, etc.,