SECTION III

THE CABINET OF THE REICH

The Cabinet in a parliamentary government constitutes a bond of union

between the parliament and the chief of state. In Germany it must play

a still more important rôle, since both the Reichstag and the President

are directly elected by the people and have theoretically the same equal

powers. It is therefore indispensable that an organism of co-operation

and equilibrium exist between them.

But this mechanism is extremely delicate. The rôle of the Ministry,

always very complex, depends above all on the traditions and the

circumstances of the men in question. What relations should subsist

between the President and the Prime Minister; between the Prime Minister

and the other members of the Cabinet; and in what measure should one be

subordinated to the others? What is the exact position of the Cabinet

in regard to the Chamber? Is it its guide, or must it be limited to the

execution of the Chamber’s decisions? These are questions of degree that

require or may require different solutions in each country for each

Ministry.

It is difficult, if not impossible, to decide on these in advance in a

complete and detailed manner. In England there is no written provision on

the manner in which the mechanism of the Cabinet must function. In France

there are a few vague and insufficient provisions in the Constitution.

But the German Constitution has attempted to formulate the general rules

according to which the government of the Cabinet should operate.

The project by Preuss contained not a single detail on this point; it

confined itself to stating the principle of parliamentary government.

Against this reserve criticisms were raised in committee as well as in

plenary sessions of the Assembly. Former Minister von Delbrück criticized

Preuss’ project for its lack of a sufficient guarantee that the organism

of the government would develop in a specific manner and in the direction

desired for it. He held that the evolution of an organism as important as

the Ministry should not be left to chance, and that there must be fixed

at least the general lines according to which it should develop. He then

indicated some of these directing principles and they were incorporated

in the Constitution.

The National Assembly has certainly made therein an important attempt and

we shall study the regulations which it has thus established. We shall

then examine how these regulations work out in practice.

1.--THE CHANCELLOR AND THE MINISTERS ACCORDING TO THE CONSTITUTION.

In the terminology of Weimar, the Ministry is called the “National

Cabinet.” Article 52 says, “The National Cabinet consists of the

National Chancellor and the National Ministers.” There is thus stated a

difference--fundamental in the German system--between the Chancellor and

the Ministers.

It will be recalled how the Cabinet of the old Empire was organized. The

Chancellor, properly speaking, was the only Minister; and the Secretaries

of State, by whom he was assisted or represented, were simply high civil

servants absolutely subordinate to the Chancellor. These Secretaries

of State never met together to deliberate on public affairs; each of

them freely decided on the affairs of his department and executed them.

But the Secretaries of State had to refer to the Chancellor every time

that a difference of opinion arose between their departments over

any contemplated law or any administrative measure whatever. Such a

discussion was often prolonged for months, because the Chancellor was

not in a situation to express an opinion, nor to pronounce on the very

complex problem. This was the _bureaucratic_ system.

For this system, with its obvious inconveniences, von Delbrück proposed

to substitute a _collegiate_ one. The Ministers form a Cabinet, to which

all questions concerning general policy or involving the province of

their several departments are submitted. The Prime Minister is only the

first among them, _primus inter pares_; the decision is made by the

whole Cabinet, which naturally assumes the whole burden of responsibility.

The Constituent Assembly supported an intermediate solution, which

partook both of the bureaucratic system and the collegiate. It adopted a

sort of _limited collegiate_ system. The Chancellor is not as formerly

the only Minister of the Reich; he is Minister by the same title as the

other members of the Cabinet, but he has a character distinct from those

of the other Ministers. Without being a hierarchic superior over these he

is on another plane and enjoys certain rights in comparison to the others.

This distinction established by the Constituent Assembly, between the

two elements of the government, the Chancellor on the one hand and the

Ministers on the other, is manifested in the three respects in the

nomination of the ministers, their prerogatives and their responsibility.

(1) They are nominated in a different manner. The Chancellor is nominated

by the President of the Reich who naturally must be guided therein by the

political situation. According to circumstances, the President is obliged

to nominate some party leader of the group forming the majority of the

Reichstag; or his choice may be exercised among several political figures

according to the combination possible among the parties of the majority.

It is true that the Ministers are also appointed by the President of

the Reich, but _on the nomination by the Chancellor_, and it seems

that in practice the President is always bound by this consideration.

The Chancellor may not be recalled; his functions cease only through

resignation or because he is unseated by the majority of the Reichstag.

The Ministers, on the other hand, may be recalled and the decision may

be taken here, too, by the President of the Reich on the proposal by the

Chancellor.

(2) In regard to powers there exists a still more profound difference

between the Chancellor and the Ministers. The principle is this: the

Chancellor determines and alone determines the general course of the

Cabinet’s policy. The other Ministers direct the affairs of their

respective departments along the lines fixed by the Chancellor in his

general policy. (Article 56.) In other words, it seems that the German

Constitution, without expressly saying so, wants to establish the classic

distinction between “governing” and “administering.” The Chancellor

governs, the other members of the Cabinet administer. This essential

distinction recurs more or less clearly enunciated in all the provisions

relative to the powers of the Ministers.

The latter have as their most important function the exercise of those

powers of which the President of the Reich is the chief holder. They

prepare and countersign the ordinances of the President. But do they

all indiscriminately countersign all decrees and may each Minister

countersign any of the decisions of the President? Not in the least. The

Chancellor countersigns all decisions touching the general policy of the

Cabinet, but he is also authorized to sign other decrees. The Ministers

countersign only the decrees that effect their respective departments.

From this results the following: When a decree of the President is

countersigned by a Minister it may be considered that the Cabinet holds

it to be a purely administrative matter. Every decision presenting a

certain political importance is either countersigned by the Chancellor

only or by both the Chancellor and the Minister whose department is

affected. The Ministers have in the second place their own powers. They

make general or individual decisions which they sign themselves. These

decisions are of two kinds: some of them must be deliberated on and

decreed in the Council of Ministers; other decisions are taken by the

Ministers individually.

There are above all powers which the Ministers exercise in the Council

of Ministers, and it is here that the mixed character of the regulations

provided by the Constitution is revealed still more clearly. The

predominant position accorded the Chancellor comes from the fact that he

presides over the Council of Ministers--when the President of the Reich

is not present; and the fact that in case of a tie he decides. It may

be asked if the Chancellor can be put in the minority and what would

result from such a situation. Theoretically, according to the _collegiate

principle_, a decision adopted by the majority must always be executed.

But it seems that the Ministry cannot go against the opinion of the

Chancellor, who alone has the right to fix the general lines of policy

and who in addition can always exercise the threat of resigning, which

would thereby involve the fall of the whole Ministry. The Council of

Ministers has its own order of procedure which must be approved by the

President.

On the other hand, the collegiate system is found to be very widely

applied in the ensemble of the provisions vesting in the Council of

Ministers some of the most important powers that properly belong to

Ministers. The Chancellor fixes the general course of the policy to be

pursued by the government; but the Ministers must see to it that in

their various departments the policies practised conform to this general

course, as well as that their individual policies do not conflict with

the interests or the policies of other departments. Also the Constitution

itself enumerates a certain number of matters which cannot be dealt with

except in the Council of Ministers; and it provides that ordinary laws

may extend the number and character of these matters. They are as follows:

(1) All projects of law. In contrast to what occurs in France,

it is not the chief of state who has the initiative in laws but

the Council of Ministers. All projects of laws emanating from

the Cabinet must be discussed and drawn up in the Council before

being sent to the Reichstag.

(2) All matters that touch the domains of the authority of the

various Ministers, and on which the latter cannot privately come

to an agreement.

(3) The power to issue ordinances. In Germany there is no organ

that has general authority to make all ordinances. A particular

organ can only prescribe ordinances within its own limits and

to the end assigned to it by the Constitution or ordinary laws.

We have seen that such is the case for the President; and such

is also the case for the Cabinet. The Cabinet of the Reich may

prescribe regulations of three kinds:

(_a_) Sometimes the Cabinet of the Reich has authority to

prescribe _only_ a regulation. This is particularly the case

when it has to prescribe administrative measures of the general

character necessary for the execution of a law. (Article 77.)

(_b_) Sometimes the Cabinet cannot prescribe a regulation except

with the _approval of the Reichsrat_. This is particularly the

case in the circumstances aimed at in Articles 88, 91, 77, par. 2

of the Constitution.

(_c_) Finally, the law of April 17, 1919, “On a simplified

form of legislation relative to economy during the period of

transition,” gives to the Cabinet of the Reich the power under

certain conditions to enact by means of decrees what amount to

veritable laws. According to this law, the Cabinet may prescribe

regulations having the force of law, and consequently may even

modify laws previously made on condition that it has the _consent

of the Reichsrat and of a committee of twenty-eight members named

by the National Assembly_. The Ministers finally have powers

which they exercise individually. They are in theory purely

administrative powers.

(3) The distinction established by the Constitution between the

Chancellor and the Ministers recurs in the matter of their political

responsibility. Their rôles being different, it is logical that their

responsibility operate under different conditions.

The Chancellor and the Ministers are equally responsible before the

Reichstag. They “require for the administration of their offices the

confidence of the National Assembly. Each of them must resign if the

National Assembly by formal resolution withdraws its confidence,” says

Article 54. To follow the letter of this article it may be believed that

there is not a collective responsibility and that only those Ministers

must resign against whom a vote of want of confidence is passed. However,

that does not seem to be the real meaning of Article 54. This becomes

more clear when one compares it with Article 56. These two articles

together indicate the following. The Chancellor and the Ministers are

responsible to the Reichstag in the same way, but the provinces of their

responsibilities are different. The Chancellor is responsible for the

general course of policies, that is to say, for principles and plans

of great scope, to the exclusion of administrative measures. On the

other hand, the Ministers are responsible not for the general course of

policies but for the manner in which they direct their departments. In

addition the political responsibility of all the Ministers is involved in

decisions taken by them in the Council.

As for criminal and civil responsibility the Chancellor and the Minister

are placed on the same footing, and are answerable for criminal and civil

offences under the same conditions as the President of the Reich.

2.--THE WORKING OF CONSTITUTIONAL RULES; HOW A MINISTRY IS FORMED, WORKS,

AND IS DISSOLVED.

It is observed that the Constitution has attempted a kind of codification

of rules for a parliamentary régime, such as its authors have conceived

it. It attempts to give thus a guarantee that this régime, new in

Germany, will develop along the fixed course it has traced for it. It is

interesting to inquire how up to now German statesmen have observed these

rules. To this end it seems that the best thing to do is to describe how

a Ministry actually is formed, works and is dissolved.

* * * * *

(1) Normally, and it must be so according to the German Constitution,

when it is a matter of forming a new Ministry, the chief of state charges

some political leader with the task of constituting a Cabinet and

assuming the direction of its affairs. This man chooses collaborators

with whom he agrees or can come to an agreement to the effect that

they work in common for the realization of a specific programme. The

Ministry thus formed is submitted to the Parliament and presents to it

its programme. If the Parliament accepts, the Ministry goes to work.

Otherwise it is withdrawn. In any event a ministerial crisis resolves

itself in a few days.

In Germany the formation of a Ministry is always an extremely complicated

affair. Instead of only two great parties--which seems the ideal

condition or at any rate the traditional situation in the normal

functioning of a parliamentary régime--there are in Germany five or six

parties, none of which consists of a sufficient number of members to

have in itself a majority. In addition the Cabinet’s difficulties are

almost inextricable and the party that accepts a part in the ruling power

realizes the risk it immediately incurs in exercising it. Likewise the

different parties do not always lend themselves with good grace to this

risk and often prefer the egoistic attitude and the convenient rôle of an

opposition rather than the heavy and perilous task of governing. Whereas

any political party worthy of the name should have an excellent programme

in which it believes and should want nothing better than to come into

power in order to realize such a programme, the political parties in

Germany, little sure of their programmes, prefer, before attempting to

apply them, to wait until the insufficiency of the programmes of the

other parties has been previously demonstrated.

When a ministerial crisis opens there commences at the same time a period

of difficult negotiations. Each political group meets and discusses

the position it will take, deciding whether or not it will accept

participation in the Cabinet. The answer to this latter question depends

most often upon whether certain other groups will participate themselves

in power. Then the trusted men or the leaders of the different parties

meet together to find a basis for agreement. The President of the Reich

naturally keeps in touch with these negotiations; sometimes they are held

in his presence. The programme of the future Cabinet is discussed and

above all the choice of future Ministers. When an agreement is reached

the President of the Reich makes his nominations. There was one occasion,

however, when the task of forming the Cabinet was extremely difficult.

It was after the elections of June 6, 1920, which gave to the various

parties such a distribution of numerical strength that no majority was

practically possible no matter what combination was tried. The various

groups met and quarrelled but were not able to come to agreement. Then

the President charged a member of the Centre, not to make up a Cabinet,

but to serve as an intermediary between the various parties and to bring

them to an agreement. It is from this preparation that there issued the

Ministry of Fehrenbach. _Thus the Cabinet is constituted not by an act,

a free decision of the President, but by an agreement reached by the

parties._

From this ensue two consequences:

First, these crises are very long. The one in which the Fehrenbach

Cabinet was formed lasted nineteen days. In a country whose situation is

as difficult in every respect as that of Germany, such a lapse of time

without a Cabinet, entirely taken up in deliberations and discussions

between politicians, is obviously a deplorable state of affairs.

Another consequence is, that not only the Ministries are not homogeneous,

which is the necessary consequence of the fact that no party has a

majority in the Reichstag, but also they are heterogeneous in a fixed

and invariable manner. To constitute a Cabinet there must be observed a

triple rule. First, Ministers must be taken from the various political

parties that enter the Cabinet; those individuals who are not members

of the Reichstag being chosen from among the members of the party

represented in the National Assembly. _Secondly, each party has the right

to a number of Ministers proportional to the number of its members in

the Reichstag._ The only exception to this rule is that the number of

members in a Cabinet belonging to the same party must remain the same

as in the just discarded Ministry; and if a Minister is withdrawn, the

party to which he belongs designates his successor. If because of special

circumstances another political group is called upon to fill the vacancy,

this group in return as compensation to the other group cedes one of the

ministerial seats held by it. Thirdly, the composition of a Ministry must

remain unchanged for the whole session of the legislature.

The first Ministry constituted after the meeting of the Constituent

Assembly in February, 1919, consisted of Scheidemann, its President,

eleven members as department chiefs and three Ministers without

portfolio. The parties that assumed government in coalition were, the

Social Democrats, who had 163 members in the Assembly, the Democrats

with 74 members, and the Centre with 89. The Social Democrats had

exactly as many as the other two groups combined. In the Cabinet of

fourteen members, therefore, they had seven seats, among them that of

the President. The other seats were distributed, four to the Democrats

and three to the Centre. During the entire period of the Constituent

Assembly--with the exception of three months of the Summer of 1919, when

the Democrats, who did not want to sign the treaty of peace, remained

voluntarily aloof--the Ministry and the Ministers could change, but

the composition of the Ministry rested practically identical. The last

Cabinet formed under this Assembly, that of Hermann Müller, comprised

at the time of its constitution, March, 1920, eleven Ministers, of whom

one was without portfolio. And it was understood that it would later

be completed by the addition of three other Ministers then not yet

designated. Among the eleven members at first, there were five Social

Democrats, three Democrats and three members of the Centre. As for the

first Ministry constituted after the elections of 1920, that consisted

of five members of the Centre, among them Fehrenbach, three members of

the People’s Party and two Democrats; which corresponded approximately to

the respective strengths of the groups in the Reichstag, viz., 68, 62, 45

members.[45]

Generally the number of Ministers is variable. Instead of having a

fixed number of departments corresponding to a rational distribution of

affairs, there are created or abolished Ministries according to the needs

that have to be met to satisfy the demands of this or that political

group. The Scheidemann Ministry had a Minister of Finance. But the Bauer,

Hermann Müller, and the Fehrenbach Ministries had, in addition to a

Minister of Finance, also a Minister of the Treasury. On the other hand,

there was in the Scheidemann Cabinet a Minister of Economy, Wissel, and a

Minister of Food Supply, Robert Schmidt. These two Ministers kept their

portfolios in Bauer’s Cabinet formed in June, 1919. Then dissensions

arising between Wissel and the other members of the Cabinet, Wissel

resigned. But he was not replaced and the two Cabinet posts were made

one. They were again made two, however, and provided with distinct titles

in the Cabinets of Hermann Müller and Fehrenbach. A similar situation

exists in the case of Ministers without portfolio, whose number, when

there are any, is variable.

Sometimes in spite of all possible negotiations and combinations the

various groups necessary for a coalition commanding a majority cannot

arrive at an agreement. As a government must nevertheless be finally

constituted, this or that group, which has refused to enter into the

combination, promises nevertheless either its support or its neutrality

to those who have had the imprudence to participate in the Cabinet. When

the Fehrenbach Cabinet was constituted it could only count on the vote

of the groups represented in it and, therefore, commanded only 200 votes

in an Assembly of 466 members. But the Social Democrats promised not

to overthrow the Ministry until the new elections. The consequence of

this is that a Cabinet so placed is really not its own master, and this

one had to yield to a certain degree to the injunctions of the Social

Democrats. But on the other hand the latter, although they had refused to

enter the combination, were indirectly responsible for the acts of the

Ministry so long as they tolerated them in power.

When the necessary agreements are concluded, the Ministry appears

before the Reichstag. It reads its declaration and programme and a

grand political discussion commences. But the programme having been in

advance submitted to the groups, sometimes even corrected and redrawn

at inter-group meetings, the Ministry is sure of a majority and the

discourses are only manifestos by which each party explains why it is for

or against the Ministry.

* * * * *

(2) Parliamentary government, in practice, may take one of two different

forms: government by the Cabinet or government by the Assembly. In a

government by a Cabinet, it is the Council of Ministers that governs and

it is they who give the direction of general policy. It is the guide

and the superior of the Assembly whose confidence supports it. On the

other hand, one calls it government by the Assembly when the Ministry is

limited to executing the decisions of the Parliament and to following the

initiative of the latter.

In Germany, while it cannot be said that the Reichstag exercises

considerable authority over them, it seems that the Ministers take little

initiative and that they content themselves most often with following

the direction given them by the Assembly. It is the agreement that

prevailed at the formation of the Cabinet that continues as a policy. The

Ministers are either the presidents of the respective political groups,

or else have been nominated by these groups. How, therefore, can they be

completely independent? There are here some factors analogous to what one

called in France “the bloc of the Left” under Minister Combes. All the

important measures are first discussed between the government and the

groups and the Ministry does not act except in agreement with the groups

of the majority. Instead of placing itself at the head of the majority

and assuming the responsibility for the measures which it feels necessary

to take, the Cabinet comes to an understanding with it. Perhaps it cannot

be said that it follows the directions given it by the majority. But it

does not act, in any event, unless it is first assured of the majority’s

support. Perhaps, also, in the critical circumstances which Germany is

traversing and given the manner in which its groups are organized, it is

impossible to do otherwise. The head of a Cabinet appointed by the chief

of the executive power on a programme given him for the realization of

this programme, may act with independence, if this programme creates its

own majority. Even if it cannot command a stable majority, it can lean on

some of the minority groups and, according to circumstances, may create

different majorities. There are acts which no one can criticize and there

are successes which nullify opposition. But such is not the case in

Germany, where the Ministry has to abide by the contract which prevailed

at its organization.

* * * * *

(3) The preceding remarks suffice to explain the following fact: since

the establishment of the parliamentary régime in Germany _no Ministry has

ever been overturned_ by the Reichstag. How can it be, if it conforms to

the condition of its agreement and if, before each hazardous decision, it

assures itself the approval of the majority? On the other hand, if it

cannot obtain this approval, or if it does not want to accept the policy

desired by the majority groups, why should it go before the Assembly and

engage in a battle lost in advance? It resigns.

The Ministry, therefore, is never overthrown; it retreats, or more

correctly, it does not retreat, but changes. The number of men available

for a Ministry is very limited and the groups present almost always

the same men. There is in advance a certain knowledge as to who the

men are who will enter a Cabinet as soon as one knows what groups will

participate in the formation. Further, the possibilities of combinations

within a given Chamber are limited enough. From the beginning of

February, 1919, only four groups have participated in power, of these

the People’s Party participated only after June, 1920. It is inevitable,

therefore, that in each new combination there remain at least two groups

which already belonged to the preceding one. Quite naturally these groups

leave, without exception, the same men in power. Why change? An important

part of the preceding Ministry, therefore, is maintained in each new

Ministry.

In June, 1919, Scheidemann’s Cabinet, which consisted of Social

Democrats, Democrats and members of the Centre, was replaced by Bauer’s

Cabinet, in which only the Centre and the Social Democrats entered.

The members of these two groups which were in the Scheidemann Cabinet

remained in the Bauer Cabinet and it was sufficient to replace with

members of these two groups the vacancies left by Scheidemann and the

Democrats. In March, 1920, Bauer’s Cabinet, into which the Democrats

entered in October, 1919, attempted a new change after the _coup d’état_

of Kapp. Conferences took place, in which took part the President of

the Reich, the Ministers and representatives of parties, in which was

discussed the question as to which Ministers should remain and which must

go.

The more the discussion was prolonged, the greater grew the number

of Ministers to remain. But the unions intervened and demanded the

resignation of the whole Cabinet. Bauer acceded. Nevertheless the

Cabinet, which was thereupon constituted by Hermann Müller, retained

several members of the preceding Cabinet, notably Hermann Müller himself,

who from Minister of Foreign Affairs became Chancellor, and Bauer, who

from Chancellor became Minister of the Treasury. The same procedure took

place in the constitution of the Fehrenbach Cabinet. It was expected that

a Ministry coming after elections that expressed a considerable change

in the political situation, and after the Social Democrats withdrew from

power and the People’s Party arrived, would translate this change by a

more profound modification than usual of the Cabinet. But out of thirteen

members five had been members of the preceding Cabinet.

It does not seem, therefore, that the attempt made by the Constitution to

regulate as precisely as it may be done the functioning of the government

of the Cabinet has had up to now any appreciable effect on the practice

of parliamentarism. Germany begins at a point that other countries,

in which parliamentary government has operated for years, have hardly

attained, if they have at all attained it. A concentrated Cabinet, a

Cabinet of republican defence, a Cabinet of transition, a _bloc_ of the

Centre--are these accidental deformities of the parliamentary régime,

or are they forms toward which it must necessarily tend? We are told

in Germany that these practices, obviously little compatible with the

conception of parliamentarism or with the regulations provided in their

Constitution, are to be explained by the state of revolution in which

the country still finds itself; and that they will disappear if some

day Germany recovers its equilibrium, and make place for a correct and

complete application of constitutional rule.

The New German Constitution · 第 3 / 7 章