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.