Nazi Conspiracy and Aggression Volume IV
Document No. 2231-PS

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"Die Reichskanzlei" by Hermann von Stutterheim [Pages 19-34]

Nevertheless, there is still a "people's legislation" even in the Third Reich, but this does not restrict the legislative power of the Reich Cabinet [Reichsregierung] in any way. According to the law on the plebiscite of 14th July 1933, the Reich Cabinet, which is, de facto and also, as we shall see later, de jure, nothing more nor less than the Fuehrer, can apply to the people for its approval or disapproval of a measure which is envisaged by the Reich Cabinet, whereby it is also a matter of an approval or disapproval of a planned law. It is therefore impossible for a people's law to be passed without or even contrary to the will of the Fuehrer. Neither can drafts of laws put up for approval be passed if the content has been altered in any way. It must be either accepted or rejected just as it stands. Even should it be rejected, such a result of the vote does not oppose the will of the Fuehrer. For, in as much as the Fuehrer puts a law to the people's vote, an action which he takes of his own free will, he shows that he is quite prepared for the law to be rejected.

Within the Reich Cabinet, the Reich Chancellor was de jure at first also the president of the Reich Cabinet was a body of people who made the decisions, in which the Reich Chancellor had only a seat and a vote. He could therefore be overruled. In practice, since the day of the assumption of power, this was no longer the case. The dominating personality of the Fuehrer and the actual power possessed by him made it obvious from the start that the Reich Cabinet could not make any decisions which did not coincide with the will of the Fuehrer. The Reich Cabinet accordingly was from the outset, nothing more than an advisory body to the Fuehrer which was to advise the head of the cabinet [Regierungschef]. Even if the result of this advice was still called "the decision of the Reich Cabinet" the decision in reality was that of the Fuehrer and Reich Chancellor, which, after a previous conference, was passed by the Reich Cabinet. The same applied to administrative measures, political resolutions and legal decisions. Later, this situation also gained its legal semblance by the duty of obedience of the Reich Ministerate to the Fuehrer and Reich Chancellor. This occurred at the time of the Reich Law of 16th October 1934, on the oath taken by Reich Ministers and members of the provincial governments [Landesregierungen], by which the Reich Ministers had to swear loyalty and obedience to the leader of the German Reich and people, Adolf Hitler. Thereby, the whole administrative power was concentrated in the person of the Fuehrer. From then on, he was also de jure head of the Reich, supreme legislator, Supreme Chief of all administration and supreme commander of the armed forces, without being restricted by any other factors or authorities when exercising the power with which he was endowed by virtue of the legal position. The cooperation of the members of the Cabinet [Regierungsmitglieder] in an advisory capacity in particular, is therefore no essential condition of the legality of the Cabinet Laws [Regierungsgesetze]. Even without the advisory cooperation of the Cabinet, the Fuehrer and Reich Chancellor can issue decrees which are of course always in the form of a "Fuehrer Edict" or that of a Decree to differentiate between them and the designation "Reich Law" used for those laws issued with the formal cooperation of the Reich Cabinet.

It is neither an essential of the Fuehrer State, nor does it conform to the personal characteristics of the Fuehrer, that all the difficulties described above must be submitted to the supreme Fuehrer for his decision. On the contrary: although the Reich Ministers are today basically subject to the unlimited authoritative power of the Fuehrer when making their decisions even in unimportant individual cases, they actually have an independence in carrying out their official functions such as was never enjoyed by Reich Ministers during the republic [Systemzeit]. Responsibility, powers of decision, a driving energy and real authority, these are the qualities required, first and foremost by the Fuehrer of his ministers. Therefore he allows them great freedom in carrying out their official functions. But, if the evolutionary New Order is not to give way to revolutionary conditions, it is essential that the legal order be respected by the Reich Ministers, and by all their subordinate departments. And so it is necessary, in the middle of the gigantic process of reorganization that we are now experiencing, that the Fuehrer himself should continually be taking steps to abolish obstacles of a legal or any other kind which could not be eliminated in any other way by apportioning certain full powers and issuing other orders which might not be legally binding or might lack the required authority if they were not issued as laws or Fuehrer Edicts. Anyone who has a certain amount of experience in the sphere of administration knows how extraordinarily difficult it is to gauge what retrospective effects interference with the traditional and established administrative system will have. Should such interference be unavoidable, if higher ends are to be gained, it is necessary to direct and restrict them so that unwanted repercussions are eliminated. Even with practical experience and a knowledgeable survey of the whole sphere of administration and legislation, it is however also necessary to give thorough consideration to the problem to be solved before it is submitted to the Fuehrer. Of course, the final decision can be made, to a certain extent, by the competent departmental Minister himself. Too often, however, he is unable to come to an agreement with those other ministers whose departments are affected by the measure intended, and he sometimes lacks any definite knowledge of the Fuehrer's possible plans to which such measures must conform.

Considered theoretically, the Reich Cabinet would be a suitable special committee to settle opposing points of view and make them fit in with the Fuehrer's aims. In practice, however, this would mean that the cabinet would be in almost continuous session, a quite impossible demand on the Fuehrer. He has not the time to take part in long cabinet meetings [Kabinetsitzungen] to listen to detailed descriptions, justifications and counter-arguments which it is the duty of all ministers to make from the particular stand-point of their departments. The Fuehrer must be free and have the necessary time for those great decisions, which must be made in the field of state-leadership in interior-policy and also especially in foreign policy and which he alone must make. For he is not called to be the arbitrator in differences both of opinion and of other things, but purely a leader, an inspiration, a commander-in-chief-in short a creator. That causes the necessity of reducing cabinet meetings to the minimum and therefore only to those all-important questions, so that even drafts of laws, before they are handed to the Fuehrer are to be dealt with, not during cabinet deliberations, but by the so-called process of circulation, i. e. by obtaining the written statement of agreement from the individual members of the cabinet.

Under these conditions, it is the duty, first and foremost of the Chief of the Reich Chancellery to submit the matters to the Fuehrer, for his decisions and orders, in a concentrated manner and a suitable chronological order. This saddles him with the necessity of keeping conversant the whole time with the most important matters in the sphere of administration, economy and politics and, at the same time, of concerning himself in the preliminary work of legislation. It falls to him in particular to see whether and in what form any direct interference is to be recommended to the Fuehrer in as much as he must in any case be informed of occurrences in public life.

As they are so numerous, it is almost impossible to give an accurate individual picture of the extent and type of all the questions and concerns which, in this way, make up the substance of the reports made by the Chief of the Reich Chancellery to the Fuehrer. These questions and concerns are extremely numerous and affect all spheres of public life. Fundamentally, only those concerns can be separated which are the responsibility of the President's Chancellery and of the Office of the head of the NSDAP and are laid before the Fuehrer by the heads of these departments, as well, particularly, as all military matters, which the Chief of the Supreme Command of the Armed Forces has to report. Naturally even these matters could encroach on the sphere of activity of the Reich Chancellery on account of their connection with political and administrative questions and therefore require a special report by the Chief of the Reich Chancellery alone or together with the proper competent departmental heads.

Taken as a whole, it may be said that the severe limitation in frequency of the cabinet deliberations has resulted in a corresponding increase of the duties and heightening of the responsibility of the Chief of the Reich Chancellery.

However, the fact that cabinet meetings, under the pressure of circumstances, could take place only seldom, led to the necessity of setting up a special advisory body to the Fuehrer in the form of a Secret cabinet council [Kabinettsrat] to advise the Fuehrer on the direction of Foreign Policy. However, this fact meant a small reduction of the duties of the Reich Chancellery just as did the establishment of a cabinet council [Ministerrat] for the defence of the Reich later on. This subject will be dealt with anon. The "Secret Cabinet Council" was established by the Fuehrer Edict of 4th February 1938. The following persons are members: Reich Minister Baron von Neurath as president, as members, Reich Foreign Minister von Ribbentrop, General Field Marshall Goering, the deputy-Fuehrer, Reich Minister Hess, Reich Minister of Enlightenment and Propaganda, Dr. Goebbels, Reich Minister and Chief of the Reich Chancellrey, Dr. Lammers, C-in-C of the Army, General von Brauchitsch, C-in-C of the Navy, Dr. H. C. Raeder and Chief of the Supreme Command of the Armed Forces, General Keitel. The Reich Minister and Chief of the Reich Chancellery is in charge of any affairs with which the Secret Cabinet Council has to deal.

This is purely a deliberating body which is not called on or empowered to make orders or measures by itself. The special conditions of the war, especially the need to change the legal position and to meet the fast-arising wartime requirements however, made it vital to disembarrass the Fuehrer even in the sphere of legislation. This was accomplished by the Fuehrer Edict of 30th August 1939. Under this, a "Cabinet Council for the defence of the Reich" was formed with the power to issue decrees with a legal authority should the Fuehrer decide that a certain law was not to be issued by the Reich Cabinet or by the Reichstag. The following persons are members of the Cabinet council for the defence of the Reich: General Field Marshall Goering as president, the deputy-Fuehrer, the Plenipotentiary-General for Reich Administration, the Plenipotentiary-General for Economy, also the Reich Minister and Chief of the Reich Chancellery and the Chief of the Supreme Command of the Armed Forces. The president can invite other persons to attend the deliberations of the Cabinet Council. The Reich Minister and Chief of the Reich Chancellery is in charge of the affairs of the Cabinet Council. Another legislative body, therefore, came into existence but here again, in accordance with the authoritarian principle of leadership, it was an organization of leadership in the hand of the Fuehrer and Reich Chancellor, a legislative organization, whose authority to issue decrees is based on the supreme legislative power of the Fuehrer and which can be used in specific cases only if the Fuehrer has not decided on some other procedure. Actually, the cabinet council's authority to issue decrees has been made use of to a great extent since the beginning of the war.

The most important decrees issued by the Cabinet Council for the defence of the Reich are the following:

Decree on the appointment of Reich Defence Commissars dated 1st September 1939 (Reich Law Gazette I p 1565), Decree on the compensation for personal damage (Personal damage decree) dated 1st September 1939 (Reich Law Gazette I p 1623), Decree on measures concerning civic disputes, compulsory execution, bankruptcy and civic right dated 1st September 1939 (Reich Law Gazette I p 1656), Decree on special radio measures dated 1st September 1939 (Reich Law Gazette I p 1683), Decree on the restriction on changing the place of work dated 1st September 1939 (Reich Law Gazette I p 1685), War-economy decree dated 4th September 1939 (Reich Law Gazette I p 1609), Decree against elements of the population, dated 5th September 1939 (Reich Law Gazette I p 1679), Decree on the assessment of damage to property (damage to property assessment decree) dated 8th September 1939 (Reich Law Gazette I p 1754), Decree on the concession of delayed payment in legal disputes dated 7th October 1939 (Reich Law Gazette I p 2004), Decree on the treatment of enemy capital dated 15th January 1940 (Reich Law Gazette I p 191).

This short list of the most important Cabinet Council Decrees should suffice to make clear the extent and significance of the Cabinet Council legislation. It is obvious that this has lifted a quite exceptionally heavy burden from the Fuehrer's shoulders. The Reich Chancellery, however, participates fully in the work of the Cabinet Council since the Chief of the Reich Chancellery is not only a member but also directs its affairs. The Chief of the Reich Chancellery was given the task of directing these affairs because it put him in a position to keep the Fuehrer conversant all the time with the work of the Cabinet Council. In this connection, the Chief of the Reich Chancellery, in cases where there is any doubt on the point, has to make sure that the Fuehrer has the opportunity in good time to make clear whether he is in favour at all of a measure planned by the Cabinet Council, or whether he would not prefer the form of a Cabinet or Reichstag law instead of a cabinet Council decree. Basically the right possessed by the Cabinet Council for the defence of the Reich to issue decrees is limited to legal matters directly connected with the defence of the Reich. However, in special cases and at times when the Fuehrer is on a visit to the front, this rule cannot always to kept. Should there be any doubt, whether and to what extent deviations from this rule can be made, it usually falls to the Reich Minister and Chief of Reich Chancellery to take steps to obtain the Fuehrer's decision should the occasion arise.

According to the assignment of duties in the Reich Cabinet the Chief of the Reich Chancellery is in charge of the affairs of the Reich Cabinet as well. In this capacity he has to arrange the meetings of the Reich Cabinet on the direct instructions of the Fuehrer and to issue summonses to these meetings together with the agenda and the subjects up for discussion. He must also see that the Reich Ministries concerned are in agreement beforehand on the subjects to be discussed, or if they are not unanimous, that a clear position has been reached about the incompatibility of the various opinions and about the reasons for the opposed points of view. Ministerial conferences among the Ministers concerned may be held prior to the cabinet meeting to clear up these differences of opinion. These Ministerial Conferences under the chairmanship of the Reich Chanceller, took place before the assumption of power. Apart from exceptional occasions, this no longer occurs. Summonses to Ministerial Conferences are sent out by the Chief of the Reich Chancellery at the request of one or more of the ministers concerned; he then as a rule presides at these conferences. Naturally, this does not apply to the numerous ministerial conferences arranged by the authoritative Reich Ministers of the day, in which the matters dealt with are such that it is not, or not yet, necessary that the Fuehrer be informed; therefore the Reich Minister and Chief of the Reich Chancellery need not be present at the conferences.

The drafts of Cabinet laws [Regierungsgesetze] are first prepared by the authoritative ministry, that is the ministry most concerned, in agreement with any other ministry concerned, in the matter. There is sometimes a preliminary discussion of these in conferences between departmental heads [Chefbesprechungen] and then they are handed to the Chief of the Reich Chancellery who determines whether they are to be included in the agenda of a cabinet meeting or whether the agreement of all the members of the cabinet is to be obtained in writing by the so called process of circulation. Should there still be differences of opinion remaining unsolved when the cabinet deliberates on the drafts of the laws, the Fuehrer makes the final decision on the content of the law and its passing. This procedure is also followed when any opposition remains during the process of circulation and deliberation on the draft in a cabinet meeting seems impracticable for some reason or other.

Cabinet laws [Regierungsgesetze] decided on are drawn up and issued by the Fuehrer and Reich Chancellor. The finished law, the actual legal document, is signed first by the Fuehrer and then by the ministers concerned, who are thereby responsible to the Fuehrer for the law. Apart from the Reich Ministers concerned, the Reich Minister and Chief of the Reich Chancellery also appends his signature and, by this action, makes himself responsible that all Reich Ministers had the opportunity of stating their opinions. Furthermore, the president of the Cabinet Council for the defense of the Reich must append his signature to all Reich Laws and that under the signature of the Fuehrer and Reich Chanceller. Fuehrer Edicts with a legislative content are always signed also by the Reich Minister and Chief of the Reich Chancellery. This rule of signatures is based mainly on an internal regulation of the Fuehrer or on usage. It applies also to the Cabinet laws [Regierungsgesetze] which are issued as Reichstag laws or People's laws.

The Reich Minister and Chief of the Reich Chancellery who, as we know, directs the affairs of the Cabinet Council plays a similar part in the work of the Cabinet Council for the defence of the Reich in issuing decrees which, as mentioned above, have the authority of laws, as he does with the cabinet laws. It must be noted, that the peculiarity in this case is that the subjects dealt with by the Cabinet Council are distributed not merely among the members of the Cabinet Council, but also among all the members of the Cabinet who are thereby given the opportunity of guarding the interests of their spheres of office by adding their appropriate standpoints in the Cabinet Council legislation, even if they do not participate in making the decree.

Nazi Conspiracy and Aggression Volume IV
Office of the United States Chief Counsel for Prosecution of Axis Criminality
Washington, DC : United States Government Printing Office, 1946

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