SECTION III. The Cabinet of the Reich

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.

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(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.

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.

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(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.

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(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.