Part I, page 1744.)

The minutes of the meeting of 19 September 1939 (_2852-PS_) show the following Reich Ministers to be present in addition to four members of the Council:

“Also: The Reich Minister for Finance, Count Schwerin von Krosigk.

The Reich Minister for Food and Agriculture, Darré.

The Reich Minister for Enlightenment and Propaganda, Dr. Goebbels.

State Minister * * * Dr. Popitz.” (_2852-PS_)

Then come the names of eight State Secretaries. Others present included:

“SS Gruppenfuehrer * * * Heydrich; General of the Police (_Ordnungpolizei_) Daluege.” (_2852-PS_)

The minutes dated 15 November 1939 show the same co-mixture of Ministers, State Secretaries, and similar functionaries. In addition, the following were also present:

“Reichsleiter, Dr. Ley; Reichsleiter, Bouhler; Reichsfuehrer SS, Chief of German Police in the Reich Ministry of Interior, Himmler; The Reich Labor Service Leader, Hierl * * * Reich Commissioner for Price Control, Wagner * * * as well as experts (_Sachbearbeiter_) of the German Labor Front and the Reich Labor Service.” (_2852-PS_)

Some of the decrees passed and matters discussed at these meetings of the Ministerial Council are significant. At the first meeting of 1 September 1939 14 decrees were ratified by the Council. Decree No. 6 concerned

“* * * the organization of the administration and about the German safety police in the Protectorate of Bohemia and Moravia. (_RGBl_, I, page 1681).” (_2852-PS_)

At the meeting of the Council on 19 September 1939 the following occurred;

“The Chairman of the Council, Generalfieldmarshall Goering, made comments regarding the structure of civil administration in the occupied Polish territory. He expressed his intentions regarding the economic evacuation measures in this territory. Then the questions of decreasing wages and the questions of working hours and the support of members of families of inducted workers were discussed.”

* * * * * *

“The Chairman directed that all members of the Council regularly receive the situation reports of the Reichsfuehrer SS. Then the question of the population of the future Polish Protectorate was discussed and the placement of Jews living in Germany.” (_2852-PS_)

Finally, at the meeting of 15 November 1939 the discussion concerned, among other things, the “treatment of Polish Prisoners of War”. (_2852-PS_)

The minutes of these meetings (_2852-PS_) not only establish the close working union between agencies of the state and the party, especially the SS, but also tends to establish that the _Reichsregierung_ was responsible for the policies adopted and put into effect by the government.

C. _Powers of The Reichsregierung._

But mere working alliances would be meaningless unless there was power. And the _Reichsregierung_ had power. Short of Hitler himself, it had practically all the power a government can exercise.

(1) _The Ordinary Cabinet._ The Nazi conspirators secured the passage by the Reichstag of the “Law for the Protection of the People and the Reich,” of 24 March 1933 (_2001-PS_), which vested the Cabinet with legislative powers even to the extent of deviating from previously existing constitutional law. These powers were retained even after the members of the cabinet were changed, and the several states, provinces, and municipalities, which had formerly exercised semi-autonomous powers, were transformed into mere administrative organs of the central government. The ordinary cabinet emerged all-powerful from this rapid succession of events. Frick waxed eloquent upon that achievement in an article which he wrote for the 1935 National Socialist Year Book:

“The relationship between the Reich and the States has been put on an entirely new basis, never known in the history of the German people. It gives to the Reich cabinet (_Reichsregierung_) unlimited power. It even makes it its duty, to build a completely unified leadership and administration of the Reich. From now on, there is only one national authority: The one of the Reich! Thus, the German Reich has become a unified state, and the entire administration in the states is only carried out by order or in the name of the Reich. The state borders are now only administration, technical are boundaries but no longer boundaries of sovereignty! In calm determination, the Reich Cabinet (_Reichsregierung_) realizes step by step, supported by the confidence of the entire German people, the great longing of the Nation. The creation of the national socialist German, unified state.” (_2380-PS_)

The heightened legislative power of the Cabinet is also emphasized in an article written by Dr. Franz Medicus, an official in the Reich Ministry of the Interior, and published in 1939 in Volume 4 of “_Das Dritte Reich in Aufbau_”:

“* * * Worked out by the Reich Minister of the Interior, the ‘Law for Alleviation of the Distress of People and Reich’, in short called ‘Enabling Law’, was issued on 24 March 1933, broke with the liberal principle of ‘division of power’ by transferring the legislature from the Reichstag to the Reich Cabinet, so that legislation by _personally responsible persons_ took the place of ‘anonymous’ legislation.” (_2849-PS_)

When the Ministerial Council was formed in 1939, it too was given legislative powers (cf. Article II of the decree of 30 August 1939 (_2018-PS_)). The ordinary cabinet also continued to legislate throughout the war. Because of the fusion of personnel between the Ministerial Council and the ordinary cabinet, questions were bound to arise as to what forum should lend its name to a particular law. Dr. Lammers, Chief of the Reich Chancellery and a member of both agencies, wrote a letter on 14 June 1942 to the Plenipotentiary for Reich Administration about these questions (_352-PS_):

“To the Plenipotentiary for the Reich Administration (_Generalbevollmaechtigter die Reich Verwaltung_)

“Subject: The Jurisdiction of the Council of Ministers for the Defense of the Reich (_Ministerat fuer die Reichsverteidigung_)

“Your letter of 3 June 1942, No. 493/42/2882.—Recently the Fuehrer announced in accord with the opinions of the Reich Marshal of the Greater German Reich as shown in my letter of 20 Feb. 1940-RK. 624-B—that he believes it practical to reserve certain legislative missions for the Reich Cabinet. With this he has not limited the competency of the Council of Ministers for the defense of the Reich but given a directive as to how legislation should be handled under the point of view of practicability. I have no doubt that the Fuehrer, as well as the Reich Marshal, have not changed their point of view, in particular, regarding the fact, that at the present there should be only legislation important in the cause of war, and that they will stress the fact that the Fuehrer himself and the Reich Cabinet should not be eliminated from the powers of legislation. It will have to be tested from time to time what measures will be reserved for the Reich Cabinet. My letter of 20 February 1940, and the opinions of the Fuehrer therein expressed may serve as a directive even if the limitations indicated by me are no longer applicable in their full meaning. I would therefore suggest not basing the discussions with the Reich Minister of Finance on the question of competency of the Reich Cabinet or the Council of Ministers for the Defence of the Reich, but on the question of whether it would be practical to achieve settlement through either Reich law or a Decree from the Council of Ministers for the defense of the Reich in the sense of the opinions voiced by the Fuehrer.

(signed) Dr. Lammers” (_352-PS_).

Other officials possessed legislative powers. Hitler was of course one. Goering, as Deputy of the Four Year Plan, could and did issue decrees with the effect of law. The Cabinet delegated power to issue laws deviating from existing law to the Plenipotentiaries of Economy and Administration and the Chief of the OKW, the so-called Three-Man College. This was done in the Secret Defense Law of 1938 (_2194-PS_). These three officials—Frick, Funk, and Keitel—however, were also members of the Council of Ministers and of the ordinary cabinet as well. It can therefore be said, in the language of the Indictment, that the _Reichsregierung_ “possessed * * * legislative * * * powers of a very high order in the system of the German government.”

The executive and administrative powers of the Reich were concentrated in the central government primarily as the result of two basic Nazi laws that reduced the separate states (called _Laender_) to mere geographical divisions. One was the law of 30 January 1934, known as the Law for the Reconstruction of the Reich (_2006-PS_). By that law the States were deprived of their independent status as States, their legislative assemblies were abolished, and their sovereign powers were transferred to the Reich. The other was the Reich Governor’s Law, enacted by the Cabinet on 30 January 1935 (_2008-PS_), which made all Reich Governors (_Statthalters_) permanent delegates of and subject to the order of the cabinet and, more especially, of the Reich Minister of the Interior. As a result, the ordinary cabinet was possessed of wide powers, which are set forth in “Administration Law,” periodical published in 1944 which was edited by Dr. Wilhelm Stuckart, State Secretary in the Reich Ministry of the Interior, and Dr. Harry V. Rosen-v. Hoewel, an _Oberregierungsrat_ in the Reich Ministry of the Interior (_2959-PS_). The description of the powers and functions of all the ministries of the ordinary cabinet illustrates the extent of control vested in the _Reichsregierung_:

III. _The Reich Ministers_

“There are at present twenty-one Reich Ministers, namely:

“I. 15 Reich Ministers with a definite portfolio.

The Ministries of the Reich Ministers mentioned under 2, 6, 7, 8, 9, 10, 11, 12 are united with the corresponding Ministries of Prussia.

“1. The Reich Minister for Foreign Affairs (Foreign Office).

(_a_) He handles all matters touching on the relations of the Reich to foreign countries.

(_b_) Under him are the diplomatic and consular representatives as well as the Reich office for Foreign Trade.

“2. The Reich Minister of the Interior.

(_a_) To his portfolio belong general administration, local administration, police administration, administration of officials, public health, welfare, geodetic system, sport system and the Reich Labor Service.

(_b_) Under him are the general and internal administrations, for example, the Reich Governors, the state governments (_Landesregierung_) the superior Presidents, the governmental Presidents, as well as police officials and the Reich Labor Service.

Furthermore, there are under him numerous central intermediary boards, for example, the Reich Health Office, the Reich Archives, the Reich Genealogical Office.

“3. The Reich Minister for Public Enlightenment and Propaganda.

(_a_) To his portfolio belong the intellectual influences on the nation, recruiting for the state, culture and economics, and the instruction of domestic and foreign public opinion.

(_b_) Under him are, among other things, the Reich Propaganda Offices and the film censorship offices. Furthermore, he exercises supervision over the Reich Chamber of Culture, the Recruiting Council of German Economics, the Reich Radio Company, and the Institute of Politics (_Hochschule fuer Politik_).

“4. The Reich Minister of Aviation and Supreme Commander of the Air Force.

He administers civil and military aviation.

“5. The Reich Minister of Finances.

(_a_) To his portfolio belong the budget and financial system of the Reich, as well as the administration of taxes; monopolies, and tariffs.

(_b_) Under him are namely: the administration of taxes and tariffs, as well as the administration of Reich monopolies.

“6. The Reich Minister of Justice.

(_a_) He is in charge of all matters related to the judicial system.

(_b_) Under him are all judicial agencies and the Reich Patent Office.

“7. The Reich Ministry of Economics.

(_a_) To his portfolio belong the basic economic political questions of German economy, the supply of the civilian population with goods for consumption and the regulation of their distribution, the handling of foreign economic questions in the framework of policy on foreign trade of the Reich and the supreme supervision over the institutes of credit.

(_b_) Under him are the Reich administration of mines, the Reich office of Statistics, the Supervisory Office for Private Insurance, the Gau Chambers of Economy, the State Economic Offices, (_Landeswirtschaftsamt_) the Savings Banks, and the State Insurance Offices.

“8. The Reich Minister for Food and Agriculture.

(_a_) He is in charge of all farmers and of the agriculture, as well as the food administration.

(_b_) Under him are the State Food Offices (_Landesernaechrungsamt_) the State Administration of Large Estates (_Domaenen verwaltung_) the Administration of Rural Affairs and the Agricultural Credit Offices. Furthermore, he exercises state supervision over the Reich Food Supply of which he is the leader.”

* * * * * *

“14. Reich Minister for Armament and War Production.

He has to bring to a level of highest production all offices active in producing arms and munitions. Furthermore, he is responsible for the field of raw materials and production in industry and manual labor.

“15. The Reich Minister for the Occupied Eastern Territories.

(_a_) He administers the recently occupied (i.e. former Soviet-Russian) Eastern territories, insofar as they are under civil administration and not subordinated to the Chief of Civil Administration for the district of Bialystok (cf. page 70) or insofar as they are incorporated in the General Gouvernment (cf. page 100).

(_b_) Under him are the Reich Commissars, the General Commissars, Head Commissars, and District Commissars, in the recently occupied Eastern territories.” (_2959-PS_)

Other important powers and functions contained in the ordinary cabinet were not included in the foregoing list. For example, upon the creation of the People’s Court on 24 April 1934, it was placed within the jurisdiction of the Ministry of Justice (_2014-PS_). With the acquisition and occupation of new territories, the integration and coordination thereof were placed within the Ministry of the Interior. The Reich Minister of the Interior, Frick, (in some cases in cooperation with other Reich Ministers) was, by law, given regulatory powers over such territories. The territory and the applicable law may be listed as follows:

(1) The Saar (1935, _Reichsgesetzblatt_, Part I, page 66).

(2) Austria (1938, _Reichsgesetzblatt_, Part I, page 237).

(3) Memel (1939, _Reichsgesetzblatt_, Part I, page 54).

(4) Bohemia and Moravia (1939, _Reichsgesetzblatt_, Part I, page 485).

(5) Sudetenland (1939, _Reichsgesetzblatt_, Part I, page 780).

(6) Danzig (1939, _Reichsgesetzblatt_, Part I, page 1547).

(7) Incorporated Poland (1939, _Reichsgesetzblatt_, Part I, page 2042).

(8) Occupied Poland (1939, _Reichsgesetzblatt_, Part I, page 2077).

(9) Eupen, Malmedy and Moresnet (1940, _Reichsgesetzblatt_, Part I, page 803).

(10) Norway (1941, _Reichsgesetzblatt_, Part I, page 765).

Such were the powers and functions of the ordinary cabinet.

(2) _The Secret Cabinet Council._ Of the other two subdivisions of the _Reichsregierung_—the Secret Cabinet Council and the Ministerial Council—the Secret Cabinet Council had no legislative or administrative powers. It was created by Hitler on 4 February 1938

“To advise me in conducting the foreign policy * * *.” (_2031-PS_)

Its position in the Nazi regime is described by Ernst Rudolf Huber, a leading Nazi Constitutional Lawyer, in his book entitled “_Verfassungsrecht des Grossdeutschen Reiches_” (“Constitutional Law of the Greater German Reich”). In this book, which was an authoritative, widely used work on Nazi Constitutional Law, Huber states (_1774-PS_):

“A privy cabinet council, to advise the Fuehrer in the basic problems of foreign policy, has been created by the decree of 4 February 1938 (_RGBl._ I, 112). This privy cabinet council is under the direction of Reich Minister v. Neurath, and includes the Foreign Minister, the Air Minister, the Deputy Commander for the Fuehrer, the Propaganda Minister, the Chief of the Reich Chancellery, the Commanders-in-Chief of the Supreme Command of the Armed Forces. The privy cabinet council constitutes a select staff of collaborators of the Fuehrer which consists exclusively of members of the Government of the Reich; thus, it represents a select committee of the Reich Government for the deliberation on foreign affairs.” (_1774-PS_)

(3) _The Council of Ministers for the Defense of the Reich._ The powers concentrated in the Ministerial Council, which did possess legislative and administrative functions, at its creation in 1939, are best expressed by the lecture which Frick gave before the University of Freiburg on 7 March 1940. The lecture, published in a pamphlet entitled “The Administration in Wartime,” contains these statements (_2608-PS_):

“* * * The composition of the Ministerial Council for the defense of the Reich shows the real concentration of power in it. General Field Marshal Goering is the chairman and also the Supreme Director of the War Economy and Commissioner for the Four Year Plan. He is joined by the Plenipotentiary General for the Reich Administration, who directs the entire civilian administration with the exception of the economic administration, and the Plenipotentiary General for Economy. The Chief of the High Command of the Armed Forces is the liaison man to the Armed Forces. It is primarily his duty to coordinate the measures for civilian defense in the area of administration and economy with the genuine military measures for the defense of the Reich. The Deputy of the Fuehrer represents the Party, thus guaranteeing the unity between Party and State also within the Ministerial Council for the Defense of the Reich. The Reich Minister and Chief of the Reich Chancellery is in charge of the business management of the Ministerial Council for the Defense of the Reich.”

* * * * * *

“The Ministerial Council for the Defense of the Reich, the highest legislative and executive organ in wartime next to the Fuehrer, created a subordinate organ for the purpose of the defense of the Reich: The Commissioners for the Reich Defense, who have their headquarters at the seat of the individual corps area.” (_2608-PS_)

With such power concentrated in the _Reichsregierung_ and to such a high degree, the Nazi conspirators possessed a formidable weapon to effectuate their plans.

D. _Acts and Decrees of the Reichsregierung._

Under the Nazi regime the _Reichsregierung_ became the instrument of the Nazi party.

(1) _Execution of the Nazi Party Program._ In the original Cabinet of 30 January 1933 only three cabinet members were members of the Party—Goering, Frick, and Hitler. As new Ministries were added to the Cabinet, prominent Nazis were placed at their head. On 30 January, 1937, Hitler accepted into the Party those Cabinet members who were not already members. This action is reported in the _Voelkischer Beobachter_, South German Edition, of 1 February 1937 (_2964-PS_):

“In view of the anticipated lifting of the ban for party membership, the Fuehrer, as the first step in this regard, personally carried out the enlistment into the party of the members of the Cabinet, who so far had not belonged to it and he handed them simultaneously the Gold Party Badge, the supreme badge of honor of the party. In addition, the Fuehrer awarded the Gold Party Badge to Generaloberst Freiherr von Fritsch; Generaladmiral Dr. H. C. Raeder; the Prussian Minister of Finance, Professor Popitz; and the Secretary of State and Chief of the Presidential Chancellery, Dr. Meissner.

“The Fuehrer also honored with the gold party badge the party members State Secretary Dr. Lammers, State Secretary Funk, State Secretary Koerner and State Secretary General of the Airforce Milch.” (_2964-PS_)

It was possible to refuse the party membership thus conferred. Only one man, von Eltz-Ruebenach, who was the Minister of Post and Minister of Transport at the time, did this. His letter from von Eltz-Ruebenach to Hitler, dated 30 January 1937, reads as follows (_1534-PS_):

“My Fuehrer:

“I thank you for the confidence you have placed in me during the four years of your leadership and for the honor you do me in offering to admit me to the party. My conscience forbids me however to accept this offer. I believe in the principles of positive Christianity and must remain faithful to my Lord and to myself. Party membership however would mean that I should have to face without contradiction the steadily aggravating attacks by party offices on the Christian confessions and those who want to remain faithful to their religious convictions.

“This decision has been infinitely difficult for me. For never in my life have I performed my duty with greater joy and satisfaction than under your wise state leadership.

“I ask to be permitted to resign.

“With German Greetings: Yours very obediently, “(signed) Baron v. Eltz” (_1534-PS_).

But the Nazis did not wait until all members of the cabinet were party members. Shortly after they came to power, they quickly assured themselves of active participation in the work of the Cabinet. On 1 December 1933, the Cabinet passed a law securing the unity of party and state (_1395-PS_). In Article 2 of that law the Deputy of the Fuehrer, Hess, and the Chief of Staff of the SA, Roehm, were made members of the Cabinet (_1395-PS_). Lest mere membership in the Cabinet would not be effective, Hitler endowed his deputy with greater powers of participation. An unpublished decree signed by Hitler, dated 27 July 1934, and addressed to the Reich Ministers, provides (_D-138_):

“I decree that the Deputy of the Fuehrer, Reich Minister Hess, will have the capacity of a participating Reich Minister in connection with the preparation of drafts for laws in all Reich Administrative spheres. All legislative work is to be sent to him when it is received by the other Reich Minister concerned. This also applies in cases where no one else participates except the Reich Minister making the draft. Reich Minister Hess will be given the opportunity to comment on drafts suggested by experts.

“This order will apply in the same sense to legislative ordinances. The Deputy of the Fuehrer in his capacity of Reich Minister can send as representative an expert on his staff. These experts are entitled to make statements to the Reich Ministers on his behalf.

“[signed] Adolph Hitler” (_D-138_).

Hess himself made pertinent comment on his right of participation on behalf of the party, in a letter dated 9 October 1934, on the stationery of the NSDAP, addressed to the Reich Minister for Enlightenment of the People and Propaganda (_D-139_):

“By a decree of the Fuehrer dated 27 July 1934, I have been granted the right to participate in the legislation of the Reich as regards both formal laws and legal ordinances. This right must not be rendered illusory by the fact that I am sent the drafts of laws and decrees so late and am then given a limited time, so that it becomes impossible for me to deal with the material concerned during the given time. I must point out that my participation means the taking into account of the opinion of the NSDAP as such, and that in the case of the majority of drafts of laws and decrees, consult with the appropriate departments of the Party before making my comment. Only by proceeding in this manner can I do justice to the wish of the Fuehrer as expressed in the decree of the Fuehrer of 27 July 1934.

“I must therefore ask the Reich Ministers to arrange that drafts of laws and decrees reach me in sufficient time. Failing this, I would be obliged in future to refuse my agreement to such drafts from the beginning and without giving the matter detailed attention, in all cases where I am not given a sufficiently long period for dealing with them.

“Heil, “[signed] R. Hess.” (_D-139_).

A handwritten note attached to the letter reads:

“1. The identical letter seems to have been addressed to all Reich Ministers. In our special field the decree of 27 July 1934 has hardly become applicable so far. A reply does not seem called for.

“2. File in file 7B (?)

“[signed] “R” (_D-139_).

The participating powers of Hess were later broadened, according to a letter dated 12 April 1938 from Doctor Lammers to the Reich Ministers (_D-140_):

“* * * The Deputy of the Fuehrer will also have participation where the Reich Ministers give their agreement to the State Laws and legislative ordinances of States under paragraph 3 of the first decree concerning reconstruction of the Reich of Feb 2nd 1934 (Reich Law Gazette I 81). Where the Reich Ministers have already, at an earlier date been engaged in the preparation of such laws or legislative ordinances, or have participated in such preparation, the Deputy of the Fuehrer likewise becomes participating Reich Minister. Laws and legislative decrees of the Austrian State are equally affected hereby.

“[signed] Dr. LAMMERS” (_D-140_).

After Hess’ flight to England, Bormann, as Leader of the Party Chancellery, took over the same functions. He was given the authority of a Reich Minister and made a member of the cabinet. (_2099-PS_)

The Nazi constitutional lawyer, Ernst Rudolf Huber, has this to say about the unity of party and Cabinet (_1774-PS_):

“Unity of party and Reich-Cabinet (_Reichsregierung_) is furthermore secured by the numerous personal unions i.e. association of Central State Offices with corresponding party offices. Such personal unions exist in the cases of Food Minister and the Propaganda Minister, the Chief of the German Police and the Reich Labor Leader, the Chief of the Organization in foreign countries, and the Reich Youth Fuehrer. Furthermore, the majority of the Reich Ministries is occupied by leading old party members. Finally, all Reich Ministers have been accepted by the party on 30 January 1937 and have been decorated with golden party insignia.” (_1774-PS_)

In 1943, out of 16 Reich Leaders (_Reichsleiters_) of the NSDAP, eight were members of the Cabinet: Martin Bormann; Walter Darré; Otto Dietrich; Wilhelm Frick; Paul Josef Goebbels; Constantin Hierl; Heinrich Himmler; Alfred Rosenberg (_2473-PS_). Through its domination of the Cabinet the Nazi Party strove to secure the fulfilment of its program under a facade of legality.

(_a_) _Decrees of the Ordinary Cabinet._ To the Nazi Cabinet, the Nazi Party program of 25 points (_1708-PS_) was more than a mere political platform; it was a mandate for action. And the Cabinet acted.

Point 1 of this program declared:

“We demand the inclusion of all Germans in a greater Germany on the grounds of the right of self-determination.” (_1708-PS_)

In implication of this demand the Nazi Cabinet enacted, among others, the following laws: the law of 3 February 1938 concerning the obligation of German citizens in foreign countries to register (1938 _Reichsgesetzblatt_, Part I, page 113); the law of 13 March 1938 for the reunion of Austria with Germany (1938 _Reichsgesetzblatt_, Part I, page 237) (_2307-PS_); the law of November 1938 for the reintegration of the German Sudetenland with Germany (1938 _Reichsgesetzblatt_, Part I, page 1641); the law of 23 March 1939 for the reintegration of Memel in Germany (1939 _Reichsgesetzblatt_, Part I, page 559).

Point 2 of the Party platform stated in part:

“We demand * * * the cancellation of the treaties of Versailles and St. Germain.” (_1708-PS_)

The following acts of the Cabinet supported this part of the program: The proclamation of 14 October 1933 to the German people concerning Germany’s withdrawal from the League of Nations and the Disarmament Conference (1933 _Reichsgesetzblatt_, Part I, page 730); the proclamation and law of 16 March 1935, for the establishment of the _Wehrmacht_ and compulsory military service (1935 _Reichsgesetzblatt_,