862.01/90

The Consul General at Berlin (Messersmith) to the Secretary of State

No. 1231

Sir: I have the honor to inform the Department that there is, in effect, in Germany a dual form of Government which closely affects the problem of the protection of the interests of American citizens and firms. In fact in order to understand what is passing in Germany today and to interpret some of the events and acts reported upon in the series of despatches which this Consulate General has been transmitting, it is essential to bear in mind that this dual Government exists and has existed since March 6, 1933.

There is first of all the regularly constituted and legal Government machinery for the Reich and for the states, which is the legal and constitutional Government and there is the extra legal Government of the National Socialist Party organization, and from the course of events there is much reason to believe that the extra legal Government is the stronger and influences definitely in most instances the acts of the legal and constitutional Government. A brief analysis of the actual situation may be helpful to the Department as it shows the actual problems which the Embassy and the Consulate General have to meet almost daily and sometimes several times each day.

The constitutional legal Government remains in outward form the same as before March 5, 1933 except as it has been changed by the various emergency decrees issued since that date in order to bring about a closer coordination between German states and the central Government and to centralize power in the central Government at Berlin. In order not to complicate the discussion of the major problem which is the subject of this despatch, I shall make no reference to these structural changes effected since March 5 in the Government of the Reich and of the states and communes; but these have been many and far-reaching and effective, and have resulted in the centralization of power in the Ministries in Berlin and a corresponding decrease in powers of the states and communes which in themselves are extraordinary and significant. Although the National Socialist Party received something less than 50% of the total votes in the election of March 5 and has associated with it in the Government and in the cabinet the Deutschnationale [Page 223] Party, the latter party has practically no power in the Government outside of the fact that a few Ministers affiliated with it remain in the cabinet without, it is generally believed, any power. The Reichstag through its own vote has given the present Government what is equivalent to absolute power for the next four years and there is no prospect at present of a meeting of the Reichstag during that period. The predominance of the National Socialist Party in the legal Government is seen in the fact that practically all office holders, high and low other than National Socialists, have been removed; and that practically all new appointments have been men from the National Socialist Party. It is a question as to how long those persons in the cabinet who are not National Socialists will be permitted to remain.

The constitutional legal Government with practically absolute powers for four years and with a Reichstag not functioning, is therefore absolutely dominated by the National Socialist Party, and it may be definitely said that the National Socialist Party is the legal constitutional Government. In order to carry its decrees and acts into effect it has behind it the army and the entire police force of the country.

The extra legal Government is the organization of the National Socialist Party which still maintains its headquarters at Munich. This party organization is very thorough and complete as may be judged from the fact that it was able to bring the Party into power. Connected with the organization of the Party itself are various other organizations known as “Kampfbunde” which are completely controlled by the Party organization but which cover its activities in certain trades. The completeness of the Party organization is readily apparent from the fact that it has recently appointed Dr. Rosenberg in what is the equivalent of the position of Foreign Minister for the Party. To carry its wishes into effect as a Party, this extra legal Government has at its command the S.A.,31 the S.S.32 and the Stahlhelm.

From the foregoing it is clear that the constitutional legal and the extra legal Government now operating side by side in Germany are really under one control, that of the National Socialist Party.

That in practice the extra legal and Party Government is at least for the present the most powerful and the controlling force, is brought out by various concrete examples, the most outstanding of which is the boycott. The boycott was ordered by the National Socialist Party as a defense measure against the so-called anti-German propaganda and anti-German boycotts abroad. It was therefore a party measure and was put into effect by the armed force of the Party composed of the S.A. and S.S. with the cooperation of the Stahlhelm. The legal and [Page 224] constitutional Government took the attitude that the measure was a party measure and that the Government would not interfere with it, and on the actual day of the boycott the police of the legal Government extended their cooperation to the armed force of the Party. The decision that the boycott should continue only for a day and the decision not to renew it on the Wednesday following April 1, had to be taken by Mr. Hitler as the “Fuehrer” of the National Socialist Party and was taken in that capacity and not in his capacity as German Chancellor although it was undoubtedly considerations as German Chancellor which influenced him to abandoning it as the leader of the Party.

The Consulate General has had to take up with the police presidency in Berlin a number of cases of Americans who have been molested, imprisoned or assaulted since March 5, and the conversations in these cases have usually been with either the Police President von Levetzow or Police Vice President Dr. Mosle. In my despatch No. 1212 of March 3134 reporting on the second attack on Mr. Julian Fuhs, I brought to the attention of the Department the fact that during the conversation with Police Vice President Mosle I really had to convince the officer from the political division of the police that something had to be done and to help support the authority of the Police Vice President who is an old official, as against the authority of the young man from the political section who is new in the police presidency and a strong National Socialist. As of further interest in this connection the Department will be interested to know that when Consul Geist saw Police Vice President Mosle a few days ago and brought to his attention the further cases of Americans reported upon in my despatch No. 1221 of April 6,34 after expressing regret that these further incidents had occurred and assuring him that the police would take action at once, Dr. Mosle said to Consul Geist that he would like to speak off the record. He then said to Mr. Geist that for his personal information he would like to tell him that if the Consulate General would also take up these cases with the Ministry of the Interior at the same time that we took them up with him, it would greatly facilitate action. In making this statement Dr. Mosle was merely telling us what we already knew; that although the police wished to do everything in their power to carry on their former functions unhindered, they are unable to do so when acts of the National Socialist Party or its adherents are concerned. The Ministry of the Interior is controlled by Captain Goering who is one of the three outstanding leaders of the National Socialist movement, and what Dr. Mosle wished to say in his personal suggestion to Mr. Geist, was that if we really wished for action in the cases of these attacks on Americans [Page 225] we would have to hold up his hands by at the same time convincing the Minister of the Interior under whose direction the police presidency is, that action is necessary. This is a concrete evidence that the police, as the arm of the constitutional and legal Government, are really powerless unless supported by the extra legal Party Government even though the constitutional and legal authorities are also members of and appointees of that Party.

In a separate despatch I shall bring to the attention of the Department interference by Party organizations with the business of American firms, interference of a serious and of a far-reaching character. When I personally brought this interference with the treaty rights of American firms in Germany35 to the attention of Dr. Bang who is a Staatssecretaer in actual charge of the Ministry of Commerce, I had a sympathetic and understanding hearing and he assured me that there was no question but that the acts I brought to his attention violated the treaty rights of these American firms and he said: “I will do everything in my power at once”, emphasizing the word “my”. In continuing the conversation he then said that it would be of very real help if we could also bring this matter to the attention of the Reichskanzlei which is the office of the Chancellor. I told him that we could not do this as our only methods of approach are the Ministry of Commerce and then the Foreign Office; but that it was not customary either for the Embassy or for the Consulate to take up such matters with the office of the Chancellor. What Dr. Bang wished to tell me was that while he as the head of the Ministry of Commerce wished to do everything to stop the interference with the business of American firms organized under German law, what he could do as such would depend upon the attitude of the Party which was the one really doing the interfering through its organization of agents, and that it would strengthen his hands if we would get the attitude of the Party and its organizations changed, that is the extra legal Government through representatives in the office of the Chancellor as the head of the legal and extra legal Governments.

Another interesting case was that of Miss Kathleen Kersting, the circumstances of which have been recited in my despatch No. 1224 of April 8.36 Miss Kersting was an American singer given compulsory leave of absence by the Koenigsberg Opera, on whose behalf we used our good offices with the Prussian Kultusministerium and received its assurances of action. I happen to know that the Kultusminister, Dr. Rust, who is a very strong personality and a member of the National Socialist Party, needed two weeks before the “Betriebszelle” of the National Socialist Party in the Koenigsberg Opera could be persuaded to [Page 226] permit Miss Kersting to return. Had it not been for the insistence of the Consulate General on a proper solution, and a fear that the circumstances would become known in the press, the extra legal Government as exercised through the National Socialist Cell in the Opera would not have given way before the legal Government as exercised through the Prussian Kultusministerium.

It may be asked very pertinently, why this dual form of Government should exist when both the constitutional and extra legal Governments are under the control of the same party and of the same leaders. It may be stated in answer that it is not improbable that this is only a phase of what the leaders of the National Socialist Party call a real revolution. They found a legal Government which had to be turned into a Party Government; so the Party machine is for the time being the real power until it has made the constitutional Government the completely subservient instrument which it desires it to be. There is also reason to believe that the legal Government serves as a convenient alibi for the illegal acts and terror exercised by the Party organization and for getting control of the courts, finance, business, the professions, cultural institutions, the theatre, the radio, press, opera, schools, the church and even private social and sports organizations. It is the undisguised intention of the National Socialist Party to get absolute control of all forms of German Government, intellectual, professional, financial, business and cultural life, and the acts towards this end which have been described in despatches already transmitted to the Department, have for the most part been taken by the extra legal Party Government rather than by the Government itself.

It is convenient for the legal Government to point to these acts as acts of the Party or as voluntary acts of these organizations and professions; so that when the legal Government has to act it is accepting merely the status quo as expressing the will of the people although in fact it may be action forced upon a majority by an armed minority with all police and other force in its power. The forcing of the Jewish judges from the courts, the interference with business, the resignations of theatre conductors, etc., are all brought about by Party pressure and action; so that the legal Government can disclaim any responsibility. It is also quite likely that this dual Government is being maintained for some time in order to make it possible to keep certain experts in Government office temporarily who are not National Socialists. In a despatch which Consul General Dominian has sent to the Department from Stuttgart, he has shown how in the state Government of Wuerttemberg certain particularly efficient officials who are not National Socialists have been retained in power but have had placed side by side with them [Page 227] a National Socialist who undoubtedly will eventually take their places and who in the meantime will control their actions.

It is a question as to whether such direct ruthless and complete control of a civilized people has ever been achieved in so short a time by a minority.

It is naturally of interest to all foreign Governments including our own, how long this extra legal Government will last and how soon it will be found possible to merge the two. Indications are that if the National Socialist Party can remain in power, and there is every indication for the present that it will, as long as it is in power it has no immediate interest in merging the two Governments. It is very convenient for it to have the Party Government to exercise the real power and to provide an alibi before the world for the constitutional and legal Government which it controls just as much as it does the extra legal Government. Dr. Goebbels who with the Chancellor, Mr. Hitler, and Captain Goering is one of the three great leaders of the revolution and the new régime and who is the head of the Ministry of Propaganda and Public Education, has declared that the object of his Ministry is to make all Germany one Party and he has just yesterday declared that he can see no possibility of giving up the complete control of the press and all public opinion forming means for some time to come, probably years.

The foregoing is transmitted to the Department merely for background purposes as it will be explanatory of many problems which will from time to time be brought to it by the Embassy and the Consulate General as well as explanatory of the difficulties which the officers of our Government have to deal with in Germany at this time in protecting the interests of our citizens and of American business. It is evident that the officers of our Government cannot deal with a party and can only deal with the constitutional and legal authorities and yet, in order to secure results, the efforts of the constitutional authorities have to be supported before the extra legal Government. No compromise can be made by our officers with principle and no improper precedents built up and yet at the same time the interests of our Government and our citizens must be adequately protected. This requires an exercise of discretion and ingenuity which is by no means always easy, as frequently many decisions have to be made quickly in the same day. While the foregoing is only a partial picture of the operation of this dual Government, the principal object of this despatch has been to bring out that these two Governments exist and create a situation which must be dealt with daily, as a concrete and real matter in connection with the protection of interests.

Respectfully yours,

George S. Messersmith
  1. Sturm-Abteilung.
  2. Schutz-Staffel.
  3. Not printed.
  4. Not printed.
  5. See pp. 418 ff.
  6. Not printed.