Furthermore one could arrive at the point where the conception could be maintained that former Austrian territory, in contrast to remaining Reich territory, had become entirely free of the Concordat, an interpretation which would be especially unwelcome to the Holy See for various reasons, and would force open the entire question of the future relationship between the Reich and the Holy See with all the resulting consequences in favor of the Reich in eventual further conferences with the Holy See.
To 2: On a former occasion the church adopted this point of view, as the Reich- and Prussian Minister for church affairs has already pointed out in his letter to the Foreign Office of 22 March 1938.
Thus in a statement to the secret consistory of 21 November 1921 Pope Benedict XV discussed the question of the validity and tenure of the Concordats, since retroactive effects had arisen from the changes in state territories and organizations produced by the world war. Therein the Pope distinguished between countries which were newly created, countries with considerable territorial expansion, and countries which have changed so completely that they could not be considered the same "moral person". According to Pope Benedict XV opinion all these three classes of countries have "lost their privileges granted in former Concordats". It is quite evident, that Austria, after it became a part of the German Reich since March 13, 1938, cannot be considered the "same moral person" as before.
It has not yet been decided how the bilateral Austrian state Treaties of noneconomical nature which have been listed in the letter of the Foreign Office of April 6, 1938—R VII. 38 will be handled. One cannot yet perceive whether the Reich will take over one or the other of these treaties. This would no doubt be made use of by the Holy See to insist on the succession of the Reich as to the Austrian Concordat. On the other hand application of the theory of international law relating to succession of states as discussed above may lead to unnecessary suspicions in other cases, in which the Reich intends to bring about a peaceful solution with the other partner to the agreement.
If one is of the opinion that the Austrian Concordat is abolished by the actual reunion of Austria with the Reich then the question comes up whether, on account of the same fact of territorial expansion, the Concordat of the Reich logically would have to be regarded as applying to Austria too.
The Reich Concordat was, as far as I know, not expressly extended to the Saar-District, after the reembodiment of the latter into Germany; there can be no doubt, however, that the Reich Concordat has formal validity in the Saar-District today. Even though the Saar-District unlike the Federal State of Austria—had not concluded a Concordat of its own with the Holy See prior to its reembodiment, there can be no doubt as to the former independent legal competence in accordance with international law of the Saar-District. In view of a comparison with the Saar-District and the possible conclusion to be drawn with regard to Austria it seems advisable not to claim the expiration of the Concordat on the grounds that the Austrian independent state has ceased to exist.
The Austrian Concordat however, has established very incisive regulations in the sphere of matrimonial law as pointed out by the Reich Minister for Church Affairs, according to which the Canon Law alone is competent for marriages of Catholics; this law has the validity of a civil law; the publishing of bans and the laying down of obstacles to matrimony are stipulated according to Canon Law; Catholic Church authorities and law courts are competent for matrimonial affairs; the parson is a registrar at the same time. Should the Concordat therefore be considered as having expired as of March 13, 1938 a number of most complicated legal questions would arise; in particular the question as to what legal validity should be given to catholic matrimonies concluded in Austria after March 13, 1938 and which other legal consequences are to be considered as connected with such matrimonies. It would be regrettable should one have to draw the conclusion that legal acts based on the expired Concordat had subsequently to be sanctioned by the state.
On weighing the advantages and disadvantages of the two conceptions both of which can be supported by good legal arguments I should like to speak in favour of the conception explained under 1.
I shall be glad if you will inform me of your opinion about the question raised by May 15, 1938. I am quite aware of the fact that in view of its great political importance the decision can only be made by the Fuehrer and Reich chancellor.
After receipt of your communication I reserve the right to summon a conference.