Signed KUNISCH
Certified:
[signature illegible]
Verwaltungssekretaer
19 May 1938
1. Minister of Education, signed Kunisch, May 17, secret, sends copy of his letter of May 17th to the Minister of the Interior, concerning the Concordat between the Holy See and the Republic of Austria.
I agree with your concept as far as results are concerned.
The Austrian Concordat is devoid of legal validity, since it was not concluded in an orderly fashion and in accordance with the constitution, as apparent from your explanations. However, I shall have to differ with you on the point that the contract is not merely invalid "ex nunc" (from now on) but "ex tunc", i.e., from the very beginning. The necessity arises therewith to sanction retroactively all legal acts executed by reason of the Concordat till the date when invalidity of the Austrian Concordat was proven.
Entering upon the two possibilities explained by you, the Austrian Concordat would therefore be invalid "ex tunc", as far as your first case and also mine is concerned from the very beginning, and in the second case as of 13 March 1938. In both cases the need arises on the basis of judicial-political considerations for retroactive sanction of legal acts executed in the meantime.
The first possibility, the proof of the constitutional invalidity of the Austrian Concordat, carries a moral condemnation of the former system in Austria, as you have explained so fittingly: a system that without the mandate of the Austrian people had usurped the power of state and concluded a Concordat without the official approval (legitimation) of the Austrian people. I should add, that I have no fear of possible conclusions a posteriori concerning the Saar-District, which you have mentioned. I consider it of highest importance that other treaties concluded with other States by Austria were not made under similar circumstances, thus those States had no reason to fear similar repercussions for themselves, a fact which should be emphasized immediately upon presentation of proof of the invalidity of the Austrian Concordat.
However, I consider it correct procedure, that we should assist the Curia (Kurie) by showing them the second possibility, specially that this conception was advocated by Pope Benedictus XV in his declaration of 21 November 1921 before the Secret Consistorium.
I also support the viewpoint that after proof has been presented of the invalidity of the Austrian Concordat, Austria will be free of concordats. An extension of the Reich Concordat to include Austria I would not consider advisable or within the interest of my sphere of competence.