"Non-Germans" Under the Third Reich (133 page)

23.
Hitler at the 1935 Reich Party Conference in Nuremberg on September 16, 1935 (
Reden Hitlers
, 2d ed., 1935, 283 f.), and on July 6, 1933, speaking to the Reich governors. The Reich governors had to ensure that the Party offices did not accumulate government powers (note BA R 43 II/995).

24.
Hitler,
Mein Kampf
(1939), 382, 384 ff.

25.
Hitler at the 1933 Reich Party Conference, March 1–3, 1933 (in
Der Kongreb des Sieges
[1934], 8).

26.
Cf. Hitler at the Reich Party Conference of the NSDAP in 1933 (ibid.): the polarity of party and state is essential so that the development “is protected from rash experiments, on the one hand, and from the paralysis of bureaucratic anxieties about competences.”

27.
Thus, on July 14, 1933, at an NSDAP conference, he explained that “it needs perhaps a year” for the process of clarification of the relationship between state and Party to run its course (BA R 43 II/995); at the Party Conference in Munich on September 1, 1933: “Die NSDAP ist die einzige Trägerin der Staatsgewalt” (an overview of the contradictory statements from Hitler may be found in Diehl-Thiele,
Partei und Staat im Dritten Reich,
17 ff.).

28.
Hitler,
Mein Kampf
(1939), 445.

29.
Diehl-Thiele,
Partei und Staat im Dritten Reich,
28.

30.
Ibid., 27 ff.; Buchheim,
Totalitäre Herrschaft
(1962), 109 ff.; Buchheim, “Die Struktur der nationalsozialistischen Herrschaft” (1965), 13 ff. The key question is, according to these authors, whether totalitarian power, the essence of which is expressed in the absolute power of the Führer and authority of the Party, represents an excess of state power or whether it is an element that stands
in opposition to
the essence of the state (order, rules). The opposition of these elements may be useful as an ideotypical construct for reaching an understanding of Nazi power, but in reality it appears to be an artificially constructed opposite.

31.
Huber,
Vom Sinn der Verfassung
(1935), 231.

32.
For more details, see Kirn,
Verfassungsumsturz oder Rechtskontinuität
(1972), 25 ff.; Bollmus,
Das Amt Rosenberg und seine Gegner
(1970), 242.

33.
Examples of judgments that expressly gave recognition to the supreme function of the NSDAP include State Superior Court. Karlsruhe,
JW
(1936): 3268; State Superior Court, Hamburg,
DJZ
(1936), col. 772;
Land
Labor Court, Berlin,
DJ
(1935): 73.

34.
For more, see Fraenkel,
The Dual State
, 30 ff.

35.
This area underwent a profound transformation. In May 1933 alone, seventy major cities lost their Oberbürgermeister; twelve major cities (including Cologne, Düsseldorf, Magdeburg, Altona, Gelsenkirchen, Hagen, Darmstadt, and Würzburg) lost their entire municipal leadership (for more details, see Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
, 66, 446 f., [506]). The “legal grounds” for this was the so-called enabling act of March 24, 1933 (
RGBl
. I 153), according to which the
Land
governments were empowered to intervene in municipal administrative matters in contravention of the
Land
constitution and the properly constituted laws and regulations in force; for example, the Prussian law of December 15, 1933 (
GS
427), according to which the appointment or dismissal of leading municipal officers could be carried out only after consultation with the responsible Gauleiter. For an example of the step-by-step approach of the National Socialists, see Allen,
Das haben wir nicht gewollt!
(1966), 169 ff.

36.
Cf. Reich Ministry of the Interior to RMuChdRkzlei, urgent communication (BA R 43 II/421, 421a).

37.
German Civil Service Code of January 26, 1937, sec. 26, par. 1, subpar. 2 (
RGBl
. I 39), in connection with subpar. 8 of the Principles Governing the Appointment, Employment, and Promotion of Civil Servants (Reichsgrundsätze über die Einstellung, Anstellung und Beförderung von Beamten) of October 14, 1936 (
RGBl
. I 893). In accordance with these principles, the political
attitudes
of candidates were tested prior to appointment, and on promotion, their political attitudes and activities. A civil servant could be dismissed for the same reasons that he was appointed (sec. 71, German Civil Service Code). However, judges could not be dismissed for reasons connected with their work in the judiciary. Nonetheless, the Reich minister and head of the Reich Chancellery, Lammers, announced on July 12, 1938, that judges could face dismissal because of specific
decisions
. Later, even this criterion was dropped (see Weinkauff and Wagner,
Die deutsche Justiz
[1968], 122). Judges who had fallen from favor were usually removed from office by early retirement on the grounds of unfitness for service, invoking sec. 73 of the German Civil Service Code, or by citing political grounds for their removal; cf. correspondence between the Party Chancellery and the head of Department 1 of the Reich Ministry of Justice, December 15, 1942, in which it is “suggested” that certain judges at the district court of Paderborn be removed for passing light sentences. In its reply of December 18, 1942, the Reich Ministry of Justice says that the removal of a municipal court judge
Landgerichtsdirektor
because of “strong religious ties” is approved, but the other dismissals should be left in abeyance (BA R 22/4202).

38.
BVerfGE 6, 133 (180).

39.
Reich Disciplinary Court, May 3, 1939,
Amtliche Entscheidungssammlung
3, 1 (3).

40.
Cf. subpar. 5 of the decree of the
Oberpräsident
of the Rhine Province (Rhenish-Prussia) to the Reich and state authorities and the Party, SA, SS, and Hitler Youth offices, dated August 12, 1935, quoted in Brandt,
Die politische Treuepflicht
[1976], 123 ff.):

In accordance with the directives of the Party, political appraisal of civil servants at state and local level will not be undertaken by the Reich Association of German Civil Servants, nor by any professional body, but by the responsible
Hoheitsträger
(the Party official in whom authority is vested), and such appraisal will be passed on to the relevant authority by him alone. Whether or not the authority within the Party contacts the Office for the Civil Service (of the NSDAP) or the civil servants’ association with a request for information, and in particular whether or not the high Party official asks the Civil Service Office to open dossiers on the attitude and reliability of civil servants, is entirely up to him. The implementation of this order must not impair the functioning of the Civil Service nor cause disquiet among officials.

41.
For low-, middle- and high-ranking officials, the relevant Gauleitung; for top civil servants, the Office of the Deputy Führer (Party Chancellery) (decree of the Führer and Reich Chancellor of March 26, 1937; July 10, 1937; and March 26, 1942,
RGBl
. 1937 I 153, 769;
RGBl
. 1942 I 298, with executive orders from the Reich Ministry of the Interior, dated December 1, 1942,
RGBl
. I 670); more details in Wagner, “Die Umgestaltung der Gerichtsverfassung” (1968), 232 ff. The main informants for the political evaluations produced by the deputy Führer’s Office were the Gauleitungen and local Party offices, so it was open season for denunciations. For the political evaluation of higher-ranking officials, cf. directive no. 52/36 of the deputy Führer, dated March 30, 1936, quoted in Diehl-Thiele,
Partei und Staat im Dritten Reich
, 235 n. 77; for more details and further examples, see ibid., 235; Sommer, “Partei und Staat” (1936), 596.

42.
Führer’s decree of September 24, 1935 (
RGBl
. I 1203), with amending decrees dated March 26, 1937 (
RGBl
. I 153), July 10, 1937 (
RGBl
. I 769), and March 16, 1942 (
RGBl
. I 153); the hearing (
Anhörung
) of Party members was of course general practice before September 24, 1935 (Mommsen,
Beamtentum im Dritten Reich
, 75).

43.
Ordinance of the head of the Party Chancellery of August 29, 1941 (
Verfügungen
, 2:288 ff.).

44.
Implementing regulations issued by the Reich Ministry of Justice on December 1, 1942 (
RGBl
. I 679), to the Führer decree of July 10, 1937 (
RGBl
. I 769).

45.
Cf. directive of the head of the Party Chancellery of August 29, 1941 (
Verfügungen,
2:289). The Party’s approval was considered to have been given when no response was made within one month. The requirement of approval was of course a practical reality before 1941.

46.
Membership in the NSDAP was not, however, a formal requirement for appointment; “only” for “important posts”—according to a note appended by the Reich Chancellery to the draft law of April 6, 1939—was such a requirement “considered desirable” in accordance with instructions from the Führer (quoted in Mommsen,
Beamtentum im Dritten Reich
, 190 ff.). But in practice, membership was
generally
“desirable,” at least membership in one of the organizations (SA, SS, National Socialist Motor Corps, NSV) or one of the associations affiliated with the NSDAP (NSRB, RDB, etc.), which as a rule meant the same as “obligatory”; this applied to appointments and promotions alike—cf. a note from the Reich Ministry of Justice to the Reich Ministry of the Interior in July 1940 (BA R 22/4466; statement of presiding judge of State Superior Court, Munich, at a discussion of Bavarian State Superior Court presiding judges on June 23–24, 1943, notes BA R 22/4278). In fact, as a circular from the Reich Ministry of Justice of December 19, 1937, specified, what was demanded was
active
involvement, since formal membership was already
requisite (geboten)
on the basis of “the loyalty of every official to the Führer” (quoted in Weinkauff and Wagner,
Die deutsche Justiz
, 121). For the training of officials, this was already formally specified: every candidate had to belong to the NSDAP or one of its organizations, according to a decree of February 28, 1939 (
RGBl
. I 371); virtually the same applied for the training of candidates for the judiciary; cf. also a note from the presiding judge of State Superior Court, Kassel, to the Reich Ministry of Justice on July 30, 1943 (BA R 22/4467); a note from the Party Chancellery to the Reich Ministry of Justice on June 2, 1942 (BA R 22/4467) (involvement of the Party in the appointment of junior barristers), and the corresponding Reich Ministry of Justice circular of June 30, 1943, to all State Superior Court presiding judges; letter from NSRB to the Reich Ministry of Justice of January 7, 1937, and the reply of the Reich Ministry of Justice of January 23, 1937 (BA R 22/4533). Membership in the NSDAP was to be noted in the personal files, with the date of joining and the offices held (circular of the Reich Ministry of Justice of August 22, 1938, quoted in Weinkauff and Wagner,
Die deutsche Justiz
, 121). Earlier the opposite had been the norm: membership in one of the so-called center or left-wing parties of the Weimar Republic (but not in one of the so-called right-wing parties) was considered “politically untenable” and led to rejection of the candidate as unsuitable. In the case of officials appointed before January 30, 1933 this led to dismissal on political grounds in accordance with sec. 4 of the Law for the Restoration of the Professional Civil Service of April 7, 1933 (
RGBl
. I 175) (without pension rights), and with sec. 71 DRG 1937 (this applied particularly to membership in the KPD, the SPD, and in some cases also in the DVP [cf. Diehl-Thiele,
Partei und Staat im Dritten Reich,
55 ff.; Mommsen,
Beamtentum im Dritten Reich
, 60; for an account of the purging of the Prussian administration, see Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
, 599 ff., with examples]). At the very least, those concerned were not promoted. In practice, Party members were
automatically
preferred (cf. the corresponding instruction circulated by the Reich Ministry of Justice of December 18, 1936 [Erlaßsammlung (collection of instructions), BA], and of May 8, 1936 [BA R 22/20597]; the implementing orders of November 14 and December 17, 1935 [
DJ
(1935): 1656, 1860], and of May 15, 1943 [
DJ
(1943): 284]). For these reasons the influx of new members to the Party—whether voluntary or under pressure from the authorities—was considerable (further in Diehl-Thiele,
Partei und Staat im Dritten Reich
, 55 ff.). According to a communication from the state secretary in the Reich Ministry of Justice, R. Freisler, by 1938 54.8% of all judges were in the NSDAP or one of its affiliated organizations; the majority of these also engaged actively in political work (taken from a note in
DR
[1938]: 111). For more on the promotion of NSDAP members, see also note 85 below.

47.
Positive attributes included “political tact”; “approval of the National Socialists”; being “held in particular esteem in leading and National Socialist circles”; for a judge, being keen “to inculcate subordinate officials with the spirit of National Socialism”; and “political attitude beyond reproach; also showed commitment to the party early on.” Particular importance was also attached to the so-called leadership qualities, for example, a “resolute and energetic approach.” Negative attributes included a “questionable attitude toward the Party,” a “dubious attitude to the wartime penal code,” “opposition to … ‘the move toward the death penalty,’ ” a chief public prosecutor’s allowing mainly “pleas for preventive detention rather than the death penalty,” “no active commitment” (to the Party), “weltanschauung dubious,” etc.