"Non-Germans" Under the Third Reich (91 page)

The principle of maximum segregation of Germans and Jews was also upheld in the field of guardianship and tutelage. It was applied, however, only to legal relations between Germans and Jews, not those between Jews themselves. For example, a Jew who was to be placed in the care of a guardian was not accorded the right to request that the guardian be Jewish.
⁶⁶
In contrast, a court of guardianship refused to approve an apprenticeship contract between a German apprentice and the German subsidiary of a Jewish undertaking.
⁶⁷

As early as 1935, the Reich Supreme Court had stated that the “raising of a young person of Aryan descent to an ethnicity-and race-conscious citizen cannot be guaranteed if the foster father is not Aryan, even if the foster mother is,” thereby opening the way for the authorities to revoke permission to keep a foster child.
⁶⁸
Non-Aryan guardians of Aryan wards could be dismissed by sole virtue of their race, and the Prussian Supreme Court in Berlin construed the possibility of such dismissal in a very broad interpretation “out of due consideration for the religious confession of the ward” (secs. 1779, par. 2, and 1915, Civil Code).
⁶⁹
Such dismissal was even imposed if the guardian was only a half-Jew (
Mischling
of the first degree);
⁷⁰
such persons were as a matter of principle not to be appointed guardians of Aryan wards (Hamburg District Court),
⁷¹
since a Jew was “fundamentally unsuited to the office of guardian.”
⁷²

The doctrine of segregating Germans and Jews was only a part of an extensive policy of ethnic division and discrimination, which had particularly devastating effects with respect to family law. Just as, in accordance with Reich Ministry of the Interior guidelines, Aryan wards and foster children could under no circumstances be taken into so-called mixed-marriage households or remain there, and quarter-Jewish children could not be raised by the Jewish parent, in order to save “German blood,”
⁷³
the long-term strategy of the “ethnicity” experts in the internal administration, the office of the
Reichsführer
-SS and the National Directorate of the NSDAP, was to withdraw the raising of all “valuable blood” among conquered nations from those naturally qualified to fulfill the task and to put it into Aryan hands. This strategy was designed on the one hand to weaken foreign populations and on the other to provide the German Reich with “racially desirable” offspring (“useful members of the
Volksgemeinschaft
”) and to create new reserves of a young generation available for work and military service.
⁷⁴
Similar actions (Germanization) proposed by the Nazi offices in their search for “good blood”
⁷⁵
were undertaken in a number of countries, but they concentrated above all on Eastern Europe.
⁷⁶
Such actions of course increased in intensity once the losses sustained by the Wehrmacht on all fronts, and especially in the Russian arena, could no longer be made good by national resources; the full implementation of the search for racially desirable children was prevented only by the outcome of the war.
⁷⁷

The “legal basis” for these Germanization actions undertaken by the offices of the Reich Commissar for the Strengthening of German Nationhood (RKF) under the banner of the ethnic struggle was the Decree on the German Ethnic Classification List of March 4, 1941,
⁷⁸
the prime objective of which was to recover all “German blood.” By virtue of this decree, Himmler ordered (as a first measure) that all legitimate and illegitimate children in the Reich district of the Wartheland whose fathers had been killed in action or whose parents had otherwise died should undergo racial and psychological screening by the Central Resettlement Office of the SS and its outposts.
⁷⁹
“Racially desirable children” were to be forcibly removed from their mothers on the pretext of health endangerment and transferred to the Altreich after a provisional period in a children’s home in their district.
⁸⁰
The only exceptions possible were for Polish mothers “of good race” as understood by the SS, who were to be brought into the Altreich with their children and given German nationality and German names.
⁸¹
In order to eradicate all traces of their national origin, the children were designated “German orphans from the recovered Eastern Territories” by order of the RKF.
⁸²
A similar policy was followed for racially desirable children of non-German women brought into the Reich from Eastern Europe (Polish and so-called Eastern workers): the children were taken away from their mothers, who continued to serve in the workforce, although it was not clearly established whether the children of Eastern workers were to die or be adopted.
⁸³
The children of German women and Polish or other foreign men were to remain with the mother, as such children were considered racially valuable; only when the (male) foreigner was “particularly inferior” was a(compulsory) abortion undertaken by order of the RKF.
⁸⁴

No accurate estimation of the number of children affected by these resettlement and Germanization programs is now possible,
⁸⁵
nor of the extent of such actions, since much of the documentation was destroyed.
⁸⁶
The family law status of orphans brought into the Reich territory from the Occupied Eastern Territories is also unclear. The removal of the children from their mothers signified in practice the permanent withdrawal of the right to custody along with the decision to Germanize then (a decision that could be taken solely by the RKF and the administrative authority),
⁸⁷
apparently without recourse to the guardianship courts competent to order such removal. Whatever the case may be, we may presume that Poles were not allowed to adopt such children
⁸⁸
and that before their adoption by German families, the children were put under ex officio guardianship by the youth welfare office, as prescribed by civil law, either by virtue of the law or through an explicit order.
⁸⁹

b. Inheritance Law

The same policy of strict segregation of Germans and Jews was also followed in succession matters. Here special law was used to openly amend the legislation, for the Eleventh Decree to the Reich Citizenship Law of November 25, 1941,
⁹⁰
proscribed the right of succession (sec. 4) to all German Jews living abroad, in addition to depriving them of citizenship (with which their assets fell to the Reich). Legal practice followed a harsh line and declared all exceptions inadmissible.
⁹¹

The general inheritance regulations were also interpreted to the detriment of Jews. Particular outrage was occasioned when a Jew was named as beneficiary over the heads of close relatives; this was considered a gross violation of “the considerations … that a responsible testator should have toward his family and the
Volksgemeinschaft
,” contrary to the “sound thinking of the people” (sec. 48, par.2, Testament Law).
⁹²

Such a judgment must be viewed against the natural tendency of the judiciary to find that passing over the legal heirs contradicted the “sound thinking of the people.”
⁹³
It was, further, an infringement of the moral code for a testator to nominate his second (Jewish) wife as heir, passing over the children of the first marriage, and such a will was declared null and void.
⁹⁴
Following the promulgation of the Nuremberg Laws, the greatest offense was taken, and the will nullified, if an Aryan testatrix gave precedence to her Jewish lover over her own family, since “the content, motivation, and purpose” of such a disposition was in contradiction to “the thinking of the people founded on the National Socialist ideology.”
⁹⁵

Jewish executors were not allowed to continue in that role; upon the application of an Aryan heir, they were to be relieved of this duty by the sole virtue of their race; this was construed as a grave reason (sec. 1227, Civil Code), since, in the view of the Reich Supreme Court, “a German comrade cannot be expected to tolerate the management of an inheritance by a Jew against his will,” except in exceptional circumstances.
⁹⁶
Grounds for the dismissal of Jewish executors were not admitted, however, if the heirs were half-Jewish.
⁹⁷

c. Law of Tenancy

The special-law principle of the segregation of Aryans from non-Aryans was also rigorously enforced in tenancy matters. A regular practice began only with the second wave of anti-Jewish legislation after 1938; until then the question whether discrimination against Jewish tenants was justified on the basis of their race had been answered in a variety of ways.
⁹⁸
Until that time all court rulings had applied the Protection of Tenants Law of 1928 in cases involving Germans and Jews.
⁹⁹

Since 1938 the “ideological postulate” ruled that all joint relations with Jews should be terminated as rapidly as possible, and it was in this direction that extensive interpretation of the law was practiced.
¹⁰⁰
The application of the Protection of Tenants Law of 1928 to Jewish tenants was now flatly refused on “ideological grounds,” and eviction actions by private and public landlords were allowed.
¹⁰¹
Conversely, Aryan tenants were permitted immediate termination of a lease with a Jewish landlord “ if the landlord had let out a flat to him and at the same time had let a flat in the same house to a Jew.”
¹⁰²
This was founded on the “interests of the community of occupants,”
¹⁰³
which was suddenly considered an essential feature of the tenancy relationship, “directly inspired,” as the literature put it, by the community concept of National Socialism;
¹⁰⁴
according to the Reich Supreme Court, a true community of occupants could only be “composed of German-thinking people and inhabitants of Aryan descent with a common viewpoint”; living in the same house with Jews could thus not be expected of the German tenant, who was entitled to give notice (in application of secs. 2 and 4, Protection of Tenants Law), since the presence of Jews was a burden and a disturbance within the meaning of these regulations.
¹⁰⁵

Following the lead of the Reich Supreme Court, the Berlin District Court offered the following commentary on a decision of November 7, 1938:

The Protection of Tenants Law makes the revocation of tenancy agreements with Jews difficult and even impossible in certain cases. This, however, conflicts with the ideological demand that
all
joint relations with Jews be curtailed as rapidly as possible. The application of the Protection of Tenants Law to Jewish tenants is therefore inadmissible…. It is not true to say that the Nuremberg Laws have settled the situation of Jews once and for all. The Nuremberg Laws were only a start. The process has not finished. In addition, the view that every single measure against Jews can only be by order of the government is not correct…. Though it may be true that, as a result of the termination of contracts, a large number of Jews in Germany have become homeless, that is not the point. These dwellings are made available to German comrades, and this can only be welcome given the present housing shortage.
¹⁰⁶

The Nuremberg Court of First Instance was even harsher in the formulation of its decision of November 26, 1938, declaring termination without notice to be admissible on the grounds of the racial characteristic of the Jewish tenant:

I. The Nuremberg Court of First Instance,
like the whole of legal practice
, has hitherto held that the Protection of Tenants Law is to be applied in cases concerning German landlords and Jewish tenants…. the conscientious judge can no longer uphold this standpoint…. 1…. The liberal principle of the free play of market forces is replaced in the field of housing by the principle of the link between property and the community…. By the will of the National Socialist legislators, the Protection of Tenants Law is the legal realization of the community of the people in the housing domain, and as such is the legal expression of the Party program’s demand that the public weal should come before self-interest. 2. Since, therefore, the purpose of the Protection of Tenants Law is to serve the community of the German people, it can only be applicable to those who belong to the community of the German people or who are assimilated to it by their blood. It would therefore be a contradiction of the aim pursued by the National Socialist legislators in maintaining and enlarging the law if the protective clauses were to be applied to persons who are outside the community of the German people and who can never belong to it. This is the case for Jews…. It thus follows that the protective provisions of the Protection of Tenants Law cannot apply to Jewish tenants in their relations with German landlords…. The fact that the issue has not yet been explicitly settled by the legislator is not an obstacle to such a legal viewpoint on the part of the judge. For the circumstance that the government has not yet formally changed a legal position that is incompatible with National Socialist views does not preclude the judge from refusing to recognize this position in his decision, which of necessity he must do….