"Non-Germans" Under the Third Reich (25 page)

Moreover, the need for the sharp sword of dismissal or compulsory retirement under the provisions of this law was not so very great, since the Reich Code of Disciplinary Procedure, adopted simultaneously on January 26, 1937,
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offered a much less spectacular, yet, because of the limitless definition of the duties of civil servants under section 30 of the German Civil Service Code,
⁹⁶
just as effective a means of disciplinary action as the German Civil Service Code itself. This included, in particular, reduction or withdrawal of salary (or pension) (sec. 4, pars. 1, 7, 9, of the Reich Code of Disciplinary Procedure). Since the principle of the Supreme Disciplinary Court, developed and refined in the course of constant judicial practice, that any—even the most trifling—“exercise of a non-National Socialist attitude of whatever kind,” even so much as a statement “to any third party whatever,” represented malfeasance in office,
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it is obvious that any “malfeasance” that went beyond this was subject to rigorous sanctions.

Thus, for example, withdrawal from the NSDAP, according to a decree circulated by the Reich minister of the interior dated February 27, 1936, was as a rule followed by dismissal, because such a civil servant lacked the “fervent affinity with the National Socialist state” or the “necessary sense of sacrifice.”
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In exceptional cases, however, there were also milder sanctions, such as being passed over for promotion
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or having one’s salary reduced.
¹⁰⁰
A civil servant’s expulsion from the Party also generally resulted in his dismissal,
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although here too, “milder” disciplinary measures were possible in exceptional cases.
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Mass dismissals of specialists not loyal to the Nazis were in any case impossible owing to the shortage of such personnel.
¹⁰³
Even in the Reich Ministry of the Interior it was neither demanded nor expected that every civil servant be a member of the Party “under the currently existing conditions”; one was not even compelled to join the National League of German Civil Servants or the NSRB
¹⁰⁴
even if, defacto, neither appointment nor promotion was possible in the absence of such membership. Nonetheless, such collective membership was by all means intended to be binding upon future generations of civil servants.
¹⁰⁵
Accordingly, there was no express provision that required all civil servants to join the National Socialist Welfare Organization (NSV)—an “auxiliary unit” of the NSDAP; yet the disciplinary courts derived a duty to join from the general duty “to act without reserve on behalf of the National Socialist state,” one whose violation could even be punished with dismissal.
¹⁰⁶

Further disciplinary sanctions consisted in the dismissal of civil servants who had troublesome religious affiliations (Jehovah’s Witnesses) or who gave false answers on the questionnaires required under the German Civil Service Code.
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Civil servants who maintained commercial relations with Jews were penalized by reductions in salary (or pension),
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whereas retirees who were convicted of criminal offenses had their pensions withdrawn altogether.
¹⁰⁹

Such disciplinary measures as provided for in the German Civil Service Code and the Reich Code of Disciplinary Procedure were prerequisites for the effective implementation of Nazi aims and corresponding legal regulations. Added to this was intensive schooling in Party politics, both by the department chiefs
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and by the Party itself, the support of which was incumbent on all department heads,
¹¹¹
as was an obligation to put down any critical statements that were deemed, under the Civil Service decree circulated by the Reich minister of the interior on June 22, 1933, to be “defeatist” and a “continuation of Marxist agitation”; all civil servants with supervisory duties were expressly enjoined to report such cases.
¹¹²
It can therefore come as no surprise that the Civil Service, at least after the German Civil Service Code took effect, was populated either by the Nazi faithful or at the very least Nazi loyalists and that it lost no opportunity to demonstrate its loyalty in all things. Those civil servants who held reservations about political developments ventured at the very most to express doubts about issues of detail but did not dare criticize matters of principle, since above them, as seen in the records of the disciplinary courts,
¹¹³
dangled the Damoclean sword of immediate dismissal, transfer, or other disciplinary action.

The destiny of civil servants classified as “persons of mixed descent” was more complicated than that of full Jews. Persons of mixed descent of the first degree (half Jews), who, because of membership in the Jewish religion or marriage to a full Jew, were of equal status with the Jews (“legal Jews” in the sense of sec. 5, par. 2, of the First Decree to the Reich Citizenship Law, dated November 14, 1935),
¹¹⁴
were subject to the same provisions under special law as the Jews. Although persons of half-Jewish descent who were not considered Jews under the specified provisions (so-called
privileged
“persons of mixed descent of the first degree”)—that is, persons who had only two Jewish grandparents and who were married to an Aryan—were permitted to remain in public service or even, to a limited extent, be appointed to public service,
¹¹⁵
they were excluded from careers as tenured civil servants, since the Reich Civil Service Code in the version adopted with the amending law of June 30, 1933,
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barred even so-called one-quarter Jews (persons with one Jewish grandparent) from a career in civil service.

Persons of half-Jewish or quarter-Jewish descent (persons of mixed descent of the first degree and persons related by marriage to Jews who were already civil servants), as long as they were not legally equated with Jewish status or unable to provide a complete “Aryan certificate,” were generally allowed to remain in office; however, if their positions were in the public eye, they were often transferred to other posts or to outstations, as long as this could be done without causing a stir. That such persons were in any case not dismissed is also underscored by the fact that as late as 1944, Himmler, in his capacity as Reich minister of the interior, issued a decree to all subordinate offices expressing the expectation that Jewish “persons of mixed descent” would no longer occupy “key positions.”
¹¹⁷

If civil servants of half-Jewish descent were simultaneously politically troublesome, however, there was really no keeping them. But their removal on political grounds then had to be initiated on the authority of the provisions concerning political reliability, since the special racial laws in the Professional Civil Service Code and the German Civil Service Code of 1937 did not apply to Jewish
Mischlinge
. However, in the wake of increasingly drastic anti-Jewish measures, especially those adopted after the beginning of the war, the attempt was made to subject Jewish “persons of mixed descent” in the public service sector as well to the special legal treatment already meted out to full Jews. The SS leadership in particular, having taken over more and more responsibility for anti-Jewish measures of all kinds, attempted to include
Mischlinge
under the purview of the anti-Jewish operations (for instance, equating them with Jews for purposes of the Final Solution)
¹¹⁸
or even pushing through special legal provisions for them.
¹¹⁹
These latter, however, never came into effect, whether for political reasons owing to fortunes of war or because the required administrative effort would have been prohibitive.
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Nevertheless, no later than 1944 there were preparations under way for special treatment of the half-Jewish members of the public service, who until that time had been exempt from labor service duty; these preparations were undertaken with the same secrecy
¹²¹
that had characterized the anti-Jewish measures of 1933.
¹²²

As is common in the preparation of centralized (special) regulations, the first step, according to a decree signed by Undersecretary Hans Stuckart in 1944, was the registration and classification of everyone belonging to the affected group of persons. The decree required “reports broken down according to racial incrimination” on the following two questions: which and how many employees and laborers in the public service were “Jewish
Mischlinge
” of the first or second degree, and which civil servants, employees, and laborers in the public service were “related by marriage to Jewish
Mischlinge
of the first or second degree.”
¹²³

What purpose these preparations served—whether “merely” removal from office or as groundwork for the sterilizations planned by Undersecretary Stuckart,
¹²⁴
or even as the first step toward the Final Solution—cannot be said with certainty. Whatever the case, it was plainly only the fortunes of war that prevented the meting out of special treatment to the Jewish “persons of mixed descent” in public service as well. Outside the public sector, to be sure, strictures against “non-Germans” were taken to much greater lengths.

III. Race Legislation in the Narrower Sense

Such strictures, in the form of actual race legislation, commenced immediately after the purges in public service. Superficially, they were presented as measures for the promotion of public hygiene and eugenics, having general effect and containing no particular provisions of special law directed against specific groups. The purpose, however, was manifestly to preserve “racial purity,” which was synonymous with the advancement of the Aryan and the elimination of the non-Aryan races and other undersirable groups. Special treatment under the eugenics laws was provided for all those who did not fit into this framework. This consisted in the revocation of essential individual rights, more particularly in infringement of the right to freedom from bodily harm. These laws, which, to judge by the statements of leading National Socialists prior to 1933, had already been resolved upon long before the Nazi seizure of power,
¹
initiated Nazi atrocities in the area of forced sterilizations and castrations and ultimately prepared the intellectual soil upon which the murderous actions of so-called euthanasia were committed.
²
In the process, the circle of persons who might be considered for such measures under special law was so broadly defined—with the aid of pseudomedical phraseology—that the authorities acquired an almost unlimited scope for deciding who, in each individual case, would be deemed to be among that set of people.

1. The Law for the Prevention of Progeny with Hereditary Diseases (Eugenics Law), July 14, 1933

The opening salvo was the Law for the Prevention of Progeny with Hereditary Diseases of July 14, 1933,
³
which permitted the sterilization of a person suffering from “hereditary disease” when it was “in all probability to be expected that his or her descendants will suffer from grave physical or mental hereditary defects” (sec. 1, par. 1); mental and emotional disorders were included among the “hereditary diseases” covered by this law.
⁴
Application could be made, first and foremost, by the person who was to be sterilized; in case he or she was legally incapacitated, certified as feeble-minded, or of restricted legal competence, the legal guardian could sign with the approval of the Surrogate’s Court (sec. 2). However, the medical examiner or the director of a hospital, sanatorium, nursing home, or penal institution could also make application for sterilization (sec. 3).

With this law the National Socialists had adopted an older Prussian bill, with the one essential difference that the Prussian bill had concerned itself exclusively with voluntary cases.

Since 1925 proposals on sterilization had been advanced several times in the Prussian representative assembly, but they had always been rejected. On June 2, 1932, a committee of the Prussian state health council published a draft sterilization law that provided for voluntary sterilization where it was eugenically indicated; this aroused considerable notice. Similar ideas were also being considered at the Reich level. The official draft of a General German Criminal Code of 1925 called for the legalization of sterilization (which until then was considered to be bodily injury under sec. 223 of the Penal Code) with the consent of the patient. Under section 229 of this proposal, consensual bodily injury was to be punished only in cases in which the act was offensive to good morals. In the relevant commentaries it was observed that sterilization on social grounds or for reasons of racial hygiene was permissible only when governed by a conscientious interpretation of the concept of public morals.
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All official bills stressed voluntariness as being the sine qua non in any question of sterilization.