"Non-Germans" Under the Third Reich (146 page)

71.
Lorenzen, “Das Eindringen der Juden in die Justiz vor 1933,” 956 f.

72.
Although art. 129, par. 1, sentence 3, of the Weimar Reich Constitution spoke of the “inviolability” of the well-earned rights of officials, the arrangements for retirement benefits (par. 2) were subject to simple legal reservation.

73.
Cf. memorandum of January 17, 1939, from the deputy Führer to the head of the Four Year Plan, quoted in Blau,
Das Ausnahmerecht für Juden in Deutschland
, no. 212 (Nuremberg doc. PS-069).
RGBl.
1938 I 1751.

74.
Reich Labor Tribunal, decision of February 6, 1937, Reich Supreme Labor Court 222/36, Cologne,
JW
(1937): 2070 f.

75.
Sec. 2, par. 1 of the Second Decree to the Reich Citizenship Law, dated December 21, 1935 (
RGBl.
I 1524).

76.
RGBl.
I 39 ff., with implementing orders of June 29, 1937 (
RGBl.
I 669), October 13, 1936 (
RGBl.
I 1421), November 12, 1941 (
RGBl.
I 715), June 29, 1942 (
RGBl.
I 416), July 29, 1942 (
RGBl.
I 483), October 13, 1942 (
RGBl.
I 624), June 22 1943 (
RGBl.
I 367).

77.
Cf German Civil Service Code, sec. 184, par. 2. Deviations from the old Reich Civil Service Code are found in the provisions on race (secs. 25 ff.) and political trustworthiness (sec. 26, par. 1, no. 3; sec. 71) and the provision in sec. 148 on important duties to be fulfilled only by officials.

78.
Cf. Huber, “Die verfassungsrechtliche Stellung des Beamtentums” (1941/43); Maunz, “Die Auslese in der deutschen Beamtengesetzgebung seit 1933” (1942); Muth, “Die verfassungsrechtliche Stellung des Beamtentums” (1942); regarding the validity of officials’ terms of employment in the Third Reich, cf. BVerfGE, 6, 32 ff., which declared all terms of employment established between 1933 and 1945 to be null and void.

79.
In connection with such breaches of the established principles of the Civil Service and general equality, which also reigned in the Third Reich, is the fact that women in public service were considerably disadvantaged, although art. 128, par. 2, of the Weimar Constitution had removed all exceptional provisions discriminating against female officials. Thus women could become officials only at the age of 35 years (men 27), and those who married were dismissed if their economic maintenance was “permanently assured,” i.e., if the husband was a civil servant for life (DBG [German Civil Service Code], sec. 28, par. 2., subpars. 1, 63). On account of the manpower shortage resulting from conscription to the Wehrmacht, this rule was relaxed again by the decree of October 9, 1942 (
RGBl.
I 580). The Reich Ministry of Justice was in the forefront of the restrictions, a circular of January 10, 1936, having already ordered that women could no longer be admitted as judges and public prosecutors, except in cases in which dismissal would cause economic distress. Serving female judges could be employed only in matters of voluntary jurisdiction. A circular of January 16, 1936, stated that nonemployment of women as judges was “an order of the Führer” and that women could henceforth be employed only in the judiciary administration (Reich Ministry of Justice decree collection, Federal Ministry of Justice). A circular of July 4, 1944, ordered that on account of the poor employment situation, women could now be called upon as judges at any time, but only in voluntary jurisdiction (BA R 22/provis. no. 20510).

80.
Sec. 6 of the law of June 30, 1933, amending regulations in the field of general Civil Service, salary, and pensions law (
RGBl.
I 433) in conjunction with no. 3 of the directives of August 8, 1933 (
RGBl.
I 575), under sec. 1a, par. 3, of the law (of June 30, 1933).

81.
Reich Civil Service Code, sec. 1a, par. 3, in the version of June 30, 1933 (
RGBl.
I 433), and no. 10 of the second amending order to the second implementing order to the Professional Civil Service Code of September 28, 1933 (
RGBl.
I 678).

82.
Reich Ministry of the Interior directives of August 8, 1933, no. 2, par. 1 (
RGBl.
I 575).

83.
First Law on the Transfer of the Judiciary to the Reich, February 16, 1934 (
RGBl.
I 91).

84.
Procedural Regulation for the Education of Jurists, sec. 10, par. 1, of July 22, 1934 (
RGBl.
I 727), in conjunction with sec. 25 of the First Implementing Order of September 13, 1934 (
RGBl.
I 831). According to the First Decree to the Reich Civil Service Code of November 14, 1935 (
RGBl.
I 1333), descent from three Aryan grandparents was in principle sufficient to be considered of German blood.

85.
As early as 1933 the amendment to the Reich Civil Service Code (RGB sec. 1a, par. 3, in the version of the law of June 30, 1933,
RGBl.
I 433) laid down imperatively that no person married to a non-Aryan could hold an official post. The proof of Aryan descent that had been required of each applicant to the Civil Service since mid-1933 included proof of descent of the spouse or fiancé (no. 2, par. 1, of the directives of the Reich Ministry of the Interior of August 8, 1933 [
RGBl.
I 575], relating to sec. 1a, par. 3 of the Reich Civil Service Code in the version of the law of June 30, 1933 [
RGBl.
I 433]). In the Reich justice administration, the same also applied to applicants for the post of judge and public prosecutor, in line with the general decree of the Reich Ministry of the Interior of April 1, 1935 (
DJ
[1935]: 546, no. 4c, sec. II). Cf. also Reich Ministry of Justice circulars of April 15, 1936, and December 7, 1936, in accordance with which the obligation to prove Aryan descent could be extended to officials of the Reich Ministry of Justice and their wives (BA R 22/4433); see in addition secs. 3, 4, 14 of the implementing orders to the Career Code for judges and public prosecutors of June 26, 1935 (
RGBl.
I 312). Under the terms of the Reich Ministry of Justice decree of October 4, 1937, judges married to Jewish women could henceforth be employed only in land register, administrative, and registry matters—on no account in personnel matters (BA R 22/20597).

86.
The wording of the regulation was “The official is to be dismissed if after his appointment it is established that he or his wife are not of German or related blood or if after his appointment he marries a person of non-German or related blood without the authorization required in accordance with sec. 25, par. 2, subpar. 2, or par. 3 [conditional authorization of the Reich Ministry of the Interior for marriage with persons of “non-German or related blood”]. This rule does not apply if at the time of the appointment or the marriage it was presumed through no fault of his own that he or his wife was of German or related blood.”

87.
Cf. Professional Civil Service Code, sec. 8; Reich Supreme Labor Court of February 6, 1937,
JW
(1937): 2070 f. Cf. Reich Labor Tribunal decision of November 3, 1937, Reich Supreme Labor Court 186/37, Breslau,
JW
(1938): 977 f.

88.
German Civil Service Code, sec. 72, read, “(1) If in cases covered by sec. 59, par. 1, it is assumed through no fault of the official that he or his wife are of German or related blood, he should be superannuated; if he is an official until revoked, he should be dismissed; sec. 62, pars. 1 and 2, apply. (2) Sec. 15, pars. 2 and 3, apply analogously.”

89.
The official was an “executor” of the state borne by the NDSAP (German Civil Service Code, sec. 1, par. 2), and “his whole behavior had to be guided by the fact” that the NDSAP was the “vehicle of German state thinking” (German Civil Service Code, sec. 3, par. 2).

90.
Decision of the Reich Disciplinary Court of June 12, 1940 (RDHE 3, 55,
DVerw.
[German Administration] [1941]: 21); grounds for dismissal were intimate relations on the part of the official with a Jewish woman before the coming into effect of the Nuremberg Laws, which he subsequently continued on a platonic basis. The Reich Disciplinary Court stated, among other things, that the accused “ought to have conformed more to the position of the state toward Judaism.”

91.
Subsequently the Reich Ministry of Justice investigated three notaries in accordance with sec. 71 of the German Civil Service Code in conjunction with the Reich Notary Code of February 3, 1937, sec. 38, par. 3 (
RGBl.
I 191), with the aim of pensioning them off on grounds of political untrustworthiness (preliminary instructions of May 19, 1938, and December 6, 1938, respectively, Nuremberg doc. NG-901). The result of the proceedings is not known.

92.
According to an (undated) account by the Reich Ministry of Justice, the procedure provided for in German Civil Service Code sec. 71 was resorted to 11 times between 1938 and 1941:7 times against judges and 4 times against notaries. The grounds for forced retirement or dismissal were affiliation with the church, buying from Jews, “a friendly attitude toward Poles,” etc. In addition, proceedings were instituted (on January 20, 1944) against a half-Jewish justice official on grounds of
Rassenschande
(racial defilement) (BA R 22/4469), which in the absence of a provision in the German Civil Service Code corresponding to the Aryan Paragraphs of BBG, sec. 3, were carried out on the basis of German Civil Service Code sec. 71.

93.
See, for example, the secret notification from the Reichsgericht presiding judge of December 21, 1942, in which he conveys to the Reich minister of justice that “according to your instructions” two
Reichtsgerichtsräte
have been transferred to other senates (higher court divisions). The document bears the handwritten note by Reich Minister of Justice Thierack, “Copy to Party Chancellery” (BA R 22/20325). The basis for the transfer was the German Civil Service Code, sec. 35, replaced by sec. 1 of the Second Decree on Measures concerning the Rights of Officials of October 9, 1942 (
RGBl.
I 580) (see also note 94).

94.
According to the decree of October 9, 1942, any official could be transferred “when required by the service” to a position with a similar career status—even to one with a lower salary (though maintaining the same pension benefits). A Reich Ministry of Justice decree dated October 1942 (Nuremberg doc. NG-199) created a similar situation for officials of the justice administration. The Reich Chancellery had approved this decree on condition that it be used only when other legal measures were not adequate (letter of November 11, 1942, from the RMuChdRkzlei to the Reich Ministry of Justice [ibid.]).

95.
RGBl.
I 71.

96.
Sec. 3 of the German Civil Service Code stated: “(1) Appointment to the Civil Service is a mark of trust by the state leadership, which the official must justify by remaining constantly aware of the high duties with which his office entrusts him. Führer and Reich demand true love of the Fatherland, a willingness to make sacrifices, complete dedication, obedience to superiors, and comradeship toward colleagues. The civil servant should be a model of loyal fulfilment of duty to all his fellow citizens. Toward the Führer, who assures him of his special protection, he must remain loyal unto death. (2)…. (3) The official is responsible for the conscientious execution of his duties.”

97.
Reich Disciplinary Court, May 3, 1939, RDHE 3, 1 (3).

98.
Seel, in Frank,
Deutsches Verwaltungsrecht
, 151 ff., 164.

99.
RuPrMdI circular of February 27, 1936, Sp. 275–78: In the event of the resignation of an official from the NSDAP, the deputy Führer was required to inform his highest superior. A thorough investigation had to be carried out in every case as to the official’s reasons for leaving the Party. If it was because he refuted the Party’s program or political position, he could no longer remain in official service. But even if this was not the case, the withdrawal of an official from the Party, given the close relations between Party and state, could lead to the conclusion that he lacked a sincere commitment to the National Socialist State, or that he lacked the necessary spirit of sacrifice. He could then expect at least to be excluded from preferential promotions and to be demoted in the case of normal promotions.

100.
Decision of the Reich Disciplinary Court, August 16, 1939, RDHE, vol. 3, 14. This was a primary-school teacher who had left the NSDAP because he felt let down in a matter of maintenance and had made insulting remarks toward his superiors. The Reich Disciplinary Court sentenced him to a one-tenth reduction in salary for three years. For a similar case—resignation from the Party not necessarily a cause for dismissal—see also Prussian Administrative Supreme Court, June 23, 1937,
RVerwBl.
(1937): 385; OVGE, 100, 285; decision of the Reich Disciplinary Court of May 20, 1938,
RVerwBl.
(1938): 865.

101.
Cf. Seel (Seel was
Ministerialdirigent
[a high official post] in the Reich Ministry of the Interior), in Frank,
Deutsches Verwaltungsrecht
, 164. “Thorough investigation” was necessary to decide whether an official could remain in office.

102.
Prussian OVG,
RVerwBl.
(1937): 762.

103.
Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
(1962), 172.

104.
Cf. Seel, in Frank,
Deutsches Verwaltungsrecht
, 164: “in the circumstances reigning today, not all the present generation can be considered for membership in the NS.” Certainly only part of the Civil Service corps had joined the Party by May 1, 1933, when the ban on new members was instituted (see Schäfer,
NSDAP
, 35 f.). According to Diehl-Thiele,
Partei und Staat im Dritten Reich
, 56, based on NSDAP statistics (NSDAP,
Parteistatistik der NSDAP
, vol. 1 [1935], notes 65, 67), some 250,000 officials joined the Party between January 30 and April 30, 1933. By January 1, 1935, approximately 20% of all officials (307,205 out of a total of 1,483,768) were members of the NSDAP; only 18.6% of these had been Party members before January 30, 1933; 81.4% were the so-called March intake, who joined the Party between January 30 and April 30, 1933. Teachers were represented particularly strongly in the NSDAP; already by the end of April 1933, almost one in three teachers was a member (84,993 out of a total of 271,184 teachers) (Diehl-Thiele,
Partei und Staat im Dritten Reich
, 56 n. 67). Although the principle of voluntary membership was constantly emphasized, strong pressure was often exerted on officials to join (60 n. 80); see also the decree of the deputy Führer no. 101/39 of May 8, 1939, in which Bormann asks for an investigation of why a number of
Gemeinderäte
(honorary officials) in various
Gaue
had not joined the Party and demands that they be dismissed should their failure to join be out of “lack of interest in Party duties” (quoted in Diehl-Thiele,
Partei und Staat im Dritten Reich
, 60 n. 80).