Source: Karl A. Schleunes, Chapter 4 in: The Twisted Road To Auschwitz ΓÇô Nazi Policy toward German Jews 1933-39, (Illinois 1970).
Repercussions to the boycott demonstrated the consequences of acting upon a fairy-tale conception of the Jewish problem. The broadside attack against ΓÇ£Jewish controlΓÇ¥ of the German economy had implications, which required immediate retreat. Realists such as Hitler were willing ΓÇô though reluctantly so ΓÇô to make the retreat. Streicher and other radical Jew-haters saw such retreats as diluting Nazi ideology. The frustrations of the radicals gave rise in the next few years to a series of anti-Jewish initiatives, which were ill-conceived and, in the circumstances, doomed to failure 1 .
A striking feature of Nazi Jewish policy after the April boycott was in lack of co-ordination. Indeed, until late 1938, one cannot speak of a single Jewish policy. There was, to be sure, the official anti-Jewish line of the regime, propagated by Goebbels' Propaganda Ministry, and in Hitler's speeches, which masked the inconsistencies and reverses in a multitude of Jewish policies. Behind this facade one notes policies which were pursued without the sanction and oftentimes without the knowledge of the party's central authorities. What appeared to outside observers as steady Nazi pressures against Jews on nearly all fronts, was actually the product of strain and disagreement within the Nazi movement.
The SA's seizure of the initiative in Jewish affairs illustrated clearly that Jews were considered fair game. But the failure of the boycott illustrated just as clearly the dangers inherent in allowing radicals to determine the course of Jewish policy. The dilemma was of Hitler's own making. Years of anti-Jewish propaganda had prepared the SA and others for radical action. To cry in one breath ΓÇ£Juda verreckeΓÇ¥ (Death to the Jews), and to ask in the next for discipline and restraint was an unrealistic as it was inconsistent. This was, however, the position in which Hitler found himself. There was no way for him to provide leadership from this position. His followers had already taken more than circumstances allowed him to give.
It must be emphasised again that the mildness of the regime's official policy did not stem from top-level doubts regarding anti-Semitism. The boycott had demonstrated, however, the existence of certain realities, the harshest of which was Germany's own precarious economic situation. During the boycott, economic considerations had forced the Nazis to protect several Jewish department stores. In June this embarrassing situation was compounded when Hugenberg's replacement as Economics Minister, Dr. Kurt Schmitt, confronted Hitler with a painful dilemma. Schmitt asked Hitler to approve a governmental loan to save Germany's second largest department store chain, the Jewish-owned Hermann Tietz Concern. In 1932 the Tietz chain had borrowed RM 132.8 million. Now, in mid-1933, it faced the prospect of being liquidated. Schmitt argued the liquidation would add 14,000 people to the list of Germany's unemployed. The confidence of Germany's business community was at stake he emphasised. Only Hitler's approval for the grant of RM 14.5 million additional credit for Tietz from the Reich-controlled Akzept und Garantiebank could rescue the situation. Hitler's choice was between ideological purity and the needs of the moment. After two hours of bitter argument he chose the latter. Reich-controlled credit was used to rescue the most hated of ΓÇ£Jewish institutionsΓÇ¥ - the department store chain 2 .
Pressures from outside Germany were also making themselves felt. On May 30, the Council of the League of Nations censured Germany for its anti-Jewish measures in Upper Silesia 3 . A few weeks later at the World Economic Conference in London, Foreign Minister Neurath noted a growing diplomatic isolation of Germany. He delivered himself of his concerns in a letter to President Hindenburg on June 19:
I have found a mood ΓÇô at first in the English world and then in wider circles ΓÇô which cannot be taken seriously enough. It represents a backward step for the political situation of Germany. In my report to the Reich's Chancellor I have explained what I consider to be the cause of this reversal. The Jewish question, which has been used to isolate and harm us at the Geneva meeting of the League Council . . . , is also very much in evidence here at the even more important London meetings' 4 .
Another though less important consideration in the making of Jewish policy had to be public apathy. Public reaction to the boycott had been unsatisfactory. The enthusiasm hoped for by the boycott's planners had failed to materialise. In some cities there had been active resistance with customers deliberately trying to buy in boycotted business. The Voelkischer Beobachter reported on April 3 that in Hannover some people tried to use force to get into a Jewish-owned store. Such incidents were the exception, but they reflected something less than wholesale sympathy with Nazi aims and policies. In his post-mortem examination of the boycott, Kurt Menzel admitted the need for an anti-Semitic awakening among the masses. Part of the boycott's purpose had been to further such an awakening. Streicher's committee had called upon Local Action Committees to agitate among the masses for measures, which would limit the number of Jews engaged in the professions. The 1932 Nazi blueprint had envisioned such measures against Jewish doctors, lawyers, and teachers and the harassment of these individuals by the SA during March left little doubt about Nazi intentions. Within a week after the boycott the first legislation discriminating against Jewish professionals was decreed. Three more laws followed before the end of the month.
There could never be any real doubt that, once they came to power, the Nazis would tamper with civil rights. Rumours before January 1933 had indicated the civil service would be the first victim. Such rumours disturbed the conservatives to whom the German civil service was a symbol of loyalty and efficiency and one of the few remaining links with the happier pre-Weimar age. In Hitler's first cabinet meeting on January 30, Vice-Chancellor von Papen asked him to deny the rumours 5 . When reports of SA excesses against state employees, including judges and public prosecutors, became common during the weeks prior to the boycott, other high-placed conservatives also protested to the Nazi chancellor. On April 4, just three days after the boycott, President von Hindenburg sent Hitler the following letter:
In the last few days I have notified of numerous incidents in which judges, lawyers, and judicial civil servants, who had been wounded in the war, were illegally forced to take their vacations and then dismissed because they were of Jewish origin.
For myself, one who reveres those who died in the war and is thankful to those soldiers who survived and the wounded who suffered, this treatment of Jewish war veterans now in the civil service is intolerable. I am convinced that you, Herr Chancellor, share these human feelings and so I urge you most heartily to concern yourself for the entire civil service is found. I feel that civil servants, judges, teachers, and lawyers who were wounded in the war or were soldiers on the front, or are sons of those who died or had sons who died in battle must ΓÇô insofar as they have not given cause to be treated otherwise ΓÇô be allowed to continue in their professions. If they were prepared to bleed and die for Germany they deserve to be treated honourably by the Fatherland' 6.
The old soldier had spoken in true soldierly fashion. For Hindenburg, at least, loyalty to Germany was not to be punished for irrelevant reasons. Hitler could not afford to take the president's views lightly. Yet his reply the next day was not altogether conciliatory. He justified Nazi actions by informing Hindenburg that Jews had overrun certain professions, preventing Germans, also wounded in the war, from securing worthy positions. Millions ohis brave and loyal followers in the war were being kept of gjobs Jews. Nthat the situation was soon to be reversed, Jews were complaining. Nonetheless, Hitler assured him that:
I share your worthy motives, Herr Field Marshall, and have taken them into consideration in my talks with the Interior Minister Frick. You may be assured that the solution to this problem will be carried out legally, and not by actions of caprice. I have informed the Interior Minister of the cases you would like to see excepted. A law has been in preparation for about a week and will take into consideration those Jews who are veterans, who suffered in the war, who served in some capacity, or who after long service do not warrant dismissal' 7 .
The framework for discriminatory legislation had been provided by passage of the Enabling Act of March 24. The Reichstag's action had given the government formal power to govern and legislate by decree, thereby providing the Nazis a cloak of legality with which to cover their official actions. Most important, the act enabled the Nazi regime to set aside those provisions of the Weimar constitution which stood in its way, especially those guaranteeing legal equality to all citizens.
Hitler's suggestion to Hindenburg that a law had been under consideration for only a week indicates that it was hastily prepared, almost as hastily as had been the boycott. There is little reason to doubt Hitler's word on this point. The Nazis could afford a hastily prepared law. Nazi law could be changed or expanded by supplementary decrees ( Durchfuehrungsverordnungen ). The decree powers of the Enabling Act allowed the regime to cover any inadequacies or oversights.
The 1932 blueprint for dealing with the Jewish question had forecast legal action against Jews ( Entrechtungsmassnahmen ) if and when the National Socialists achieved a parliamentary majority. In effect the Enabling Act and the subsequent collapse of the opposition parties established such a majority. Numerous reasons for a legal approach to a solution of the Jewish question suggested themselves. Prudence dictated that the Nazi regime maintain a degree of respectability abroad. The opinions of foreign governments and foreign creditors were crucial during these early months of Nazi rule. If Jews were to be discriminated against, the Nazis could at least point to the ΓÇ£legalityΓÇ¥ of the discrimination. There were sufficient circles of conservatism abroad whose fear of bolshevism made them willing to overlook the substance of law if the form was maintained 8 . One can even speculate that Hitler's petit bourgeois value system required the correctness of a pseudo-legal approach. Whatever else he may have been, the Fuehrer was not a superficial cynic. Legal or pseudo-legal tactics had, moreover, served Hitler well in his long struggle for power following the 1923 Putsch.
A most persuasive argument for the legal approach arose out of the situation of March 1933 itself, however. Just as the boycott had aimed at giving form to a chaotic economic persecution engineered by the SA, so legislation could hopefully bring order to the uncoordinated actions against Jewish professionals. Hitler had promised the German people order. For that he needed the law.
Throughout March Jewish judges and lawyers had been subjected to frequent indignities and even injury by SA terrorists. The SA was particularly zealous in its intimidation of a professional class it did not trust. In connection with the Breslau incident mentioned earlier, the SA soon was making a practice of preventing Jewish judges and lawyers from entering their courtrooms and offices. Until mid-March this sort of activity was confined primarily to the lower courts. After that, however, it began to threaten the president of the District Court of Appeals ( Oberlandesgericht ) as well 9 . To prevent a complete breakdown of the judicial process, the Breslau police chief, now the former SA leader who had led the earlier action, ordered that the henceforth only seventeen Jewish prosecutors would be allowed to argue cases before the court 10 . Some 72 Jewish prosecutors were affected by the order. As a further measure the district and local courts in nearby Oels were occupied by the regular police to assure ΓÇ£orderly court proceedingsΓÇ¥. At the same time in Breslau all Jewish judges and magistrates were placed on the retired list, their posts opened to racially suitable officials 11 .
Dismissals and forced vacations ΓÇô the type which had prompted Hindenburg's letter to Hitler ΓÇô were common elsewhere in the Reich. On March 25, the Bavarian Ministry of Justice ordered the replacement of Jewish judges in cases involving criminal and disciplinary action. Likewise state attorneys and court officials of Jewish origin were no longer allowed to act as prosecutors in the Bavarian courts.
In Berlin matters went even further. In early April Hans Kerrl, the Prussian Justice Minister, ordered: The number of Jewish lawyers to be admitted to the Berlin courts will henceforth be equal to the percentage of Jews in the German population' 12 . This, Kerrl's order continued, would leave about 35 lawyers of Jewish descent who could be admitted to the Berlin courts. Kerrl was not satisfied with regulating the Jewish situation merely in his own domain. Earlier, on March 30, he had dispatched his assistant Dr. Roland Freisler to help clear up confusion, which developed in the Frankfurt court system. Freisler, whose moment of glory was to come in 1944 as judge in the trials of Hitler's would-be assassins, was already the strident bully eager to prove himself. He explained to the judges of the Frankfurt court what measures Berlin had in mind for its Jewish judges and lawyers. Following the meeting the president of the Frankfurt District Court issued an order requiring all Jewish judges associated with the court to take immediate ΓÇ£vacationΓÇ¥. Those who failed to comply, he warned, would be locked out of their courtrooms 13 .
In Munich and Wuppertal City officials, not all of whom were Nazis, decided upon their own authority that municipal contracts should not be granted to Jewish firms. The mayor of Duesseldorf issued instructions that all Jewish doctors and pharmacists were to be dismissed from the National Health Service ( Krankenkasse ). Not only lawyers, judges and doctors, but Jewish professionals of all types were being forced to relinquish their positions. As long as he was employed in one fashion or another by a branch of the government ΓÇô local, state, or federal ΓÇô the Jewish judge, lawyer, doctor or teacher was subject to dismissal.
Wherever local officials were slow in dismissals or vacations for Jews, the SA was quick to help enforce the Party's Will. In Cologne, for example, where officials of the courts did no immediately ban Jewish lawyers and judges, SA units marched into the chambers and simply removed them. To dramatise its hatred of Jews, the SA carried them out into the streets and forced them to disrobe. Such actions on the part of the SA tended to elicit greater co-operation from reluctant authorities.
From the Nazi point of view these were purely administrative actions, fully in accord with the proposals in the 1932 blueprint. More important, these administrative actions bore the promise of success. Jews were being expelled from German professional life in great numbers. The prospect of complete elimination, moreover, promised to become brighter as the states' administrative apparatus fell increasingly into Nazi hands.
Despite the promise of administrative measures, the arguments for legislative regulation of Jewish participation in the professions were unusually persuasive. The need for some degree of consistency was an immediate one. Without it the breakdown of essential judicial services was threatened. The anarchy, which would have resulted, ran contrary to Hitler's promise to the German people as well as his own conception of the Nazi revolution. It was apparent, as the Cologne case demonstrated, that the existing bureaucracy could not be entrusted to applying administrative measures uniformly. As yet the various levels of the Gercivil service had not been subjected to an effective Gleichscha , Hitler's letter to Hinnotwithstanding, the shortage of capable party members to fill essential civil service positions was acute. Those few party members who had managed to secure posts in the municipal and Land or state bureaucracies were rapidly promoted to the Federal civil service 14 . If they were to operate effectively the needed the authority of law to enforce their decisions. Without the law, they would have to depend upon the SA to persuade recalcitrant officials at the lower levels. Dependence upon the SA raised more problems than it solved, however. Its past performance gave little evidence that it would be satisfied to act within the guidelines set by the Nazi authorities in Berlin. When these considerations were added to the pressures from Hindenburg and the importance of the Nazi image abroad, the need for a legal definition of the Jewish situation became overwhelming.
The first anti-Jewish legislation of 1933 was a direct response to the pressures operating from inside and outside the Nazi movement. As had been the case without the boycott, Hitler was caught in a dilemma. He, too, was absolutely convinced of the need for solving the Jewish problem. Yet, he was vulnerable from two sides. Hindenburg and the forces he represented demanded order; the SA and the party radicals demanded action, which threatened that order. Neither side could be ignored. The four ant-Jewish laws of April were designed to bridge the gap. The biological premises of Nazi anti-Semitism prescribed a specific approach to anti-Jewish legislation. It would have been reasonable to predict in 1932 that the first anti-Jewish laws of a Nazi regime would be designed to halt the process of biological assimilation and perhaps end the immigration of the Ostjude , or even require his expulsion. From Nazi propaganda throughout the Kampfzeit one might have expected an immediate ban on marriages between Jews and Germans, a requirement of racial anti-Semitism since the days of Karl Lueger. At the very least, ideology demanded some action, which would halt and ultimately reverse the assimilation process.
It is not surprising, therefore, that the first concrete proposals for anti-Jewish legislation were aimed at de-assimilating the Jew from the German. The proposals came not from Hitler or anyone in his coterie, but from Dr. Paul Bang, a conscientious Nazi official in the Economics Ministry. Bang had seen the logic inherent in his anti-Semitism. He wanted to see legislation which would halt the immigration of Eastern Jews, a law, which would force the assimilated German-Jew who had changed his name to take back his original and more obviously Jewish name and one which might possibly force the Eastern Jew's emigration from Germany. While he did not touch upon marriage, his proposals for unmasking the disguise of many assimilated Jews seemed the logical first step for the Nazis to take. In early March Bang sent his proposals to the Reich's chancellery office where he expected them to come to his Fuehrer's attention. From there they were sent to Wilhelm Frick in the Interior Ministry and shelved 15 . Not until 1938, when such questions had become largely irrelevant, was something approaching Bang's proposals implemented.
Bang was not alone in seeing the logic of the situation. An official in the Reich's Interior Ministry who was responsible for ΓÇ£legislation in the Jewish questionΓÇ¥ was besieged almost daily during the first years of the Third Reich with suggestions for measures against the Jewish menace. Advice came from all quarters of the NSDAP, but especially from the radical elements, which were anxious for an immediate solution to the Jewish problem 16 .
The set of four laws promulgated in April 1933 had little to do with what Nazi ideology proclaimed to be the heart of the Jewish question. Rather than comprising a frontal attack upon the blood aspects of assimilation, they were directed against the Jewish professionals who had been the object of recent SA terrorism. The same pressures, which had led to the boycott, now gave rise to legislation. The first two laws, both decreed on April 7, were aimed at the civil service and legal profession. Two more laws, one affecting Jewish doctors practising within the National Health Service, the other affecting Jewish teachers and students, went into effect on April 22 and April 25 respectively.
Unlike the boycott, which initially was directed at driving Jews out of the German economy, the April laws represented a very limited attack upon Jewish professional people. The laws made no specific mention of Jews, nor were they aimed at Jews exclusively. The Civil Service Law, which served as the model for anti-Jewish legislation until late 1935, was officially called the ΓÇ£Law for Restoration of the Professional Civil ServiceΓÇ¥ 17 . Its intention was not so much to restore the civil service as to provide a legal basis for eliminating undesirable elements, which supposedly had infiltrated the civil service during the Weimar period. This might include anyone with non-national sympathies, be he communist, socialist, liberal, or Jew. During the first months following Hitler's Machtergreifung , or seizure of power, Jews did not lack for company in being the object of Nazi attack. According to Nazi doctrine the political and racial foes had gained their influence during the liberal regime following the revolution of November 1918. The purpose of the conservative revolution, ostensible at least, was to restore the society, which had preceded one base on liberal principles. In fact, the Nazis' strictly political foes were not even accorded the niceties of legal exclusion. The SA had established wildcat concentration camps at the very outset of Nazi rule and collected communists ΓÇô or people it called communists ΓÇô to inhabit them. Ostensibly the experience in these camps would re-educate political enemies. For Jews, whose perversity was biologically determined, such re-education was impossible and the number of Jews incarcerated in these camps was at first very small.
The Civil Service Law was couched in terms, which made it applicable to both the political and racial enemy. It defined three groups of undesirable civil servants and provided for their dismissal. Those who had been appointed after November 9, 1918 were subject to removal if they lacked the proper qualification or training. By arbitrary definition nearly anyone could be made to fit into this category. A second group included those civil servants who judging by their previous political activities do not afford sufficient guarantee that they will always support the national state without reserve' 18 . The third group, also subject to dismissal, were civil servants of ΓÇ£non-AryanΓÇ¥ descent.
The term non-Aryan was in obvious reference to the racial enemy. Failure to call him by his Jewish name, however, pointed to a problem of considerable consequence for Nazi legal actions. No adequate definition of the Jew had been established. The problem had first arisen in connection with the boycotting of Jewish department stores. As long as the Nazis felt the need to maintain a legal facade to their anti-Jewish actions, the problem of definition was to plague them. The essence of the problem was simple enough: propaganda slogans about Jewish blood defied translation even into Nazi legal terminology. The inconsistency emerging from the definition of an ostensibly biological phenomenon, the Jew, on the basis of a cultural attribute, religion, was resolved only by fiat. The problem of definition ultimately posed impossible questions. Was the Jew who had married a German, abandoned his faith, and considered himself German, still a Jew? Hitler, of course, maintained that he was that he could never leave the Jewishness behind. But what of the children of such a marriage? Or eventually the grandchildren? Or the great-grandchildren?
The problem did not exist for someone like Julius Streicher who maintained he could sniff out Jewish blood no matter how well it was disguised. Hitler's claims were equally extravag. In one of those endless wartime monologues at Berchtesgaden, he toJewish blood always made itselapparent. He used the example of a Baron Liebig he had once met. Liebig's lineage had been purely Aryan, except for one ancestor born of Jewish parents in 1616. Upon seeing Liebig, Hitler claimed to have recognised immediately a pronounced appearance of Jewishness 19 . If his duties as a chancellor had not kept him so busy he might have solved the problem of identifying and defining the Jew all by himself. What a formidable team of Jew-searchers the Reich might have had, had Hitler coupled his own abilities with those of Streicher! Those who drafted anti-Jewish legislation for the Third Reich, if they shared Hitler's gifts for identifying the Jews, were not as skilful in pinning them to legal categories. They had to fall back upon the negative concept of non-Aryan, emblematic of what the German was not.
In this connection it is a revealing to look at those who were excepted from the law's provisions as at those who fell under them. Hindenburg's letter to Hitler had not been in vain. With one exception Hitler honoured his promise to the Reich's president. His exception was the first category mentioned in the Civil Service Law. He refused to concede the regime's right to dismiss anyone whose position had been attained after November 1918. Otherwise Hindenburg's requests were honoured. A civil servant who had fought in the war or whose father or son had served was exempt from dismissal unless he was disqualified for lack of professional or political reliability.
Theoretically Hitler's exception overrode Hindenburg's considerations. Judgements on matters relating to proper training and qualifications were to be made by Nazi ministers. A Jew, a liberal, a conservative, a communist, or a socialist could always be accused of lacking the necessary qualifications if he could not be excluded on any other basis. In practice things worked out quite differently. In the first instance very few Jews, communists, or socialists had ever achieved high positions in the German civil service, even during the liberal interlude of Weimar. To that extent the civil service needed little restoring. Given the traditions of efficiency and conservatism in the German Bureaucracy, moreover, it was unlikely that either professional or political unreliability was widespread. Unless Hitler was willing and, more importantly, able to demand the dismissal of politically conservative bureaucrats as well, the defences of the German civil service against the Nazi assault seemed well prepared 20 . Announced along with the Civil Service Law of April 7 was the ΓÇ£Law Concerning Admission to the Legal ProfessionΓÇ¥ 21 , which affected both judges and public prosecutors. The approximately 3,000 Jewish lawyers in Germany were much more vulnerable to attack than the few Jewish bureaucrats. They were state officials who dealt with public matters under the glaring light of a publicity organised by the Nazis themselves.
References:
1. Reported by Dr. E. Michael, an official in the Reich's Economics Ministry in 1933, to Heinrich Uhlig, Die Warenhaeuser im Dritten Reich (Cologne, 1956), pp. 115-117.
2. New York Times, May 31, 1933.
3. Neurath's letter is quoted in Helmut Genschel, Die Verdraengung der Juden aus der Wirtschaft im Dritten Reich (Goettingen, 1966), pp. 76-77.
4. Herbert Michaelis and Ernst Schraepler, eds., Das Dritte Reich, Die Zertruemmerung des Parteienstaates und die Grundlegung der Diktatur: Dokumentensammlung, vol. 9 (Berlin, n.d.), p.7.
5. Dokumente der deutschen Politik und Geschichte, vol. 4 (Berlin, n.d.), pp. 147-148.
6. Ibid., pp. 148-149.
7. See, for example, Margaret George, The Warped vision: British Foreign Policy, 1933-1939 (Pittsburgh, 1965).
8. Weiss, Einige DokumenteΓÇ¥, pp. 11-12.
9. Ibid., p. 12.
10.Rumbold to Simon. Woodward and Butler, eds., Documents on British Foreign Policy, p.23
11. Voelkischer Beobachter, April 4, 1933.
12. Voelkischer Beobachter, April 1, 1933.
13.Bernhard Loesener, ΓÇ¥ Als Rassereferent im Reichsministerium des InnernΓÇ¥, Vierteljahrshefte fuer Zeitgeschichte 9 (July, 1961): 267.
14.Bracher, Sauer, and Schulz, Die nationalsozialistische Machtergreifung, p. 280, n. 96.
15.Loesener, ΓÇ¥Als RasseferatΓÇ¥, p. 267.
16. Reichsgesetzblatt 1. 1933, p. 175 (hereafter cited as RGB1).
17.Ibid.
18.Gehard Ritter, ed., Hitlers Tischgesprache im Fuehrerhauptquartier, 1941-1942 (Bonn, 1951), pp. 312-313.
19.
20.E. N. Peterson, ΓÇ¥The Bureaucracy and the Nazi PartyΓÇ¥, Review of Politics 28 (April, 1966): 172-192.
