by Ian Kershaw
The minutes of the meeting were sent to Hitler, who also discussed the matter with Schacht on 9 September.194 This was a day before Hitler left to join the hundreds of thousands of the party faithful assembled for the annual ritual in Nuremberg for the ‘Reich Party Rally of Freedom’ – ‘the High Mass of our party’, as Goebbels called it.195 Eleven days before the Party Rally, the London weekly Jewish Chronicle reported on planned legislation ‘to regulate the question of German citizenship, ban mixed marriages, and enact heavy penalties for “racial desecration” ‘. The new Citizenship Law, it went on, was to be officially proclaimed at the Nazi Congress in Nuremberg on 10 September.196 This was reasoned speculation, not firm insider-knowledge. The Schacht meeting (where economic legislation had been the main demand) had demonstrated that, for all the talk of preparatory work, in mid-August, ten days before the appearance of the article in the Jewish Chronicle, there was still nothing available. The rapid drafting which was necessary during the Nuremberg Rally itself further indicated that the legislation was far from ready. For all its apparent prescience, the Jewish Chronicle had picked up the many hints at forthcoming legislation which had been made by Nazi leaders, and guessed that discriminatory laws would be announced at Nuremberg. It turned out to be a shrewd guess. But when Hitler left for Nuremberg, it was not with the intention of proclaiming the anti-Jewish ‘citizenship’ and ‘blood’ laws during the Party Rally. Once again, propaganda considerations played a significant part. And so did the lobbying at Nuremberg of one of the most fanatical proponents of a ban on sexual relations between Germans and Jews, Dr Gerhard Wagner, the Reich Doctors’ Leader, who had been advocating a ban on marriages between ‘Aryans’ and Jews since 1933.197
Two days into the Party Rally, on 12 September, Wagner announced in a speech that within a short time a ‘Law to Protect German Blood’ would prevent the further ‘bastardization’ of the German people. A year later, Wagner claimed that he had no idea, when making his announcement, that the Führer would introduce the Nuremberg Laws within days. Probably Hitler had given Wagner no specific indication of when the ‘Blood Law’ would be promulgated. But since Wagner had unequivocally announced such a law as imminent, he must have been given an unambiguous sign by Hitler that action would follow in the immediate future.198 At any rate, late the very next evening, 13 September, Dr Bernhard Lösener, in charge of preparation of legislation on the ‘Jewish Question’ in the Reich Ministry of the Interior, was, to his surprise, ordered to Nuremberg. He and a colleague, Ministerialrat Franz Albrecht Medicus, arrived in the morning of 14 September to be told by their superiors in the Interior Ministry, State Secretaries Hans Pfundtner and Wilhelm Stuckart, that Hitler had instructed them the previous day to prepare a law to regulate the problems of marriage between ‘Aryans’ and ‘non-Aryans’. They had immediately begun work on a draft.199 It seems likely that the urging of Wagner, in Hitler’s company for hours at the crucial time and doubtless supported by other Nazi leaders, had been instrumental in the decision to bring in the long-desired law there and then. Wagner was the link between Hitler and those given the task of drafting the law, who were not altogether clear – since they had received no written instructions – on exactly what came from the Doctor’s Leader and what came from Hitler himself.200 But Hitler would not have acted on Wagner’s prompting had he not seen the political and propaganda advantages in doing so.
From Hitler’s point of view, such a move was most timely. To embellish the Party Rally – the first at which the new Wehrmacht was on show since the reintroduction of conscription – he had summoned the Reichstag to a symbolic meeting in the city where it had last met in 1543. It had been called to acclaim a law making the swastika banner the sole Reich Flag – a move, replacing the traditional black-white-red horizontal stripes of the national flag of the Kaiser’s era, of notable sensitivity in conservative and military circles.201 The Diplomatic Corps was also to be present, apparently because Hitler had planned to exploit the mounting Abyssinian crisis – how the divided League of Nations, with Italian threats unmistakable, should respond to the likely assault (which in fact took place little over a fortnight later) on one of its members, Abyssinia, by another, Italy – to pose German revisionist demands. In the event, on 13 September Neurath had dissuaded him from this idea.202 Hitler then needed something to ‘fill out somewhat’ the legislative programme for the Reichstag which, with only the Flag Law to promulgate, was looking rather thin.203 Meeting Wagner’s wishes – echoing those of many in the party – for a law against ‘mixed’ marriages of Germans and Jews, offered a satisfactory way round the problem.
The atmosphere was in any case ripe. The summer of intimidation and violence towards Jews had seen to that. The increasingly shrill demands for action in the ‘Jewish Question’ formed a menacing backcloth to the high-point of the party’s year as hundreds of thousands of the faithful arrived in Nuremberg, its walls, towers, and houses bedecked by swastika banners, the air full of expectancy at the great spectacle to follow in what had been labelled the ‘Reich Party Rally of Freedom’. As in the previous two years, the narrow streets of Nuremberg’s beautiful old town were thronged with ‘Party comrades’, boys from the Hitler Youth, stormtroopers, and the black-uniformed élite corps of the SS. Hitler’s reception had been, as always, that of a conquering hero when he arrived in the city. The Zeppelinfeld, to the south-east of the city, where Albert Speer’s stadium, congress-hall, and parade-grounds, begun the previous year, and set to accommodate over 300,000 persons, were still being built, was a sea of swastika flags, lit at night with soaring searchlights. The scene captured Nazi aesthetics at their height.204
The tone of the Rally had been set by Hitler’s opening proclamation, read out as usual by Adolf Wagner. Hitler threatened ‘that the fight against the inner enemies of the nation’ would ‘never fail because of the formal state bureaucracy or its inadequacy’. What the state could not solve, would be solved through the party. And at the head of the list of internal enemies he mentioned stood ‘Jewish Marxism’.205 Exploiting attacks on National Socialism made at the Moscow conference of the Comintern in the summer, the shrill assault on ‘Jewish Marxism’ ran as a leitmotiv throughout the Rally.206
Preparations for the notorious laws which would determine the fate of thousands were little short of chaotic. Lösener and Medicus had arrived in Nuremberg on Saturday, 14 September. The Reichstag meeting was scheduled for 8p.m. the following day.207 There was little time for the already weary civil servants to draft the required legislation. Whatever the prior work on anti-Jewish legislation in the Ministries of the Interior and Justice had been, it had plainly not passed the initial stages. No definition of a Jew had been agreed upon. The party were pressing for inclusion of Mischlinge (those of mixed descent). But the complexities of this were considerable. The work went on at a furious pace. During the course of the day, Lösener was sent more than once to battle his way through the huge crowds to Frick, staying at a villa on the other side of the city and showing little interest in the matter. Hitler, at Wagner’s insistence, rejected the first versions Frick brought to him as too mild.208 Around midnight, Frick returned from Hitler with the order to prepare for him four versions of the Blood Law – varying in the severity of the penalties for offences against the law – and, in addition, to complete the legislative programme, to draft a Reich Citizenship Law.209 Within half an hour, they had drawn up in the briefest of terms a law distinguishing state subjects from Reich citizens, which only those of German or related blood were eligible to become.210 Though almost devoid of content, the law provided the framework for the mass of subsidiary decrees that in the following years were to push German Jews to the outer fringes of society, prisoners in their own land. At 2.30a.m. Frick returned with Hitler’s approval.211 The civil servants learnt only when the Reichstag assembled which of the four drafts of the ‘Blood Law’ Hitler had chosen. Possibly following the intervention of either Neurath or, more likely, Gürtner, he had chosen the mildest. Howe
ver, he struck out with his own hand the restriction to ‘full Jews’, adding further to the confusion by ordering this restriction to be included in the version published by the German News Agency (Deutsches Nachrichtenbüro).212 Marriage and extra-marital sexual relations between Jews and Germans were outlawed, and to be punished with stiff penalties. Jews were also barred from employing German women under the age of forty-five as servants.213
Hitler’s speech – for him a remarkably short one – to the Reichstag on 15 September, recommending acceptance of the three laws (the Flag Law, the Citizenship Law, and the Blood Law), was the first time he had concentrated on the ‘Jewish Question’ in a major address since becoming Chancellor. Jews abroad, he declared, had been responsible for agitation and renewed boycotts against Germany. He blamed the ‘Bolshevik revolutionary agitation’ following the Comintern Congress in Moscow and the ‘insulting of the German Flag’ in New York (when dock workers had torn down the swastika banner from the steamer Bremen, giving rise to an international incident) on ‘Jewish elements’.214 The ‘international unrest’ had stirred Jews within Germany to ‘provocative action’ of an organized kind. If this were not to lead to uncontrollable ‘defensive actions of the enraged population’, there remained ‘only the way of a legal regulation of the problem’. The German government was, therefore, Hitler went on, persuaded ‘by the idea of being able, through a once and for all secular solution, of perhaps creating a basis on which the German people might possibly be able to find a tolerable relationship with the Jewish people’. From one whose first written political statement, in 1919, had specified that the final aim of government policy must be ‘the removal of the Jews altogether’,215 and had made a political career out of his vitriolic hatred of the Jews, this was blatant deception, aimed at the outside world.216 The threat, always near at hand for Hitler, followed immediately. Should the hope not be fulfilled, and international agitation continue, the situation would have to be re-examined. He sharpened the threat in a menacing remark in recommending the ‘Blood Law’. This, he said, was ‘the attempt at a legal regulation of a problem, which in the event of further failure would then have through law to be transferred to the final solution of the National Socialist Party’.217
This was a hint of Hitler’s true feelings about radical measures on the ‘Jewish Question’. But the reason – alongside propaganda advantages – why Hitler had been prepared to bow to the pressure to introduce the anti-Jewish legislation so hastily was apparent in further comments he made that evening. After Göring, as Reichstag President, had formally introduced the laws,218 and they had received the unanimous vote of the delegates, Hitler returned to the podium. He appealed to the delegates to ‘see to it that the nation itself does not depart from the rule of law’, and ‘that this law is ennobled by the most unprecedented discipline of the entire German people’.219 In his fourth speech of the day, this time to party leaders, Hitler once more underlined the significance of the laws and renewed his command to the party to desist from ‘every individual action against Jews’.220 The Nuremberg Laws, it is plain, had been a compromise adopted by Hitler, counter to his instincts, to defuse the anti-Jewish agitation of the party, which over the summer had become unpopular not merely in wide sections of the population but, because of its harmful economic effects, among conservative sections of the leadership. The compromise did not please party radicals.221 It was a compromise, even so, which placated those in the party who had been pressing for legislation, especially on ‘racial defilement’. And in putting the brakes on agitation and open violence, it had nevertheless taken the discrimination on to new terrain. Disappointment among activists at the retreat from a direct assault on Jews was tempered by the recognition, as one report put it, ‘that the Führer had for outward appearances to ban individual actions against the Jews in consideration of foreign policy, but in reality was wholly in agreement that each individual should continue on his own initiative the fight against Jewry in the most rigorous and radical form’.222
The dialectic of radicalization in the ‘Jewish Question’ in 1935 had been along the following lines: pressure from below; green light from above; further violence from below; brakes from above assuaging the radicals through discriminatory legislation. The process had ratcheted up the persecution several notches.
The Nuremberg Laws served their purpose in dampening the wild attacks on the Jews which had punctuated the summer.223 Most ordinary Germans not among the ranks of the party fanatics had disapproved of the violence, but not of the aims of anti-Jewish policy – the exclusion of Jews from German society, and ultimately their removal from Germany itself. They mainly approved now of the legal framework to separate Jews and Germans as offering a permanent basis for discrimination without the unseemly violence.224 Hitler had associated himself with the search for a ‘legal’ solution. His popularity was little affected.225
The thorny question of defining a Jew had still to be tackled. Since Hitler had ruled out the restriction of the ‘Blood Law’ to ‘full Jews’, civil servants in the Ministry of the Interior were left to struggle for weeks with party representatives in an attempt to reach agreement about the extent of partial ‘Jewishness’ needed to qualify under the law.226 Drafts of the first implementation ordinances under the Reich Citizenship Law, legally defining a Jew, were formulated to try to comply with Hitler’s presumed views.227 But although Hitler intervened on occasion, even on points of minute detail, his sporadic involvement was insufficient to bring the tug-of-war between Heß’s office and the Ministry of the Interior to a speedy end. The Ministry wanted to classify as ‘Jews’ only those with more than two ‘non-Aryan’ grandparents. The party – with Reich Doctors’ Leader Wagner applying pressure – insisted on the inclusion of ‘quarter-Jews’. Numerous meetings brought no result. Meanwhile, without awaiting a definition, some ministries were already imposing a variety of discriminatory measures on those of ‘mixed’ background, using different criteria.228 A decision was urgently necessary. But Hitler would not come down on one side or the other. A decision was expected when he addressed a meeting of Gauleiter in Munich, to which Stuckart and Lösener were invited, on 24 September. However, Hitler contented himself with a discourse on the need to ensure the purity of German blood through the measures planned for implementation under the Citizenship Law, then deviated into what Goebbels called a ‘monumental foreign-policy preview’.229 The definition of a Jew would, he said, have to be worked out between the party and the Ministry of the Interior.230 The key question had been left unanswered. ‘Jewish Question still not decided,’ noted Goebbels on 1 October. ‘We debate for a long time about it, but the Führer is still wavering.’231
By early November, with still no final resolution in sight, Schacht and the Reichsbank Directorate, claiming the uncertainty was damaging the economy and the foreign-exchange rate, joined in the pressure on Hitler to end the dispute. Hitler had no intention of being pinned down to accepting security of rights for Jews under the legislation, as the Reichsbank wanted. The prospect of open confrontation between party representatives and state ministers of the Interior, Economics, and Foreign Affairs, and likely defeat for the party, at a meeting scheduled for 5 November to reach a final decision, made Hitler call off the meeting at short notice.232 He was looking for a compromise. ‘Führer now wants a decision,’ wrote Goebbels on 7 November. ‘Compromise is in any case necessary and absolutely satisfactory solution impossible.’233 A week later, the First Supplementary Decree to the Reich Citizenship Law finally ended the uncertainty. Wagner got his way on most points. But on the definition of a Jew, the Ministry of the Interior could point to some success. Three-quarter Jews were counted as Jewish. Half-Jews (with two Jewish and two ‘Aryan’ grandparents) were reckoned as Jewish only if practising the Jewish faith, married (since the promulgation of the Nuremberg Laws) to a Jew, the child of a marriage with a Jewish partner, or the illegitimate child of a Jew and ‘Aryan’.234 ‘A compromise, but the best possible one’, was how Goebbel
s described the outcome. His distaste was evident. ‘Quarter-Jews over to us. Half-Jews only in exceptional cases. In the name of God, so that we can have peace. Slickly and unobtrusively launch in the press. Not make too much noise about it.’235 Whatever Goebbels’s personal reservations, there was some sense in playing it down. For the definition of a Jew had ended with a contradiction, recognized by the Ministry of the Interior. For legislative purposes, it had been impossible to arrive at a biological definition of race dependent on blood types. So it had been necessary to resort to religious belief to determine who was racially a Jew. As a result, it was possible to imagine descendants of ‘pure Aryan’ parents converted to Judaism who would thereby be regarded as racial Jews.236 It was absurd, but merely highlighted the absurdity of the entire exercise.
The approach of the Winter Olympics in Garmisch-Partenkirchen, then the summer games in Berlin, along with the sensitive foreign-policy situation, meant that the regime was anxious to avoid any repetition of the violence of the summer of 1935. For the next two years, though the wheel of discrimination carried on turning, the ‘Jewish Question’ was kept away from the forefront of politics. When Wilhelm Gustloff, the leading NSDAP representative (Landesgruppenleiter) in Switzerland, was assassinated by a young Jew in February 1936, the circumstances did not lend themselves to wild retaliation.237 Frick, in collaboration with Heß, strictly banned ‘individual actions’.238 Hitler restrained his natural instinct, and confined himself to a relatively low-key generalized attack on Jewry at Gustloff’s funeral.239 Germany remained quiet. The absence of violence following Gustloff’s murder is as clear a guide as the outrages in the anti-Jewish wave of 1935 to the fact that the regime could control, when it wanted to, the pressures for action within the ranks of the party radicals. In 1935 it had been useful to encourage and respond to such pressures. In 1936 it was opportune to keep them in check.