The Third Reich in Power

by Evans, Richard J.

  If anyone reproaches me and asks why we did not call upon the regular courts for sentencing, my only answer is this: in that hour, I was responsible for the fate of the German nation and was thus the Supreme Justiciar of the German people! . . . I gave the order to shoot those parties mainly responsible for this treason . . . The nation should know that no one can threaten its existence - which is guaranteed by inner law and order - and escape unpunished! And every person should know for all time that if he raises his hand to strike out at the State, certain death will be his lot.48

  This open confession of the complete illegality of his action in formal terms did not run into any criticism from the judicial authorities. On the contrary, the Reichstag enthusiastically applauded Hitler’s justification and passed a resolution thanking him for his action. State Secretary Meissner sent a telegram in the name of the ailing President Hindenburg giving his approval. A law was quickly passed giving the action retroactive legality.49

  Social Democratic agents reported that the events had initially created considerable confusion in the population. Anyone who openly criticized the action was immediately arrested. The press reported that the police had issued a ‘sharp warning to subversives and malicious agitators’. ‘Concentration camp is threatened’ for ‘rumour-mongering and offering slanderous insults of the movement itself and its Leader’. This wave of repression, which continued in the early part of August, left people apprehensive about the future, fearful of arrest. Many suspected that there was more to the events of 30 June than met the eye, and local police authorities reported an atmosphere of widespread rumour and speculation, ‘grumbling’ and ‘carping’. The Propaganda Ministry noted with alarm in an internal memorandum, the ‘innumerable nonsensical rumours that are in circulation’. The orchestrated press campaign that followed had little effect in countering such feelings. The divisions exposed by the conflict led to optimistic talk among former Social Democrats and German Nationalists that ‘Hitler will soon be finished’.50 Most people, however, were at least relieved that Hitler had acted against the ‘brown bigwigs’ and that the streets, as it seemed, would now be safe from the excesses of drunken and disorderly stormtroopers.51

  Not untypical was the reaction of the conservative Hamburg schoolteacher Luise Solmitz, who had been so enthusiastic for the coalition cabinet and the Day of Potsdam in 1933 (‘that great, unforgettably beautiful German day!’), only to become worried about the possible socialist tendencies of the regime when it began to confiscate the assets of émigré Jews like Albert Einstein (‘They should not do that. Don’t confuse the concept of property; Bolshevism without it’). Like many others, she described the 30 June 1934 as ‘a day that has shattered all of us right down to our innermost heart’. Half persuaded by the ‘moral transgressions’ of some of the murdered men (‘a disgrace for the whole of Germany’), she spent her time swapping rumours with friends and listening breathlessly to the radio in a friend’s house for the latest news. As details began to emerge, she found herself overcome with admiration for Hitler’s conduct. ‘The personal courage, the decisiveness and effectiveness he showed in Munich, the decisiveness and effectiveness, that is unique.’ She compared him to Frederick the Great of Prussia or Napoleon. The fact that, as she noted, there was ‘no trial, no drumhead court-martial’ seemed only to increase her admiration. She was fully persuaded that Röhm had been planning an uprising together with Schleicher.

  This was the last of the widely mistrusted former Chancellor’s many political adventures, Luise Solmitz noted. Her credulity and relief were typical of the majority of middle-class Germans after the initial hours of confusion. They had supported Hitler not least because by the middle of 1933 he had restored order on the streets and stability to the political scene, and now he had achieved this a second time. The day after the action, crowds gathered in front of the Reich Chancellery and the Propaganda Ministry, singing the Horst Wessel Song and protesting their loyalty to the Leader, though whether it was enthusiasm, nervousness or relief that prompted them to do this is uncertain. Hitler’s own standing was widely agreed to have been strengthened by his swift and decisive action. It contrasted even more sharply than before in the minds of many with the disorder and radicalism of the Party.52 Some, like the former Social Democrat Jochen Klepper, were shocked by the murder of Schleicher’s wife, who could not possibly have been suspected of anything.53 Only the more disaffected commented sourly that the only thing wrong with the purge was that too few Nazis had been executed.54

  The scale of the purge had been considerable. Hitler himself told the Reichstag on 13 July 1934 that seventy-four people had been killed, while Goring alone had had over a thousand people arrested. At least eighty-five people are known to have been summarily killed without any formal legal proceedings being taken against them.55 Twelve of the dead were Reichstag deputies. The SA leaders and their men had been almost wholly unsuspecting; many of them, indeed, went to their deaths believing their arrest and execution had been ordered by the army and swearing eternal loyalty to the ‘Leader’. In the following days and weeks, arrests and dismissals continued, directed in particular against the rowdiest and most corrupt elements amongst the brownshirts. Heavy drinking, homosexuality, embezzlement, riotous behaviour, all the things that had lent the brownshirts such public notoriety over the previous months, were ruthlessly purged. Drunken brawls involving Nazi stormtroopers still occurred thereafter, but no more on the dangerous scale of the months before 30 June 1934. Disillusioned, without a role, and unable to assert themselves any more, the brownshirts began leaving the organization en masse - 100,000 in August and September 1934 alone. From a total membership of 2.9 million on August 1934, the SA declined to 1.6 million in October 1935 and 1.2 million in April 1938. Strict entry requirements and quotas limited recruitment. The decline of unemployment and, from 1935, the introduction of conscription, also took away many of the young men who might otherwise have joined.56

  Yet although they no longer threatened the army or the state, the brownshirts’ potential for violence and aggression survived. A report by one SA leader of events in the brownshirts’ camp during a single night at the Nuremberg Rally in 1934 indicates this very clearly. Everyone was drunk, he noted, and a large fight between two regional groups at one in the morning left several men with knife-wounds. On their way back to the camp, stormtroopers attacked cars, threw bottles and stones at the windows and beat up their occupants. The entire Nuremberg police force was mobilized to try and stop the mayhem. A brownshirt was hauled out of the camp latrine, into which he had fallen in a drunken stupor, but he died of chlorine gas poisoning shortly afterwards. The camp was not quiet until four in the morning, by which time six men had been killed and thirty wounded, as well as another twenty who had been injured by jumping on or off cars and trucks, hanging onto the sides, or falling off the back while the vehicle was moving. Such incidents repeated themselves on other occasions. Chastened, reduced in numbers, deprived of its autonomy and - so the Nazi leaders claimed - purged of its most extreme, violent and corrupt elements, the SA nevertheless remained a source of violence whenever the regime chose to make use of it and sometimes even when it did not. 57

  Meanwhile, the army breathed a sigh of relief. General Blomberg expressed his gratitude and assured Hitler of the complete devotion of the army. He congratulated Hitler on his ‘soldierly decision’ to deal with ‘traitors and murderers’. General von Reichenau quickly explained away the cold-blooded murder of one of the army’s most senior and publicly prominent officers, Kurt von Schleicher, in a communiqué that claimed he had been conspiring with Röhm and with foreign powers to overthrow the state and had been shot when he had offered armed resistance to his arrest. Whether his wife, also shot, had been involved, he did not say. Army officers uncorked bottles of champagne in the mess to celebrate. From young firebrands like Lieutenant Claus von Stauffenberg, who described the action as the lancing of a boil, to senior officers like Major-General Erwin von Witzleben, who told h
is fellow officers he wished he had been there to see Röhm shot, all of them rejoiced to a degree that even Blomberg found unseemly. Only one man, a retired captain and former senior civil servant in the Reich Chancellery, Erwin Planck, thought the army’s jubilation misplaced. ‘If you look on without lifting a finger,’ he told General von Fritsch, ‘you will meet the same fate sooner or later.’58

  REPRESSION AND RESISTANCE

  I

  While these events had been in progress, Reich President Hindenburg’s condition had been steadily deteriorating. When Hitler visited him on 1 August in Neudeck, the Head of State and former First World War military leader, in a confusion that graphically symbolized the shift in the balance of power and authority between the two men that had taken place over the previous eighteen months, addressed him as ‘Majesty’, evidently thinking he was talking to the Kaiser.59 Noting the old man’s physical and mental dissolution, Hindenburg’s doctors told Hitler that the President only had twenty-four hours to live. Flying back to Berlin, Hitler convened a cabinet meeting the same evening. Without waiting for the old man to die, the cabinet agreed a decree merging the offices of President and Chancellor and transferring all the powers of the former to the latter, to come into effect at the moment of Hindenburg’s passing. Hitler did not have long to wait. At 9 a.m. on 2 August 1934, the President finally gave up the ghost. Many conservative Germans felt this was the end of an era. He was, noted Luise Solmitz in her diary, ‘a real fighter and blameless human being and has carried his, our, era with him into the grave’. He took his office with him to the grave, too. The title of Reich President, Hitler announced, was ‘inseparably united with the name of the great deceased’. It would be wrong for it to be used again. In future, Hitler would be known as the ‘Leader and Reich Chancellor’. A law was put forward to this effect and ratified by a nationwide plebiscite held on 19 August.60

  With this act, Hitler became Head of State in every sense of the term. The most important attribute of this office was the fact that it was to the Head of State that the armed forces swore allegiance. On 2 August 1934, troops all over the land were summoned and made to swear a new oath, devised by General von Reichenau without any consultation with Hitler himself. The old oath had pledged allegiance to the abstract entity of the Weimar Constitution and the unnamed person of the President. The new one was very different: ‘I swear by God this holy oath, that I will render unconditional obedience to the Leader of the German Reich and people, Adolf Hitler, the supreme commander of the armed forces, and as a brave soldier am willingly prepared to risk my life for this oath at any time.’61 Nor was this a merely formal pledge. For the oath of allegiance was of far more importance in the German army than in most of its equivalents elsewhere. It was the subject of specific training and education sessions, in which duty and honour were emphasized and examples given of the consequences of breaking it. Most important of all, perhaps, was the novel inclusion of the pledge to unconditional obedience to Hitler, whether or not his commands might have been considered legal, in contrast to the primacy given by the previous oath of allegiance to the constitution and the ‘lawful establishments’ of the German nation.62

  A few officers in the military were fully aware of what the oath meant. Some had doubts. The evening after swearing the oath, Major-General Ludwig Beck, the conservative, hard-working, middle-class artillery officer who had risen by 1934 to become a senior staff officer at the head of the Troop Office (renamed the Army General Staff in 1935), described 2 August as ‘the blackest day of my life’. But most were either in favour, given the way in which Hitler had fulfilled the army’s wishes over the previous eighteen months, or remained unaware of the oath’s potential significance. Hitler himself had no doubt as to the importance of what had been done. After promulgating a law on 20 August 1934 giving retroactive legal validity to the new oath, he wrote a fulsome letter of thanks to Werner von Blomberg, the Minister of Defence, expressing his gratitude and promising that the army’s loyalty would be reciprocated. Gratified in his turn, Blomberg ordered that the armed forces would now address Hitler as ‘My Leader’ instead of the civilian appellation of ‘Mr Hitler’ which they had previously used.63 The military oath provided the model for a similar oath ordered in the law of 20 August to be sworn by civil servants. Once more it was to the ‘Leader of the German Reich and People’, an office unknown in any constitution, a form of authority derived from Hitler’s person rather than from the German state.64

  These events cemented Hitler’s power as ‘the Leader’. As the young constitutional lawyer Ernst Rudolf Huber explained in 1939, this was not a governmental office, but derived its legitimation from ‘the united will of the people’:

  The authority of the Leader is total and all-embracing: within it all resources available to the body politic merge; it covers every facet of the life of the people; it embraces all members of the German community pledged to loyalty and obedience to the Leader. The Leader’s authority is subject to no checks or controls; it is circumscribed by no private preserves of jealously guarded individual rights; it is free and independent, overriding and unfettered.

  Hitler’s opinion, Huber declared, in his treatment of the Constitutional Law of the Greater German Reich, which quickly became a standard work, represented the ‘objective’ will of the people, and in this way he could counter ‘misguided public opinion’ and override the selfish will of the individual. Hitler’s word, as another commentator, Werner Best, a Nazi intellectual who had been the central figure in the ‘Boxheim affair’ in 1931, noted, was thus law, and could override all existing laws. He was not given his powers by the state, but by history. In time, therefore, his merely constitutional secondary title of Reich Chancellor was quietly dropped.65

  Not just Hitler personally but also the Nazi movement in general had always held the letter of the law and the institutions of the state in contempt. From the very beginning, they had operated extra-legally, and this continued even after they had abandoned the idea of a direct putsch as the way to power. For the Nazis, the bullet and the ballot-box were complementary tools of power, not alternatives. Votes and elections were treated cynically as instruments of formal political legitimation; the will of the people was expressed not through the free articulation of public opinion, but through the person of Hitler and the Nazi movement’s incorporation of the historical destiny of the Germans, even if the Germans themselves disagreed with this. Moreover, widely accepted legal norms such as the notion that people should not commit murder or acts of violence, destruction and theft, were disregarded from the outset by the Nazis because they believed that history and the interests of the German (‘Aryan’) race justified extreme measures in the crisis that followed Germany’s defeat in the war.66

  At the same time, at least in the early years of the Third Reich, the massive apparatus of state bureaucracy, judiciary, police, penal and welfare systems inherited from the Weimar Republic and ultimately to a large extent from the Bismarckian Reich could not simply be brushed aside or overridden at will. There existed what the exiled political scientist Ernst Fraenkel called The Dual State, to quote the title of his famous book, published in the USA in 1941. On the one hand was the ‘normative state’, bound by rules, procedures, laws and conventions, and consisting of formal institutions such as the Reich Chancellery, the Ministries, local authorities and so on, and on the other there was the ‘prerogative state’, an essentially extra-legal system that derived its legitimation entirely from the supra-legal authority of the Leader.67 Theorists like Huber distinguished carefully between ‘the authority of the state and the authority of the Leader’, and made it clear that the latter always had precedence over the former. Thus formally illegal acts such as the murders committed in the ‘Night of the Long Knives’ were sanctioned by the Leader’s authority and so in fact were not illegal at all. The arrests, imprisonments and murders had been carried out not by the police or the regular law enforcement agencies but by the SS, and the formal apparatus of the law a
nd the state almost fell over itself in the rush to give these acts of violence the approval of the law. This was a graphic demonstration of the fact that there was increasingly little serious conflict between the ‘normative’ and ‘prerogative’ systems in Nazi Germany. The former had to defer more and more to the latter, and as time went on it became increasingly permeated by its spirit; rules were relaxed, laws dispensed with, scruples abandoned. Already at the beginning of July 1933, Hans-Heinrich Lammers, head of the Reich Chancellor’s office, was beginning to sign his letters ‘Hail, Hitler! (Heil Hitler!)’.68 Towards the end of the month, all civil servants, including university teachers, lawyers and other state employees, were instructed to use the ‘German greeting’ when conducting official business. Not to say ‘Hail Hitler’ or give the Nazi salute when the occasion seemed to demand it was from this point on an overt sign of dissidence.69 These were only the outward signs of a compliance that increased rapidly in intensity as the regime settled down into power.