by The Destruction of the European Jews, Vol. 1-3 (Third Edition) Yale University Press (2003) (pdf)
Hitler, Frick, Hess, and Gürtner), November 14, 193S, RGBl 1, 1333. Wilhelm Stuckart
and Rolf Schiedermair, Rassen- und Erbpflege in der Gesetzgebung des Reiches, 5th ed.
(Leipzig, 1944), pp. 46—48. Die Judenfrage /Vertrauliche Beilage), April 25,1941, pp. 22-
the first degree. Except by official permission, such an individual was
not allowed tomarry anyone but another Mischling of the first degree
or a Jew. The choice of a Jewish partner resulted in the extinction of
Mischling status and an automatic reel: ssification as a member of the
Jewish community. Curiously enough, however, the Mischlinge of the
first
degree
were
unhampered
in
their
extramarital
relations.
They
could not commit Rassenschande, whether they chose a Jewish or a
German partner.,0 Needless to say, attempts were made to close this
loophole. In 1941 Hitler himself requested an amendment to the Blood
and Honor Law which would have prohibited the extramarital relations
of a Mischling of the first degree with a German." But, after a conference and much discussion, the matter was dropped with Hitler's consent.Apparently the
bureaucracy
was
not
confident
that
it
could
enforce such a prohibition.
This brings us to a consideration of the enforcement of the Ras-
10. Die Judenfrage /Vertrauliche Beilage), April 25, 1941, pp. 22-24.
11. Pfundtner to Deputy of the Führer, Justice Ministry, and Security Police. May
7, 1941, NG-1066.
12. Summary of Mischling conference, May 13, 1941, NG-1066. Lammers to Interior Ministry, September 25, 1941, NG-1066.
161
CONCENTRATION
senschande decree in general. Just how successful was it? If the repetition of an illegal act is a criterion of the enforceability of a law, the bureaucracy had tough going. In 1942 no fewer than sixty-one Jews
were convicted of Rassenschande in the Old Reich. (This figure naturally includes only Jewish men, not women.) It compares with fifty-seven
convictions
for
passport
fraud
and
fifty-six
convictions
for
currency violations.1’ Why, then, this continuing need for associations
between Jews and Germans? We must understand that the Blood and
Honor Law caught a great many mixed couples, who had intended to
be married, before they had an opportunity to carry out their plans.
Such a couple had three choices. It could separate—that was the aim of
the decree. Alternatively, the couple could emigrate. Third, it could
“live in sin.”
The alternative of emigration was, incidentally, considered an offense. There is at least one case of a German who became a Jew in 1932
in order to marry a Jewish woman, and who subsequently emigrated to
Czechoslovakia, where he married her. He was caught after the occupation of Czechoslovakia and convicted of Rassenschande. The defendant argued that he was a Jew, but the court rejected his argument.
He also argued the general legal principle that a law subjects people to
its provisions only within the territorial jurisdiction. The law had no
language indicating its applicability to German citizens living abroad.
But the court held that the defendant had violated the law by leaving
the country for the purpose of doing something contrary to its stipulations. His emigration was part of the total offense. He had therefore violated the law when he was still within German frontiers.13 14
One reason, then, for the large number of convictions was the
unwillingness of mixed couples to separate in the face of a blanket
marriage prohibition. There was, however, still another reason why the
statistics were a little high. Rassenschande cases were almost always
treated harshly by the courts. There were no mitigating circumstances,
and there was no need for elaborate proof. The burden was entirely on
the defense. An accused could not claim, for example, that he was
unaware of the status of his woman partner; in fact, the Reichsgericht
held that any German man wishing to have extramarital intercourse
with any woman had the legal duty of inspecting her papers (Ariernachweis) to make sure that she was not Jewish under the law. He had to be especially careful with half-Jewish women, who might either be Jewish
13. Justice Ministry (signed Grau) to Präsident of Reichsgericht, Präs.
Volksgerichtshof, Oberlandesgerichtspräsidenten, Oberreichsanwälte at the Reichsgericht and Volksgerichtshof, and Generalstaatsanwälte, April 4, 1944, NG-787.
14. Decision by the Reichsgericht, December 5, 1940, Deutsche Justiz, 1941,
p. 223. Also, Die Judenfrage IVertrauliche Beilage), March 10, 1941, pp. 15-16.
162
THE REICH-PROTEKTORAT AREA
(prohibited relationship) or Mischlinge of the first degree (permitted
relationship), depending on complex legal questions relating to religious adherence.1’ The accused was helpless also against the assertion of unproved allegations. Needless to say, extramarital intercourse is
not easily proved, but in the German courts the barest indications of a
friendly relationship could suffice for a strong presumption. The most
flagrant example of such a case, “which kicked up a lot of dust in the
judiciary,”“
was
the
accusation
against
Lehmann
Katzenberger,
chief
of the Jewish Community in Nuremberg.
The facts of this case were as follows: In 1932, Katzenberger
owned a wholesale shoe establishment in Nuremberg. He was then a
prosperous man, fifty-nine years old, the father of grown-up children.
During
that
year,
a
young
unmarried
German
woman,
twenty-two
years of age, arrived in Nuremberg to manage a photography business
in
Katzenberger’s
building.
Her
father
asked
Katzenberger
to
look
after her. In the course of the years, Katzenberger helped the young
woman with her problems, occasionally lending her some money and
giving her little presents. This friendship continued after the girl was
married and after the war had broken out. One day the woman, Mrs.
Irene Seiler, was summoned by the District Party Office (Kreisleitung)
and warned to discontinue the acquaintance. She promised to do so,
but shortly thereafter Katzenberger was arrested, to be tried for Ras-
senschande in the criminal chamber of an ordinary court. Katzenberger was then in his late sixties; Mrs. Seiler was over thirty.
The prosecutor who had charge of the case, Hermann Markl, considered the matter quite routine. He looked forward to a "moderate”
sentence. (Under the Blood and Honor Law, a man convicted of Ras-
senschande could be sentenced to any term in prison.) However, the
presiding justice of the local special court ( Sondergericht, with jurisdiction in political cases) heard of the proceeding and immediately became interested in it. According to prosecutor Markl, this jus
tice, Landgerichtsdirektor Dr. Rothaug, had a “choleric” disposition. He was an
obstinate and tough fanatic who inspired fear even in his prosecutors.
When the Katzenberger case came to his attention, he ordered the
transfer of the proceedings to his court. In the words of another prosecutor, Dr. Georg Engert, Justice Rothaug “drew” the case into his court, for he was determined not to miss this opportunity to sentence a
Jew to death.
The proceedings in Rothaug's special court turned out to be a show 15 16
15. Decision by Reichsgericht, November 26, 1942, Deutsches Rechl. 1943, p. 404.
Discussed also in Die Judenfrage (Verlrauliche Beilage), April 15, 1943, p. 31.
16. Affidavit by Dr. Georg Engert (prosecutor, Nuremberg), January 18, 1947, NG-
649.
163
CONCENTRATION
trial. He goaded witnesses. When the defense attorney proved testimony to be false, he was dismissed with the ruling that the witness had simply made a mistake. Rothaug frequently broke in with insulting
remarks about the Jews. When Katzenberger wanted to speak, the
judge cut him off. In his final plea, Katzenberger tried to reiterate his
innocence and reproached Rothaug for harping on the Jews and forgetting that he, Katzenberger, was a human being. Then Katzenberger brought up the name of Frederick the Great. Rothaug broke in immediately to object to the “besmirching” of the name of the great Prussian king, especially by a Jew.
On March 13, 1942, Landgerichtsdirektor Dr. Rothaug, joined by
Landgerichsräte Dr. Ferber and Dr. Hoffmann, gave his decision. He
summarized the “evidence” as follows:
So it is said that the two had approached each other sexually
[geschlechtliche Annäherungen] in various ways, including also intercourse. They are alleged to have kissed each other, sometimes in the apartment of Mrs. Seiler, at other times in Katzenberger's business premises. Seiler is alleged to have sat on Katzenberger's lap and Katzenberger, with intent to have sexual satisfaction, is said to have stroked her thigh
over [not under] her clothes. On such occasions Katzenberger is alleged to
have pressed Seiler close and to have placed his head on her bosom.
Seiler admitted that she had kissed Katzenberger, but playfully.
Rothaug dismissed the playful motive by pointing out that she had
accepted
money
from
Katzenberger.
She
was
therefore
“accessible”
(zugänglich).
Pronouncing
sentence,
Rothaug
condemned
Katzenber-
ger to death and sent Mrs. Seiler to prison for peijury.”
After pronouncement of judgment, there was one more incident in
the case. Though the time was March 1942 and in Russia a great spring
offensive was being prepared, the commander of the German armed
forces and Führer of the German Reich, Adolf Hitler, had heard of the
decision
and
protested
that
his
injunction
against
sentencing
the
woman had not been heeded. No woman, said Hitler, could be sentenced for Rassenschande. He was quickly informed that Mrs. Seiler had been imprisoned not for Rassenschande but for lying on oath. This
explanation mollified Hitler." 17 18
17. This account is based on the following materials: affidavit by Oberstaatsanwalt
(prosecutor) Dr. Georg Engert, January 18, 1947, NG-649. Affidavit by Staatsanwalt
Hermann Mark), January 23, 1947, NG-681. Affidavit by Irene Seiler, March 14, 1947,
NG-1012. Paul Ladiges (brother-in-law of Mrs. Seiler) to “Justizministerium Nürnberg"
(U.S. Military Tribunal in Nuremberg), November 23, 1946, NG-520. Judgment of the
special court at Nümberg-Fürth in the case against Lehmann Katzenberger and Irene
Seiler, signed by Rothaug, Ferber, and Hoffmann, March 13. 1942, NG-154.
18. Lammers to SS-Gruppenfiihrer Schaub (adjutant of the Führer), March 28.
1942, NG-5170.
164
THE REICH-PROTEKTORAT AREA
In June, Katzenberger was put to death, but a short time thereafter
Mrs. Seiler, having served six months of her sentence, was released.1’
The Katzenberger case was symptomatic of an attempt to break
friendly relations between Jews and Germans. We must keep in mind
that Lehmann Katzenberger was president of the Jewish Community in
Nuremberg (tenth largest in the Reich), that before Rothaug had a
chance to rule on the case, Katzenberger had been accused before an
ordinary court, and that before Katzenberger was accused, Mrs. Seiler
had been warned by the party to discontinue her acquaintance with the
Jewish leader. The Katzenberger case is thus not without administrative significance; it was part of an attempt to isolate the Jewish community. We find confirmation of this fact in an order issued by the Security Police
headquarters
(Reichssicherkeitshauptamt)
on
October
24,1941,
to all Gestapo offices:
Lately it has repeatedly become known that, now as before, Aryans
are maintaining friendly relations with Jews and that they show themselves with them conspicuously in public. In view of the fact that these Aryans still do not seem to understand the elementary basic principles of
National Socialism, and because their behavior has to be regarded as
disrespect toward measures of the state, I order that in such cases the
Aryan party is to be taken into protective custody temporarily for educational purposes, and that in serious cases they be put into a concentration camp, grade I, for a period of up to three months. The Jewish party is in
any case to be taken into protective custody until further notice and to be
sent to a concentration camp.”
Needless to say, Security Police proceedings were entirely extrajudicial. They involved no confrontation in a court, ordinary or extraordinary. The order was designed to deter relationships that could not always be classified as Rassenschande (namely friendly relations between Jews and Germans, particularly manifest, open friendliness as shown by conversation in the streets or visits to homes). There was,
perhaps,
some
apprehension
that
the
toleration
of
such
friendliness
might encourage some Germans to offer Jews sanctuary in the deportation roundups. But that fear was unfounded, for, when the hour of decision came, few Germans made any move to protect their Jewish
friends.
The Blood and Honor Law and the order by Security Police Chief
Heydrich
were
intended
to
sever
close
personal
relations,
whether
intimate or platonic, between Jews and Germans. Because these measures had to be directed not only at the Jewish party but also at the 19 20
19. Letter by Ladiges, November 23, 1946, NG-520.
20. Circular by State Police Office in Niimberg-FUrth (signed Dr. Grafenberger),
enclosing order from Berlin, November 3, 1941, L-152.
165
CONCENTRATION
German, they were reminiscent of medieval strictures against heresy,
which they resembled in content and form. The German who left the
country in ord
er to marry his Jewish girlfriend was guilty of heresy. He
could not claim that he was a Jew. Similarly, the German who stopped
in the street to talk to an old Jewish acquaintance was also guilty of a
lack of understanding of and respect for Nazi "principles.”21
Of course, ghettoization went a little further than that. An attempt
was made to keep Germans and Jews apart as long as possible and as
much as possible. These measures could be taken only by barring Jews
at certain times from certain places. The rationalization for these decrees was that the Germans did not like the Jews, that Aryans were
“inconvenienced” by the presence of Jews, and that therefore the Jews
had to be kept out or kept away.
The most important of these antimixing ordinances was the Law
against Overcrowding of German Schools of April 25, 1933, which
reduced the admission of non-Aryans to each school or college to the
proportion of all non-Aryans in the entire German population.22 23 The
acceptance quota was accordingly fixed at 1.5 percent, while enrollment ceilings were devised with a view to the progressive reduction of the Jewish student body as a whole. By 1936 more than half of the
Jewish children in the age group of six to fourteen years were being
accommodated in schools operated by the Jewish community.“ There
were, however, no Jewish technical colleges or universities, and the
position of Jews enrolled in German institutions of higher learning was
becoming more and more tenuous.24 As of November 1938, the remaining Jewish students in the German school system were expelled. From that date, Jews were permitted to attend only Jewish schools.25
21. At certain times during the Middle Ages, mixed couples who had had intercourse were judged guilty of superharlotry (ueberhure) and burned (or buried) alive. The guilty Christian was deemed to have denied his faith lungelouben), in other words, to
have committed heresy. Guido Kisch, The Jews in Medieval Germany (Chicago, 1949),
pp. 205-7, 465-68.
22. Decree of April 25, 1933, signed by Hitler and Frick, RGB1 I, 255. The law
excepted from the quota all non-Aryans who had at least one German grandparent or
whose fathers had fought for Germany at the front in World War I.
23. Adler-Rudel, Jiidische Selbslhilfe, pp. 19-33.
24. Albrecht G6tz von Olenhusen, “Die 'nichtarischen' Studenten an den
deutschen Hochschulen," Vieriejahrshefle fur Zeitgeschichte 14 (1966): 175-206. The
enrollment ceiling in universities was 5 percent. Ibid., p. 179. The percentage of Jews in