German shipyard worker Ewald Schlitt probably didn’t know a Berlin newspaper reported his March 1941 assault conviction in a court 275 miles away from the capital. His misfortune was that Adolf Hitler read the article.
In the summer of 1940, Schlitt’s wife of three years confessed to a sexual relationship with another man. She ended up in a nursing home due to injuries suffered during the couple’s violent argument. She contracted intestinal flu there and died in October 1940. Unable to establish that Schlitt caused her death, a court in Oldenberg found him guilty of assault and gave him the maximum five-year sentence on March 14, 1941.
On March 22, Hitler read about the case in the Berliner Nachtausgabe (“Berlin Night Edition”). Believing the punishment too lenient, a furious Hitler almost immediately set about to become Germany’s “Supreme Law Lord.” He intended to finally eliminate whatever remnant of judicial independence existed in the country.
When the Nazis came to power, they quickly moved to gain control over the legal system. Immediately following the Reichstag Fire on February 27, 1933, a decree was issued suspending civil liberties. On March 24, the Reichstag adopted the so-called “Enabling Act.” Not only did it allow Hitler’s government to enact laws without the Reichstag’s approval, but those laws could “deviate from the constitution.”
The Nazis also moved to control the legal system. By May 1933, all traditional bar associations, including the German Federation of Judges, were dissolved and replaced by the Nazi Party’s National Socialist German Jurists’ League. Beginning in August 1934, judges’ oaths said, “I will be loyal and obedient to the Fuehrer.” Likewise, in February 1936, the law required attorneys to swear to “remain loyal to the Fuehrer.”
Hitler abhorred lawyers and judges and, to his anger, these actions didn’t exterminate judicial independence. After reading the Schlitt article, Hitler immediately called Franz Schlegelberger, the acting Minister of Justice, and demanded the sentence be revised. Two days later, Schlegelberger wrote Hitler that he agreed and filed an “extraordinary objection” with the Reich Supreme Court. The court quashed the sentence and, following a four-and-a-half-hour trial on March 31, sentenced Schlitt to death. The 29-year-old met the guillotine two days later.
Hitler previously complained about certain judicial decisions. For example, in 1941, Hitler was agitated by newspaper articles reporting prison terms for a 19-year-old purse snatcher and a 74-year-old man who hoarded eggs. He told the Ministry of Justice that both should be sentenced to death. The court did not change the 19-year-old’s sentence but, the day after Hitler’s complaint, the egg hoarder was “handed over to the Gestapo for purpose of execution.”
The Schlitt case was the final straw for Hitler. He was tired of his will not dictating judicial decisions. “I need men for judges who are deeply convinced that the law ought not to guarantee the interests of the individual against those of the State,” he told his inner circle on March 29, 1942. He called a special session of the Reichstag for Sunday, April 26.
Hitler’s Reichstag speech was to review the war’s during the past winter. But he also used it to become Oberster Gerichtsherr (“Supreme Judge”). Near the end of the speech, Hitler said he expected to be able to remove any person who, in his view, “failed to do his duty.” He then specifically discussed Schlitt’s five-year sentence, although he didn’t mention Schlitt’s later received the death penalty. “From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour,” he announced.
Only official portrait of Hitler (Heinrich Knirr, 1937)
By convening the Reichstag, he obtained a rubber stamp for his objective. The body unanimously voted that Hitler’s roles, including Supreme Judge, required he be able to act “without being bound by existing legal regulations.” Hitler also was entitled, “regardless of so-called well established rights,” to remove anyone from their position “without using prescribed procedures.” The Reichstag would not meet again before the war, and Hitler now had carte blanche over the judiciary.
Reports came to the Ministry of Justice that judges were disturbed and alarmed by Hitler’s speech and the Reichstag’s action. Schlegelberger testified at the third Nuremberg War Crimes trial (known as “the Justice Case”) that he considered the address a “brutal” personal attack. He said that when reporting the judges’ concern, he also told Hitler he intended to protect any judge who followed the law. Hitler said his officials must carry out their duties without any criticism and suggested Schlegelberger resign, he testified.
Hitler replaced Schlegelberger with Otto Georg Thierack on August 20, 1942. That same day he issued a decree authorizing Thierack to use “all necessary measures” to establish a Nazi justice system. Thierack was to follow Hitler’s directives and instructions. “In doing so, he can deviate from any existing law,” the decree concluded.
Thierack quickly launched a method of bringing the judiciary into line. On September 7, he announced that all judges and prosecutors would get Richterbriefe (“Judges’ Letters”). The letters would illustrate how “National Socialist justice should be applied” by discussing various court decisions. The letters would be confidential and, he advised, “let every judge and public prosecutor take notice of them.”
On October 1, 1942, the first letter advised that judges were the “direct assistant” to Hitler and should not “cling slavishly to the letter of the law.” As in ensuing letters, he championed Nazi doctrine and urged utter ruthlessness in sentencing. For example, in that first letter, he said three of five punishments for crimes committed during a blackout were too lenient; the other two were death sentences. In criticizing three cases against Jews, Thierack said Jews were “the enemy of the German people,” whose “racial aspect must be considered in meting out punishment.”.
Although saying judges were to remain independent, Thierack wrote that “the State can and must lay down the general line of policy, which judges must follow.” Despite saying there was no intent to influence judges, a November 17, 1942, letter explicitly told judges that the letters should be “carefully locked up” as they were “subject to official secrecy.” In another letter that same day, Thierack directed that judges and prosecutors “suspected of political unreliability” not get the letters.
Thierack thought the Richterbriefe successful enough that he started “Lawyers’ Letters” in 1944. They were to “inform lawyers of the aims of the administration of justice.” Thierack wasted no time doing so. The first letter told lawyers they no longer represented just the criminal defendant’s interests but had “enhanced” obligations to the community. Anyone not ready to “clearly and absolutely” accept that proposition or act accordingly should not be a criminal defense lawyer or appear in court, he said.
In one case the letter discussed, Thierack said it was “outrageous” an attorney compared his Czech client’s speech praising National Socialism with Hitler’s views. Similarly, he opined an attorney’s argument that his client hadn’t insulted a woman whose son died recently in the war was saying there was no protection for the honor of those killed in action and their families.
The Justice Case tribunal ruled the Nazis built their justice system on the principle that Hitler had absolute, incontestable power to enforce and adjudicate the law. “Hitler was not only the supreme legislator, he was also the supreme judge,” they wrote. They decried the judges’ and lawyers’ letters. They called the former “sinister,” aimed at “regimenting the judges and chief prosecutors and making them subservient” to Hitler’s aims. The former suggested attorneys not criticize the Nazi system of justice and “refrain from too much ardor in the defense of persons charged with political crimes.”
Although initially a primary target in the case, Thierack apparently feared uncowed judges. Arrested after the war, he committed suicide in October 1946 while in British custody. Schlegelberger went trial but also avoided the death penalty. The Justice Case tribunal called him a “tragic character” who sold his intellect to Hitler. Convicted of war crimes and crimes against humanity on December 4, 1947, the 74-year-old received a life sentence. He was released in January 1951 due to ill health but lived until December 1970.
Hitler’s asserted all-inclusive and unlimited power. It was intolerable that a judge might reach a different decision than him.
We should never forget that everything Adolf Hitler did in Germany was “legal.”
Martin Luther King, Jr., “Letter from a Birmingham Jail” (April 16, 1963)
(Originally published at History of Yesterday)
