The last session of the Reichstag

On Sunday 26 April 1942 the Greater German Reichstag assembled in Berlin’s Kroll Opera House, which had served as its chamber since the fire in the parliament building in 1933. Adolf Hitler gave a speech of more than an hour on the war, the past winter on the Eastern Front and the tasks ahead, and at the end asked the deputies for “express confirmation” that he had the right to compel every German to do his duty and to remove from office anyone who failed to do it, regardless of who he was and what acquired rights he enjoyed. The President of the Reichstag, Hermann Göring, read out a draft resolution, and the deputies adopted it unanimously. It was the last session of the Reichstag in the history of the Third Reich.

Many war chronologies state that Hitler “assumed a kind of supreme power” in Germany. That wording needs qualifying. Hitler had wielded unlimited power in the Reich for years: since 1933 he had governed under the Enabling Act, since 1934 he had combined the offices of Chancellor and President, he was Supreme Commander of the Wehrmacht, and since December 1941 he had also personally commanded the Army. The resolution of 26 April 1942 gave him no new power; it solemnly confirmed that in wartime he was bound by no existing regulations, including those that protected civil servants and judges from removal without proceedings. A single resolution listed all his roles, among them that of “supreme judicial authority” (oberster Gerichtsherr).

A Reichstag that made no laws

The Reichstag of the Third Reich was a parliament in name only. From November 1933 it was elected from a single NSDAP list, and its deputies – more than eight hundred in the last term – met a few times a year to listen to Hitler’s speeches and unanimously approve whatever was put before them. Germans mockingly called it “the most expensive choir” or “the most expensive glee club” in the country, because its sessions ended with the deputies singing the national anthem together. Between 1933 and 1945 the Reichstag met, depending on how one counts, about twenty times and passed only a handful of laws; all the others, numbering in the hundreds, were issued by the government itself. It was in this chamber that on 30 January 1939 Hitler had prophesied “the annihilation of the Jewish race in Europe”, on 1 September 1939 announced the war with Poland, and on 11 December 1941 declared war on the United States. That December session was the penultimate one.

The speech

Hitler began, as usual, with a long historical disquisition: on the causes of the outbreak of war in 1939, on the supposed decline of the British Empire and on “international Jewry”, which in his view stood behind both Bolshevism and the “Jewish capitalism” of the Western democracies. He had been repeating the same themes for months, including in his speech of 30 January.

He devoted the main part of the speech to the winter on the Eastern Front. He said that when he had last addressed the Reichstag, a winter was approaching in the east such as had not been seen in those parts for more than 140 years; that within a few days the thermometer had fallen to minus 47 degrees and lower; and that at one point on the front minus 52 degrees had been recorded. He compared this with Napoleon’s retreat from Moscow in 1812, when the frost had supposedly reached “only” minus 25 degrees. The army, he said, had been halted four weeks earlier than expected, could neither retreat nor stay where it stood, and yet had held the front against the “hordes from the depths of Asia”. He praised the German soldiers and the allied ones – Hungarians, Slovaks, Croats, Finns and three Italian divisions that had survived the winter in their positions. He spoke of the Soviet counter-offensive at Moscow, which in December and January had thrown back Army Group Centre, as a senseless sacrifice of “human masses” rather than as a defeat for the Wehrmacht. He mentioned in passing that “only in a few cases” had he had to intervene personally when someone’s nerve, obedience or sense of duty had failed, and that he had then taken “hard decisions”. His listeners could relate this to the dismissals of generals that winter, among them the expulsion from the army on 8 January 1942 of Colonel General Erich Hoepner, who had withdrawn his panzer army against orders; this was done without a court verdict and without proceedings before a court of honour.

From the winter crisis Hitler derived a demand on the nation. He announced that the Reich railways would prepare for the next winter better than for the last, and attacked officials and employees who demanded leave while the soldiers in the east had not had a day off for months. He added that he himself had not taken even three days’ leave since 1933. “No one can at this time appeal to his duly acquired rights,” he said; “everyone must know that today there are only duties.” He therefore asked the Reichstag to confirm that he had the legal right to compel anyone to do his duty, and to demote or remove from office and post anyone who, in his conscientious judgement, did not do it.

The attack on the judges

Hitler devoted only a few sentences to the judiciary, but it was these that went down in history. He expected the German judiciary to understand that “the nation does not exist for it, but it for the nation”, and that Germany must live, “however much the formal views of the judiciary may oppose this”. As an example he cited the case of a man who had mistreated his wife until she lost her reason and died, and had received five years’ penal servitude for it “at a moment when tens of thousands of brave German men must die” to defend the homeland against Bolshevism. He named no names, but he meant the judgment of the regional court in Oldenburg of 14 March 1942 in the case of Ewald Schlitt. By then the case had already been settled as Hitler wished: after his intervention the prosecution had lodged an extraordinary objection, and on 31 March a special senate of the Reich Court had sentenced Schlitt to death. Hitler concluded with a warning: “From now on I shall intervene in such cases and remove from office judges who evidently do not understand the demands of the hour.”

Reprisals and U-boats

In the last part of the speech Hitler turned to the Western Allies. He scoffed at their generals and mocked Douglas MacArthur, who had left the Philippines in March, with a play on words. He declared that “the struggle in the east will continue” and that the “Bolshevik colossus” would be smashed, while Britain would be dealt with by the German submarine arm, which already had more boats than at the height of the First World War. He also threatened Churchill: if the British continued the air war against the civilian population, then he – who, he claimed, had waited four months in 1940 too before replying – would reply in a way that would bring the British “much suffering”. “From now on I shall return blow for blow,” he said. These words were spoken after the raid on Lübeck and in the middle of the British series of raids on Rostock, while the Baedeker raids on Exeter and Bath, which Hitler had ordered as early as 14 April, had been going on for three nights.

The resolution

After the speech Göring proposed, and the Reichstag adopted by acclamation, a resolution whose full text read: “There can be no doubt that in the present time of war, in which the German nation is waging a struggle for its very existence, the Führer must possess the right he has claimed for himself to do everything that serves or contributes to victory. The Führer must therefore – without being bound by existing legal provisions – in his capacity as Leader of the Nation, Supreme Commander of the Wehrmacht, Head of Government and supreme holder of executive power, supreme judicial authority and Leader of the Party, be in a position at any time, if necessary, to urge every German – whether a common soldier or an officer, a junior or senior official or a judge, a leading or ordinary Party functionary, a worker or a salaried employee – by all means he deems appropriate to fulfil his duties, and in the event of their violation, after conscientious examination and regardless of so-called duly acquired rights, to impose the appropriate punishment, and in particular to remove him from his office, his rank and his position without instituting the prescribed proceedings.”

The resolution was promulgated the same day in the Reich Law Gazette (Reichsgesetzblatt 1942 I, p. 247) by the head of the Reich Chancellery, Hans Lammers. According to the historian Lothar Gruchmann, who studied how it came about, Lammers was summoned to Hitler on the morning before the session and made two important changes to the text: he added Party functionaries, so that the resolution would not appear to be aimed only at the state and the armed forces, and the proviso that punishment was to follow “after conscientious examination”. Such an examination had to go through the relevant ministry, so the officials against whom Hitler wished to act thereby regained influence over the decision. The resolution was also deliberately given the form of a “decision” rather than a law, so that its relation to the Civil Service Act of 1937, which formally remained in force, would not have to be explained. That Act allowed a judge to be removed only after an inquiry and forbade basing such a decision on the content of a judgment he had handed down.

Why Hitler wanted the resolution

As early as 20 March 1942 Joseph Goebbels noted after a conversation with Hitler that a judge could not be removed “even by the Führer” and that Hitler intended soon to obtain from the Reichstag full powers to deal with anyone who failed in public life. After the session Goebbels noted that such confirmation had been necessary “for psychological reasons” in view of “the judges and the weak-kneed generals”, something, however, that “cannot be said publicly”. He admitted that people were asking why Hitler needed new powers when he already had absolute power. At the beginning of May he recorded with satisfaction that the resolution had caused “a real shock in the circles concerned”. Hitler meanwhile assured the Reich Governor of the Warthegau, Arthur Greiser, that he was concerned solely with a “clique of ministerial directors”, and on 28 April Greiser used this to reassure the judges and prosecutors under him.

This ambiguity was intentional. Gruchmann showed that in practice the resolution was not used for the mass removal of judges. The first case in which Hitler wanted to use it concerned a judge from Berlin-Lichterfelde who in April 1942, in accordance with the letter of the law, had ordered the eviction of the widow of a soldier killed in the east. After an attack by the SS weekly Das Schwarze Korps, Hitler demanded his removal, but Lammers and State Secretary Franz Schlegelberger, then running the Ministry of Justice, persuaded him that it would be enough to take the judge off the bench, and the appeal court quashed the judgment, invoking “healthy popular sentiment”, which supposedly stood above written law. The resolution’s significance was above all psychological. Reports by the presidents of the courts of appeal and by the chief public prosecutors from the summer of 1942 described judges’ fear of losing office for ruling according to the law and their readiness to “meet the expectations placed on them”. Some courts began to impose harsher sentences than the prosecutors had asked for.

Place in the war

After 26 April 1942 the Reichstag never met again. Its term was due to expire at the beginning of 1943, but on 25 January 1943 a government law extended it to 30 January 1947 to avoid holding elections in wartime; deputies appointed later to fill the seats of those who had died never attended a single session. In the years that followed Hitler spoke in public less and less often. The resolution completed the road the Reich had travelled since the Night of the Long Knives, when in July 1934 Hitler had justified the killings before the Reichstag by saying that he had then been the nation’s “supreme judge”: from now on his will stood, formally as well, above all regulations.

For the judiciary, April 1942 marked the beginning of the final stage of its subjugation. On 20 August 1942 Otto Thierack, until then President of the People’s Court, became Minister of Justice, and his place was taken by Roland Freisler. Thierack received authority from Hitler to depart from existing law; from the autumn of 1942 he sent judges “judges’ letters” discussing the desired verdicts, and in September 1942 he agreed with Heinrich Himmler on the transfer of prisoners from penal institutions to concentration camps for “extermination through labour”. The number of death sentences handed down by the civilian courts rose sharply in 1942–1944. After the war Schlegelberger and other ministry officials stood before an American tribunal in the Judges’ Trial at Nuremberg in 1947, while Thierack committed suicide in a British internment camp in 1946.