[DOCUMENT A]
NATIONAL SOCIALIST GERMAN WORKERS PARTY The Fuehrer's Deputy Munich 33, 12 July 1940
Chief of Staff Braunes Haus
III/Dr.Kl.-Pu.
. 2610/0/103
The Reichsfuehrer SS, Party member Heinrich Himmler Berlin, S.W.ll., Prinz Albrechtstr. 8 Subject matter: Introduction of the Civil Code in the new Eastern territories. '
Dear Heinrich,
I am enclosing a copy of my letter of this day to the Reich Minister of Justice for your information.
I have asked my officials who are dealing with this matter to arrange for a preliminary conference in which the Gauleiters concerned, the Reich Commissioner for the Strengthening of German Race and Culture, the Chief of the Security Police and the Security Service and the Racial Policy Department should convene before the conference which will be called by the Reich Minister of Justice.
Heil Hitler!
Yours
(M. Bormann)
[DOCUMENT B] .
National Socialist German Workers' Party 1 1
Berlin-Wilhelmstr. 64 Munich-Braunes Haus
Copy
The Fuehrer's Deputy 12 July 1940
III/Dr. Kl.-Pu. 2610/0/103
The Reich Minister of Justice .
Berlin W.8, Wilhelmstr. 65
Subject matter: Introduction of provisions of civil law in the annexed Eastern territories..
I refer to the several conferences of our experts and confirm that I question the wisdom of introducing the German civil law in the form you propose in the annexed Eastern territories. As I learned from my officials you share my view that many provisions of German civil law ought not to be applied to Poles and Polish legal relationships. I refer in particular to the provisions of
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family law, the law of succession, of real estate, of clubs and associations.
The clause suggested by your experts at the conference of reporters which has meanwhile been held: "Poles may not invoke provisions made solely for the protection of German Race and culture" is much too narrow. It is not sufficient to prevent an undesirable equalization between Poles and German nationals.
Such a clause is questionable also because it puts upon the judge the legislative decision as to how to form political situations. Experience has shown that most of the judges are not able in their judgments to assist in the correct formation of political situations.
I have been told that the German courts apply German civil law, though it is not yet introduced in the Eastern territories, and treat the Poles in a way which should be reserved for German nationals only.
It is presumed that the endeavors to introduce German civil law in the Eastern territories will be increased.
I should like, in this respect, to refer to the experience which we had with the introduction of German criminal law in the Eastern territories.
It is therefore to be feared that judgments by German courts applying German civil law to Poles and Polish legal relationships will cause unrest among German nationals. In some cases the execution of judgments may even have to be prevented by police measures.
Such undermining of state authority is in my opinion absolutely inadvisable, particularly in territories with a large Polish population.
It appears to me necessary therefore that each and every legal provision which is to be introduced in the Eastern territories shall be examined separately as to how far its application to Poles may be advisable. Provisions whose results may be questionable should, as far as possible, not be introduced in the Eastern territories. Only those which are absolutely necessary for the safeguarding of justice should be introduced at the moment.
I would also consider it advisable not to order the introduction of civil law by way of Reich legislation but by decrees of the Reichstatthalters. The Polish minority law will be given its final shape only in stages, in accordance with experiences gained from time to time. When introducing German law in the Eastern territories I should therefore consider it advisable from the beginning to take into consideration the possibility of easy amendments and alterations.
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I suggest a further conference of reporters be arranged for the examination of these questions to which, in addition to the Public Custodian East [Haupttreuhandstelle], the experts of the Reichstatthalters, the Reich Commissioner for the Strengthening of German Race and Culture and the Chief of the Security Police and Security Service should be invited.
. Heil Hitler!
The Deputy Signed: M. Bormann (M. Bormann)
[Document C]
Note
OI/28r/13.2.40 B 6.8.40
Subject: Application of Civil Law in the annexed Eastern territories.
* * * there followed a conference in the Ministry of Justice at 10:30 a. m. in which about 40 persons took part, including: Ministerial Director Volkmar, in the Ministry of Justice as Chairman.
Fechner, Judge in a Court of Appeal, as reporter. President Hesse, for the land registry-departments of the Ministry of Justice.
Rexroth, Judge in a Court of Appeal.
Mabfeller, Councillor to the Ministry Department for Family Law.
Many other officials from the Ministry of Justice.
The presidents of the Courts of Appeal of Posen and Danzig.
Ministerial Director Klopfer. .
Dr. Encke, Hess's Staff.
A representative of the Reich Minister for Economy.
A representative of the Reich Minister for the Interior. Dr. Gramse, Councillor to the government for the Four Year Plan.
Lawyer Schubert, HTO [Haupttreuhandstelle Ost—Pub-i lie Custodian East]
Lawyer Pfennig, HTO [Public Custodian East].
SS Obersturmfuehrer Dr. Beyer and two other representatives of the Reich Security Main Department, (RSHA). Lawyer Goetz Lawyer Wirsich
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Mr. Volkmar pointed out the lack of clarity, the variations and the territorial and substantive division of the legislation at present in force. For all practical purposes, German law was already applied in the Eastern territories so that the bill amounts only to legalizing the existing state of affairs. He then dealt with the objections of the Fuehrer's deputy. According to his view a special code for Poles could not be created at present because the political principles for the treatment of Poles were not yet clear and the preliminary work might require years. The Poles were already, for all practical purposes, excluded from legal commerce and intercourse by measures of public law. Even the present bill relates only to the position of the Poles according to civil law and would not affect the restrictions of their legal position based on public law. If a Pole, despite the prohibitions of the public law had, with the consent of the competent authority, acquired a piece of land, he could mortgage this land in accordance with the provisions of the civil code. The public law has precedence over the private law and the bill does not affect that. Finally, Mr. Volkmar referred to the -fundamental clauses suggested of which two drafts are submitted.
(a) Poles may not invoke provisions made solely for the protection of German Race and Culture.
(b) If the application of the law would lead to consequences which are undesirable .from a racial point of view then the law is to be applied only judiciously.
He would prefer (a) because (b) would endanger the rule of law and would burden the judge with responsibility for racial questions.
Klopfer stated that Reich Minister Hess, the Reichsfuehrer SS and the four Gauleiters concerned unanimously rejected the bill. The treatment of the Poles would be dealt with by the Fuehrer at the end of the week. The antiquated conception of territoriality in law must be overcome. A state's essential element is in human beings. The personal status, as had been partly the case in the legislation for Jews, should be brought to the fore, especially as the Reich territory is being extended and foreign nationals are being included also in the West. The Reich Minister of Justice had already introduced the German criminal law prematurely. Many complaints from the Eastern territories had already been made to Hess's Staff about impossible sentences. Similar grievances would also be caused in the present case. The judges would be the ones to suffer and the police would have to counter the measures of the court to a greater extent than in the pre-war Reich territory.
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He predicts undesirable results not only in the spheres of family law, the law of succession and associations, but for example, also in the sphere of the law relating to labor and service contracts. In this respect the Ministry of Labor had raised objections. All contractual relations based on loyalty are impossible between Germans and Poles. Having regard to the different conditions in the various "Gaue" one should delegate the legislation to the Reichsstatthalters, in order to facilitate an amendment of the law. It would be best to leave things just as they were.
Volkmar spoke against partial application of the civil code by the Reichstatthalters. He emphasized that he would regard it as a return to old times if Reich law was again replaced by state law.
Klopfer replied that in Rome at the time of its peak a special law (jus civile) was in force for its citizens, another minor law for the colonials and no law for the slaves.
The president of the court of appeal in Posen, Mr. Frobos, stated surprisingly that his Gauleiter and he himself were agreed that there were no objections against the bill concerning the application of the Civil Code. It would only legalize the instruction which he, in agreement with Greiser, had given when taking over his office i.e. simply to apply German law at short notice. Delay of the application strengthened the hopes of the Poles for a revision of the frontiers, because the present condition looked too much like a temporary situation and suggested indecision. He had instructed his judges that Poles were never equal to the Germans and that the principle of equality of men before the law was finished. A judge would be dismissed if, for example, he would give judgment for a Pole against a regional authority. He thinks that the general clause (a) would be insufficient and he would prefer the draft (6). In his opinion there was no sphere of law that was not political, not even the land-registry, the non-contentious jurisdiction, or the youth law. The Eastern territories were colonial territory, the Poles correspond to the colored people.
* * „ * sfc $ sfc $
Ministerialdirektor Volkmar declared thereupon that apparently all authorities—and what he considered particularly essential—the practicians from the Eastern territories, asked for introduction of the law, while it was reserved for the Deputy of the Fuehrer to oppose those wishes of all agencies connected with the reconstruction of the Eastern territories.
Then SS Obersturmfuehrer Dr. Beyer and lawyer Goetz asked
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for permission to speak. SS Obersturmfuehrer Beyer stated that the Reichsfuehrer SS was also definitely opposed to the bill in its present form. The bill was based on out-of-date conceptions because it was based on the principle of equality before the law which was absolutely inapplicable to Poles.
Lawyer Goetz supported Dr. Beyer's and Ministerialdirector Klopfer's statements. He pointed to the contradiction that the presidents of the courts of appeal, on the one hand, approved the present legal position, the Minister of Justice, on the other hand, gave as reason for the urgency of the bill the difficulties and inconveniences arising out of the present position. Since the Fuehrer, as Klopfer had mentioned, would within a few days make a general decision about the position and treatment of the Poles, a postponement of the introduction of legislation for several months seemed appropriate or there should be a careful examination as to what individual legal sections could be introduced without any doubts.
The following discussion of the several subjects showed that nearly all subjects are doubtful, even the law of procedure. Then followed a lengthy discussion as to whether a Pole could bring an action against a German and whether Poles could be witnesses. Klopfer suggested that a special arbitration department could be created for claims of Poles against Germans to prevent Poles and Germans from standing on an equal footing before the judge.
The proposal of a partial application of the German code was withdrawn as objections were made in respect of nearly all legal sections. It was furthermore discussed whether it was possible to introduce the German law for Germans only and to leave the lawless position for Poles as it was. If this personal status were introduced, the question of the treatment of legal relations between Germans and Poles would cause difficulties. The representatives of the Reich Security Main Department seemed to prefer the opinion that legal relations between Germans and Poles should not be determined by legal methods but according to the concept of racial superiority (authoritarian relationship). Klopfer mentioned with regard to this that Poles who are sent as workers into the Reich should not be able to bring an action in the Labor Courts against their employers.
The Ministry of Justice is trying to compromise by proposing a new wording of the general clause, which was set out by Mr. Volkmar as follows:
"The law to be introduced is on principle to be applied only to German nationals, to non-German nationals only insofar as it
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does not lead to consequences which are undesirable from the point of view of racial policy." This general clause should, if necessary, precede (perhaps in the form of a preamble) and be emphasized as the dominating principle of the whole introduction of the German Law. The exact draft will be sent to all present.
Mr. Klopfer was very satisfied with the result of the conference and thanked Messrs. Goetz and Beyer for their intervention.
signed: Goetz [ ?]
[Document D]
[Pencil*note:] III/109[?] 2610/6/103 To The Reich Minister and Chief of the Reich Chancery
21 August 1940 Registered letter Dispatched on v Aug. 21st 1940 [initial]
Dr. H. H. Lammers
Berlin W.8, Vossstrasse 6
Re: Introduction of Civil Law into the incorporated Eastern territories.
The draft of an ordinance, submitted by' the Reich Minister of Justice, provides for the introduction into the incorporated Eastern territories of Civil Law, Commercial law, and the provisions for the administration of civil law which are in force in Germany proper. The Reich Minister of Justice considers it ur- ' gently necessary to issue the ordinance, since the present legal situation in the realm of the administration of civil justice in the incorporated Eastern Territories has led to frequent difficulties. As a rule the German Courts were not in a position to ascertain and apply the law which they ought to apply according to section 7, Decree of the Fuehrer concerning the Organization and Administration of Eastern Territories of 8.10.39. (IIIA for co-signature M. B. 17/8) Therefore they were already basing their decisions as a rule on German law. There was considerable uncertainty as to the law applicable, and this particularly hampered economic reconstruction in the incorporated Eastern territories. .
The Reich Minister of Justice is of the opinion that Civil law must be introduced for every person resident within the Eastern Territories without regard to race, since it could hot yet be ascer-
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tained, in what respect the Poles ought to be subjected to special ruling. He thinks it would be sufficient to authorize the Judge by a general proviso, to disregard the application of German law, in cases where the application of German law to persons of non-German race would lead either to unreasonable hardships or to consequences undesirable from the point of view of racial policy. In such cases German law should be made to correspond to the particular situation. For the rest, the Reich Minister of Justice is of 'the opinion that the question whether the Poles should be subject to a special law was a matter of public law which did not touch civil law.
I wish to object strongly against the ruling proposed by the Reich Minister of Justice. Tha^kind of mind, which solves even the problem of the introduction of law solely according to territories and areas affected, but without considering the persons inhabiting them, is composed of ideologies which are no longer justified at the present time. Only Germans should be allowed to invoke German law, especially where they are obliged to live in a communuity with men of completely different racial qualities. This is why I do not consider it feasible to grant the persons inhabiting the Eastern areas equal status with the Germans in Germany proper by introducing German law. With regard to Poles we shall have to invent, not only for public law, but also for civil law, a personal status accurately defining their legal situation. This status must follow them, even when they leave their residence, e.g. in order to be employed as workers in Germany.
It is impossible to allow Poles residing in the Eastern Territories to enjoy the benefits of German Civil Law, especially the benefits of the law of association, real property law, family law, law of inheritance, commercial law. I consider it inadmissible that a Pole should have the right to sue a German before a German Court, to testify against a German in a law-suit, and even, as the case may be, to enforce a judgment against him through the good offices of a bailiff. There are numerous other spheres of the civil law, which cannot even be ascertained at this early moment, in which the Poles will have to be subjected to separate treatment. *
It is for these reasons that I consider it, in principle, inadvisable to introduce equality of law between Germans and Poles.
Nor are these scruples dispelled by the fact that the draft contains a general proviso, according to which the Judge is authorized to deviate from German law when the application of the German laws to Poles would lead to hardship or to racially and
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politically undesirable consequences. Even if the proviso were drafted in such a way as to permit elastic interpretation, it would not be certain that all these laws which are unsuitable for Poles will never be applied to them. The main objection is that in this way the Judge would be burdened with the responsibility for a political decision which ought to be for the legislator exclusively. The interpretation which the Courts would put on the general proviso would practically speaking develop: a special law for the Poles; it seems only too probable that the final decision of the legislator might be prejudiced thereby. Even if introduction of such a general proviso might be called the easiest method for balancing the difficulties which are to be expected if the German civil law is introduced en bloc in the East, I am still unable to agree to it for reasons of policy.
I, do not think there will be difficulties if we refrain from introducing the civil law by legislation. The legal conditions, as they are presently, an application of German law to Germans, a modified application of it to Poles—do not operate to the prejudice of the racial Germans residing in the Eastern areas. There exists indeed some uncertainty as to the law; but it operates exclusively to the prejudice of the Poles, whereas it rather benefits the racial Germans. The Germans cannot suffer disadvantages since the Judge applies German law with regard to them; they may even have advantages since the Judge is entitled, as the case may be, to deviate in their favor from the provisions of German law. He would no longer be able to do so, if the entire civil law were introduced without differentiating between Germans and Poles.
On the other hand I recognize the necessity for introducing various legal regulations—especially of a formal character—for the benefit of the Germans. But since the situation is different in every district, T do not thinlf it advisable to introduce them by Reich legislation. We rather ought to authorize the Reich Governors and Provincial Presidents to introduce them by an ordinance and to decide on their own responsibility what rules are to be introduced and what date.
Since we were not able to come to an agreement with the Reich Minister of Justice, and since it is a question of great political significance to décide whether thç law to be introduced is to provide equality between Germans and Poles, I should be grateful if you would submit this question as soon as possible to the Fuehrer for his decision.
By order Hell Hitler!
(signed) M. Bormann
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[Document E] September 2nd 1940
III/09-Ku
1. To the Reich Minister and Chief of Reich Chancery
Dispatch 2.9.40 Ku
Dr. H. H. Lammers Berlin W.8, Vossstr. 6.
Re: Introduction of German civil law into thé Incorporated Eastern Territories.
By letter of 21.8. I asked you to apply for the Fuehrer's decision on the question whether with regard to the Incorporated Eastern Territories the same civil law ought to be introduced for Poles and Germans equally. In the meantime I received a letter dated 14.8.40 from the Reich Minister for Justice, copy of which is enclosed and which you presumably have received as well. '
Even by the statements in this letter my doubts cannot be dispelled against the treatment intended in this matter. In particular, I am supplementing my letter of 21.8 as follows :
The Reich Minister for Justice confirms that no special difficulties have resulted from the present legal situation, but this was solely the result of direct personal and administrative instructions given to the Courts, a method of procedure which could not be maintained for an indefinite length of time. On this point, I am rather of the opinion, that for the time being we cannot desist from the possibility of influencing the Courts in the Eastern Territories. If this draft became law, we should lose the possibility of directing the jurisdiction by administrative instructions to the courts; on the contrary it would be exclusively for the Courts to decide the exceptions from the application of German law to Poles. This is whçrë I see a grqat danger for the further establishment of a special law for the Poles. Moreover I consider it inadvisable if we, merely in order to provide a "legal basis'' for jurisdiction, create a ruling whereby the Poles receive in the first place and on principle equal rights with the Germans, whereas we are planning at the same time for legislative measures depriving them of the same rights. It does not matter on what kind of basis the Courts administer justice, but what matters is solely that we provide for judgments which are in every respect appropriate to the special conditions prevailing in the Eastern Territories. No special proof is needed, I think, for the fact that such a result can rather be expected if we leave the conditions as they are, than if we introduce rules of a general nature by which the Judge would be bound. True, the Judge
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would be entitled by the general proviso, to deviate to a certain extent, in individual cases, from applying German law to Poles. Apart from the fact that in this way the judge would be burdened with a decision which rests with the legislator alone, he would no longer be in a position, after the introduction of German law, to refuse generally the right of the Poles to bring an action or to testify in a lawsuit, or to prevent an execution of sentence of a Pole against a German, to refuse the entry of real estate rights of a Pole into the land register, etc. Thus it is not correct to say that with regard to the non-German minorities the legal situation would remain the same as it has developed so 'far, even if the Ordinance were issued.
The fact that certain rules will have to be developed without delay, in the interest of economic reconstruction in the Eastern Territories, in no way justifies an arrangement such as is intended by the Reich Minister of Justice. The difficulties which make the issue of such rules a necessity, could be abolished equally well if the Reich Governors or the Provincial Presidents issued new rules of law. On the other hand, I should have no objections against introducing German civil law into the Eastern Territories provided it were only applicable to the racial Germans there. I do not expect that special difficulties would arise from such an arrangement. In any case the economical reconstruction, in which only German racials would be allowed to participate, would be favored thereby. ,<
There is, I think, no particular necessity to enlighten the peoples in question on the legal situation at present in force by proclamation of the ordinance proposed by the Reich Minister of Justice. There will hardly be any doubt that, in any case, racial Germans are subject to German law, that there is a law in force for them which does not make their legal situation worse than that of the Germans in Germany. If there should be any doubts, they could easily be lifted by publishing an announcement in the papers that German law is applicable to the legal relations of the racial Germans residing in the Eastern Territories. If there'remains any uncertainty, it applies solely to the legal situation of the non-German races. Such uncertainty would continue with regard to the general proviso; for the rest, I see no cogent reason for abolishing it by general introduction of German civil law in the face of all the objections which I raised above.
I agree with the Reich Minister of Justice that the Poles must not receive a status which the political leadership does not want them to have, and that from the beginning the legislation must
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take into consideration the special conditions in the incorporated Eastern Territories. But the draft does not conform to these principles. I very much doubt that a Judge will ever be able to decide whether or not the application of German law "would prejudice the incorporation of the Eastern territories into Germany." As the Reich Minister of Justice himself emphasizes, the will of the political leadership must be the only deciding factor; this will must be communicated to the Judge; he is neither able nor competent to establish it.
It does not matter whether the rules concerning the status of the non-German races in the realm of administration of civil justice are part of civil or of public law, and whether therefore they belong to the competence of the Reich Ministry of Justice or not. If they belong to public law—which I very much doubt— they will have to be issued by the competent Ministry at the same time as the rules concerning civil law.
Neither is the problem solved by the ordinances concerning the administration and seizure of property formerly belonging to Poles, or by the rules concerning the Main Trustee Office East, nor by the decree concerning the reconstruction of economy in the Incorporated Eastern Territories, or by the decree concerning the administration of property belonging to nationals of the former Polish state. I consider it absurd, to give an example, first to force the German Judge to enter judgment for a Pole, and subsequently to nullify this judgment at once by confiscation or similar acts. Moreover there will not always be reasons for confiscation.
Nor is it always possible to counter the attempts of Poles to take out executions against a German by applying the law concerning the abuse of execution. This law is not applicable if what is intended is to prevent the execution of a judgment issued by a German Court immediately after it has been issued. In case the law should be applicable in such case, one might be justified in asking why then a judgment must be entered at all, if it is immediately to be nullified by the same court. Obviously it would be more advisable to issue rules from the beginning as to whether a claim may be adjudicated at all.
To the statements of the Reich Minister for Justice concerning the formation of special arbitration authorities I reply briefly, that in my opinion it would make a great difference, whether a Pole is entitled to sue a German, or whether an arbitration authority is interposed which would have to make preliminary enquires and which would have to carry out the necessary legal steps, as the case may be. I cannot see how the Courts could
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be ifl a position to prevent Polish residents from abusing their right to apply to the Courts.