Action by a superior officer who intentionally induces * * * his subordinate to commit a punishable act in office, or knowingly connives at such a punishable offense on the part of his subordinate—Section 357.
In the Weimar constitution it was provided that “the generally accepted rules of international law are to be considered as binding, integral parts of the law of the German Reich.” (Art. 4.)
The Constitution also guaranteed to all Germans—
- Equality before the law (Art. 109);
- Citizenship, the right of travel and emigration (Arts. 110, 111, and 112);
- Freedom of person (Art. 114);
- Freedom of speech, assembly, and association (Arts. 118, 123, and 124);
- Right of just compensation for property expropriated (Art. 153);
- Right of inheritance (Art. 154);
There were, however, in the Weimar constitution the germs of the disease from which it died. In article 48 of the constitution it was provided:
“The Reich President may, if the public safety and order of the German Reich are considerably disturbed or endangered, take such measures as are necessary to restore public safety and order. If necessary, he may intervene with the help of the armed forces. For this purpose he may temporarily suspend, either partially or wholly, the fundamental rights established in articles 114, 115, 117, 118, 123, 124, and 153.”
A review of the evidence will disclose that substantially every principle of justice which was enunciated in the above-mentioned laws and constitutional provisions was after 1933 violated by the Hitler regime.
The first step in the march toward absolutism was of necessity the assumption and consolidation of power. It was deemed essential that the government be authorized to make laws by decree, unhampered by the limitations of the Weimar republic, by the Reichstag, or by the independent action of the several German States (Laender). To accomplish this end on 28 February 1933 a decree was promulgated over the signature of President von Hindenburg, Chancellor Hitler, Reich Minister of the Interior Frick, and Reich Minister of Justice Guertner. Briefly stated, this decree expressly suspended the provisions of the Weimar constitution guaranteeing personal liberty, free speech, press, assembly, association, privacy of communication, freedom of search, and inviolability of property rights. The decree further provided that the Reich government might, to restore public security, temporarily take over the powers of the highest State authority. It was declared in the preamble that the decree was passed “in virtue of article 48 (2) of the Weimar constitution.” This is the article to which we previously referred and which authorized the Reichspraesident to suspend the very provisions which were in fact stricken down by the Hitler decree of 28 February. The decree was reinforced on 24 March 1933 by the act of an intimidated Reichstag. The enactment was subtly drawn to accomplish a double purpose. It provided that “laws decreed by the government may deviate from the constitution”, but the act did not stop there; it also provided that “laws of the Reich can be decreed by the government apart from the procedure provided by the Constitution.” We quote in part—
“Article 1.—Laws of the Reich can be decreed, apart from the procedure provided by the constitution of the Reich, also by the government of the Reich. This also applies to the laws mentioned in articles 85, paragraph 2, and 87 of the constitution of the Reich.
“Article 2.—The laws decreed by the government of the Reich may deviate from the constitution of the Reich as far as they do not concern the institution of the Reichstag and the Reich council as such. The rights of the Reichspraesident remain untouched.