The decisive factor was that the conservatives made no effort to preserve the rights of habeas corpus. This “fearful gap” meant that henceforth there was no limit to outrages by the state. The police could arbitrarily “arrest and extend the period of detention indefinitely. They could leave relatives without any news concerning the reasons for the arrest and the fate of the person arrested. They could prevent a lawyer or other persons from visiting him or examining the files on the case…. They could crush their prisoner with work, give him the vilest food and shelter, force him to repeat hated slogans or sing songs. They could torture him…. No court would ever find the case in its files. No court had the right to interfere, even if a judge unofficially obtained knowledge of the circumstances.”5
The emergency decree “for the protection of the people and the state,” supplemented by another decree “against betrayal of the German people and treasonous machinations” issued that same day, proved to be the decisive legal basis for Nazi rule and undoubtedly the most important law ever laid down in the Third Reich. The decree replaced a constitutional government by a permanent state of emergency. It has been trenchantly pointed out that this decree, not the Enabling Act passed a few weeks later, provided the legal basis for the regime. The decree remained in force until 1945; it provided the sham of a legal basis for persecution, totalitarian terrorism, and the repression of the German resistance right up to July 20, 1944. At the same time, one of its side effects was that the Nazis’ authority stood or fell on the thesis that the Communists had set the Reichstag fire. The subsequent trial, which could prove only the guilt of van der Lubbe, had to be regarded as a grave defeat for the Nazis. In these aspects, not in the criminological details, the crucial historical importance of the Reichstag fire lies. When Sefton Delmer, the correspondent of the London Daily Express, asked Hitler whether there was any truth to the rumors of an impending massacre of the domestic opposition, Hitler could reply sarcastically: “My dear Delmer, I need no St. Bartholomew’s Night. By the decrees issued legally we have appointed tribunals which will try enemies of the State legally, and deal with them legally in a way which will put an end to these conspiracies.” The number of persons arrested in Prussia alone within two weeks after the decree of February 28 has been estimated at more than 10,000. Beside himself with delight at the way things were going, Goebbels commented, “Once again it is a joy to live!”6
Goebbels had proclaimed March 5, the date of the election, “the day of the awakening nation.” All mass demonstrations were now directed toward it. The wild momentum of the Nazis’ propaganda activities all but drove their German Nationalist partners from the scene. The other parties were hounded and hectored, while the police looked on in silence. By election day the casualties among the opponents of the Nazis amounted to fifty-one dead and several hundred injured. The Nazis, for their part, had lost eighteen dead. The Völkische Beobachter quite rightly compared the NSDAP’s agitation and propaganda to “hard hammer blows.”
The eve of the election was celebrated with a grandiose spectacle in Königsberg. Hitler ended his speech with an injunction to the German people: “Now hold your heads high and proud, once again! Now you are no longer enslaved and unfree; now you are free again… by God’s gracious aid.” Whereupon the strains of a hymn rang out, the final stanza sung amid the clangor of bells from Königsberg cathedral. All radio stations had been instructed to broadcast the event live, and, according to a party directive, every station “that has the technical means will transmit the Chancellor’s voice to the street.” After the broadcast SA columns started marching throughout the country, while on the mountains and along the frontier so-called freedom fires were kindled. “It will be an enormous victory,” the organizers exulted.
Their disappointment was all the greater when the results were announced on the evening of March 5. With nearly 89 per cent of the electorate voting, the Nazi party won 288 seats. Their Nationalist coalition partners won 52. The Center retained their 73 seats, the Social Democratic Party held its own with 120, and even the Communists had lost only 19 of their 100 seats. The Nazis achieved real successes only in the South German states of Württemberg and Bavaria, where their representation had hitherto been less than their average for the country. But they missed the majority they had hoped for by nearly 40, winning 43.9 per cent of the votes. In a formal sense at least, therefore, Hitler was still dependent on the support of Papen and Hugenberg, whose share of the vote assured him a scanty majority of 51.9 per cent. In Göring’s apartment, where he heard the returns, he had muttered that as long as Hindenburg lived they would not be able to get rid of “that gang,” by which he meant his German Nationalist partners in the coalition. Goebbels, however, exclaimed: “What do figures matter now? We’re the masters in the Reich and in Prussia.” An editorial by Goebbels in Der Angriff advised the Reichstag, with astonishing cheek, “to make… no difficulties for the administration and let things take their course.”
It was part of the whole approach to the seizure of power, and part of Nazi psychology in general, to think only in terms of triumph, to counter all appearances by celebrating even the severest setbacks as victories. In spite of their disappointment the Nazis therefore pretended that the election results were an overwhelming success and made this assumed success the basis for a historic mission—“to execute the verdict that the people have passed upon Marxism.” Immediately after the election the Center protested the raising of the swastika flag on public buildings. Göring haughtily replied that “the preponderant part of the German population” had declared its adherence to the swastika flag on March 5. He added: “I am responsible for seeing that the will of the majority of the German people is observed, but not the wishes of a group which apparently has failed to understand the signs of the times.”
In the cabinet session of March 7 Hitler brashly claimed that the election had been a “revolution.” During the next four days he seized control in the states in the equivalent of a coup d’état. The SA everywhere played its customary part of embodying the wrath of a people outraged beyond the point of self-control. Storm troopers marched through the streets, besieged government offices, demanded the deposition of mayors, police commissioners, and finally the state governments themselves. In Hamburg, Bremen, and Lübeck, the Free Cities, and in Hesse, Baden-Württemberg, and Saxony the same procedures forced the governments to resign and thus left the road clear for a “nationalist” cabinet.
Sometimes the careful language of legality cracked, and the real voice of the new masters was heard. “The government will strike down with all brutality anyone who opposes it,” Wilhelm Murr, gauleiter of Württemberg, declared after his manipulated election as the new governor of the state. “We do not say: an eye for an eye, a tooth for a tooth. No, if anyone strikes an eye from us, we will chop off his head, and if anyone knocks out one of our teeth, we will smash in his jaw.” In Bavaria Gauleiter Adolf Wagner, assisted by Ernst Röhm and Heinrich Himmler, forced Premier Held to resign on March 9 and promptly had the government building occupied. In Munich a few days earlier the state government, in an effort to fend off Gleichschaltung (forcible co-ordination), had considered restoring the monarchy under Crown Prince Rupprecht. The Bavarians warned that they would arrest any Reich commissioner who attempted to cross the line of the Main River. But now it turned out that the Reich commissioner had long been inside the country and that his popularity was far greater than that of any ministers of the state government. On March 9 state governmental authority was transferred to General von Epp, the same von Epp who had smashed soviet rule in Bavaria in 1919. Three days later, Hitler came to Munich. That morning he had announced over the radio that the black-red-goid colors of the Weimar Republic were abolished; henceforth the black-white-red flag and the swastika flag would together constitute the colors of the nation. Simultaneously, “to celebrate the victory” of the Nationalist forces, he had ordered a three-day display of flags. Now he declared “the first part of the struggle” ended, and added: “The co-ordination of the political will of the states with the will of the nation has been completed.”