IV. GENERAL DEVELOPMENT OF GERMAN LAW DURING THE NAZI PERIOD (continued 3)

First of all, the dualism between Reichstag and Reich President was abolished. The Reich President is the victor. Under Hindenburg the formation of the cabinet more and more came under the power of the Reich President and that of the Reichstag decreased. The end of this development was 30 January 1933. The Reichstag was no longer asked to do any work. Purely formally, under article 53, the president appoints the new government. Article 54 was no longer considered a serious threat. The parliamentary system is dead and we have the first demoting of the Reichstag. The second had already started in the meantime, as I have shown. The Reichstag had already resigned more and more as a legislative body; it is only the culmination of the development, what we see in the law of 24 March 1933 [Enabling Act] and the aftermath, the new reconstruction law [Neuaufbaugesetz] of 30 September 1934; the division of powers is dead. The Reichstag in its original and foremost function has been dethroned. What was its purpose now? In July 1933, political parties were definitely prohibited. A genuine parliament was no longer possible. The first Reichstag elected after this July law, in November 1933, was the Reichstag of one faction only elected by voters of one party only. It has been said that it was purely an assembly of acclamation. The great dualism in the Reich ended thereby and on the grave of the Reichstag there are three crosses. The small dualism between Reich President and Reich Chancellor ended with the death of Hindenburg and is expressed in the law of 1 August 1934, concerning the head of State [Staatsoberhaupt-Gesetz]. The greatest and most serious dualism between Reich and Laender in effect was eliminated before that. Usually one says in the German constitutional science that only the reorganization law of 30 January 1934 had turned the Laender into Reich provinces but that is certainly not correct. Looking at the facts themselves, that step was already taken by the Reich governor law [Reichsstatthaltergesetz] of 7 April 1933. When one summarizes all that and looks at those results together, the final phase is this—the entire power of the State in the German Reich is combined in the hand of that one man who quite arbitrarily can use that power to decide individual cases or to set new norms. It depends only on him, from the practical point of view of power, as to how long he refrained from interfering in the field of judiciary. * * *

Q. Professor, that was the question about the development up to the point when this one man, Hitler, held everything in his hand. I would say the result of historical development. We are interested in explaining to the Tribunal, if I may say so, the dogmatical position of the Hitler decree as a legislator. Therefore, my question concerning your statements up to now concerned the development of constitutional law up to that historical point. But now, the Hitler decree and the act of lawmaking became actually one and the same. What was the effect of that on the legislative, on the executive, and on all forms of the state life after that time?

A. Perhaps I may begin with the procedure of the Hitler decrees, that is to say, with the exterior manifestations. I have shown that in German constitutional law we had the difference between statute, in the formal sense, and ordinance. The one was the act of the legislature—the other of the executive. On account of the enabling act and as a consequence of the first acts of the Hitler government, the procedure of legislation became a dual one. We still had more or less—for Sundays only, so to speak—the procedure of legislation through the Reichstag. The normal course of legislation was the statutes enacted by the Reich government, which should not have been called that way. We also had, from the imperial days, and we kept it up during the days of the president, the decree by the head of state, especially distinguished in the way of ordinance, for instance the organization act and we had the ordinance by the government. Hitler, by and by—but it happened rather quickly—emancipated himself from those regulations of the laws which were previously valid and concerning the various forms of norms, he used them arbitrarily. As to whether a statute passed by the Reichstag, as I described it, was brought in by suggestion of the National Socialist Party with Hitler as the first mover of the motion, was passed by way of acclamation, without debate; or whether the law was decided on by the government—that happened very quickly by way of circulation—or whether Hitler called it “Decree by the Fuehrer and Reich Chancellor”—later called “Fuehrer Decree” or ordinance, such as the famous ordinance on the Enforcement of the Four-Year Plan—for the legal value that did not matter at all. In all cases Hitler alone decided, whether he would take advice or not, whether there was a cosignature or not, for genuine cosignature in the constitutional meaning, of course, could not exist any more. There have been many arguments as to what the cosignatures which weren’t always affixed meant. People have tried very hard to find a meaning, but the only thing that is really certain is that these cosignatures did no longer have the meaning or significance of the proper countersignature. There was nobody toward whom one could have assumed any responsibility by countersigning. Therefore, all fixing of norm, signed by Hitler’s name alone or together with other names, is merely an act of will of that man—whether it calls itself a law or something else.

The only difficulty is represented by the so-called secret laws, although I can’t quite see where the difficulties are when you look at it properly; that a law which is kept secret before the people whom it concerns cannot bind those people is obvious. That is not because of some particular legal system but that is because of the very nature of an order. Nobody can be given an order if he doesn’t know of the order and if he is not meant to have knowledge of that order. But one must not forget that if Hitler passed a secret law, that as an official directive it was binding for those persons to whom it was made known. Then it was not just a legal norm, but it was an official instruction. As for the citizen, that amounted to the same in effect. If I may use an expression from Germanic law, these various forms by which Hitler announced his will were only different as far as the number of people in his entourage were concerned.

Much more difficult than that question about the form is the question about the restrictions on those contents to which Hitler was subject as a legislator. According to the valid order, limitations in the matter of the contents existed also for Hitler. Already last year, before the International Military Tribunal, I stated clearly that naturally for Hitler too, the limitations of ethics did apply. As to how he himself thought about such matters, I don’t know. I never met him, and I would not like to rely on hearsay; but that he knew that others believed him bound by a moral restriction, that is quite evident from the fact that again and again, be it in preambles to the law, be it by the rest of the propaganda machinery, he formulated moral justifications. Whether that was in accordance with his own real ideas, that question may be left open.

But I have already told the Tribunal that these restrictions, as moral restrictions which are no doubt for a great man the most difficult and the most important restrictions, in the conception of the European state on legal matters, are no legal restrictions. The absolute state of the continent passed on that conception to its parliamentary successor.

A little while ago, I had an occasion to show, by the example of Anschuetz, that that remained so until the latest era, until the time of the extreme democratic era of the Weimar republic. If one does regret that or not does not matter here. I simply have to describe what actually happened. If now, in the European meaning, one asks about legal restrictions—and first of all one asks about restrictions of the German law—one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.

On the other hand, certainly there were legal restrictions for Hitler under international law. He, as the head of the State, was the representative of the German Reich with foreign countries. After the development of affairs, he had to represent the German Reich without the restrictions which the Reich President still had. Hitler alone concluded the treaties and terminated them. He alone concluded alliances and could renounce them. He was bound by international law. Therefore, he could commit acts violating international law. He could issue orders violating international law to the Germans.

Now we are confronted with the most difficult problem: What were the consequences of the violation of international law by an act or an instruction by Hitler? The nonjurists will probably say that the order did not exist. But every jurist knows everywhere in the world that matters for the state, for every state, are not so simple. It is not true that there is even one state in the world which would say, “Every wrong act of state is not an act of state at all,” but every government system had inherent in itself, in varying form, a second order so to speak—a kind of self-purification system—a system concerned with finding out whether faulty acts of state are void or valid or are only partly valid. Every state commits faulty acts—acts of which everybody knows that they are not in order and knows it at a certain time. Acts which all the same are maintained, merely because during a legal procedure the end has to come one day.

In the Germany of the Weimar republic, for example, this is what happened. When the Reichstag—I just showed it by the example of Anschuetz—had passed a bill pursuant to article 76, that is, with a majority which could change the constitution, that law, if it had been properly promulgated, was binding for every official agency, even, for example, if it did not comply with an obligation of the Reich under international law.

In this commentary—would you kindly wait a moment—it’s a long time since I looked at it last, but I think I can remember where it is. [Reading] Anschuetz says in his commentary on article 10, under figure 7, “International law too, places an obligation on the German judge within the meaning of article 102 and according to article 4, but only insofar as it is generally recognized; in particular, also recognized by the German Reich and does not contradict the Reich laws. Whether that is the case, that the judge has to examine but he does not have to examine Reich laws, for the fact whether they are or are not in accordance with international law, and even if they don’t pass this examination, he cannot deny their application.” That means if the Reichstag, let us say, with a majority that can change the constitution had passed a law which was contradicting international law, that law was binding for all German official agencies. The Reich had to act as a sovereign State under the international law governing offenses against international law.

I return to Hitler. What applied to the democratic set-up applied all the more to the set-up under a “leader,” and everybody knows that who knew about the conditions surrounding Hitler’s decisions. If Hitler issued an order which was faulty from the legal point of view, that did not give the German official agencies any reason to refuse obedience, for in every state there has to be an authority beyond whom there is no appeal.

In the case of Hitler something else, something special applies. He who sees things differently and believes that the German official agencies were not merely entitled but perhaps even under an obligation to examine Hitler’s orders as to their legality not from the scientific point of view, but merely with the practical purpose of possibly refusing obedience, claims no more, no less than that Germany had no dictatorship at all. Then it would not be comprehensible what was the sense of a fight of the whole world against that regime.

I believe I have now answered your question. I would like to say one more thing, so as to emphasize the gravity of the development. I had the permission to show the Tribunal the structure of the acts of the State. Naturally that structure can also be applied to Hitler’s acts, but only one of those acts lost its meaning almost completely under Hitler. If Your Honors will kindly recall chart 1 to your memories, where on the left side we had the norms and then the authorization norms, the norms which authorized interference, I had differentiated between special and general relationship or subordination—pointing to the soldier and the citizen.[153] Those differentiations under Hitler gradually lose meaning. Hitler exerted and overburdened the strength of the German people to such an extent that finally he no longer saw before him citizens and smaller groups of persons under special obligation among them, but for him the Germans, all Germans were always on duty. A private sphere of activity no longer existed for him. With him there is no meaning in the differentiation between substantive laws and official instructions. It is all the same to him. The citizen is dead, because all have become officials. That is the final point of a development which, from a complicated state of affairs, was working towards simplicity, and that is the gruesome result.

Presiding Judge Brand: Dr. Schilf, would you pardon a question directed to the witness at this time? Dr. Jahrreiss, if this question interferes with the orderly course of your presentation, I suggest that you ignore it. But you told us in your discussion of procedure your views as to decrees signed by Hitler and one or more ministers. Would you care to specify or to indicate to us a little the view you have with reference to the justification of authority decrees not signed by Hitler, but signed by one or more of the ministers? I think we have seen a good many of those in the record. In other words, decrees executed or signed only by various of the ministers, but not by Hitler. Do you understand my question?

Witness Jahrreiss: Yes, thank you. I have spoken so far only about orders by Hitler, but in German constitutional law dating back to the days of the monarchy and the Weimar republic we have not only norms fixed by the Reichstag or the head of the State, but also many norms laid down by the government, in the narrower sense by the minister. The ordinance [Verordnung], of which I spoke in the beginning differentiating it from the statutes passed by legislators, is normally the ordinance of a minister, and under German constitutional law the following is valid. That was not changed in the Hitler era. Administrative ordinances, that is to say, norms which are not legal principles in the narrower meaning, are issued by every minister within the framework of his own department, without any special basis. Other ordinances, that is to say, legal ordinances, can only be issued—he can issue them, but he can only issue them if he has been authorized to do so by the constitution or by a legislative act. That was, in fact, what I described at the beginning. And so, in the Weimar era, we had many ministerial ordinances if the law empowered the minister to issue them. If I may add this, the result of that differentiation was this, if the courts had to apply an ordinance by a minister, or to be more precise, when it was doubtful whether it was to be applied, then the court had to examine whether the minister was empowered, was authorized to issue it. If the court denied that question, the ordinance did not exist. May I ask whether this was in answer to your question, Your Honor?

Presiding Judge Brand: I was interested especially in the source of authority, of decrees signed by various ministers after Hitler came into power. Would it be accurate to say that such decrees received their validity because of a delegation of power to the minister directly from Hitler?

Witness Jahrreiss: Yes, for legal ordinances. Hitler was the legislator. He could issue the ordinances himself but he could also delegate authority.

Dr. Schilf: Professor, I should like to follow up your words. In the Hitler state, so to speak, all people were on duty. There were no longer any citizens. You said the citizen was dead. May I ask you, in our legal language we call an order by a phrase which is very concise and which might explain it better to the Tribunal, that the law also in the former meaning was a law that was the same as an order to a servant. May I ask you to tell me whether that general instruction to an official, a civil servant, to a servant was the same as the law which had been solemnly promulgated in the Reichsgesetzblatt?

Witness Jahrreiss: If I have understood your question properly, you want to know whether the obligation was the same?

Q. Yes.

A. Yes, no doubt. For those who were concerned, those to whom the order was addressed, the order issued by Hitler, whether it was concerned with an individual case or whether that was a legal norm or whether it was an official instruction, was binding.

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Dr. Schilf: Now I want to ask you, what, in principle, was the relation between international law and the law of the individual state, and I would like to ask you whether that relationship was changed under the Hitler state?

Witness Jahrreiss: Counsel, I suppose I am right in assuming that by that question you refer mainly to Article 4[154] of the Weimar constitution?

Q. Yes, that is my intention.

A. Among the methods by which human beings are directed in social intercourse, there is, as one of several, the order [Befehl]. That in itself, unsympathetic as it appears to people everywhere as a method, has the one characteristic that it is unavoidable. Consequently, there is nowhere among human beings a sphere where there is no rule. On the other hand, all mankind in effect today stands in permanent relation of life with one another without, as a whole, being subject to one rule. Both together result in the situation which again and again worries people, which we call the situation referring to international law. Only groups of mankind, smaller groups or larger groups, are under a common rule. Therefore, if a continuous life, in spite of being divided into various units of rule, is to be made secure, and that in a proper manner, then there must be norms which hold together in an entity those various units of rules.

Or to express it in a different way, the power of authority of the various units must be brought in line in such a way that a community life is possible. That means, however, the ruling authority of the individual units must be restricted by the whole. The central point of international law is therefore constituted by those norms which lay down that limitation of the authority of the individual groups. Therefore, I suggested, and I was the first person to demonstrate that in science, that the law of an individual state, that is to say the constitutional law, should never be described without also describing the limitations under international law. If we were to achieve the situation, if I may say so here, whereby everywhere in the world all young jurists from the very beginning would be accustomed to see the constitutional questions of their own country always in connection with those of international law, then a great deal would have been done to strengthen international law.

Summarizing, that means the individual state is placed under an obligation by international law to arrange its own order by legislation in such a manner that the authorities in their decisions work in such a way as is demanded by international law. In [legal] science, that is called—the state is under an obligation to organize its law in accordance with international law. How can that be done?

There are several methods available. The legislator can, from case to case in his own system, amend those provisions which need changing so as to comply with international law. He does not need to mention international law at all in doing so. That is the way states proceed again and again. A different method is the one which is called the method of transformation. That is, the legislator does not trouble to bring into line the law of his country, word by word, and paragraph by paragraph, with international law, but he tells his official agencies, “Consider the norm of international law which in itself only binds me, as if I had cast it into a law.”

That method, which in German we also call “Recasting” [Umgiessung], can be applied specifically or generally. That is to say, the legislator, as soon as he has to consider a new treaty under international law, can recast that treaty or he gives general instructions for the application of the international law which is valid in the particular case. Both methods have been used among states.

Concerning this method of transformation, a difficult problem arises. In all states which have laws of different rank, as in the German Reich under the Weimar constitution—that is to say, either laws which have the validity of the constitutional laws, or ordinary laws—the legislator has to ask himself whether he intends to apply the recast international law to the highest group or not. Under the Weimar constitution, for example, it was indisputable that the recast international law had merely the position of an ordinary law. There might even be a state which would place the recast international law above constitutional law. What do we need that for? Every official agency in every state finds itself in the situation where it is confronted with several laws of its own state which appear to contradict one another, or in fact do contradict one another, which, however, all claim validity. I need not tell you jurists that since the days of Roman law everywhere norms have developed concerning the elimination of such conditions; where state laws have varying status, further norms of collision have been constituted. If a state would have a general norm under which international law takes precedence over all domestic law, that would be the greatest safeguard which is possible at all, that the law of the country is handled in accordance with international law. I do not know whether there is such a state. The German Reich at any rate was not one of those states. I think with this background I can now answer your question.

The relation between international law and the law of the Reich has been regulated in the Weimar constitution in article 4 and article 45, paragraph 3.[155] There have been many arguments about article 4, at the time when the national [Constituent] assembly was sitting [in 1919]. After many arguments and after sufficient attention had been paid to article 45, paragraph 3, eventually the following legal situation evolved. As far as the German Reich, by treaty, enters into obligations under international law, in such spheres of life which are subject to the legislative authority of the Reichstag, the President of the Reich may not ratify the treaty for Germany before the Reichstag has agreed by law. That is a transformation of a special nature, and anticipated transformation, for if the treaty is concluded, because the other partners ratify it also, then, at the moment the treaty becomes valid, the special recasting has already been effected. For the rest, all other international law, as far as it is generally recognized, but also acknowledged by Germany, is generally speaking recast by article 4. Both ways of recasting gave international law the status of an ordinary law of the Reich. Yesterday I had opportunity—concerning the question as to the moral limits of rule—to point out that under the Weimar constitution the courts were not authorized to examine a law as for its validity under international law, and certainly not the administrative authorities. Under Hitler that attitude was not changed. The general method of transformation of article 4 was kept on, and the specific one was needed even less frequently because the approval of the Reichstag was no longer required for the conclusion of treaties. Hitler could conclude every treaty under international law himself. As soon as the treaty had been concluded, as soon as it had come into force, it had already been recast, for Hitler’s ratification was, from the domestic point of view, a Fuehrer Order.

Q. Professor, to supplement your explanations, may I ask you to read out to the Tribunal article 4 and also article 45, paragraph 3, so that the passages you mentioned become quite clear.

A. Article 4 says: “The generally recognized rules of international law are valid as binding constituent parts of the law of the German Reich law.” Article 45 says: “Alliances and treaties with foreign states which refer to matters in which the Reich has legislative power require the consent of the Reichstag.”

Q. Another supplementary question, Professor. You told us that treaties under international law were concluded by Hitler alone. I would like to ask you to explain to us how the question can be solved concerning the person who was subject to Hitler’s order if there were contradictions?

A. I believe I understand your question to mean that among the laws or ordinances which were valid in Germany at the time, there were some which were contradictory to that which Hitler had decreed concerning the treaty. That is not a particular problem. I have already pointed out that that problem was merely the problem of collision, and if Hitler, in contradiction to the treaty he had concluded later on, issued an order in a general way or in a specific case contradicting the former order, the later order, if the contents were the same, was to apply and the old maxim applied—lex posterior derogat priori—that was so concerning the relations of the laws under the Weimar constitution, and it was the same under Hitler; but I think it will be necessary for me to say a little more on that subject. It can happen, and it does happen again and again, that a state knowingly, in its legislation, gets itself involved in a contradiction with international law. The last will of the state is decisive for the official agencies. In that case, the nation until that collision has been eliminated, lives under constitutional law which contradicts international law. The settlement, which is bound to come, is brought about by international law by the state being regarded as one which has committed an offense under international law, and entails and holds that responsibility to the provisions of international law, and as quickly as possible that inconsistency has to be removed by later legislation. As to whether further consequences arise, that we need not discuss here. In the case of every state the following applies. For the official agencies which have to apply the law to a certain specific case, there are frequently, if one proceeds logically, several laws—there are after all many situations in life which extend beyond the frontiers from the human point of view or from the material point of view.

One can bear in mind that instead of the state’s own law or side by side with the law of that state, foreign law can be applied, or it may be a case of church law possibly having to be applied. The question as to the application of international law, therefore, belongs to a wider scope of the great problem which is called the problem of the norm concerning the application of law, or in other words in every legal system there is, by the side of the system which regulates the relations between human beings as such, a system which instructs the authorities as to which law they are to apply in each case. I do not know of any state nor do I know what law could be possible which does not proceed in this way. The officials have to apply the law of the state which is in force at the time except if the legislator admits or orders another solution. Consequently, the provision of the status of recast international law is, therefore, only one possibility of the various possibilities of applying international law.

Q. Professor Jahrreiss, for the purpose of this trial we are interested in establishing whether an official himself was confronted with the question that international law deviated from the state law. If he himself was confronted with that situation, I want to ask you in what direction did he have the choice, or did he have any choice at all? Was he restricted to one norm according to the general view or to the view of the Reich constitution as far as it was still in force under the Hitler regime? Was he bound by that?

A. First of all, I have to explain the underlying facts of your question. Apparently you have in mind the case where a law or an individual decision exists which, in the view of the official, is inconsistent with international law.

Q. Inconsistent with international law, but which unilaterally is the law of his country, and this official now is confronted with the question to what norm is he to adhere?

A. I have already said that under the Weimar system which on that point was not changed under the Hitler regime the official had to apply the recast international law as an ordinary Reich law, and now he had to solve that problem of collision which you have mentioned, in the same way in which he solved the problem of collision between two ordinary Reich laws which were contradicting each other. In effect if the law under Hitler had been issued and afterwards the Reich assumed a new obligation under international law which was recast, then that had to be applied and not the former law, and vice versa. Have I answered your question?

Q. Yes, but there was one more possibility for the imaginary official. If the law of a country perhaps intentionally deviated from international law, what norm did the official then have to apply?

A. I have already said that in the Weimar era already the moral background or the background of international law of a legislative act was removed from the scrutiny of the official and even removed from the scrutiny of the judge and of the Reich Supreme Court. The background of international law could not even be examined by the Staatsgerichtshof, [supreme constitutional court]. The supreme constitutional court was only allowed to examine whether it was constitutional, but it was not allowed to examine it from the point of view of international law. To express it differently, whether the law had been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.

Q. For the purpose of our trial we are particularly interested in the norm of the Hague Convention of Land Warfare. May I ask you to explain to the Tribunal with special reference to whether the principles of transformation which you have explained apply to the Hague Convention of Land Warfare as well?

A. Counsel, with that question you have approached a particularly difficult problem. You know that the validity of the Hague Convention of Land Warfare also concerning the clause of general participation has very often been doubted. The Hague Convention of Land Warfare with us was recast, and specifically—that cannot be doubted in my view—most of what is said in the Hague Convention should be considered as recast pursuant to article 4 of the constitution even if a specific recasting did not occur. That follows from the history preceding the Hague Convention of Land Warfare. When the parties to the treaty, among them the German Reich, in 1907 signed the “Convention Concerning Land Warfare,” for the most part they only laid down in law such points which in any case were already international laws by customs and, therefore, assured. It would not always be easy to say whether a provision of the Hague Convention belongs to that group in part or not or as a whole. Have I answered your question correctly?

Q. I would like you to refer to article 1 of the Hague Convention and to read it to the Tribunal.

A. Yes. You mean article 1 of the Convention, or the appendix? Article 1 of the Convention you mean. Very often when one talks of the Hague Convention of Land Warfare, one means the appendix. Article 1 is a particularly concise example for the fact that the states were conscious of the character of international law such as I described, because it places the states under an obligation to give instructions to their land armies which are in accordance with the enclosed Hague Convention. As to the methods they employ, they are left open to the various states. For example, the German Reich could without mentioning the Hague Convention have passed a German law as to the behavior of the German army in wartime. It was technically easier to give the order to pay attention to the Hague Convention in the event of war. And thus, the points laid down in the treaty as international law, and which in the proper meaning do not affect the individual human being but only bind the state as a whole, were reinterpreted by the legislative authority to mean regulations applying to the conduct of the individual.

Q. Thank you, that answers the question.

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Q. Professor, I had the opportunity to show you the book of Heinrich Triepel, International Law and State Law. I would like to submit to you pages 153 and 154 and ask you to read that part to the Tribunal and to explain whether that is in accordance with your opinion.

A. I have in front of me the book of Heinrich Triepel, International Law and State Law of 1899. This book—

Q. Excuse me, Professor. Is it the first edition? I have just been asked if there are several editions.

A. No, there are not several. It is the first edition. This book, at the time, was a sensational book for the science of international law in the whole world. It was the first book which systematically treated the questions which I am supposed to supply information about here today. And what Heinrich Triepel laid down at that time basically has been recognized in the entire science of international law and only after the First World War a certain lack of security in theory, not in practice, developed because the so-called “Vienna theory of law” [Wiener Rechtsschule] founded by Hans Kelsen, who was my predecessor in Cologne, and who is now teaching in the United States, with its so-called “pure theory of law” or “norm logic” conceived the things logically. This did not affect the practice of international law at all, and thus the sentence is applicable which Triepel formulated on page 153 of this book, “Judges and subjects are under the obligation to apply the law of the state, even if contrary to international law, and to follow it. It is not up to them, but up to the government to take into consideration the differences and the divergencies with international law which may arise out of this.”

Dr. Schilf: May it please the Tribunal, I have concluded my questions to Professor Jahrreiss.

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CROSS-EXAMINATION

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Mr. LaFollette: * * * I do want to ask you, Dr. Jahrreiss, a hypothetical question. You may not agree with the hypothesis which I hypothesize or the implications perhaps inherent in them, but just for my own purpose and for orderly procedure I ask you to consider my question and answer it on the basis of the facts which I hypothesize, purely. Let us assume that I was subject to the complete power of an individual we will call “A” to force me to obey his orders implicitly; and, under those circumstances, I saw “A” procuring a strong rope, strong enough to bind a man completely and securely. Secondly, that I saw him preparing a strong wooden frame upon the ground, with iron rings through which he could pass the rope; and, so placed, that they could bind the legs and arms of a man securely. Third—a wooden block so shaped that a man’s neck could be placed on it with his head extended beyond it. And four, that I saw this man “A” sharpening an axe large enough and strong enough to cut through the neck of a man. And suppose at this same time I also saw, standing always in view, from one to six men, each of whom I know that this man “A” has a violent hatred for and has threatened to kill; and each of whom I know that this man “A” has the power to capture if he chooses. Now then, let us assume that this man “A” captures one or more of these men that he hates, and that I know he hates; and binds this man with the rope that I saw him prepare, upon the frame that I saw him build; and places his neck on the block that I saw him prepare; and that then “A” hands me the axe which I saw him sharpen and orders me to cut off the head of this captured, bound man. Would you say that under those circumstances I would be guilty or not guilty of killing the man whose head I severed at the direct order of “A” who had the full power to order me to do so.

Dr. Jahrreiss: I understand it this way—that guilty or not guilty is to be considered as guilt under criminal laws.

Q. On the assumed facts, yes.

A. I just want to ask you a question. Do you mean it as a legal question or as a question of morality?

Q. As a question of law.

A. Of law, yes. And according to what criminal law, and in what state?

Q. You can name the state; I don’t care.

A. Well, is that supposed to be a question in Utopia?

Q. Let’s put it in Germany.

A. In Germany?

Q. In Germany, yes, after 1933.

A. Yes, all right. Here then, we would be faced with terrible problems with which all of us since last year have been torturing ourselves so terribly, and I confess that in spite of having thought about it a great deal, that I have not yet found my way out of the dilemma into which we have been brought. Perhaps I can answer this hypothetical question by saying, by stating first, the points of view which in a conflicting manner make the answer more difficult. Perhaps first of all I should say, so that this should be clear, Mr. Prosecutor, how I, myself would behave.—I don’t know. No matter how horrible the whole thing is, I don’t believe that I—well, the Charter of the International Military Tribunal anticipates that an appeal to higher orders should not be admissible. It is not my task to criticize those regulations. However, perhaps I may be allowed to say that this regulation, if it should really be valid law in any state whatsoever, would have very dangerous consequences for order in general. One of the four judges of the IMT, the French judge, Donnedieu De Vabres, in a lecture which he gave this last April expressly stated that this regulation brings with it many difficulties for the idea of the discipline imposed by the state. I have the text of his lecture here. It is a lecture which Professor Donnedieu De Vabres gave before the Association des Etudes Internationales Criminologiques. May I quote a short passage from it? May I read it in French?

The Interpreter: Yes, you may.

Witness Jahrreiss: “Since the statute was interpreted this way under the rules imposed by the IMT, it has in a sense of individualism gone beyond regulations of international law and domestic law, this regulation is open to the objection that it will endanger the necessary discipline for the preservation of the state. Such a regulation can be applied in the future only with prudence and circumspection.” I am quoting this here only in order to demonstrate that if any rules exist at all, a certain harshness is absolutely necessary, unavoidably necessary. I always told my young students who started out on a study of law that they would have to devote themselves to perhaps the most bitter fact in life of man, and that is the rule, because by nature man hates the rulership, at least if he is subjected to it, but if this is the case every state basically has to require that its laws are executed, even if the person concerned, for moral or religious reasons, or other reasons, is of a different opinion. On the other hand, Mr. LaFollette, every state knows that there is some limitation somewhere. For example, the German Reich had a military penal law. In it there was the quoted article 47. In the jurisdiction of the Reich court, however, this paragraph was applied more and more in a restricting sense because discipline had to be above all.

Now, Mr. Prosecutor, before the IMT, I, in the expert opinion which I gave, which you were kind enough to quote here, stated expressly and emphatically, I believe, what the limit of humaneness or humanity is, but at the same time I pointed out that this limit is frequently not sharply drawn; and I believe, and this comes closer to your question, that perhaps after all the problem with which we are concerned here cannot quite be done justice to, if a case is described quite as drastic as you just said.

Last year during the first 4 months of the trial I experienced it, and those were the most difficult times of my entire life. I experienced and saw what terrible things happened under Hitler’s regime, and I have no way to express my horror and to describe this sufficiently in any language, but I believe that you will agree with me if I say that those are occurrences which are outside of legal discussion entirely, for, Mr. Prosecutor, even about injustice one can, if one is exact, speak with legal reasons only in cases where—excuse me—the injustice is within normal limits.

I myself was a criminal judge. One single murder frequently, in the court of assize, occupied our time for 2 to 3 weeks, and it was a terrible thing. Two murders by one person—that was horrifying. If someone had eight to ten murders on his conscience, then he was described as a mass murderer in the press of Europe, and people asked themselves whether this was something that could be handled by means of the penal code at all.

When, last year, in the courtroom of the big trial I listened to the witness, Hoess, of Auschwitz, when he answered the question of the prosecutor as to how many people he had killed, if I remember correctly, he answered he didn’t remember exactly whether two and a half or three million. At that time it was quite obvious to me that neither positively nor negatively this had anything to do anymore with legal considerations because, Mr. Prosecutor, no matter what a state regulates concerning the question of review of a law the state has to think of normal conditions. These occurrences and matters cannot be measured by any order of the world at all. Therefore, I believe that these things that happened in Germany behind a complicated system of secrecy, a system of mutual delimitation, and if then one adds the pressure of conscience of millions of people who felt themselves hemmed in between patriotism and hatred of the system, then the question which you put to me attains a very bitter human weight, and I can only say I don’t know any way out.

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Presiding Judge Brand: In order to better understand your views which you have ably expressed, I would like to ask you a few questions. I understand your view to be that judges were obliged to obey the law of their State of Germany even though in doing so they violated a principle of international law. That is a fair brief statement, is it not, of the matter?

Witness Jahrreiss: Yes. During the Weimar republic this was already uncontestedly applicable, and with the permission of the Tribunal, I read the commentary of Anschuetz to article 102.

Q. And you would apply the same principle after 1933, would you not?

A. After 1933? There was much less the question whether this was different than before.

Q. What court or tribunal ordinarily enforced the rule that judges must obey the law of their State under such circumstances? I assume the answer is obvious.

A. Excuse me. I didn’t understand your question, sir.

Q. What tribunal ordinarily enforced against the judges or upon the judges this obligation to obey the law of the State even though they in doing so, violated international law?

A. I never heard that a court violated this principle so that there was no need to force the judges to conform to it. Mr. President, I never heard that a German court did not apply a Reich law because in the opinion of the court it was contrary to international law. I never heard of such a case. You see, it was entirely uncontested. The court, just in such a case, couldn’t do anything but through official channels call the attention of the government to this contradiction so that the government, in accordance with its obligation under international law, would see to it that the laws were changed. Let us assume the case that the Reich Supreme Court, for example, in deciding a case had come to the conclusion that a German Reich law was contrary to an obligation of the Reich under international law. Then the Reich Supreme Court was not able to say—the indictment is refused because the Reich law which supports the indictment is contrary to international law. The Reich Supreme Court could do nothing but either to postpone the trial and to report to the government so that perhaps changes would be made in time, but it was not even obliged to do that. It was obliged only if it did make a decision to decide in accordance with national law if it was contrary to the international law. That was the legal situation during the Weimar republic.

Q. That answers my question. * * * The Reich Supreme Court would in proper cases lay down the rule that the lower court judge should enforce the German law even though it violated some principle of international law for which Germany as a state might be diplomatically held responsible, is that true?

A. No, that is not quite correct. I said that the Reich Supreme Court, just the same as the other German courts, in regard to this question, did not have any doubts at all, and therefore, it did not make any rules with which the lower courts had to comply. That was not necessary at all.

Q. Then the lower courts themselves recognized this rule of which you speak that they must enforce the law of the State even though it violates a principle of international law?

A. Yes, and they only had to look at the Anschuetz commentary; that said so expressly.

Q. Well, at least prior to 1918, was there any tribunal other than the court of the state which could punish the public officer or a judge, for making a decision which was contrary to international law, if it was made in compliance with the law of the state?

A. No.

Q. If the principle enunciated among other bodies by the first tribunal, the IMT Tribunal, namely, the principle of the penal responsibility of an individual officer for violations of international law, should be applied, then you have, do you not, a modification of your principle which you have stated with reference to the necessity that judges must obey the law of the state. In other words, if that principle of penal responsibility of the individual has become a part of international law, then the anomalous situation would arise where the officer, perhaps the judge, may have been required by his state law to make a decision, but may, nevertheless, be responsible if any tribunal has jurisdiction to try him, for a decision contrary to international law. Isn’t that true?

A. If I understood your question correctly, Your Honor, the general validity of the principles of the charter as international law could, in regard to judges of those states which require that their officials apply the law of the state as the final will, bring about tragic conflicts of conscience, for which, in my opinion, there is no indubitable legal solution at all. But, Mr. President, I do not know whether I quite understand your question correctly.

Q. I do not think I will attempt to repeat it further. I understood your position. It is true, is it not, that there was no tribunal in Germany, perhaps anywhere else, which had statutory jurisdiction to apply international law in a penal proceeding against a public officer of the state who had complied with the state law?

A. Yes, that is correct.

Q. Then, if there were a tribunal that had jurisdiction to apply that law, might it not perhaps, arrive at a different decision, legally, from the decision which this court of the state itself, would arrive at; might not an international tribunal, having jurisdiction to pass upon the question, arrive at a different answer as to criminality of an individual officer who had violated international law, but had not violated the law of the state?

A. Yes, that would be so, but, Mr. President, if I may say so, that is the very thing which I call the tragic situation of the official concerned.

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E. General Development of the Administration of Justice under Hitler

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[156]

Dr. Kubuschok (counsel for defendant Schlegelberger): Witness, what is your career, your professional career in particular?

Defendant Schlegelberger: I was born in 1875. After I had finished my legal studies and had passed my doctor’s examination, I became judge in the first and second instance. In 1904 I became judge of the Lyck District Court in East Prussia. In 1909 I became assistant at the Prussian Court of Appeals, Kammergericht. In 1914 I became Kammergerichtsrat. The Kammergericht is the Court of Appeals of Berlin, the highest court in Prussia.

At the Kammergericht, I worked in several senates: in the civil senate which dealt with the ordinary cases of civil law; in the commercial senate; in the patent senate, and in the senate for voluntary jurisdiction. During that period I wrote my first scientific works in that field which dealt with the experiences I have gained in practice. In 1918, that is to say at the end of the First World War, I became assistant at the then Reich Justice Office which later on became the Reich Ministry of Justice. That agency had very little to do with administrative tasks. At that time, it only dealt with one court. It was the highest court, in fact the Reich Supreme Court in Leipzig. Apart from that, the Reich Justice Office only dealt with legislative tasks.

As an assistant, I was put in charge of legislative preparatory work in the field of commercial and economic law, and I continued to do that work when after a few months I became Geheimer Regierungsrat and Vortragsrat at the Reich Justice Office. When in 1927 I became ministerial director, I still continued to deal with the same tasks. In 1931, the only Under Secretary of the Reich Justice Office, Dr. Joel, an old gentleman—not to be confused with the defendant Joel—was appointed minister, and I took his position as Under Secretary. I retained that position when in 1932 the Bruening cabinet was replaced by the Papen cabinet, and when Guertner, who had previously been Minister of Justice of Bavaria became Reich Minister of Justice. Reich Minister Joel, as well as Reich Minister Guertner at that time dealt with penal matters themselves. I merely dealt with matters of civil law.

Only when in 1934 the Prussian Ministry of Justice was merged with the Reich Ministry of Justice, and now a vast number of administrative tasks were transferred to the Reich Ministry of Justice, then a new Under Secretary position was created, and that for penal matters. The Under Secretary of the former Prussian Ministry, Under Secretary Freisler, obtained that post. That division of tasks in civil and penal matters remained in force when on 27 January 1941 quite suddenly Reich Minister of Justice Guertner died, and I, as the most senior Under Secretary, was placed in charge of the conduct of affairs. I retained my civil cases and Freisler dealt with penal matters. I was placed in charge of the conduct of affairs of the ministry as the senior Under Secretary. I was never appointed Deputy Minister of Justice, and I never had myself called so, because that was, of course, impossible. I only was in charge of the conduct of affairs.

This picture, that is to say, that I merely acted as a representative, but that I actually dealt with the same work which I had dealt with before, that became also outwardly apparent. On purpose, I never worked in the Minister’s office; I never moved into the Minister’s home; and I drew the salary of an Under Secretary, not that of a Minister. On 20 August 1942, at my own request, I resigned.

Q. You have described your work as Under Secretary, and you have said that you worked largely in the sphere of civil law. Which were the most important tasks with which you dealt?

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A. In accordance with the particular interest which I had always had in economic matters, and in accordance with the work I had done previously, I was allotted the task of cooperating during two particularly fateful years of the German Reich in the maintenance of support of the economic life of the country. It was the stabilization and maintenance of currency: that was in 1923 because of, and until the end of, the inflation, and later on in 1933 on the occasion of the economic collapse. The inflation period was followed by the establishment of the Rentenmark currency, a new currency which replaced the paper mark. The inflation was also followed by the ordinance at which I worked, under which businessmen had to draw up a balance in gold marks, and it was also followed by the tremendous task of remonetization legislation. The collapse of the banks necessitated many discussions and consultations, and ordinances as for instance concerning rates of interest. Later, I worked on the new law concerning drafts and checks, and I may quote as my special work the two big economic laws promulgated in 1937, the law on shares and the law on patents. When in 1942 I resigned from my office, a new law on companies with limited liability was just about to be issued. At that time the general reform of civil law had been started, not immediately by way of a new codification, but by individual laws. When I left my office, the marriage law and the testament law were completed.

Q. Apart from your professional work as a judge, and later on as an official in the Ministry, did you ever engage in any scientific research work?

A. I can wholeheartedly affirm that question. Immediately after I took my state examination, I started on my first big project, and the first book of mine, which appeared in 1904, was a treatise on the law of retention; it was a work of historical nature. At that time I intended to take on a university career, but nothing came of that, because my home university, Koenigsberg, did not create a new chair for commercial and economic law. But I could not give up my literary work, and ever since then that has occupied me consistently side by side with my official work. The special fields with which I dealt were economic law and voluntary jurisdiction, that is to say the law concerning the procedure in matters concerning family, hereditary, commercial law and document regulations. In 1923 I became Honorary Professor at the University of Berlin. Naturally, I followed that call while retaining my official position, and I held lectures at the University of Berlin until the outbreak of the war. In 1925 the University of Koenigsberg conferred upon me an honorary doctor’s degree of political science.

Q. Did you also deal with foreign law?

A. Yes, foreign law, too, has occupied me intensively for a long time. Perhaps I may first mention one of my latest works, a large comparative encyclopedia, the “Manual of Comparative Civil and Commercial Law.” That book summarizes reports on civil and commercial law of all countries, written mostly by national experts, and I may say the law of the United States is dealt with by Professor Atkinson of Kansas University. This work which necessitated a tremendous amount of correspondence, brought me in touch with eminent jurists all over the world. I have deepened those contacts since 1929, because I went abroad to hold lectures, and those trips were above all to give me an opportunity to observe the effect of the law, at least in some countries, actually on the spot. I did succeed in doing so in Argentina; in Chile, where I dealt especially with banking laws, I wrote an essay on that subject; and in Brazil where I became an honorary member of the Brazilian Lawyers’ Association. I held lectures in Budapest, Madrid, Warsaw, Stockholm, Copenhagen. I should like to add that I am coeditor of the periodical “Foreign and International Private Law”, a publication of the Kaiser-Wilhelm Association; and, also coeditor of a publication on Scandinavian law.[157]

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Q. Witness, were you active in party politics?

A. No, I never joined any party; I always stayed away from politics. My life was devoted to the practical administration of justice, and to legal research. If looking back now, I should say which one of parties of the German people I fitted into, I would call myself as belonging to the right one of the progressive, conservative direction which was promoted by the German People’s Party, [Deutsche Volkspartei] and which was also represented by the German Nationalist Party [Deutsch-Nationale Volkspartei].

Q. What was your attitude towards the NSDAP and national socialism?

A. In 1933 I was approached on the subject of joining the NSDAP; I refused. My reason was, first the fact that I could not subscribe to the program of the NSDAP. Furthermore, another reason was my view that Under Secretary of justice should remain neutral even on the surface and, therefore, must not be obliged to any parties. I was never a National Socialist. It is obvious that a party program, in its manifold aspects, has many a point which one can adopt; for example, the program’s aim of bridging class differences, that is to say, the creation of a true national community; that point I welcomed heartily, but, concerning the program of the NSDAP as a whole above all, the way in which it was to be put into effect, that was far removed from my own ideas. My own conservative attitude as a human being and as a jurist accounted for that. It came as a great surprise to me when, on 30 January 1938, the Fuehrer’s Chancellery informed me in a letter, signed by Bouhler, that Hitler had ordered that I was to join and be accepted by the NSDAP. I said that that came as a great surprise to me. I myself, like other Under Secretaries who had also come from the middle classes, had never heard of that order, and it was impossible to refuse because that would not merely have meant I would have given battle not only to the Party, but the State itself. But I never departed from that view. The membership which was ordered against my will and forced upon me, I never made use of. I never attended a Party conference or meeting. Naturally, I did not hold any office in the Party either.

Perhaps the fact that I never changed my attitude is also demonstrated by the fact that neither my wife nor my sons ever belonged to the Party. My social contacts, too, as far as they were not conditioned by official affairs, moved almost exclusively within the circles of non-Party members.

Q. The Hitler order by which Schlegelberger’s membership in the Party was decreed will be submitted by me as Schlegelberger Document 34, Schlegelberger Exhibit 92,[158] as soon as the document books shall have been completed.

Witness, what effect did that attitude of yours have on your official position?

A. I always saw to it that Party members and Party functionaries were treated just like every other citizen. That played a part particularly in personnel matters. I only appointed that person to an office who, in my view, was properly qualified; and I refused to reward Party stars by appointing them to an office.

On the other hand, the attitude of the Party toward the Ministry and myself—and I shall have to come back to that later on—made great difficulties and brought about many inner conflicts.

At this moment I should like to point out the case to which the prosecution referred concerning notaries and their hostile attitude to the Party. They demonstrated it so obviously that when I came to hear of it in my official capacity I could not form a proper opinion on it. If I had tried to suppress those cases it would have been unavoidable that the Party would interfere, which definitely would have claimed that the notaries had violated their duty of allegiance toward the State and the head of the State. Perhaps the Party would have welcomed it, because such opposition would have been a welcome cause to discredit the administration of justice and to jeopardize my personnel policy, on which depended the fate of many officials.

Dr. Kubuschok: The witness has referred to the case of the notaries which, under Document NG-901, Prosecution Exhibit 436,[159] was submitted by the prosecution.

Presiding Judge Brand: What was the exhibit number?

Dr. Kubuschok: Exhibit 436.

The prosecution refers to your lecture held at Rostock University in 1936.[160] That lecture is compared as to its aim with a speech by Reich Jurist Leader Frank, and the prosecution sees in it an avowal of national socialism. Please give us some explanations about that speech.

Defendant Schlegelberger: Counsel, you have pointed out that that speech was made in 1936. Before I discuss the details about that speech I should like to say a few words as to how, at that time, one was able at all to discuss political questions in public. It wasn’t that way that, when National Socialist quarters laid down program points, one was allowed to make a frontal attack. I ignore altogether the point of personal danger that might have arisen for an opponent. I would not have fought shy of that danger, because a person who held the office which I held was in daily danger. However, such a frontal attack would have resulted in the opposite of what I wanted to achieve, that is an increase of the opposition against reasonableness.

One had to look for opportunities which one could use, and for example, the locality had something to do with that. I chose the university for the place of my speech, and that had a decisive influence on my audience. I had to see to it that the National Socialist ideas which I wished to attack were beaten with their own weapons.

The actual reason for my speech was the fact that Freisler again and again, before the public, pointed out that the Party program was enforceable like law and was at least the framework of the law. Therefore, one was obliged to carry out that program immediately and completely.

I do not think I need to enter into any details here as to what it would have meant if that doctrine had been recognized. In the practice of the judges it would have meant separation from all legal provisions; the Party program could have been applied at random everywhere. It would, so to speak, have been the roof law under the protection of which, according to the wishes of those extreme National Socialists, legal life would have developed.

It was my aim to point out that such a construction would not be necessary at all, that the existing laws would also do justice to the fact that Germany was now a state under National Socialist government. I must point out that the law adapts itself automatically to changed conditions of life and ideologies, and from that the standard and the speed of legal changes are decided.

I intended to put in the place of the revolutionary changes of law, advocated by Freisler, an evolutionary development of law. I based myself on the principle of the interior change of the legal system, a principle which, for the first time, I propounded already in 1929 in one of my works where I also elucidated that principle. That was at a time when one could really not say that I might have based my arguments on the National Socialist thought. The compromise laws, which had already been promulgated, I mentioned intentionally without evaluating them. That was how I had argued against that thesis, and I believe had refuted it. I also used the opportunity to give my views concerning other important topical questions as well. I turned against the interference with the carrying out of sentences which I considered inadmissible. Due to previous incidents, I warned the judges against currying favor with high Party officers. I appealed to the pride of the judges and the consciousness of their independence. I also found reason to turn against it that some jurists in an absolutely inconsiderate manner, placed their own egotistic endeavors in the foreground, and did not show any understanding whatsoever for the sound idea of a true people’s community.

Generally, I used a tactic which I had employed repeatedly: I committed the high Party leaders to adhere to many of their good words which they had probably spoken without reflection. I reminded them that Hitler during his first speech before the Reichstag had declared the independence of the judges as necessary. I pointed out that Frank[161] had mentioned the internal value of justice; and, that Goering, in public, had spoken against interference with the administration of justice.

Q. What was your relationship with Hitler?

A. I believe that one must distinguish between the personal and the material evaluation, and at the same time one must connect the two. I believe that Hitler, concerning my own person, had a certain measure of respect. I believe he saw in me the experienced civil servant, who was without ambitions, and who devoted himself to work and research. Concerning my sphere of work, civil law, he had not the slightest interest in it. The fact that I was unpolitical, aroused a certain amount of distrust in him; that, I suppose, explains the fact that in contrast to civil servants of the same rank, I was never offered an honorary position either in the SS or the SA. That I, in contrast to other high civil servants of the same rank, was not awarded the Golden Party Badge; and that he restricted my connection with the Party to the absolute minimum, again explains in particular, I believe, the positively brutal attack on me in the well-known Reichstag speech of 26 April 1942. The fact that I was placed in charge of affairs after the death of Guertner certainly was not a demonstration of confidence. This is how I would like to put it: It was just a makeshift solution. At that time Hitler could not yet make up his mind to appoint a new Minister of Justice. What played a certain part, perhaps, was that the chief candidate for the office, Frank, was at that time Governor General of the Government General and was not available. Thus, there was no way out, but to let the Ministry put the Under Secretary, who had seniority in the office, in charge of the Ministry. Hitler’s distrust, as far as I was concerned, was altogether justified from an objective point of view. I may say, and I wish to place special emphasis on this, that I was never fooled or influenced by Hitler’s demoniacal qualities, and I saved my own conscience, as far as he was concerned. For myself, Hitler was the declared opponent, in fact, the person who held the administration of justice in contempt. That conviction naturally placed me in a clear position. As far as it did not jeopardize my goal, I upheld my different opinion quite openly toward Hitler. That was already the state of affairs at the time of Guertner. I may say that all my life, as long as I held office, I was out to fight for justice and against arbitrariness. In the avowal of justice there was no difference between Guertner and myself. Guertner was the recognized protector of justice, but he was not a fighter. If in the development, which was slow to begin with and later became faster, he gave up his opposition in some respects, that certainly is not due to a lack of the honest will to uphold justice. Frequently he came to me for advice and assistance. But that time was overshadowed by a continuous struggle with the Reich Jurists’ Leader [Reichsjustizfuehrer] Frank. In continuous attacks, Frank tried from his position as Reich legal office leader to achieve his final goal which was to get the office of Minister of Justice and then to change the Ministry and make it into a National Socialist Ministry. That struggle can only be understood if one knew who Frank was. Frank was the legal adviser and in difficult times the defense counsel of Hitler, and, therefore, he was particularly close to him. Before 1933 even, he had been the leader and propagandist of National Socialist legal ideas. If one bears that in mind, then one sees already on the one hand, the Ministry with its expert officials, the official activities; on the other hand, the combination of National Socialist ideas on law with the aim of overrunning the Ministry. Frank recognized Guertner’s qualities; therefore, he tried by the tactics of continuously wearing him down, to achieve his aim. If one knows National Socialist methods, one knows how stubborn and tenacious such a battle was in the methods with which it was waged, and that struggle had reached its climax when Guertner died, and I took over the conduct of affairs.

Q. What was the situation at that time?

A. One gets a true idea of that situation if one forms a picture in one’s mind of those three groups or parties which were fighting against the administration of justice with the aim of conquering the administration of justice in order to destroy it. I call these fighting groups by the names of their leaders, Himmler, Bormann, Goebbels; and, in so doing I would like to emphasize that during the whole time I only talked once to each of those three men.

Himmler proceeded by different roads; the undermining of confidence in the legal administration of justice and the conquering of its competence. Attacks were being made continuously on the administration of justice in the periodical of the SS which had already been mentioned in this trial, Das Schwarze Korps [The Black Corps]. They were not content with criticizing sentences, but proceeded to defame in public the judges who had passed the sentences. Himmler collected material by sending secret observers to the court sessions. The officials of the Ministry were watched and spied upon. Anonymous secret reports, in which the Ministry was attacked, were sent out. Persons who had been acquitted by court sentences were taken into police custody. Others, who had been sentenced to a term in prison, were seized by the police, and as the administration of justice heard later, many of those persons were killed by shooting. All these things were intended and designed to undermine the confidence in the administration of justice. The administration of justice was to be discredited in public again and again as a backward and outmoded institution both as regards personnel and the subject matter. Himmler proceeded, I should like to say, with cynical frankness, on the basis of this propaganda. He deprived the Ministry of Justice of many fields of competence, and claimed for himself even many more fields of competence from the Ministry of Justice. He invoked the power of his position under Hitler and demanded that the competence for penal cases concerning Poles and Jews should be transferred to the police. His attempts to conquer the public prosecutor’s offices for the police continued until the end. It is obvious that that aim, which was placed higher and higher, by necessity would lead to the thought of whether one would not have to show that by new and more stringent measures one was in a position to overcome the criticism which Himmler used as a pretense, and thereby take the wind out of his sails.

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Q. What part did Bormann play in that struggle against the administration of justice?

A. Bormann’s work extended, above all, to personnel policy. Under the existing provisions, no ministry could appoint an official or promote him against the opposition of the Party Chancellery. The Reich Ministry of Justice always made its selection entirely on the basis of professional qualifications. Bormann, on the other hand, attached importance exclusively to the political opinion and the merits for the Party. If he objected to a suggestion made by the Ministry of Justice, and it was not possible to overcome the opposition, there was nothing else to be done at first, but to wait for a better situation perhaps, and leave the position unfilled. I experienced it myself that the position of a president of a district court of appeal remained vacant for that reason for more than a year. But it is obvious that the possibilities of such action had a certain limit. It was inadvisable to leave an unlimited number of positions vacant. And sometimes one was forced to appoint to the administration of justice personnel of only moderate qualifications, whereas persons who were better qualified were left out. Bormann knew very well how to promote Hitler’s antipathy for the administration of justice on the one hand, and on the other hand how to exploit the naturally weak and unpolitical position of the Ministry under Hitler. Hitler continuously received newspaper clippings about court proceedings and sentences. Usually, the facts were distorted, or the reports, in any case, were always inadequate. Hitler was always approached on these subjects only at a moment when for some other reason he was disgruntled and his attention had to be distracted. Those reasons very often resulted from the war situation. For Bormann, the administration of justice was the lightning conductor. The Gauleiters cooperated with him. They collected the material with great glee by getting newspaper clippings from provincial newspapers. The Gauleiter of Munich [Gau Munich-Upper Bavaria], Wagner, excelled. Every opportunity was used to discredit the administration of justice before Hitler with entirely inadequate documentation. The key to that situation lies in a statement which Goering made to me at the time the administration of justice became centralized.[162] I will revert to that later. Therefore, our main endeavor had to be to inform Hitler at the earliest possible moment, and, of course, completely and honestly. I shall have an opportunity to explain how those attempts were constantly sabotaged by Bormann.

I should like to say now that our attempt was to prevent Hitler from changing sentences after they had been passed by suggesting that the presidents of the district court of appeal should confirm the sentences whereby merely a technical, nonpolitical review would have been carried out. That attempt was intentionally brought to naught by Bormann for he realized that thereby it would have been impossible for Hitler to reopen, on the initiative of Party, trials which had been concluded.

Q. The possibility which the witness mentioned concerning the possibility of Bormann’s interference with every appointment of an official results from the decree of 10 July 1937 published in the Reichsgesetzblatt of 1937, page 769.[163] I shall submit that decree in a supplement to my document book.

Witness, concerning the evidence submitted by the prosecution, could you discuss a case which reveals such efforts being made by the Party?

A. I am able to do that. I refer to the statements made by the prosecution witness Ferber. He dealt with a case about which Guertner had frequently talked to me. That was the case against Heller in which the law against motor car traps [Gesetz ueber die Autofallen-Stellung] had been applied. For the information of the Tribunal I may say that law was promulgated on 22 June 1938. It is based on the particular initiative of Hitler.

The facts of the case were as follows: Soon after that law had been promulgated, Heller and his mistress as the riders of a driving school [sic][164] had attacked a driver and had robbed his money. While the case was being tried before the Special Court in Nuernberg in the presence of Gauleiter Streicher, and Denzler, the Gau legal office leader, Hitler appeared in Nuernberg unexpectedly. A death sentence against Heller was expected for certain. Evidently Streicher and Denzler intended to submit to Hitler in his presence a proposal for a death sentence on the basis of this new law in which Hitler was particularly interested. A telephone call was put through to the Ministry of Justice to hear an opinion on the question of clemency. Opposition was encountered there on the part of the Referent. That Referent was Ministerialrat Westphal, who was indicted here.[165] He refused to give his opinion because the legal problem which had arisen in the Heller case was being dealt with in a case before the Reich Supreme Court which was still pending and was there to be submitted for the opinion of the Reich Supreme Court judges. At that point the Party representatives became busy. Denzler reported this information to Hitler implying that Guertner obviously was sabotaging the application of this law, which Hitler himself had promoted, and he boasted that that was enough to bring about Guertner’s fall. At any rate, that interference on the part of the Party led to the fact that Hitler, following Denzler’s report, ordered the death sentence to be executed without waiting for the Ministry of Justice to give its opinion.

In Berlin, Hitler took to account the Referent Westphal in great anger for sabotaging the law, and only because Guertner acted on behalf of his own staff and only with the greatest effort was it possible to save Westphal.

Q. The Heller case which has just been mentioned begins in the transcript, page 1324, English text.[166]

What part did Goebbels play in that struggle against the administration of justice?

A. Goebbels set the machinery of propaganda to work against the administration of justice. He deluded the public by telling them that the people no longer had any confidence in the judiciary. That was a delusion for the opposite was true.

His propaganda machine not only made direct or camouflaged attacks against the judiciary in public and tried to lower their prestige, but he also tried by his art of dialectics in his speeches on the administration of justice quite deliberately to lead the judges astray and to put their consciences as judges to sleep. He coined the concept of the exigency of the State, and said that the courts, too, ought to make that their starting point. For a sentence, first of all expedience was decisive, and only later, perhaps, justice might also be considered.

Q. Goebbels’ speech before the members of the People’s Court is contained in Document NG-417, Prosecution Exhibit 23.[167]

What were the opportunities at the disposal of those power groups and which they made use of in their struggle against the administration of justice?

A. Himmler, Bormann, and Goebbels were the closest confidants of Hitler. They had access to him at any time. For him they represented the uncompromising incarnation of national socialism. He listened to them when they alleged national socialism was being endangered by the administration of justice. The entire apparatus of Party politics, police, and espionage was at their disposal. On the other hand, the Ministry of Justice was entirely isolated. Contact between the ministries, which would have strengthened its position, no longer existed.

Q. Here I would like to refer to the verdict of the IMT, English transcript, page 16963[168], and I would like to quote that passage briefly: “As to the first reason for our decision, it is to be observed that from the time that it can be said that a conspiracy to make aggressive war existed the Reich cabinet did not constitute a governing body, but was merely an aggregation of administrative officers subject to the absolute control of Hitler.”

Witness, will you continue, please?

A. In view of that situation, what could a Ministry of Justice do which was directed merely by an Under-Secretary as acting Minister who, furthermore, was not a member of the Party and whose words, naturally, did not get the same hearing as those of a Minister; a man who, as the indictment said, never attained cabinet rank? According to an express instruction by Hitler, the chief only was told those things which were necessary for him to fulfill his own task. It is evident that that instruction made possible all kinds of limitations. * * *

(Recess)

Q. Witness, before the recess we discussed the possibilities at the disposal of these power groups. Please, will you continue.

A. I ventured to point out that Hitler had given an explicit order that a chief of any office should only be instructed about that which he had to know in order to carry out his tasks. And that went very far. That situation is better explained by the fact that Minister Guertner, for instance, only found out about the euthanasia decree[169] when in reports on the situation rendered by the presidents of the district courts of appeal, a certain suspicion arose that this decree was carried out, and Guertner categorically demanded an elucidation. Whereas other ministers were authorized to listen to foreign broadcasts, that was prohibited to the Minister of Justice under threat of punishment. When I objected against this, I was told in reply that I should turn to the Ministry of Propaganda which would inform me about everything that happened.

I may point out that the opinion of the International Military Tribunal states that on account of the control over broadcasting and the press, and the propaganda machine, an independent judgment based on freedom of thought became an absolute impossibility. I, from my own experience, can only confirm that statement. A significant example is given by the following occurrence—an example showing the extent of that spy system. The Gauleiter of East Prussia had protested against the administration of justice in his district. In order to examine these complaints in 1940 or 1941—I do not know the date precisely any more—I traveled to Koenigsberg and found out that as for the reports by the president of the district court of appeal, the Gauleiter was informed about these reports sooner than I was. Based on warnings received from reliable sources, I had to expect that in the various offices of the municipality which I had to visit, special microphones had been installed for the occasion of my visit, and I could only talk with my personal Referent by driving out to the beach and picking out an isolated beach chair there in order to be able to talk to him without anybody listening to us and spying on us.

Q. The passage in the opinion of the International Military Tribunal, to which the witness referred, is contained in the English transcript on page 16,813.[170] Witness, the prosecution charges you with the fact that the Ministry of Justice was in an official contact with these offices which you have just mentioned. What can you say about this?

A. I believe that that contact is inherent in the structure of the State: the distribution of tasks to the various agencies. A cooperation with the police was certainly to a certain extent unavoidable. According to German law of criminal procedure, the prosecution is not in a position at all, without the cooperation of the police, to carry out the required investigations pending trial. If a denouncement has been received by the prosecution, the prosecution has to conduct the necessary investigation first of all. That the prosecution should do all that itself, considering the large number of things to be done, is quite impossible. The prosecution, therefore, has to turn to the local police and, for good reasons, in the German Judicature Act and the German Code for Penal Procedure, the police are designated as an auxiliary organ for the prosecution and directed to cooperate upon request of the prosecution.

Apart from the police, frequently the SD is mentioned in the trial. On the part of Hitler, the SD apart from its function within the Party had received important tasks, such as the delivery of information to various Reich agencies, and therefore even the court authorities had to refer to that source of information.

Q. In this connection, may I refer to Document NG-219, Prosecution Exhibit 42.[171] Please continue.

A. The position of the Party Chancellery, was regulated legally in a way that changes of personnel, that is to say, promotions and appointments could only take place with the cooperation on the part of the Party Chancellery. That I have already pointed out. Added to this was the fact that in 1942, the Chief of the Party Chancellery was given the position of a Reich Minister participating in legislation. It was therefore necessary to let him participate in the preparation of every law.

Q. The decree of 16 January 1942, to which reference was just made, I shall submit as Schlegelberger Document 23, Schlegelberger Exhibit 63.[172]

A. And then finally the Ministry of Propaganda. The fact that this Ministry was directed by Goebbels may cause, to a non-German’s mind, the misconception that this was a Party function. That, as I said, would be a misconception because the Ministry of Propaganda was not a Party office but a Ministry, just as the Ministry of Justice or the Ministry of Finance, or the Foreign Office, and that there was an official channel between all the ministries is a matter of course in every state. But that connection was also a necessity from the point of view of [self] defense. Only thus was it possible, at least from time to time, to guard oneself against surprises. Only thus was it possible, perhaps in the very last moment, to make successful objections.

Q. The witness referred to a provision of the Code of Penal Procedure according to which the prosecution could authorize the police to make investigations. That is article 161 of the Code of Penal Procedure. Furthermore, in this connection, article 146 of the Judicature Act has to be considered. About the importance of reports and information from the SD, I shall submit as Schlegelberger Document 92, Schlegelberger Exhibit 85, a report from the handbook for allied troops.

Witness, in your own camp, that is to say in the field of the administration of justice itself, did you have to fight against opposition?

A. That question, unfortunately, I have to confirm emphatically. First of all, and very briefly, I again have to mention Frank in this connection, the representative of the National Socialist legal ideology, who through all available channels succeeded in bringing this thought before the public. As means, he had at his disposal, first the legal publications under his influence, the National Socialist Legal Workers’ League whose president he was, and the Academy of German Law which he had created. That academy which possibly, in view of its composition, could be considered a sort of scientific institute to aid the administration of justice, evolved by Frank as a competition in order to direct the Ministry of Justice, to overrule and to discredit it with the Party. As soon as he found out, from his own information sources, that the Ministry of Justice intended to carry out reforms, he mobilized his academy immediately which on its part was to prepare plans and to publish them, and not much emphasis was placed upon their quality. But the main purpose was to demonstrate that Frank was the leader of the living young justice in opposition to the old senile machinery of justice of the State. Apart from that goal to carry out his famous thesis, “Right is that which serves the German people,” he also for personal ambitions and, last but not least, for that ambition, had intentions to take over the post of Ministry of Justice.

Q. Could you name other personalities who in that manner fought against the administration of justice?

A. From the inside, unfortunately, yes. I have not completed my statement. I am thinking of Thierack. Thierack had very close connections to Bormann. He concentrated his efforts at first on the President of the People’s Court, a position he held at the time. Behind the back of the Ministry of Justice in 1936, he arranged that Hitler make a speech before the People’s Court. As these proceedings have shown, in 1937 he had attempted to arrange another speech of that kind.

Q. The witness refers here to Document NG-209, Prosecution Exhibit 105.[173]

A. The judges of the People’s Court in this manner should be brought to understand that the People’s Court was an institution of a special nature, in closest connection to Hitler himself; and that it was only by a mistaken step that the People’s Court had been incorporated into the administrative structure of the Ministry of Justice; and concerning that administrative connection in 1938, again in all secrecy, he tried through the Chief of the Reich Chancellery, to have the presidency of the People’s Court, following the Italian example, subordinated immediately to Hitler. To my knowledge, Thierack, after he became Minister,[174] did not continue with these attempts. As I was informed from various sources, in his attempts to become Minister, he is alleged to have promised to the Party that the office of the prosecution should be turned over to the police. I shall later refer to the occurrences during the trial of the Czech Minister-President Elias; but in the end I still have to emphasize what extraordinary difficulties were made for me by the personality of Freisler.

Q. Who was Freisler?

A. Well, the witness Behl once characterized Freisler as the representative of the Party interests in the Ministry of Justice. That was correct. His career was the following: Freisler was a prisoner of war in Russia during the First World War. After the end of the war he remained in Russia for a considerable period of time. About his activities during that period of time in Russia, a veil has never been completely lifted. After he returned, he became an attorney at Kassel, mainly acting as defense counsel for National Socialists. When the Prussian Ministry of Justice was put in the hands of Minister Kerrl, the latter called the old Party member, Freisler, to the post of Under Secretary. He remained there until in 1934, on the occasion of the merger of both offices in 1934, he was transferred to the Reich Ministry of Justice. Freisler no doubt possessed a high degree of intelligence, but quite apparently he was of abnormal spiritual inclinations that ranged from extreme brutality all the way to a rather feminine weakness. After he had insulted his assistants in the worst possible manner without any reason, it would occur that soon after he came to them to ask for their forgiveness in a very servile manner. The Tribunal has actually made the acquaintance of Freisler optically and acoustically.[175] He was quite well informed about problems of criminal law, but he lacked any continuity and seriousness in his work. He was restless and imbued with a lust for power, always looking for new tasks and new problems. He was an old Party member, and he had the Golden Party Badge, but he represented that type of National Socialist who again and again fearfully vied for the favor of Hitler. Hitler definitely recognized him as a one hundred percent National Socialist, but personally did not think as much of him as Freisler would have liked. Therefrom, and from his task to supervise the Ministry from the National Socialist point of view, and from his indisputable intelligence and his expert knowledge in the field of criminal law, the dangerous qualities in his personality could be seen. He knew where he had to start in order to achieve his goals. To work with him was extremely difficult, and I may well say here that Freisler was the one, after all, who undermined the work and the strength of Guertner and contributed to his early death. And so, as far as I was concerned, my continuous attempts to restrict Freisler made it extremely difficult for me in my position. He did not stick to decisions which we had made in long debates. He made secret promises to the [Nazi] Party which, after they became apparent, restricted the Minister in his possibilities of action.

Again and again I discovered that, partly intentionally, partly out of neglect, he had failed to report to me on important occurrences. He had prohibited his ministerial directors from reporting to me directly. He wanted to do everything alone. In addition, although he did not drink much, he could not restrain himself once he started to drink, and in a condition of that kind he frequently made statements which gave an entirely wrong picture of the intentions of the Minister. Then when the disappointment came, when the agencies concerned found out that the practice of the Ministry was not according to these statements, then, of course, there were serious accusations on the part of the Party and a renewed struggle.