IV. GENERAL DEVELOPMENT OF GERMAN LAW DURING THE NAZI PERIOD (continued 4)

His unstable nature brought it about that when I made objections to him he, frequently in tears, promised to better himself; but his moral strength was not sufficient to make him keep these promises for any length of time.

Of course, my position with regard to Freisler was weaker than that of Guertner. I was, indeed, in charge of the work of the Ministry, but only due to the fact that I was the senior Under Secretary; otherwise we were on the same level. The possibility of influencing him or influencing others against him, was very limited for me, all the more because my mission was not set for a certain time, but could be repealed any day. Therefore, I could only find the optimal accomplishment of my tasks in maintaining the status quo in the Ministry of Justice as it was at the time of Guertner’s death; especially if one takes into consideration as a matter of course that on the one hand the attacks from the Party became stronger, being faced with a weaker man in charge of the Ministry, and that on the other hand this weaker man was always confronted with the necessity of an increased resistance on his part.

In these proceedings here the witness, Father Wein,[176] confirmed that during the time when I was in charge of conducting the affairs, the administration of justice had not deteriorated and that only the appointment of Thierack brought about an absolute change-over. I ask you to try to understand that in that I found a justification for the work of my life under these conditions as I have described them.

Q. What did the taking over of the post of Minister by Thierack mean to you?

A. I believe I should continue at the point where the speech made by the prosecution left off. The prosecution said, “Schlegelberger had seen the storm brewing.” That is quite correct. I anticipated a storm, and I tried to prevent it. The attitude of Thierack up to that time and his close relations with Bormann did not leave any doubt as to his program, and just as I interpreted that, it came about. As soon as Thierack assumed office, a complete change-over occurred. It was not a gradual deterioration, but it was that famous construction of a strong National Socialist administration of justice as it had been ordered by Hitler. I merely point to the changes in the administration of justice and in legislation which are contained in material submitted by the prosecution. If one sees what had been demanded for a long time and which by all means was tried to achieve, if one sees how that all of a sudden now came into effect, I believe then only one can find the right measure for that which I, in a continuous struggle, had prevented or had delayed. I do not want to omit but to describe briefly the complete change in personnel policy. With the exception of the man in charge of the budget department, all ministerial directors were released by Thierack and many Referenten transferred. The entire top level of the Ministry had changed overnight. Furthermore, twenty-two presidents of district courts of appeal, eleven of them the best ones on the basis of their qualifications, and four general prosecutors were retired.

If in the dire situation of war such a unique measure is taken, one demonstrates most clearly that my dismissal and the appointment of Thierack, in the feeling of Hitler and Thierack, represent the point at which an entire new development starts. The purge measures by Thierack were extended also to the many non-Aryan judges or judges with Jewish relatives who at that time were still in service and to many officials who did not just belong to the Party.

I believe that my decision to fight until the very limit, and to stay that long in the Ministry, has found its justification. Clearly anticipating that with that new man [Thierack] chaos would start for the administration of justice, there was only one thing left to me; although the burden physically and psychologically was at times almost impossible to bear, to try and bear it, and to fight as resiliently as possible. Of course, it was clear to me, and I had to experience the fact too, that I would be beaten at times, and had to decide to make detours wherever I could take that upon my conscience.

Q. In your opinion, what was that extreme limit which could still be justified—of those which you have just mentioned?

A. If the Tribunal was good enough to follow me in the description of my life, then it will easily recognize what my work at that time meant to a man whose life was devoted to the law. At times, today, it is hard even for me to transfer myself back again into those days and to bring those days back. In a system which was worked out to the very last detail of expediency and power, there was a lonely island amidst the continuous storm in those days—that was the administration of justice. I had to experience how the storm hit again and again, and how certain sacrifices had to be made to this storm of power in order to prevent it from triumphing completely. For me, in that situation, there was only one consideration—can a measure be made compatible with the uncompromising principles of law such as I had considered them so far as a matter of course? Was not everything now only a question of power? How could I avoid that lust for power and prevent the accomplishment of these designs? What will go through regardless of my cooperation and what can I prevent without cooperation? And that deliberation led me to find that extreme limit which I have mentioned before. It was for me the final abolition of the independence of the courts. I had to try to maintain this independence at all costs. In spite of and in the face of the devilish propaganda on the part of Goebbels, I was of the firm conviction that the German courts and German judges were still in good shape. Although, now, from the large number of the many sentences, particularly of the more recent period, the prosecution may select a few in order to prove that legal principles were abandoned in the sentences. To deal with individual cases is not my task in these proceedings. A full examination of the entire field of the administration of justice would show that this conviction of mine was very well founded, and that the maintenance of the integrity of the German courts was a goal which was well worth my work and my trouble; because I was, and still am, of the opinion that the work of the courts is the most secure guaranty for the law. Therefore, I tried again and again to draw various fields within the scope of work of the courts. For instance, in the economic field, the problem of getting agriculture [farms] out of debt [Landwirtschaftliche Entschuldung], the question of hereditary and marriage health, but the basic prerequisite was that the courts had to remain independent. When, in 1937, in the German Civil Service Law, Hitler was given the right to retire any civil servant if this civil servant could not be expected at any time to fight for the National Socialist State, in my capacity as chief of the Department for Public Law at the Ministry, I had a security clause inserted for the judges; this clause provided that measures regarding the judicial civil servant could not be based on the objective contents of a judge’s decision. Once the independence of the courts was lost, the protection of the courts was lost, too. The activity of the courts could even become a danger. Therefore, I drew for myself this extreme limit for my stay in office. With the resolution of the Reichstag of 26 April 1942,[177] my struggle reached its final stage. It was not quite clear, as it appeared frequently with Hitler’s speeches whether or not his speech had attacked the administration of justice merely for tactical reasons, and whether the true objects were general ones.[178] Dr. Lammers, the Chief of the Reich Chancellery, to whom I spoke immediately after the speech about all these matters, confirmed that background to me as being the true objective of Hitler’s polemics. I had to create clarity. I wrote to Hitler a report [Fuehrerinformation] to the effect that the judges were extremely disturbed by that speech. I had explained to the judges that with all the weight of my office, I would protect every judge who acted according to his conscience and to the law. That clarified the situation as far as I was concerned. If Hitler’s speech really meant the beginning of the end of the independence of the courts, then he had to consider my statement as an open declaration of war. That was what I wanted, and I wanted to bring about a breach, in that case, on purpose.

Q. How did your dismissal come about?

A. Hitler at first did not answer that letter which I just mentioned. There was a lot of talk behind the scenes about a new appointment for the post of Minister. A few weeks later, Lammers, Chief of the Reich Chancellery, called me to him and told me that Hitler had made up his mind to appoint a new Minister of Justice, and he asked me what my attitude would be if the choice fell on Thierack. I replied that to work with Thierack was quite out of the question. Literally, I added, “I would not sit at the same table with Thierack.” Lammers replied, that was what he had thought, and for that eventuality he was instructed by Hitler to offer me another office comparable to the position I was holding. He had thought it over and was now prepared to offer me the position of President of the Reich Supreme Administrative Court. I rejected that offer and asked Lammers to inform Hitler that I would accept a new office under no circumstances, but wanted to be retired. Soon after, Lammers wrote me that I should come to his quarters at Zhitomir and receive the document concerning my retirement from office and thereafter, to report to Hitler at his headquarters at Vinnitsa in order to take my leave. That order I carried out. On that occasion, Lammers, on order from Hitler, gave me a check for 100,000 marks, which should make it easier for me to bridge the transition into retirement.

I was not happy about that donation; on the contrary, I was greatly disturbed. I got in touch with the Chief of the Presidential Chancellery, Dr. Meissner, and asked how I could avoid accepting that amount. Meissner replied that refusal was impossible, because it would mean an unfriendly act toward Hitler, and all the bad consequences would have to be accepted. Thereupon, I did not return the check and when the Russians came, that amount was still untouched in the bank. At Vinnitsa, Hitler received me. The conversation lasted about 20 minutes. Hitler told me approximately the following: He required his officials to carry out his instructions without criticism of any kind. He added, “Since you have already criticized my measures, I believe it is better if we separate.” He was referring to the report which I have already mentioned. I took advantage of that opportunity to tell Hitler with all the frankness at my disposal that an intact and independent administration of justice was a vital question for Germany; that his method to form his judgment on the basis of information received from Gauleiters, and his intention to retire judges who had done their duty, was an impossibility. The very concept of a judge required independence. People would never respect the judgment of a dependent judge as an expression of law. I added that if I had remained in office, I would have continued to protect anybody who was prosecuted unjustly.

Hitler took these statements on the whole quite calmly. Time and time again he even nodded approval; but when I touched upon the question of the independence of judges in connection with his Reichstag speech he suddenly harangued against the generals and got into a hot fury which slowly ebbed like a dying flame.

Q. The prosecution alleges that there was a conspiratorial cooperation between you and your codefendants. Will you briefly describe your relations with the codefendants?

A. As for these relations I have, in part, to answer absolutely in the negative. A number of my codefendants I have only met here. Not with a single one of the defendants here did I have any personal contact beyond official connections. These official contacts in most cases consisted of just occasional conferences required by the work.

As the defendants’ dock shows, the prosecution has selected a mere few from the large number of officials of the administration of justice. All of them, together with other colleagues, worked only in that field to which they were assigned. If one would follow the principle of conspiracy as expounded by the prosecution, the entire administration of justice since 1933 would have to be considered one organization in the meaning of the count of the indictment. And I believe that an opinion of that nature would best be rebutted by the fact that when I left the Ministry of Justice, that great change took place. That is sufficient rebuttal for the assertion of personal homogeneity of the officials and the judges.

Q. We want to depart now from personal matters and discuss the complaints made against you. The objective charges made against you begin with the centralization [Verreichlichung] of the administration of justice. Will you give us your general point of view concerning that question?

A. When the empire was founded in 1871, certain agencies of the Reich were founded as an over-all authority beyond the limits of the individual federal state. The same occurred in the field of justice. At that time, it was called the Reich Justice Office [Reichjustizamt] and, in fact, was a Reich Ministry. Later, it got that name. The Reich Justice Office had almost exclusively legislative functions. It had to deal with regulations for the administration of justice.

Once such a regulation had been passed, all states had to issue executive laws for the execution of the respective regulation. That meant that after each major Reich law had been passed, more than 20 laws had to be passed in the various states to carry out the principles of the Reich law.

What that machinery meant can be seen if one looks at the collection of these executive laws of various states. With great surprise you find that this fills two fat volumes. As for administrative tasks, the Reich Justice Office, as already mentioned, only had to take care of the Reich Supreme Court, and in the course of time, the Reich Patent Office. Here, also, the various states [Laender] had to cooperate. The selection of judges for the Reich Supreme Court required most difficult negotiations. One has to have seen that, in order to realize fully with what jealousy each individual state saw to it that these various posts were filled according to a definite key.

It could happen that a small state could not even offer an appropriate candidate for such a position at the Reich Supreme Court, but then one had to preserve the claim and register it very carefully so that the next time, they could be given it. It was just as difficult to select officials for the Ministry of Justice. That, too, required negotiations and thus it came about that, long before 1933, everywhere, the desire for a uniform administration of justice for the entire Reich was expressed. I may remind you that the witness Behl[179] has stated that even the Social Democratic Party of Germany was expressly of that same opinion.

Q. Witness, you referred to the assumption of the administration of justice by the Reich.

A. Before the recess I pointed out that the desire for a uniform, centralized administration of justice had already existed in the period prior to 1933. The Reich Minister of Justice, Guertner, worked for that idea of the centralization of the administration of justice with great energy. The fact that he as a Bavarian did so, although it is generally known how very much Bavaria was interested in a life of its own, explains best the fact that Guertner had very good reasons for doing so. As often occurs in life, by accident a circumstance arose which speeded up the execution of that idea. This is what happened:

Once when I had a conversation with Kerrl, the Minister of Justice of Prussia at that time, and visited with him the training camp for Prussian law students—a camp which has been repeatedly referred to in this trial—I said to him that it must have cost a great deal of money to set up that camp; Kerrl laughed and replied, quite frankly:

“Oh, it didn’t cost me anything. The amounts were donated by large firms, in whose cases we were very considerate about prosecuting them under penal law. Naturally, the money was not transferred to me directly, but it came to me via the Winter Relief [Winterhilfe] account. However, the Winter Relief Organization made it available to me, and with that money we built up a very decent camp, as you can see for yourself.”

I was more than disgusted when I heard about those practices he thus unveiled. I made a report to Guertner.

The right of supervision over the Ministries of Justice of the Laender, was not in the hands of the Reich Minister of Justice. Guertner and I agreed that those practices must be stopped at the earliest possible moment, all the more so since one did not know whether or not in other Laender, similar things might be happening as were happening in Prussia. One could not tell what was happening because the ministries of the Laender throughout had new men working with them concerning whose persons, in some cases, one had certain misgivings, and justified misgivings. Frank was the Minister of Justice for Bavaria, and Thierack was the Minister of Justice for Saxony.

That experience increased Guertner’s energy in carrying out his work of centralization. The basis for that work was laid down in the first and second centralization laws dated 16 February and 5 December 1934.[180]

The result of the centralization, the transfer of the tasks of the Ministries of Justice of the Laender to the Reich, was this, from the political angle: The entire administration of justice from now on lay in the hands of a minister who was not a member of the Party and who, as Minister of Justice for Bavaria, had enjoyed the confidence of all parties from the extreme right to the extreme left. I myself, who also was not a member of the Party, remained at my post. The National Socialist Ministers of Justice of the Laender lost their official positions in the administration of justice.

The opinions of the Party as to the centralization of the administration of justice is evidenced best by a statement of Goering’s, which he made to me in 1941 when, in the course of a conversation, I said to him that the Party at every opportunity made difficulties for our ministry, he said to me: “That cannot surprise you. The reason lies in the centralization of the administration of justice under the circumstances under which it was achieved. That is the reason why the Party as a group is opposed to the Reich Ministry of Justice and makes life as difficult as possible for that ministry. The Party is of the opinion that the administration of justice should again be taken over by National Socialist hands.” Goering added, “I myself will never pardon Guertner and you for the way you acted in 1934.”

Q. I shall submit Schlegelberger Document 26, Schlegelberger Exhibit 66,[181] in reference to the aforesaid statements. Will you please give us a brief description of the organization of the Reich Ministry of Justice?

A. Under the very top, that is, under the Reich Minister of Justice, there were two separate under secretariats: the under secretariat for civil law matters, the head of which was myself; the direction of the secretariat for penal law matters which was in the hands of Freisler. Further, he was in charge of the so-called organization section [Organisationreferat], the Hereditary Farm Law [Erbhofrecht] and the Inspection Office for Judicial Affairs [Justizpruefungsamt].

Under the two under secretariats there worked a total of six ministerial directors each of whom was the head of his specialized divisions. The number of these divisions and their sphere of work changed several times in the course of time.

Inside some departments, subsections had been created which were in charge of a Ministerialdirigent. The number of higher officials[182] in the Reich Ministry of Justice amounted to approximately 250. Personnel matters were divided into regions. As regards the East, I was only in charge of my own home province, East Prussia. Otherwise, I dealt with western and southern Germany, Freisler was in charge of the remaining [regions]. Freisler was in charge of the People’s Court. The Reich Supreme Court and the Reich patent office were in my charge. The two divisions, directed by Under Secretaries were entirely separate from one another. Freisler and myself had different times at which we went to report to the Minister. The Minister asked me to come to see him when Freisler had finished his report and had left the room. Only very rarely, and only when one of my officials was to be appointed to a head office in Freisler’s sphere, or vice versa, did the two of us meet at the Minister’s. If one of the under secretaries was absent, his affairs were dealt with by the Minister together with the competent ministerial director. The other under secretary did not deputize for the one who was absent.

May I cite an example? In 1938 I had to go to the hospital as a result of an accident, and at that time the Minister did not discuss the new German marriage law with Freisler, but with the head of the respective department. If the Minister were also absent, the Under Secretary, who was present in Berlin, did only a certain amount of duty for his colleague. That is to say, he was available for matters which could not possibly be postponed. In my recollection, that happened only very rarely, for this was one point over which Freisler and I were in absolute agreement. Neither had the wish to meddle with the other’s affairs.

Furthermore, Freisler when he went on a business trip or when he went away for the summer holidays was practically always in contact with Berlin. Therefore, he told Dr. Guertner that a deputy for which I was the only possible candidate was neither necessary nor desirable. It did happen that when the Minister did not feel well and left the office earlier, he asked me by telephone to sign and to dispatch letters which he had already signed in draft form. Now and then that could have concerned matters which fell into Freisler’s sphere when Freisler could not be reached.

I should like to cite as example the letter which the prosecution submitted about the fight against political Catholicism. Concerning details accompanying that letter, I know nothing about this. In particular, I do not know what particular pressure was exercised or what instructions Hitler had issued in virtue of his right to lay down the directives of policy but I should like on this occasion to say something about what was the practice of the Ministry in regard to church affairs. I should like to point out what the witness for the prosecution, the Catholic Priest, Schosser, testified here on 9 May. According to his testimony, the Ministry refused on the occasion of a church funeral for Poles to take steps against the Catholic clergymen.

Dr. Kubuschok: The letter which you have mentioned is Document NG-630, Prosecution Exhibit 428.[183] The examination which you mentioned here of Father Schosser is on page 3021 in the English transcript.[184]

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