Chapter IX: Introduction (8)

Especially here as in all positions where the witnesses are interested in a certain presentation of conditions, we are fully conscious of the difficulties, and we know how easy it is today to find witnesses who by incriminating statements are given the chance to clear themselves. On the other hand, bearing in mind the totality of present psychological conditions it is difficult to find a person who would be prepared to stand up for truth’s sake if he were asked to do so for a person who by reason of biased evidence has been publicly defamed in such a manner that it has given rise to the fear of becoming involved in the greatest difficulties by confessing to a mere acquaintance with Rothaug. Because Rothaug’s political power position has extensively been brought in, in an attempt transparent to our eyes, to reduce the responsibility of others, he feels pressed to clarify his real relationship to his collaborators and the prosecutors within his sphere of work minutely and in its totality in its official and personal aspect irrespective of whether it concerns Rothaug’s official or unofficial statements, his alleged relationship to Streicher, Holz, and Zimmermann; his actual relationship to Haberkern, the “Blaue Traube” [Blue Grape], the mysterious “Stammtisch;” his “TeNo-Rang” [rank in Teno[81]]; his attitude toward the judicial administration, his “recording section” [Schallplattenbetrieb] in alleged spectacular proceedings; or his representation of the devil on earth. In all these matters and questions we have but one aim--To restore the truth in all its glory, for only in truth can we see the way which honorably and serenely will lead us out of this endangered vital position.

IV. GENERAL DEVELOPMENT OF GERMAN LAW DURING THE NAZI PERIOD

A. Introduction

Throughout the trial and in the judgment of the Tribunal, references were frequently made to various laws and decrees issued during Hitler’s Third Reich. Some of these laws and decrees were introduced by the prosecution, some by the defense, and some by both the prosecution and the defense. Most of these laws and decrees are relevant in connection with more than one of the principal issues of the case. Hence, with respect to laws and decrees selected for publication herein, it has often been difficult to decide where a particular law or decree should appear within the sections of this volume. To reduce the complexity of this matter, more than 30 laws and decrees have been reproduced together in the chronological order of their promulgation. (Section B, “Selected Laws and Decrees, 1933–1944.”) A number of other laws and decrees appear in the later sections of the volume. In a further effort to reduce the difficulties inherent in this situation, cross-references by way of footnotes have often been made to laws or decrees mentioned in the documents and in the testimony.

Since the main issues of the case involved the organization and administration of justice in the Third Reich, it was also thought appropriate to include early in the volume some general materials on the organization of the Reich Ministry of Justice and the German judicial system (sec. C). First appears a brief excerpt from the testimony of the defendant Mettgenberg concerning the position and responsibility of leading officials in the Reich Ministry of Justice (sec. C1). This is followed by parts of a “Basic Information” of justice (sec. C2). This “Basic Information” was submitted by the prosecution at the beginning of the trial not as evidence, but rather as an aid to the understanding of the evidence later submitted. The parts reproduced herein include a “Summary of the organization of the administration of justice in Germany” and two charts purporting to show graphically the structure of the regular and extraordinary courts and the main positions held by the defendants in the over-all administration of justice. The next following materials are all contemporaneous documents, principally laws and decrees, concerning the establishment and functioning of the Special Courts (sec. C3), the People’s Court (sec. C4), the hereditary health courts (sec. C5), and civilian courts martial (sec. C6).

These materials on the general structure and organization of the administration of justice are followed by extracts from the testimony of the defense expert witness, Professor Jahrreiss, whose testimony dealt comprehensively with the development of German law and justice from a period far antedating the Nazi regime (sec. D). This section concludes with extracts from the testimony of the defendant Schlegelberger, under secretary (Staatssekretaer) in the Reich Ministry of Justice (sec. E). In addition to giving a leading defense point of view concerning general legal developments during the Hitler regime, this testimony introduces a number of the leading figures who played a role in the administration of justice and whose names frequently arise in the later appearing documents and testimony.

B. Selected Laws and Decrees, 1933–1944

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112[82]
[Also Schlegelberger Document 91
Schlegelberger Defense Exhibit 84][83]

DECREE, 28 FEBRUARY 1933,
BY REICH PRESIDENT VON HINDENBURG, COSIGNED BY REICH CHANCELLOR
HITLER AND REICH MINISTERS FRICK AND GUERTNER, SUSPENDING
CONSTITUTIONAL RIGHTS AND INSTITUTING OTHER MEASURES[84]

1933 REICHSGESETZBLATT, PART 1, PAGE 83

Decree of the Reich President for the Protection of People and State of 28 February 1933.

Pursuant to article 48, paragraph 2 of the German constitution, the following is decreed as a defensive measure against Communist acts of violence endangering the State:

Article 1

Articles 114, 115, 117, 118, 123, 124, and 153 of the constitution of the German Reich are suspended until further notice.[85] Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association and interferences with the secrecy of postal, telegraphic, and telephonic communications, and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

[All footnote quotations from the Weimar constitution used in this volume have been taken from the translation in Select Constitutions of the World, edited by B. Shiva Rao (Mylapore, Madras, The Madras Law Journal Press, 1934), page 208 and following pages.]

Article 2

If in a state [Land] the measures necessary for the restoration of public security and order are not taken, the Reich government may temporarily take over the powers of the highest State authority.

Article 3

The authorities of the states [Laender] and local communities have to comply, within their competency, with the orders of the Reich government issued on the basis of article 2.

Article 4

Whoever disobeys the orders issued by the supreme State authorities or by the authorities subordinate to them for the implementation of this decree, or the orders issued by the Reich government in pursuance of article 2, or whoever solicits or incites others to disobey such orders, will be punished with imprisonment of not less than 1 month or a fine from 150 up to 15,000 Reichsmarks, unless other regulations make his act liable to a more severe punishment.

Whoever, by a violation of paragraph 1, induces a common danger for human life, will be punished with hard labor, or, in case of extenuating circumstances, with imprisonment of not less than 6 months, and, if the violation causes the death of a person, with death, or, in case of extenuating circumstances, with penal servitude of no less than 2 years. In addition, his property may be confiscated.

Whoever solicits or incites to commit a violation under the qualifications of paragraph 2, will be punished with hard labor or, in case of extenuating circumstances, with imprisonment of not less than 3 months.

Article 5

The crimes, which under the penal code are punishable with hard labor for life, are to be punished with death; i.e., in articles 81 (high treason), 229 (poisoning), 307 (arson), 311 (use of explosives), 312 ([intentional] flooding), 315 paragraph 2 (damaging of railroad installations), and 324 (poisoning causing public danger).

Insofar as a more severe Punishment has not been previously provided for, the following are punishable with death or with hard labor for life or with hard labor not to exceed 15 years--

1. Whoever undertakes to kill the Reich president or a member or a commissioner of the Reich government or of a state government, or solicits such a killing, or volunteers to commit it, or accepts such an offer, or conspires with another for such a killing.

2. Whoever under article 115(2) of the penal code (serious rioting) or of article 125(2) of the penal code (serious disturbance of the peace) commits the act with arms or cooperates consciously and intentionally with an armed person.

3. Anyone who deprives a person of his liberty under article 239 of the penal code with the intention of making use of the person deprived of his liberty as a hostage in the political struggle.

Article 6

This decree comes into force on the day of its promulgation.

Berlin, 28 February 1933

The Reich President
VON HINDENBURG

The Reich Chancellor
ADOLF HITLER

The Reich Minister of the Interior
FRICK

The Reich Minister of Justice
DR. GUERTNER

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
[Also Klemm Document 1.
Klemm Defense Exhibit 1.]

THE “ENABLING ACT”[86]

1933 REICHSGESETZBLATT, PART 1, PAGE 141

Law for the Solution of the Emergency of People and Reich
of 24 March 1933

The Reichstag has decreed the following law, which is hereby promulgated in agreement with the Reich Council [Reichsrat], after it has been duly established that the prerequisites of legislation changing the constitution have been fulfilled.

Article 1

Laws of the Reich can be decreed, apart from the procedure provided by the constitution of the Reich, also by the government of the Reich. This also applies to the laws mentioned in articles 85, paragraphs 2, and 87 of the constitution of the Reich.

Article 2

The laws decreed by the government of the Reich may deviate from the constitution of the Reich as far as they do not concern the institution of the Reichstag and the Reich Council [Reichsrat] as such. The rights of the Reich President remain untouched.

Article 3

The laws decreed by the government of the Reich are certified by the Reich Chancellor and promulgated in the Reichsgesetzblatt. Unless they dispose otherwise, they will come into force on the day following the promulgation. Articles 68 through 77 of the constitution of the Reich do not apply to laws decreed by the government of the Reich.

Article 4

Treaties of the Reich with foreign countries concerning subjects under Reich legislation do not require the approval of the authorities taking part in the legislation. The government of the Reich issues the ordinances which are necessary to carry into effect these treaties.

Article 5

This law comes into force on the day of its promulgation. It will become invalid on 1 April 1937; it will further become invalid if the present government of the Reich will be replaced by another one.

Berlin, 24 March 1933.

The Reich President
VON HINDENBURG

The Reich Chancellor
ADOLF HITLER

The Reich Minister of the Interior
FRICK

The Reich Foreign Minister
BARON VON NEURATH

The Reich Finance Minister
COUNT SCHWERIN VON KROSIGK

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

LAW, 7 APRIL 1933, CONCERNING ADMISSION TO THE BAR

1933 REICHSGESETZBLATT, PART 1, PAGE 188

The Reich government has enacted the following law which is promulgated herewith:

Article 1

The admission [to the bar] of attorneys who, according to the Law for the Restoration of the Professional Civil Service of 7 April 1933 (Reichsgesetzblatt, Part 1, page 175), are of non-Aryan descent, may be revoked before 30 September 1933.

The provision of paragraph 1 does not apply to attorneys who were already admitted on 1 August 1914 or who, during World War I, fought for the German Reich or her allies, or whose fathers or sons were killed in action in World War I.

Article 2

The admission to the bar can be refused to persons, who, according to the Law for the Restoration of the Professional Civil Service of 7 April 1933 (Reichsgesetzblatt, Part 1, page 175) are of non-Aryan descent, even though the reasons for this measure provided by the Attorneys’ Ordinance do not apply. The same applies to the admission, at another court, of attorneys designated in article 1, paragraph 2.

Article 3

Persons who have undertaken Communist activities are excluded from admission to the bar. Admissions already granted will be revoked.

Article 4

The administration of justice can suspend the admission of an attorney until it has been decided whether the right to revoke his admission according to article 1, paragraph 1, or article 3 will be used or not. The provisions of article 91b, paragraphs 2 through 4 of the Attorneys’ Ordinance (1933 Reichsgesetzblatt, Part 1, page 120) apply in case of a suspension.

Attorneys of the kind described in article 2, paragraph 2, can only be suspended in those cases where article 3 is applicable.

* * * * * * *

Berlin, 7 April 1933.

The Reich Chancellor
ADOLF HITLER

The Reich Minister of Justice
DR. GUERTNER

TRANSLATION OF DOCUMENT NG-1070
PROSECUTION EXHIBIT 439

LAW OF 1 DECEMBER 1933 CONCERNING SPECIAL NAZI PARTY AND STORM TROOPS’ (SA) JURISDICTION OVER MEMBERS OF THE NAZI PARTY, THE SA, AND THEIR SUBORDINATE ORGANIZATIONS[87]

_Law for the Safeguarding of Unity of Party and State decreed on
1 December 1933_

The Reich government has passed the following law, which herewith is promulgated.

Article 1

(1) Since the victory of the National Socialist revolution the National Socialist German Workers’ Party is the bearer of the German State ideology and merged with the State inseparably.

(2) It is a corporate body under public law. Its statutes are determined by the Fuehrer.

Article 2

In order to guarantee closest cooperation between Party and SA offices on the one hand and public authorities on the other hand, the deputy of the Fuehrer [Hess] and the chief of staff of the SA [Roehm] become members of the Reich government.

Article 3

(1) Because they are the leading and moving power of the National Socialist State, the members of the National Socialist German Workers’ Party and of the SA (including their subordinated organizations) have an enhanced duty toward the Fuehrer, the Nation, and the State.

(2) For violation of these duties they come under a special Party and SA jurisdiction.

(3) The Fuehrer can rule that these regulations be extended to members of other organizations.

Article 4

A violation of duty is represented by any action or omission, which affects or endangers the existence, the organization, the activities, or the reputation of the National Socialist German Workers’ Party; for members of the SA (including all organizations subordinated to it) especially every offense against discipline and order.

Article 5

In addition to the usual disciplinary penalties, terms of imprisonment and arrest can be imposed.

Article 6

Within the limits of their competence, the public authorities must render official and judicial assistance to Party and SA--offices which have been entrusted with the execution of the Party and SA jurisdiction.

Article 7

The law, concerning the right of imposing disciplinary penalties on members of the SA and SS, decreed on 28 April 1933 (Reich Law Gazette I, page 230) is repealed.

Article 8

In his capacity as leader of the National Socialist German Workers’ Party and supreme commander of the SA, the Reich Chancellor issues the necessary regulations for the carrying-out and completion of this law, especially those regarding the structure and the procedure of Party and SA jurisdiction. He determines the date on which the regulations pertaining to this jurisdiction will take effect.

Berlin, 1 December 1933

The Reich Chancellor
ADOLF HITLER

The Reich Minister of the Interior
FRICK

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

EXTRACTS FROM THE FIRST LAW FOR THE TRANSFER OF THE
ADMINISTRATION OF JUSTICE TO THE REICH,
16 FEBRUARY 1934[88]

1934 REICHSGESETZBLATT, PART 1, PAGE 91

The Reich government has enacted the following law, which is promulgated herewith:

Article 1

All courts shall pronounce sentence in the name of the German people.

Article 2

The Reich President exercises the right to quash pending proceedings, apart from his clemency prerogative.

Amnesties can only be issued by Reich law.

Article 3

Whoever has obtained the qualification to act as a judge, must be admitted to the bar in each State in pursuance of the existing Reich regulations.

* * * * *

Article 5

The Reich Minister of Justice is authorized to issue all regulations which the transfer of the administration of justice to the Reich requires.

Berlin, 16 February 1934

The Reich Chancellor
ADOLF HITLER

The Reich Minister of Justice, at the same time
for the Reich Minister of Food and Agriculture
DR. GUERTNER

The Reich Minister of the Interior
FRICK

The Reich Minister of Finance
COUNT SCHWERIN VON KROSIGK

The Reich Minister of Economics
DR. SCHMITT

The Reich Minister of Labor
FRANZ SELDTE

The Reich Minister of War
VON BLOMBERG

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

EXTRACTS FROM THE LAW, 24 APRIL 1934, AMENDING PROVISIONS
OF CRIMINAL LAW AND CRIMINAL PROCEDURE

1934 REICHSGESETZBLATT, PART 1, PAGE 341

The Reich government has enacted the following law, which is promulgated herewith: