FOOTNOTES:

FOOTNOTES:[1]Although the subject material in many of the cases overlaps, it was believed that this arrangement of the cases would be most helpful to the reader and the most feasible for publication purposes.[2]See protocol p. XVIII for correction of this paragraph.[3]Judge Harding’s middle name was correctly used as “Woodward” in General Orders No. 52, OMGUS, 21 June 1947. See section VII, opinion and judgment.[4]Id.[5]The order constituting the Tribunal and designating the judges, General Orders No. 11, 14 February 1947, is reproduced on page 7. Because of illness, Judge Marshall was obliged to retire from the case after the trial was under way. Thereupon, Judge Brand succeeded Judge Marshall as Presiding Judge and, pursuant to Article II, paragraphs (b) and (f) of Military Government Ordinance No. 7, Judge Harding became a full member of the Tribunal. The text of General Order No. 52, OMGUS, 21 June 1947, is quoted in the opinion and judgment, (sec. VII). The final order of the Military Governor providing for these changes in the constitution of the Tribunal is reproduced on page 8.[6]A “Staatssekretaer” is approximately the equivalent of an under secretary in one of the executive departments of the United States Government. During the trial “Staatssekretaer” was translated synonymously as State Secretary or Under Secretary.[7]This caption, with the necessary factual changes, appeared at the top of the first page of the transcript for each day of the proceedings. Hereinafter it will be omitted from all extracts from the transcript.[8]The defendant Westphal committed suicide in the Nuernberg prison adjacent to the Palace of Justice where the trials were held.[9]Tr. pp. 34–137, 5 March 1947.[10]Trial of the Major War Criminals, Nuremberg, 1947, volume I, page 181.[11]These two charts are reproduced below in section IV C 2.[12]Later nine more were formed in Austria, Danzig, Poland, Sudetenland, and Bohemia, making 35 in all.[13]Hitler’s speech to the Reichstag 13 July 1934, Voelkischer Beobachter, 15 July 1934.[14]Voelkischer Beobachter, 27 August 1930.[15]Deutsche Allgemaine Zeitung, 28 November 1934.[16]Speech before the NSDAP congress, 14 September 1935; Dokumente der Deutschen Politik, volume 3, page 315.[17]A Nation Beholds Its Rightful Law, lecture at the University of Rostock, 13 February 1936.[18]Trial of the Major War Criminals, op. cit., page 179.[19]1933 Reichsgesetzblatt I, 175. This decree is one of over 40 laws and decrees collected by the prosecution and introduced as Document NG-715, Prosecution Exhibit 112. Most of these are reproduced chronologically in section IV B below. See footnote 1, page 160.[20]26 January 1937, Reichsgesetzblatt I, 39, 71.[21]Decree of the Reich President for Protection against Insidious Attacks on the Government of the Nationalist Movement of 21 March 1933, Reichsgesetzblatt I, page 135.[22]15 September 1935; Reichsgesetzblatt I, page 1146.[23]17 August 1938; 1939 Reichsgesetzblatt I, page 1455.[24]28 June 1935; 1935 Reichsgesetzblatt I, page 839.[25]28 June 1935; 1935 Reichsgesetzblatt I, page 844.[26]Speech before the NSDAP Congress, op. cit., page 315.[27]Speech before members of People’s Court, 22 July 1942; reproduced below in section V C 2a.[28]Reproduced below in section V C 1a.[29]6 May 1940, Reichsgesetzblatt I, page 754.[30]16 September 1939, Reichsgesetzblatt I, page 1841.[31]Decree of 21 February 1940, Reichsgesetzblatt I, page 407.[32]Decree of 13 August 1942, Reichsgesetzblatt I, page 508.[33]Decree of 1 September 1939, Reichsgesetzblatt I, page 1658.[34]Extracted from Voelkischer Beobachter, 27 April 1942; reproduced below in section V C 2a.[35]Resolution of the Greater German Reichstag, 26 April 1942, “Deutsche Justiz,” 1942, page 283.[36]20 August 1942, 1942 Reichsgesetzblatt, page 535.[37]Periodical of Academy for German Law, 1 September 1942, page 44.[38]Decree on Courts Martial Procedure, 15 February 1945, Reichsgesetzblatt I, page 30.[39]Reproduced below in section V C 3 a.[40]Complete text of the Moscow Declaration is reproduced in the preface pages of this volume. See table of contents.[41]Complete text of Ordinance No. 7 is reproduced in the preface pages of this volume. See table of contents.[42]Trial of the Major War Criminals,op. cit., page 253.[43]Ibid., pages 253–255.[44]Complete text of Control Council Law No. 10 is reproduced in the preface pages of this volume. See table of contents.[45]Trial of the Major War Criminals,op. cit., page 304.[46]Ibid., p. 318.[47]Ibid., pages 318–319.[48]United Statesvs.Holt, 108 F. 2d 365 (C.C.A., 7th, 1939).[49]Reproduced below in section V D 2.[50]Trial of the Major War Criminals,op. cit., pages 232 and 233.[51]Rudolf Lehmann was a defendant in Case 12, the “High Command Case.” He was convicted and sentenced to 7 years’ imprisonment. See volumes X and XI, this series.[52]Ibid., p. 271.[53]1943. Reichsgesetzblatt I, p. 372.[54]Reproduced below in section V E.[55]Reproduced below in section V C 3 b.[56]Wigmore, John Henry,A Treatise on the Anglo-American System of Evidence in Trials at Common Law(Wigmore on Evidence), (Little, Brown & Co., Boston, 1940), 3d Ed., vol. II, p. 206.[57]Ibid., sec. 363, p. 274.[58]Ibid., p. 275.[59]Ibid.[60]Ibid., p. 275–276.[61]Ibid., p. 287.[62]The Volkszeitung of Reuss, 16 March 1931.[63]Deutscher Juristentag, 30 May 1933, pp. 7 and 8.[64]Deutsche Justiz, 1941, p. 441.[65]Ibid., p. 839.[66]Preussisches Justizministerialblatt, 24 April 1933 (I 9474), p. 130.[67]Decree concerning Community Life of Undergraduates of Law (referendare) admitted to the Second State Examination, Preussisches Justizministerialblatt, (I 10136) 29 June 1933, p. 210.[68]Trial of the Major War Criminals,op. cit., pp. 255–257.[69]Ibid., pp. 270–273.[70]Ibid., pp. 258–261.[71]This general opening statement by Dr. Kubuschok was made, as noted by the Tribunal, “in behalf of all of the defendants.” (Tr. p. 4055.) Both this statement (Tr. pp. 4057–4083) and those on behalf of each defendant (Tr. pp. 4084–4221) were delivered on 23 and 24 June 1947.[72]Professor Jahrreiss appeared as a defense witness on 25 and 26 June 1947. Extracts from his testimony are reproduced below in section IV D. Dr. Niethammer did not appear as a witness.[73]Tr. pp. 4084–4089.[74]The general opening statement on behalf of all defendants is reproduced immediately above, section III B.[75]Tr. pp. 4090–4106.[76]Tr. pp. 4106–4119.[77]Transcript pages 4120–4124.[78]Tr. pp. 4138–4140.[79]Document is reproduced below in section V D 3.[80]Tr. pp. 4141–4148.[81]Technische Nothilfe, Technical Emergency Corps.[82]The prosecution collected over forty different laws, decrees, extracts from the Weimar constitution, or German legal writings in Document NG-715 and introduced these in one document book as Prosecution Exhibit 112. Numerous decrees and laws from Document NG-715 are reproduced in this and later sections of this volume. Therefore, where a particular law or decree is reproduced in different parts of this volume under the heading “Partial Translation of Document NG-715,” this does not necessarily mean that only extracts from that law or decree are reproduced. It merely means that only a part of Document NG-715, which in fact contained many different “documents,” is reproduced at that point.[83]The defense often included all or parts of documents in their document books which had previously been introduced as exhibits by the prosecution. This was not necessary, of course, in order to give the defense the benefit of materials contained in prosecution exhibits, but it was apparently done to bring together in one place (the defense document books) the documentary materials upon which the defendant principally relied. In this volume the editors have occasionally noted the designation of documents as both prosecution and defense exhibits.[84]During the early period of the Nazi regime, this decree served as the basis for numerous “restrictions on personal freedom,” including the placing of persons in “protective custody” without trial. For example, see the Goering decree concerning the Secret State Police (Gestapo) of 11 March 1934, (Klemm Doc. 28, Klemm Ex. 28), reproduced below in section V B. See also Document NG-478, Prosecution Exhibit 61, in section C-3.[85]These articles, contained in part II (“Fundamental Rights and Duties of Germans”) of the Weimar constitution, read:“Article 114. Personal liberty is inviolable. No encroachment on or deprivation of personal liberty by any public authority is permissible except in virtue of a law.“Persons, who have been deprived of their liberty, shall be informed—at the latest on the following day—by what authority and on what grounds the deprivation of liberty has been ordered; opportunity shall be given them without delay to make legal complaint against such deprivation.“Article 115. The residence of every German is an inviolable sanctuary for him; exceptions are admissible only in virtue of laws.*******“Article 117. The secrecy of correspondence and of the postal, telegraph, and telephone services is inviolable. Exceptions may be permitted only by law of the Reich.“Article 118. Every German has the right, within the limits of general laws, to express his opinion freely, by word of mouth, writing, printed matter or picture, or any other manner. This right must not be affected by any conditions of his work or appointment, and no one is permitted to injure him on account of his making use of such rights.“No censorship shall be enforced, but restrictive regulations may be introduced by law in reference to cinematograph entertainments. Legal measures are also admissible for the purpose of combating bad and obscene literature, as well as for the protection of youth in public exhibitions and performances.*******“Article 123. All Germans have the right without notification or special permission to assemble peaceably and unarmed.“Open-air meetings may be made notifiable by a law of the Reich, and in case of direct danger to public security may be forbidden.“Article 124. All Germans have the right to form unions and associations for purposes not in contravention of the penal laws. This right may not be restricted by preventive regulations. The same provisions apply to religious unions and associations.“Every union is at liberty to acquire legal rights in accordance with the provisions of the Civil Code. These rights shall not be refused to a union on the ground that its objects are of political, social-political, or religious nature.*******“Article 153. Property is guaranteed by the constitution. Its extent and the restrictions placed upon it are defined by law.“Expropriation may be effected only for the benefit of the general community and upon the basis of law. It shall be accompanied by due compensation, save insofar as may be otherwise provided by a law of the Reich. In case of dispute as to the amount of compensation, resort may be had to legal proceedings in the ordinary course, unless a law of the Reich otherwise determines. Property of the states, local authorities, and public utility associations may be expropriated by the Reich only on payment of compensation.“The ownership of property entails obligations. Its use must at the same time serve the common good.”[86]This act became known as the “Enabling Act” because it authorized Hitler and his government to alter the statutory law and even the constitution of Germany without the participation or consent of the legislative bodies. See the testimony of the expert witness for the defense, Professor Jahrreiss, section D, below.[87]This law repealed an earlier law of 28 April 1933 creating a special basis for imposing disciplinary penalties on members of the SA and the SS.[88]Before the reorganization of the German judicial system by the Hitler regime, the administration of justice was largely the function of the separate German states (Laender) making up the Reich.[89]For more extensive evidence from the record concerning treason and related matters, see section V E, below.[90]This part is reproduced below on page 231.[91]The full text of this law was submitted in evidence as Schlegelberger Document 26, Schlegelberger Defense Exhibit 66. The parts of the law not reproduced here deal with arrangements for the further transfer of the administration of justice from the individual German states (Laender) to the Reich.[92]Article 2 of the penal code prior to the above amendment was as follows:“For no act may punishment be imposed unless such punishment is prescribed by statute before the act is committed. In the event of any change in the statute between the time of commission of an act and the time of rendering a decision, the most lenient statute shall apply.”[93]This law and the Reich citizenship law of the same date constitute the original “Nuernberg Laws,” so-called because both were issued in Nuernberg “at the Reich Party Congress for Freedom.” The Reich citizenship law (1935 Reichsgesetzblatt, Part I, page 1146), was signed by Hitler and Frick, the Reich Minister of Interior. The text of this law reads as follows:“The Reichstag has unanimously decided on the following law, which is herewith promulgated:“1. (1) A citizen [Staatsangehoeriger] is one who belongs to the protective association of the German Reich and owes allegiance to it. (2) Citizenship can also be obtained according to regulations of the Reich and State citizenship law.“2. (1) A Reich citizen [Reichsbuerger] is only a citizen of German or related blood, who proves through his behaviour, that he is willing and fit to serve the German people and Reich faithfully. (2) Reich citizenship [Reichsbuergerrecht] will be obtained through the award of a Reich citizenship letter. (3) The Reich citizen is the sole bearer of full political rights to the extent of the law.“3. The Reich Minister of the Interior decrees in collaboration with the deputy of the Fuehrer those legal and administrative regulations necessary for the execution and supplementation of this law.”[94]A number of further decrees as well as other materials concerning the application of the “Nuernberg Laws” in the Incorporated Eastern Territories (Poland), are reproduced below in section V D 2.[95]This extract is taken from Prof. Arthur Brand’s book,The German Civil Service Law, Berlin, 1937, p. 123. The book contains the law with extensive annotations and commentaries, as well as further regulations on the law.[96]Note that the decree is dated 17 August 1938, at which time it was signed by Hitler and Keitel. It was not promulgated in the Reichsgesetzblatt, however, until 26 August 1939. The decree had no general preamble. The earlier articles are entitled: “1. Substantive law;” “2. Espionage;” “3. Guerrilla warfare;” and “4. Acts contrary to decrees issued by the commanders in occupied foreign territory.”[97]Materials concerning the application of the law of “undermining of military efficiency” are reproduced below in section V-E.[98]This decree was not published in the Reichsgesetzblatt. It was taken from a letter of 9 September 1939 from Meissner, chief of the Presidential Chancellery, transmitting this decree to the chief of the Reich Chancellery and to the chief of the Chancellery of the Fuehrer of the Nazi Party.[99]Material concerning the application of laws on “public enemies” is reproduced below in section V E.[100]For other decrees concerning the establishment and jurisdiction of “Special Courts,” see section C 3 below.[101]Article 1 of this decree was also introduced as a part of Document NG-715, Prosecution Exhibit 112. This decree and a decree of 15 July 1942 extending the jurisdiction of SS courts into Bohemia and Moravia (reproduced later in this section as another part of Document NG-715, Prosecution Exhibit 112) were the subject of questions put to the defendant Schlegelberger by Judge Harding. This testimony is reproduced below in section V D 3.[102]The SS Death Head units were in charge of the concentration camps.[103]Material concerning the application of the laws on “public enemies” are reproduced below in section V E.[104]The Reich Citizenship Law and the Law for the Protection of German Blood and Honor, both announced in Nuernberg on 15 September 1939, were the basic parts of the so-called “Nuernberg Laws.” See the Law for the Protection of German Blood and Honor, reproduced earlier in this section also as a part of Document NG-715, Prosecution Exhibit 112. Further decrees and other materials concerning Jews are reproduced below in section V D 2.[105]The reference is to Hitler’s speech to the Reichstag on the same day, 26 April 1942. Extracts from this speech (Doc. NG-752, Pros. Ex. 24) are reproduced below in section V C 2a.[106]The decree of 17 October 1939 establishing special jurisdiction in criminal proceedings against members of the SS and members of police formations on special tasks, (Klemm Doc. 29, Klemm Ex. 29), is reproduced earlier in this section.[107]Thierack at this time had just been appointed Reich Minister of Justice. From late January 1941 until the middle of August 1942, the defendant Schlegelberger had been acting Reich Minister of Justice. Evidence concerning developments in the administration of justice while Thierack was Reich Minister are reproduced below in section V C3.[108]Martin Bormann, triedin absentiaand sentenced to death by the International Military Tribunal. See Trial of the Major War Criminals,op. cit., volume I, page 367.[109]Reproduced on page 184 as a part of Document NG-715, Prosecution Exhibit 112.[110]Reproduced on page 207 as a part of Document NG-715, Prosecution Exhibit 112.[111]At this time the defendant Klemm was one of several Under Secretaries (Staatssekretaere) in the Reich Ministry of Justice.[112]Reproduced on page 207 as a part of Doc. NG-715, Pros. Ex. 112.[113]Complete testimony is recorded in the mimeographed transcript, (31 July, 1 Aug. 1947), pages 6235–6271; 6274–6362.[114]Defendant Mettgenberg later testified that in department III of the Ministry of Justice he held the position of “Referent for legislation in the field of international penal law” and that in department IV he was “a subdepartment chief in charge of a sphere of work which, above all, also concerned affairs of international penal law” (Tr. p. 6251).[115]For various periods of time under the Hitler regime, over half of the defendants held one or more of the various titles and positions which the defendant Mettgenberg here proceeds to describe. For example, the defendant Joel was a Referent and later a ministerial counsellor; the defendants von Ammon and Westphal were ministerial counsellors; the defendant Mettgenberg himself was a Ministerialdirigent; the defendants Altstoetter and Engert were ministerial directors; and the defendants Schlegelberger, Klemm and Rothenberger were Under Secretaries. Only two persons held the position of Reich Minister of Justice during the Hitler regime, Guertner and Thierack, both of whom were dead by the time of the trial. The defendant Schlegelberger was acting Reich Minister of Justice between the death of Guertner in January 1941 and Thierack’s appointment as Minister in August 1942.[116]This summary and the following two charts are part of the “Basic Information” submitted by the prosecution at the beginning of the case as an aid to the understanding of the evidence to be later submitted.[117]This decree is reproduced on p. 218.[118]This decree is reproduced on p. 231.[119]For further information on this subject, see contemporaneous documents below in section C5.[120]The decree on court martial procedure is reproduced below in section C6.[121]A much enlarged copy of this chart was displayed in the courtroom during several sessions of the trial as a visual aid in argument and in the presentation of evidence.[122]A number of the contemporaneous documents reproduced later in this volume deal with trials held before Special Courts. Among the specific cases treated herein are the Katzenberger case (Doc. NG-270, Pros. Ex. 155, and Doc. NG-154, Pros. Ex. 152), reproduced in part below in section V D2; the Kaminska-Wdowen case (Doc. NG-457, Pros. Ex. 201) reproduced in part below in section V D2; and the Father Schosser case (Doc. NG-1808, Pros. Ex. 557) reproduced in part below in section V F.[123]This law is reproduced on p. 173.[124]This decree is reproduced on p. 185.[125]This decree is reproduced on p. 187.[126]This decree is reproduced on p. 188.[127]These decrees, dated 5 September, 4 September, 6 December, and 1 September 1939, respectively, are reproduced in section B, above.[128]This decree is reproduced on p. 218.[129]This decree, dated 28 February 1933, is reproduced on p. 160.[130]This decree, dated 20 December 1934, is reproduced on p. 173 under the title,Law on Insidious Acts against State and for the Protection of Party Uniforms.[131]A number of the contemporaneous documents reproduced later in this volume deal with trials held before senates of the People’s Court. Among the specific cases treated herein are the Stenfanowicz-Lenczewski case (Doc. NG-351, Pros. Ex. 132), reproduced below in section V D 2; the Bratek case (Doc. NG-595, Pros. Ex. 136), reproduced in part below in section V E; the Beck case (Doc. NG-381, Pros. Ex. 159), reproduced in part below in section V E; and the Paschen case (Doc. NG-546, Pros. Ex. 141), reproduced below in section V E.[132]The law of 24 April 1934 consists of three chapters or parts (each divided into several articles and sections). Chapter I broadened and redefined the concepts of high treason and treason, according to National Socialist principles by amended articles 80–93 of the Reich criminal code. Chapter I is reproduced in part above in section B, Selected Laws and Decrees. Chapter III of the law, reproduced here, established a special judicial machinery to deal with high treason and treason as newly defined in chapters I and II. Materials on the application and interpretation of these provisions on treason and high treason are reproduced below in section V E.[133]This decree is reproduced on p. 160.

[1]Although the subject material in many of the cases overlaps, it was believed that this arrangement of the cases would be most helpful to the reader and the most feasible for publication purposes.

[2]See protocol p. XVIII for correction of this paragraph.

[3]Judge Harding’s middle name was correctly used as “Woodward” in General Orders No. 52, OMGUS, 21 June 1947. See section VII, opinion and judgment.

[4]Id.

[5]The order constituting the Tribunal and designating the judges, General Orders No. 11, 14 February 1947, is reproduced on page 7. Because of illness, Judge Marshall was obliged to retire from the case after the trial was under way. Thereupon, Judge Brand succeeded Judge Marshall as Presiding Judge and, pursuant to Article II, paragraphs (b) and (f) of Military Government Ordinance No. 7, Judge Harding became a full member of the Tribunal. The text of General Order No. 52, OMGUS, 21 June 1947, is quoted in the opinion and judgment, (sec. VII). The final order of the Military Governor providing for these changes in the constitution of the Tribunal is reproduced on page 8.

[6]A “Staatssekretaer” is approximately the equivalent of an under secretary in one of the executive departments of the United States Government. During the trial “Staatssekretaer” was translated synonymously as State Secretary or Under Secretary.

[7]This caption, with the necessary factual changes, appeared at the top of the first page of the transcript for each day of the proceedings. Hereinafter it will be omitted from all extracts from the transcript.

[8]The defendant Westphal committed suicide in the Nuernberg prison adjacent to the Palace of Justice where the trials were held.

[9]Tr. pp. 34–137, 5 March 1947.

[10]Trial of the Major War Criminals, Nuremberg, 1947, volume I, page 181.

[11]These two charts are reproduced below in section IV C 2.

[12]Later nine more were formed in Austria, Danzig, Poland, Sudetenland, and Bohemia, making 35 in all.

[13]Hitler’s speech to the Reichstag 13 July 1934, Voelkischer Beobachter, 15 July 1934.

[14]Voelkischer Beobachter, 27 August 1930.

[15]Deutsche Allgemaine Zeitung, 28 November 1934.

[16]Speech before the NSDAP congress, 14 September 1935; Dokumente der Deutschen Politik, volume 3, page 315.

[17]A Nation Beholds Its Rightful Law, lecture at the University of Rostock, 13 February 1936.

[18]Trial of the Major War Criminals, op. cit., page 179.

[19]1933 Reichsgesetzblatt I, 175. This decree is one of over 40 laws and decrees collected by the prosecution and introduced as Document NG-715, Prosecution Exhibit 112. Most of these are reproduced chronologically in section IV B below. See footnote 1, page 160.

[20]26 January 1937, Reichsgesetzblatt I, 39, 71.

[21]Decree of the Reich President for Protection against Insidious Attacks on the Government of the Nationalist Movement of 21 March 1933, Reichsgesetzblatt I, page 135.

[22]15 September 1935; Reichsgesetzblatt I, page 1146.

[23]17 August 1938; 1939 Reichsgesetzblatt I, page 1455.

[24]28 June 1935; 1935 Reichsgesetzblatt I, page 839.

[25]28 June 1935; 1935 Reichsgesetzblatt I, page 844.

[26]Speech before the NSDAP Congress, op. cit., page 315.

[27]Speech before members of People’s Court, 22 July 1942; reproduced below in section V C 2a.

[28]Reproduced below in section V C 1a.

[29]6 May 1940, Reichsgesetzblatt I, page 754.

[30]16 September 1939, Reichsgesetzblatt I, page 1841.

[31]Decree of 21 February 1940, Reichsgesetzblatt I, page 407.

[32]Decree of 13 August 1942, Reichsgesetzblatt I, page 508.

[33]Decree of 1 September 1939, Reichsgesetzblatt I, page 1658.

[34]Extracted from Voelkischer Beobachter, 27 April 1942; reproduced below in section V C 2a.

[35]Resolution of the Greater German Reichstag, 26 April 1942, “Deutsche Justiz,” 1942, page 283.

[36]20 August 1942, 1942 Reichsgesetzblatt, page 535.

[37]Periodical of Academy for German Law, 1 September 1942, page 44.

[38]Decree on Courts Martial Procedure, 15 February 1945, Reichsgesetzblatt I, page 30.

[39]Reproduced below in section V C 3 a.

[40]Complete text of the Moscow Declaration is reproduced in the preface pages of this volume. See table of contents.

[41]Complete text of Ordinance No. 7 is reproduced in the preface pages of this volume. See table of contents.

[42]Trial of the Major War Criminals,op. cit., page 253.

[43]Ibid., pages 253–255.

[44]Complete text of Control Council Law No. 10 is reproduced in the preface pages of this volume. See table of contents.

[45]Trial of the Major War Criminals,op. cit., page 304.

[46]Ibid., p. 318.

[47]Ibid., pages 318–319.

[48]United Statesvs.Holt, 108 F. 2d 365 (C.C.A., 7th, 1939).

[49]Reproduced below in section V D 2.

[50]Trial of the Major War Criminals,op. cit., pages 232 and 233.

[51]Rudolf Lehmann was a defendant in Case 12, the “High Command Case.” He was convicted and sentenced to 7 years’ imprisonment. See volumes X and XI, this series.

[52]Ibid., p. 271.

[53]1943. Reichsgesetzblatt I, p. 372.

[54]Reproduced below in section V E.

[55]Reproduced below in section V C 3 b.

[56]Wigmore, John Henry,A Treatise on the Anglo-American System of Evidence in Trials at Common Law(Wigmore on Evidence), (Little, Brown & Co., Boston, 1940), 3d Ed., vol. II, p. 206.

[57]Ibid., sec. 363, p. 274.

[58]Ibid., p. 275.

[59]Ibid.

[60]Ibid., p. 275–276.

[61]Ibid., p. 287.

[62]The Volkszeitung of Reuss, 16 March 1931.

[63]Deutscher Juristentag, 30 May 1933, pp. 7 and 8.

[64]Deutsche Justiz, 1941, p. 441.

[65]Ibid., p. 839.

[66]Preussisches Justizministerialblatt, 24 April 1933 (I 9474), p. 130.

[67]Decree concerning Community Life of Undergraduates of Law (referendare) admitted to the Second State Examination, Preussisches Justizministerialblatt, (I 10136) 29 June 1933, p. 210.

[68]Trial of the Major War Criminals,op. cit., pp. 255–257.

[69]Ibid., pp. 270–273.

[70]Ibid., pp. 258–261.

[71]This general opening statement by Dr. Kubuschok was made, as noted by the Tribunal, “in behalf of all of the defendants.” (Tr. p. 4055.) Both this statement (Tr. pp. 4057–4083) and those on behalf of each defendant (Tr. pp. 4084–4221) were delivered on 23 and 24 June 1947.

[72]Professor Jahrreiss appeared as a defense witness on 25 and 26 June 1947. Extracts from his testimony are reproduced below in section IV D. Dr. Niethammer did not appear as a witness.

[73]Tr. pp. 4084–4089.

[74]The general opening statement on behalf of all defendants is reproduced immediately above, section III B.

[75]Tr. pp. 4090–4106.

[76]Tr. pp. 4106–4119.

[77]Transcript pages 4120–4124.

[78]Tr. pp. 4138–4140.

[79]Document is reproduced below in section V D 3.

[80]Tr. pp. 4141–4148.

[81]Technische Nothilfe, Technical Emergency Corps.

[82]The prosecution collected over forty different laws, decrees, extracts from the Weimar constitution, or German legal writings in Document NG-715 and introduced these in one document book as Prosecution Exhibit 112. Numerous decrees and laws from Document NG-715 are reproduced in this and later sections of this volume. Therefore, where a particular law or decree is reproduced in different parts of this volume under the heading “Partial Translation of Document NG-715,” this does not necessarily mean that only extracts from that law or decree are reproduced. It merely means that only a part of Document NG-715, which in fact contained many different “documents,” is reproduced at that point.

[83]The defense often included all or parts of documents in their document books which had previously been introduced as exhibits by the prosecution. This was not necessary, of course, in order to give the defense the benefit of materials contained in prosecution exhibits, but it was apparently done to bring together in one place (the defense document books) the documentary materials upon which the defendant principally relied. In this volume the editors have occasionally noted the designation of documents as both prosecution and defense exhibits.

[84]During the early period of the Nazi regime, this decree served as the basis for numerous “restrictions on personal freedom,” including the placing of persons in “protective custody” without trial. For example, see the Goering decree concerning the Secret State Police (Gestapo) of 11 March 1934, (Klemm Doc. 28, Klemm Ex. 28), reproduced below in section V B. See also Document NG-478, Prosecution Exhibit 61, in section C-3.

[85]These articles, contained in part II (“Fundamental Rights and Duties of Germans”) of the Weimar constitution, read:“Article 114. Personal liberty is inviolable. No encroachment on or deprivation of personal liberty by any public authority is permissible except in virtue of a law.“Persons, who have been deprived of their liberty, shall be informed—at the latest on the following day—by what authority and on what grounds the deprivation of liberty has been ordered; opportunity shall be given them without delay to make legal complaint against such deprivation.“Article 115. The residence of every German is an inviolable sanctuary for him; exceptions are admissible only in virtue of laws.*******“Article 117. The secrecy of correspondence and of the postal, telegraph, and telephone services is inviolable. Exceptions may be permitted only by law of the Reich.“Article 118. Every German has the right, within the limits of general laws, to express his opinion freely, by word of mouth, writing, printed matter or picture, or any other manner. This right must not be affected by any conditions of his work or appointment, and no one is permitted to injure him on account of his making use of such rights.“No censorship shall be enforced, but restrictive regulations may be introduced by law in reference to cinematograph entertainments. Legal measures are also admissible for the purpose of combating bad and obscene literature, as well as for the protection of youth in public exhibitions and performances.*******“Article 123. All Germans have the right without notification or special permission to assemble peaceably and unarmed.“Open-air meetings may be made notifiable by a law of the Reich, and in case of direct danger to public security may be forbidden.“Article 124. All Germans have the right to form unions and associations for purposes not in contravention of the penal laws. This right may not be restricted by preventive regulations. The same provisions apply to religious unions and associations.“Every union is at liberty to acquire legal rights in accordance with the provisions of the Civil Code. These rights shall not be refused to a union on the ground that its objects are of political, social-political, or religious nature.*******“Article 153. Property is guaranteed by the constitution. Its extent and the restrictions placed upon it are defined by law.“Expropriation may be effected only for the benefit of the general community and upon the basis of law. It shall be accompanied by due compensation, save insofar as may be otherwise provided by a law of the Reich. In case of dispute as to the amount of compensation, resort may be had to legal proceedings in the ordinary course, unless a law of the Reich otherwise determines. Property of the states, local authorities, and public utility associations may be expropriated by the Reich only on payment of compensation.“The ownership of property entails obligations. Its use must at the same time serve the common good.”

[85]These articles, contained in part II (“Fundamental Rights and Duties of Germans”) of the Weimar constitution, read:

“Article 114. Personal liberty is inviolable. No encroachment on or deprivation of personal liberty by any public authority is permissible except in virtue of a law.

“Persons, who have been deprived of their liberty, shall be informed—at the latest on the following day—by what authority and on what grounds the deprivation of liberty has been ordered; opportunity shall be given them without delay to make legal complaint against such deprivation.

“Article 115. The residence of every German is an inviolable sanctuary for him; exceptions are admissible only in virtue of laws.

*******

“Article 117. The secrecy of correspondence and of the postal, telegraph, and telephone services is inviolable. Exceptions may be permitted only by law of the Reich.

“Article 118. Every German has the right, within the limits of general laws, to express his opinion freely, by word of mouth, writing, printed matter or picture, or any other manner. This right must not be affected by any conditions of his work or appointment, and no one is permitted to injure him on account of his making use of such rights.

“No censorship shall be enforced, but restrictive regulations may be introduced by law in reference to cinematograph entertainments. Legal measures are also admissible for the purpose of combating bad and obscene literature, as well as for the protection of youth in public exhibitions and performances.

*******

“Article 123. All Germans have the right without notification or special permission to assemble peaceably and unarmed.

“Open-air meetings may be made notifiable by a law of the Reich, and in case of direct danger to public security may be forbidden.

“Article 124. All Germans have the right to form unions and associations for purposes not in contravention of the penal laws. This right may not be restricted by preventive regulations. The same provisions apply to religious unions and associations.

“Every union is at liberty to acquire legal rights in accordance with the provisions of the Civil Code. These rights shall not be refused to a union on the ground that its objects are of political, social-political, or religious nature.

*******

“Article 153. Property is guaranteed by the constitution. Its extent and the restrictions placed upon it are defined by law.

“Expropriation may be effected only for the benefit of the general community and upon the basis of law. It shall be accompanied by due compensation, save insofar as may be otherwise provided by a law of the Reich. In case of dispute as to the amount of compensation, resort may be had to legal proceedings in the ordinary course, unless a law of the Reich otherwise determines. Property of the states, local authorities, and public utility associations may be expropriated by the Reich only on payment of compensation.

“The ownership of property entails obligations. Its use must at the same time serve the common good.”

[86]This act became known as the “Enabling Act” because it authorized Hitler and his government to alter the statutory law and even the constitution of Germany without the participation or consent of the legislative bodies. See the testimony of the expert witness for the defense, Professor Jahrreiss, section D, below.

[87]This law repealed an earlier law of 28 April 1933 creating a special basis for imposing disciplinary penalties on members of the SA and the SS.

[88]Before the reorganization of the German judicial system by the Hitler regime, the administration of justice was largely the function of the separate German states (Laender) making up the Reich.

[89]For more extensive evidence from the record concerning treason and related matters, see section V E, below.

[90]This part is reproduced below on page 231.

[91]The full text of this law was submitted in evidence as Schlegelberger Document 26, Schlegelberger Defense Exhibit 66. The parts of the law not reproduced here deal with arrangements for the further transfer of the administration of justice from the individual German states (Laender) to the Reich.

[92]Article 2 of the penal code prior to the above amendment was as follows:“For no act may punishment be imposed unless such punishment is prescribed by statute before the act is committed. In the event of any change in the statute between the time of commission of an act and the time of rendering a decision, the most lenient statute shall apply.”

[92]Article 2 of the penal code prior to the above amendment was as follows:

“For no act may punishment be imposed unless such punishment is prescribed by statute before the act is committed. In the event of any change in the statute between the time of commission of an act and the time of rendering a decision, the most lenient statute shall apply.”

[93]This law and the Reich citizenship law of the same date constitute the original “Nuernberg Laws,” so-called because both were issued in Nuernberg “at the Reich Party Congress for Freedom.” The Reich citizenship law (1935 Reichsgesetzblatt, Part I, page 1146), was signed by Hitler and Frick, the Reich Minister of Interior. The text of this law reads as follows:“The Reichstag has unanimously decided on the following law, which is herewith promulgated:“1. (1) A citizen [Staatsangehoeriger] is one who belongs to the protective association of the German Reich and owes allegiance to it. (2) Citizenship can also be obtained according to regulations of the Reich and State citizenship law.“2. (1) A Reich citizen [Reichsbuerger] is only a citizen of German or related blood, who proves through his behaviour, that he is willing and fit to serve the German people and Reich faithfully. (2) Reich citizenship [Reichsbuergerrecht] will be obtained through the award of a Reich citizenship letter. (3) The Reich citizen is the sole bearer of full political rights to the extent of the law.“3. The Reich Minister of the Interior decrees in collaboration with the deputy of the Fuehrer those legal and administrative regulations necessary for the execution and supplementation of this law.”

“The Reichstag has unanimously decided on the following law, which is herewith promulgated:“1. (1) A citizen [Staatsangehoeriger] is one who belongs to the protective association of the German Reich and owes allegiance to it. (2) Citizenship can also be obtained according to regulations of the Reich and State citizenship law.“2. (1) A Reich citizen [Reichsbuerger] is only a citizen of German or related blood, who proves through his behaviour, that he is willing and fit to serve the German people and Reich faithfully. (2) Reich citizenship [Reichsbuergerrecht] will be obtained through the award of a Reich citizenship letter. (3) The Reich citizen is the sole bearer of full political rights to the extent of the law.“3. The Reich Minister of the Interior decrees in collaboration with the deputy of the Fuehrer those legal and administrative regulations necessary for the execution and supplementation of this law.”

“The Reichstag has unanimously decided on the following law, which is herewith promulgated:

“1. (1) A citizen [Staatsangehoeriger] is one who belongs to the protective association of the German Reich and owes allegiance to it. (2) Citizenship can also be obtained according to regulations of the Reich and State citizenship law.

“2. (1) A Reich citizen [Reichsbuerger] is only a citizen of German or related blood, who proves through his behaviour, that he is willing and fit to serve the German people and Reich faithfully. (2) Reich citizenship [Reichsbuergerrecht] will be obtained through the award of a Reich citizenship letter. (3) The Reich citizen is the sole bearer of full political rights to the extent of the law.

“3. The Reich Minister of the Interior decrees in collaboration with the deputy of the Fuehrer those legal and administrative regulations necessary for the execution and supplementation of this law.”

[94]A number of further decrees as well as other materials concerning the application of the “Nuernberg Laws” in the Incorporated Eastern Territories (Poland), are reproduced below in section V D 2.

[95]This extract is taken from Prof. Arthur Brand’s book,The German Civil Service Law, Berlin, 1937, p. 123. The book contains the law with extensive annotations and commentaries, as well as further regulations on the law.

[96]Note that the decree is dated 17 August 1938, at which time it was signed by Hitler and Keitel. It was not promulgated in the Reichsgesetzblatt, however, until 26 August 1939. The decree had no general preamble. The earlier articles are entitled: “1. Substantive law;” “2. Espionage;” “3. Guerrilla warfare;” and “4. Acts contrary to decrees issued by the commanders in occupied foreign territory.”

[97]Materials concerning the application of the law of “undermining of military efficiency” are reproduced below in section V-E.

[98]This decree was not published in the Reichsgesetzblatt. It was taken from a letter of 9 September 1939 from Meissner, chief of the Presidential Chancellery, transmitting this decree to the chief of the Reich Chancellery and to the chief of the Chancellery of the Fuehrer of the Nazi Party.

[99]Material concerning the application of laws on “public enemies” is reproduced below in section V E.

[100]For other decrees concerning the establishment and jurisdiction of “Special Courts,” see section C 3 below.

[101]Article 1 of this decree was also introduced as a part of Document NG-715, Prosecution Exhibit 112. This decree and a decree of 15 July 1942 extending the jurisdiction of SS courts into Bohemia and Moravia (reproduced later in this section as another part of Document NG-715, Prosecution Exhibit 112) were the subject of questions put to the defendant Schlegelberger by Judge Harding. This testimony is reproduced below in section V D 3.

[102]The SS Death Head units were in charge of the concentration camps.

[103]Material concerning the application of the laws on “public enemies” are reproduced below in section V E.

[104]The Reich Citizenship Law and the Law for the Protection of German Blood and Honor, both announced in Nuernberg on 15 September 1939, were the basic parts of the so-called “Nuernberg Laws.” See the Law for the Protection of German Blood and Honor, reproduced earlier in this section also as a part of Document NG-715, Prosecution Exhibit 112. Further decrees and other materials concerning Jews are reproduced below in section V D 2.

[105]The reference is to Hitler’s speech to the Reichstag on the same day, 26 April 1942. Extracts from this speech (Doc. NG-752, Pros. Ex. 24) are reproduced below in section V C 2a.

[106]The decree of 17 October 1939 establishing special jurisdiction in criminal proceedings against members of the SS and members of police formations on special tasks, (Klemm Doc. 29, Klemm Ex. 29), is reproduced earlier in this section.

[107]Thierack at this time had just been appointed Reich Minister of Justice. From late January 1941 until the middle of August 1942, the defendant Schlegelberger had been acting Reich Minister of Justice. Evidence concerning developments in the administration of justice while Thierack was Reich Minister are reproduced below in section V C3.

[108]Martin Bormann, triedin absentiaand sentenced to death by the International Military Tribunal. See Trial of the Major War Criminals,op. cit., volume I, page 367.

[109]Reproduced on page 184 as a part of Document NG-715, Prosecution Exhibit 112.

[110]Reproduced on page 207 as a part of Document NG-715, Prosecution Exhibit 112.

[111]At this time the defendant Klemm was one of several Under Secretaries (Staatssekretaere) in the Reich Ministry of Justice.

[112]Reproduced on page 207 as a part of Doc. NG-715, Pros. Ex. 112.

[113]Complete testimony is recorded in the mimeographed transcript, (31 July, 1 Aug. 1947), pages 6235–6271; 6274–6362.

[114]Defendant Mettgenberg later testified that in department III of the Ministry of Justice he held the position of “Referent for legislation in the field of international penal law” and that in department IV he was “a subdepartment chief in charge of a sphere of work which, above all, also concerned affairs of international penal law” (Tr. p. 6251).

[115]For various periods of time under the Hitler regime, over half of the defendants held one or more of the various titles and positions which the defendant Mettgenberg here proceeds to describe. For example, the defendant Joel was a Referent and later a ministerial counsellor; the defendants von Ammon and Westphal were ministerial counsellors; the defendant Mettgenberg himself was a Ministerialdirigent; the defendants Altstoetter and Engert were ministerial directors; and the defendants Schlegelberger, Klemm and Rothenberger were Under Secretaries. Only two persons held the position of Reich Minister of Justice during the Hitler regime, Guertner and Thierack, both of whom were dead by the time of the trial. The defendant Schlegelberger was acting Reich Minister of Justice between the death of Guertner in January 1941 and Thierack’s appointment as Minister in August 1942.

[116]This summary and the following two charts are part of the “Basic Information” submitted by the prosecution at the beginning of the case as an aid to the understanding of the evidence to be later submitted.

[117]This decree is reproduced on p. 218.

[118]This decree is reproduced on p. 231.

[119]For further information on this subject, see contemporaneous documents below in section C5.

[120]The decree on court martial procedure is reproduced below in section C6.

[121]A much enlarged copy of this chart was displayed in the courtroom during several sessions of the trial as a visual aid in argument and in the presentation of evidence.

[122]A number of the contemporaneous documents reproduced later in this volume deal with trials held before Special Courts. Among the specific cases treated herein are the Katzenberger case (Doc. NG-270, Pros. Ex. 155, and Doc. NG-154, Pros. Ex. 152), reproduced in part below in section V D2; the Kaminska-Wdowen case (Doc. NG-457, Pros. Ex. 201) reproduced in part below in section V D2; and the Father Schosser case (Doc. NG-1808, Pros. Ex. 557) reproduced in part below in section V F.

[123]This law is reproduced on p. 173.

[124]This decree is reproduced on p. 185.

[125]This decree is reproduced on p. 187.

[126]This decree is reproduced on p. 188.

[127]These decrees, dated 5 September, 4 September, 6 December, and 1 September 1939, respectively, are reproduced in section B, above.

[128]This decree is reproduced on p. 218.

[129]This decree, dated 28 February 1933, is reproduced on p. 160.

[130]This decree, dated 20 December 1934, is reproduced on p. 173 under the title,Law on Insidious Acts against State and for the Protection of Party Uniforms.

[131]A number of the contemporaneous documents reproduced later in this volume deal with trials held before senates of the People’s Court. Among the specific cases treated herein are the Stenfanowicz-Lenczewski case (Doc. NG-351, Pros. Ex. 132), reproduced below in section V D 2; the Bratek case (Doc. NG-595, Pros. Ex. 136), reproduced in part below in section V E; the Beck case (Doc. NG-381, Pros. Ex. 159), reproduced in part below in section V E; and the Paschen case (Doc. NG-546, Pros. Ex. 141), reproduced below in section V E.

[132]The law of 24 April 1934 consists of three chapters or parts (each divided into several articles and sections). Chapter I broadened and redefined the concepts of high treason and treason, according to National Socialist principles by amended articles 80–93 of the Reich criminal code. Chapter I is reproduced in part above in section B, Selected Laws and Decrees. Chapter III of the law, reproduced here, established a special judicial machinery to deal with high treason and treason as newly defined in chapters I and II. Materials on the application and interpretation of these provisions on treason and high treason are reproduced below in section V E.

[133]This decree is reproduced on p. 160.

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