THE LAW IN ACTION

“Section 10. For the defendant, who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.“Section 11. A preliminary court investigation will not take place. * * *”[636]

“Section 10. For the defendant, who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.

“Section 11. A preliminary court investigation will not take place. * * *”[636]

By a decree of the Reich Minister of Justice, Dr. Thierack, on 13 December 1944, it was provided:

“Article 2, paragraph 12. Limited admittance of defense counsel.“(1) In any one criminal case, several lawyers or professional representatives may not act side by side as chosen counsel for one defendant.“(2) The rules about obligatory representation by defense counsel do not apply. The presiding judge appoints a defense counsel for the whole or part of the proceedings if the difficulty of the material or legal problems require assistance by a defense counsel, or if the defendant, in due consideration of his personality, is unable to defend himself personally. * * *”[637]

“Article 2, paragraph 12. Limited admittance of defense counsel.

“(1) In any one criminal case, several lawyers or professional representatives may not act side by side as chosen counsel for one defendant.

“(2) The rules about obligatory representation by defense counsel do not apply. The presiding judge appoints a defense counsel for the whole or part of the proceedings if the difficulty of the material or legal problems require assistance by a defense counsel, or if the defendant, in due consideration of his personality, is unable to defend himself personally. * * *”[637]

On 16 February 1934 it was provided that:

“Article 2. The president of the Reich has the prerogatives fornulle prosequiand clemency (formerly held by the States).“Amnesties can be promulgated only by Reich law.”[638]

“Article 2. The president of the Reich has the prerogatives fornulle prosequiand clemency (formerly held by the States).

“Amnesties can be promulgated only by Reich law.”[638]

This centralization of the clemency powers marks a radical departure from the system which prevailed prior to 1933 and was the means by which the will of Hitler became a dominating force in the Ministry of Justice and in the courts. Other provisions are as follows:

“Even if the judgment has been contested only by the defendant or his legal representative, or by the prosecution in his favor, it can be changed against the interests of the defendant.[639]“In penal matters for which the People’s Court, the superior district court, or the court of assizes are competent, preexamination is conducted upon application of the prosecution, if, after due consideration, the prosecution thinks it necessary.“In other penal matters as well, preexamination takes place on application of the prosecution. The prosecution should makesuch an application only if unusual circumstances make it necessary to have a judge conduct such preexamination.”[640]

“Even if the judgment has been contested only by the defendant or his legal representative, or by the prosecution in his favor, it can be changed against the interests of the defendant.[639]

“In penal matters for which the People’s Court, the superior district court, or the court of assizes are competent, preexamination is conducted upon application of the prosecution, if, after due consideration, the prosecution thinks it necessary.

“In other penal matters as well, preexamination takes place on application of the prosecution. The prosecution should makesuch an application only if unusual circumstances make it necessary to have a judge conduct such preexamination.”[640]

An illuminating comment on the law is made by a German text writer.

“A criminal case on which verdict has been passed must not again become the subject of another criminal proceeding. This exclusive effect pertains to the subject of the case both as regards the crime and the criminal. * * * According to the findings of the German supreme court and to the prevailing theory in accord with these findings, the effect ofne bis in idemincludes the history of the case submitted to the court for verdict. * * * This theory, however, leads to unbearable consequences. In order to avoid these unbearable consequences some courts, recently, have permitted the breach of the principle against double jeopardy in exceptional cases where jeopardy of a second trial is necessitated by the sound sense of justice. * * *”[641]

On 21 March 1942 Adolf Hitler promulgated a decree regarding the simplification of the administration of justice. We quote the following excerpts:

“In penal cases, * * * the formal opening of the main proceeding must be eliminated. * * * (Sec. I.)“Indictments and judicial decisions must be more tersely written by restricting them to the absolutely necessary. (Sec. II.)“The cooperation of professional associate judges in judicial decisions must be restricted. (Sec. III.)“I commission the Reich Minister of Justice, in agreement with the Reich Minister and Chief of the Reich Chancellery and with the Chief of the Party Chancellery, to issue the legal provisions necessary for the execution of this decree. I empower the Reich Minister of Justice to make the necessary administrative provisions and to decide any doubtful questions by administrative means. (Sec. VI.)”On 13 August 1942 a decree was issued by the defendant Schlegelberger as Reich Minister of Justice in charge of the Ministry—“Article 4. * * * Decisions by the criminal court, the Special Court, and the criminal senate of the circuit courts of appeal may be made solely by the president or his regular deputy, if he considers the cooperation of his associates dispensable in view of the simplicity of the nature and the legal status of the case, and if the public prosecutor agrees.“Article 5. Main proceeding without public prosecutor—In the proceeding before the district judge, the public prosecutor may renounce his participation in the main proceeding.“Article 7 (2). The validity of an objection is decided on by the president of the deciding court. The admissibility of an appeal is decided on by the president of the court of appeal (Berufungsstrafkammer); he is also authorized to bring about a decision of the court. These decisions are not subject to any proof, and are incontestable.“Article 7 (3). Further objections will not be admitted.”

“In penal cases, * * * the formal opening of the main proceeding must be eliminated. * * * (Sec. I.)

“Indictments and judicial decisions must be more tersely written by restricting them to the absolutely necessary. (Sec. II.)

“The cooperation of professional associate judges in judicial decisions must be restricted. (Sec. III.)

“I commission the Reich Minister of Justice, in agreement with the Reich Minister and Chief of the Reich Chancellery and with the Chief of the Party Chancellery, to issue the legal provisions necessary for the execution of this decree. I empower the Reich Minister of Justice to make the necessary administrative provisions and to decide any doubtful questions by administrative means. (Sec. VI.)”

On 13 August 1942 a decree was issued by the defendant Schlegelberger as Reich Minister of Justice in charge of the Ministry—

“Article 4. * * * Decisions by the criminal court, the Special Court, and the criminal senate of the circuit courts of appeal may be made solely by the president or his regular deputy, if he considers the cooperation of his associates dispensable in view of the simplicity of the nature and the legal status of the case, and if the public prosecutor agrees.

“Article 5. Main proceeding without public prosecutor—In the proceeding before the district judge, the public prosecutor may renounce his participation in the main proceeding.

“Article 7 (2). The validity of an objection is decided on by the president of the deciding court. The admissibility of an appeal is decided on by the president of the court of appeal (Berufungsstrafkammer); he is also authorized to bring about a decision of the court. These decisions are not subject to any proof, and are incontestable.

“Article 7 (3). Further objections will not be admitted.”

We have already quoted at length from the decree of 4 December 1941 concerning the organization of criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories. That decree also contained provisions for the establishment of martial law from which we quote:

“Article XIII (1). Subject to the consent of the Reich Minister of the Interior and the Reich Minister of Justice, the Reich governor may, until further notice, enforce martial law in the Incorporated Eastern Territories, either in the whole area under his jurisdiction or in parts thereof, upon Poles and Jews guilty of grave excesses against the Germans or of other offenses which seriously endanger the German work of reconstruction.“(2) The courts established under martial law impose the death sentence. They may, however, dispense with punishment and refer the case to the Secret State Police (Gestapo).”

“(2) The courts established under martial law impose the death sentence. They may, however, dispense with punishment and refer the case to the Secret State Police (Gestapo).”

A final step in the development of summary criminal procedure was taken on 15 February 1945 by a decree of the Reich Minister of Justice, Dr. Thierack. The decree provided:

“II. 1. The court martial consists of a judge of a criminal court as president and of a member of the political leader corps, or of a leader of another structural division of the NSDAP and an officer of the Wehrmacht, the Waffen SS, or the police, as associate judges. * * *“III. 1. The courts martial have jurisdiction for all kinds of crimes endangering the German fighting power or undermining the people’s military efficiency. * * *“IV. 1. The sentence of the court martial will be either death, acquittal, or commitment to the regular court. The consent of the Reich defense commissar is required. He gives orders for the time, place, and kind of execution. * * *”[642]

“III. 1. The courts martial have jurisdiction for all kinds of crimes endangering the German fighting power or undermining the people’s military efficiency. * * *

“IV. 1. The sentence of the court martial will be either death, acquittal, or commitment to the regular court. The consent of the Reich defense commissar is required. He gives orders for the time, place, and kind of execution. * * *”[642]

Pursuant to a decree of the Fuehrer of 16 March 1939, the defendant Schlegelberger, as Reich Minister of Justice in charge, together with the Minister of the Interior and the Chief of the Armed Forces, Keitel, issued a decree which reads in part as follows:

“Section 1. In case of direct attack by a non-German citizen against the SS or the German Police or against any of their members, the Reich Leader of the SS and the Chief of the German Police in the Reich Ministry of the Interior may establish the jurisdiction of a combined SS court and police court, by declaring that special interests of parts of the SS or of the Police require that judgment be given by an SS and police court.“This declaration shall be sent to the Reich Protector of Bohemia and Moravia. The SS and police court, which shall have jurisdiction in individual cases, shall be specified by the Reich Leader of the SS and Chief of the German Police in the Reich Ministry of the Interior.“Section 2. If the offense directly injures the interests of the armed forces, the Reich Leader of the SS and chief of the German Police in the Reich Ministry of the Interior, and the chief of the Supreme Command of the Armed Forces shall reach an agreement as to whether the case shall be prosecuted by an SS and police court or by a military court.[643]“Article II. Exemption of the Reich court from being bound to precedent sentence: The Reich Court as the highest German tribunal must consider it its duty to effect an interpretation of the law which takes into account the change of ideology and of legal concepts which the new State has brought about. In order to be able to accomplish this task without having to show consideration for the jurisdiction of the past brought about by other ideology and other legal concepts, it is ruled as follows:“When a decision is made about a legal question, the Reich Court can deviate from a decision laid down before this law went into effect.”[644]

“This declaration shall be sent to the Reich Protector of Bohemia and Moravia. The SS and police court, which shall have jurisdiction in individual cases, shall be specified by the Reich Leader of the SS and Chief of the German Police in the Reich Ministry of the Interior.

“Section 2. If the offense directly injures the interests of the armed forces, the Reich Leader of the SS and chief of the German Police in the Reich Ministry of the Interior, and the chief of the Supreme Command of the Armed Forces shall reach an agreement as to whether the case shall be prosecuted by an SS and police court or by a military court.[643]

“Article II. Exemption of the Reich court from being bound to precedent sentence: The Reich Court as the highest German tribunal must consider it its duty to effect an interpretation of the law which takes into account the change of ideology and of legal concepts which the new State has brought about. In order to be able to accomplish this task without having to show consideration for the jurisdiction of the past brought about by other ideology and other legal concepts, it is ruled as follows:

“When a decision is made about a legal question, the Reich Court can deviate from a decision laid down before this law went into effect.”[644]

We pass now from the foregoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutors, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concernedthe incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning the first principle, Dr. Jahrreiss said:

“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 waslegibus solutusin 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.”

Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “crown jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law. As stated by Professor Jahrreiss:

“To express it differently, whether the law has 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.”

This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:

“On the other hand, certainly there were legal restrictions for Hitler under international law. * * * He was bound by international law. Therefore, he could commit acts violating international law. Therefore, he could issue orders violating international law to the Germans.”

The conclusion to be drawn from the evidence presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a tribunal authorized to enforce international law, Hitler’s decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.

In German legal theory, Hitler was not only the supreme legislator, he was also the supreme judge. On 26 April 1942 Hitler addressed the Reichstag in part as follows:

“I do expect one thing: That the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience. * * *”“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty andto cashier or remove from office or position without regard for his person, or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.”“* * * From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”[** no indent]On the same day the Greater German Reichstag resolved in part as follows:“* * * the Fuehrer must have all the rights postulated by him which serve to further or achieve victory. Therefore—without being bound by existing legal regulations—in his capacity as leader of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme executive chief, as supreme justice[645], and leader of the Party—the Fuehrer must be in a position to force with all means at his disposal every German, if necessary, whether he be common soldier or officer, low or high official or judge, leading or subordinate official of the Party, worker or employee, to fulfill his duties. In case of violation of these duties, the Fuehrer is entitled after conscientious examination, regardless of so-called well-deserved rights, to mete out due punishment, and to remove the offender from his post, rank and position, without introducing prescribed procedures.”

“I do expect one thing: That the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience. * * *”

“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty andto cashier or remove from office or position without regard for his person, or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.”

“* * * From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”

[** no indent]On the same day the Greater German Reichstag resolved in part as follows:

“* * * the Fuehrer must have all the rights postulated by him which serve to further or achieve victory. Therefore—without being bound by existing legal regulations—in his capacity as leader of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme executive chief, as supreme justice[645], and leader of the Party—the Fuehrer must be in a position to force with all means at his disposal every German, if necessary, whether he be common soldier or officer, low or high official or judge, leading or subordinate official of the Party, worker or employee, to fulfill his duties. In case of violation of these duties, the Fuehrer is entitled after conscientious examination, regardless of so-called well-deserved rights, to mete out due punishment, and to remove the offender from his post, rank and position, without introducing prescribed procedures.”

The assumption by Hitler of supreme governmental power in all departments did not represent a new development based on the emergency of war. The declaration of the Reichstag was only an echo of Hitler’s declaration of 13 July 1934. After the mass murders of that date (the Roehm purge) which were committed by Hitler’s express orders, he said:

“Whenever someone reproaches me with not having used the ordinary court for their sentencing, I can only say: ‘In this hour I am responsible for the fate of the German nation and hence the supreme law lord[645]of the German people.’”

The conception of Hitler as the supreme judge was supported by the defendant Rothenberger. We quote (NG-075, Pros. Ex. 27):

“However, something entirely different has occurred; with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge—first of all, of course, as ‘judge’ over their fate in general, but also as ‘supreme magistrate[645]and judge.’”

In the same document the defendant Rothenberger expounded the National Socialist theory of judicial independence. He said:

“Upon the fact that the judge can use his own discretion is founded the magic of the word ‘judge.’”

He asserted that “every private and Party official must abstain from all interference or influence upon the judgment,” but this statement appears to be mere window-dressing, for after his assertion that a judge “must judge like the Fuehrer”, he said:

“In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer’. He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must upon the request of the judge give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”

Thus, it becomes clear that the Nazi theory of the judicial independence was based upon the supreme independence of the Fuehrer, which was to be channelized through the proposed liaison officer from Fuehrer to judge.

On 13 November 1934, Goering, in an address before the Academy of German Law, expressed similar sentiments concerning the position of Hitler.

“Gentlemen, for the German nation this matter was settled by the words of the judge in this hour, the Fuehrer, who stated that in this hour of uttermost danger he alone, the Fuehrer elected by the people, was the supreme and only judge of the German nation.”

The defendant Schlegelberger, on 10 March 1936 said:

“It should be emphasized, however, that in the sphere of the law, also, it is the Fuehrer and he alone who sets the pace of development.”

To the same effect we quote Reich Minister of Justice Dr. Thierack, who, on 5 January 1943 said:

“So also with us the conviction has grown in these 10 years in which the Fuehrer has led the German people that the Fuehrer is the chief justice and the supreme judge of the German people.”

On 17 February 1943 the defendant Under Secretary Dr. Rothenberger summed up his legal philosophy with the words (NG-415, Pros. Ex. 26):

“The judge is on principle bound by the law. The laws are the orders of the Fuehrer.”

As will be seen, the foregoing pronouncement by the leaders in the field of Nazi jurisprudence were not mere idle theories. Hitler did, in fact, exercise the right assumed by him to act as supreme judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.

The evidence demonstrates that Hitler and his top-ranking associates were by no means content with the issuance of general directives for the guidance of the judicial process. They tenaciously insisted upon the right to interfere in individual criminal sentences. In discussing the right to refuse confirmation of sentences imposed by criminal courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr. Lammers, Chief of the Reich Chancellery, as follows (NG-102, Pros. Ex. 75):

“When the Fuehrer has expressly requested the right of direct interference over all formal legal provisions, this is emphasizing the very importance of the modification of a judicial sentence.”

The Ministry of Justice was acutely conscious of the interference by Hitler in the administration of criminal law. On 10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as follows (NG-152, Pros. Ex. 63):

“It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced, which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects, * * *.”

On the same date Schlegelberger wrote to Hitler in part as follows (NG-152, Pros. Ex. 63):

“In the course of the verdicts pronounced daily, there are still judgments which do not entirely comply with the necessary requirements. In such cases I will take the necessary steps. * * *“Apart from this it isdesirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable, if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility, and are firmly resolved to discharge their duties accordingly. * * * Heil, my Fuehrer!” [Emphasis added.]

“In the course of the verdicts pronounced daily, there are still judgments which do not entirely comply with the necessary requirements. In such cases I will take the necessary steps. * * *

“Apart from this it isdesirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable, if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility, and are firmly resolved to discharge their duties accordingly. * * * Heil, my Fuehrer!” [Emphasis added.]

Hitler not only complied with the foregoing request, but proceeded beyond it. Upon his personal orders persons who had been sentenced to prison terms were turned over to the Gestapo for execution. We quote briefly from the testimony of Dr. Hans Gramm, who for many years was personal Referent to the defendant Schlegelberger, and who testified in his behalf.

“Q. Do you know anything about transfers of condemned persons to the police, or to the Gestapo?“A. I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and such a man into their custody. These orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed. These transfers, as far as I can remember, took place only during the war.” (Tr. pp. 4717–4718.)

“Q. Do you know anything about transfers of condemned persons to the police, or to the Gestapo?

“A. I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and such a man into their custody. These orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed. These transfers, as far as I can remember, took place only during the war.” (Tr. pp. 4717–4718.)

This procedure was well-known in the Ministry of Justice. Gramm was informed by the defendant Schlegelberger that the previous Reich Minister of Justice, Dr. Guertner, had protested to Dr. Lammers against this procedure and had received the reply—

“That the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue.”

The only net result of the protest was that “from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.”

The witness, Dr. Lammers, former Chief of the Reich Chancellery, whose hostility toward the prosecution and evasiveness were obvious, conceded that the practice was continued under Schlegelberger, though Lammers stated that Schlegelberger never agreed to it.

By reference to case histories we will illustrate three different methods by which Hitler, through the Ministry of Justice, imposedhis will in disregard of judicial proceedings. One, Schlitt, had been sentenced to a prison term, as a result of which Schlegelberger received a telephone call from Hitler protesting the sentence. In response the defendant Schlegelberger on 24 March 1942 wrote in part as follows (NG-152, Pros. Ex. 63):

“I entirely agree with your demand, my Fuehrer, for very severe punishment for crime, and I assure you that the judges honestly wish to comply with your demand. Constant instructions in order to strengthen them in this intention and the increase of threats of legal punishment have resulted in a considerable decrease of the number of sentences to which objections have been made from this point of view, out of a total annual number of more than 300,000.“I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures, as before.“In the criminal case against the building technician, Ewald Schlitt, from Wilhelmshaven, I have applied through the public prosecutor for an extraordinary plea for nullification against the sentence, at the special senate of the Reich Court. I will inform you of the verdict of the special senate immediately it has been given.”

“I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures, as before.

“In the criminal case against the building technician, Ewald Schlitt, from Wilhelmshaven, I have applied through the public prosecutor for an extraordinary plea for nullification against the sentence, at the special senate of the Reich Court. I will inform you of the verdict of the special senate immediately it has been given.”

On 6 May 1942, Schlegelberger informed Hitler (NG-102, Pros. Ex. 75) that the 10-year sentence against Schlitt was “quashed within 10 days;” and that “Schlitt was sentenced to death and executed at once.”

In the case against Anton Scharff, the sentence of 10 years’ penal servitude had been imposed. Thereupon, on 25 May 1941, Bormann wrote to Dr. Lammers (NG-611, Pros. Ex. 64): “The Fuehrer believes this sentence entirely incomprehensible * * *. The Fuehrer requests that you inform State Secretary Schlegelberger again of his point of view.”

On 28 June 1941, defendant Schlegelberger wrote Dr. Lammers (NG-611, Pros. Ex. 64): “I am very obliged to the Fuehrer for informing me, on my request, of his conception of atonements of black-out crimes in reference to the sentence of the Munich Special Court against Anton Scharff.

“I shall reinstruct the presidents of the courts of appeal and the chief public prosecutors of this conception of the Fuehrer as soon as possible.”

As a final illustration of a general practice, we refer to the case of the Jew Luftgas, who had been sentenced to 2½ years imprisonment for hoarding eggs. On 25 October 1941, Lammers notified Schlegelberger: “The Fuehrer wishes that Luftgas be sentencedto death.” On 29 October 1941, Schlegelberger wrote Lammers: “* * * I have handed over to the Gestapo for the purpose of execution the Jew Markus Luftgas who had been sentenced to 2½ years of imprisonment * * *”.

Although Hitler’s personal intervention in criminal cases was a matter of common occurrence, his chief control over the judiciary was exercised by the delegation of his power to the Reich Minister of Justice, who on 20 August 1942 was expressly authorized “to deviate from any existing law.”

Among those of the Ministry of Justice who joined in the constant pressure upon the judges in favor of more severe or more discriminatory administration of justice, we find Thierack, Schlegelberger, Klemm, Rothenberger, and Joel. Neither the threat of removal nor the sporadic control of criminal justice in individual cases was sufficient to satisfy the requirements of the Ministry of Justice. As stated by the defendant Rothaug, “only during 1942, after Thierack took over the Ministry, the ‘guidance’ of justice was begun. * * * There was an attempt to guide the administration of justice uniformly from above.”

In September 1942 Thierack commenced the systematic distribution to the German judges of Richterbriefe. The first letter to the judges under date of 1 October 1942 called their attention to the fact that Hitler was the supreme judge and that “leadership and judgeship have related characters.” We quote (NG-298, Pros. Ex. 81):

“A corps of judges like this will not slavishly use the crutches of law. It will not anxiously search for support by the law, but, with a satisfaction in its responsibility, it will find within the limits of the law the decision which is the most satisfactory for the life of the community.”

In the Judges’ Letters Thierack discussed particular decisions which had been made in the various courts and which failed to conform to National Socialist ideology. As an illustration of the type of guidance which was furnished by the Ministry of Justice to the German judiciary, we cite a few instances from the Richterbriefe.

A letter to the judges of 1 October 1942 discusses a case decided in a district court on 24 November 1941. A special coffee ration had been distributed to the population of a certain town. A number of Jews applied for the coffee ration, but did not receive it, being “excluded from the distributionper se”. The food authorities imposed fines upon the Jews for making the unsuccessful application. In 500 cases the Jews appealed to the court and the judge informed the food authorities that the imposition of a fine couldnot be upheld for legal reasons, one of which was the statute of limitations. In deciding favorably to the Jews, the court wrote a lengthy opinion stating that the interpretation on the part of the food authorities was absolutely incompatible with the established facts. We quote, without comment, the discussion of the Reich Minister of Justice concerning the manner in which the case was decided (NG-298, Pros. Ex. 81):

“The ruling of the district court, in form and content matter, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right toward it.”

One of the Richterbriefe also discusses the case of a Jew who, after the “Aryanization of his firm,” attempted to get funds transferred to Holland without a permit. He also attempted to conceal some of his assets. Concerning this case the judges of Germany received the following “guidance” (NG-298, Pros. Ex. 81):

“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people.“Not only is he of a different race, but he is also of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment.”

“Not only is he of a different race, but he is also of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment.”

Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the minister that the independence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions.If the letters [the Judges’ Letters] had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be “carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges’ letters are concerned.”

In a letter of 17 November 1942 Thierack instructs the judges that “in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the Judges’ Letters.”

Not being content with regimenting the judges and chief prosecutors and making them subservient to the National Socialist administration of justice, Dr. Thierack next took up the regimentation of the lawyers. On 11 March 1943 he wrote to the various judges and prosecutors announcing the proposed distribution of confidential lawyers’ letters. An examination of those letters convinces the Tribunal that the actual, though undeclared purpose, was to suggest to defense counsel that they avoid any criticism of National Socialist justice and refrain from too much ardor in the defense of persons charged with political crimes.

Not only did Thierack exert direct influence upon the judges, but he employed as his representative the most sinister, brutal, and bloody judge in the entire German judicial system. In a letter to Freisler, president of the People’s Court, Thierack said that the judgment of the People’s Court must be “in harmony with the leadership of the State”. He urges Freisler to have every charge submitted to him and to recognize the cases in which it was necessary “in confidential and convincing discussion with the judge competent for the verdict to emphasize what is necessary from the point of view of the State.” He continues:

“As a general rule, the judge of the People’s Court must get used to regarding the ideas and intentions of the State leadership as the primary factor and the individual fate which depends on him as only a secondary factor. * * *”

He continues:

“I will try to illustrate this with individual cases.“1. If a Jew—and a leading Jew at that—is charged with high treason—even if he is only an accomplice therein, he has behind him the hate and the will of Jewry to exterminate the German people. As a rule this will therefore behigh treasonand must be punished by the death penalty.”

“I will try to illustrate this with individual cases.

“1. If a Jew—and a leading Jew at that—is charged with high treason—even if he is only an accomplice therein, he has behind him the hate and the will of Jewry to exterminate the German people. As a rule this will therefore behigh treasonand must be punished by the death penalty.”

He concludes with the following admonition to Freisler, which appears to have been wholly unnecessary:

“In case you should ever be in doubt as to which line to follow or which political necessities to take into consideration, please address yourself to me in all confidence.”

It will be recalled that on 26 April 1942 Hitler stated that he would remove from office “those judges who evidently do not understand the demand of the hour.” The effect of this pronouncement upon such judges as still retained ideals of judicial independence can scarcely be overestimated. The defendant Rothenberger stated it was “absolutely crushing.”

In a private letter to his brother, the defendant Oeschey expressed his view of the situation created by Hitler’s interference in the following words:

“After the well known Fuehrer speech things developed in a frightful manner. I was never a supporter of the stubborn doctrine of the independence of the judge which granted the judge within the frame of the law the position of a public servant, only subordinated to his conscience but otherwise ‘neutral’, that is, politically completely independent. * * * Now it is an absurdity to tell the judge in an individual case which is subject to his decision how he has to decide. Such a system would make the judge superfluous; such things have now come to pass. Naturally it was not done in an open manner; but even the most camouflaged form could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished and the proceedings in a trial become a farce. I will not discuss who bears the guilt of such a development.”

The threat alone of the removal was sufficient to impair the independence of the judges, but the evidence discloses that measures were actually carried out for the removal or transfer of judges who proved unsatisfactory from the Party standpoint. On 29 March 1941 Schlegelberger received a letter from the chief of the Reich Chancellery protesting against the sentence which had been imposed against the Polish farmhand Wojcieck. The court at Lueneburg had recognized some extenuating circumstances in the case. Schlegelberger was advised as follows:

“The Fuehrer urges you immediately to take the steps necessary to preclude repetition in other courts of the view of the Lueneburg court.”

On 1 April 1941 Schlegelberger wrote to the Chief of the Reich Chancellery informing him that “by means of a circular with the order for immediate transmittal to all judges and public prosecutors, I brought the mistake in the viewpoint as it is shown in thispassage of the court’s statement to the knowledge of the penal justice without delay. I consider it impossible that such an incident will occur again.”

Schlegelberger ordered the responsible president of the appellate court and the judges concerned in the case to report to him on the next day, and on the third day of April 1941 he advised as follows:

“* * * I beg to inform you that the presiding judge of the criminal division which passed the sentence in the case of the Polish farmhand Wolay Wojciesk, is no longer chairman, and the two associate judges have been replaced by other associate judges.”

There is substantial evidence to the effect that the witness Ostermeier, who was a judge on the Special Court in Nuernberg, was removed from his office because of his lenient attitude in criminal cases.

In a letter addressed to the Chief of the Reich Chancellery and to the head of the Party Chancellery on 20 October 1942, Thierack discussed the necessity of the removal or the transfer of officials in the Ministry of Justice who are “not suited for the new tasks” and adds that it may become necessary “in some particular cases to transfer or retire such judges as cannot be kept in their present positions.” He therefore asked approval “so that in urgent cases judges and officials of the Reich administration of justice may be transferred by me to other positions * * * or may be retired by me.”

On 3 March 1942 Bormann gave his approval in general terms to Thierack’s proposal. A like approval was given by Dr. Lammers on 13 November 1942.

In connection with the discussion of removals, we find a list of proposed staff reductions in which seventy-five judges and prosecutors are named. Among the reasons stated for reduction we find the following: persons of Jewish ancestry, 4; persons having a Jewish wife, 4; lack of cooperation with Party, 4; religious grounds, 1; not a Party member, 20; pro-Jewish or pro-Pole, 4.

The conception of the national leadership of the Reich concerning the function of the law under the influence of the Party ideology must also be briefly noted.

On 22 July 1942 Reich Minister Dr. Goebbels addressed the members of the People’s Court. The speech was reported in part as follows (NG-417, Pros. Ex. 23):

“While making his decisions the judge had to proceed less from the law than from the basic idea that the offender was tobe eliminated from the community. During a war it was not so much a matter of whether a judgment was just or unjust but only whether the decision was expedient. The State must ward off its internal foes in the most efficient way and wipe them out entirely. The idea that the judge must be convinced of the defendant’s guilt must be discarded completely. The purpose of the administration of the law was not in the first place retaliation or even improvement but maintenance of the State. One must not proceed from the law but from the resolution that the man must be wiped out.”

On 14 September 1935 Hans Frank, Reichsleiter of the Nazi Party and president of the Academy of German law, said (NG-777, Pros. Ex. 19):

“By means of the law of 18 June 1935, the liberalist foundation of the old penal code ‘no penalty without a law’ was definitely abandoned and replaced by the postulate, ‘no crime without punishment’, which corresponds to our conception of the law.“In the future, criminal behavior, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behavior is considered punishable according to the healthy feelings of the people.”

“In the future, criminal behavior, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behavior is considered punishable according to the healthy feelings of the people.”

This is the Hans Frank (since hanged) who at his trial testified concerning the racial persecution in which he had participated. He said:

“A thousand years will pass and this guilt of Germany will still not be erased.”

On 10 March 1936 the defendant Schlegelberger said (NG-538, Pros. Ex. 21):

“In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the new Reich has been opened up by a new wording of section 2 of the criminal code, whereby a person is also to be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.”

Reich Minister Thierack on 5 January 1943 said (NG-275, Pros Ex. 25):

“The inner law of the guardian of justice is national socialism; the written law is only to be an aid to the interpretation of National Socialist ideas.”

In the words of the defendant Rothenberger the project was “to ‘organize’ Europe anew and to create a new world philosophy.” Again, he said (NG-075, Pros. Ex. 27):

“* * * this reaction of ‘antagonism toward law’ is justified because thepresent momentabsolutely demands a rigid restriction of the power of law. He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice.”

Strangely enough we find the Nazi judicial system condemned by a judge who in practice was its most fanatical adherent. The defendant Rothaug testified as follows:

“As of every other civil servant, of the judge there was demanded not only obedience but also loyalty and an inner connection with the doctrine of the State. The change-over of the judiciary to that different intellectual level was attemptedviathe political factor of the administration of justice, and that was when things came to grief; and it was then that the notorious ‘back door’ which I have mentioned, took effect.”

After discussing the extraordinary legal remedies by which final judgments in criminal cases were set aside by means of the nullification plea and the extraordinary objection, Rothaug said:

“As far as that went no objections could be made. What was more dangerous was the influence by means of Judges’ Letters and the guidance of jurisdiction.”

To the domination by Hitler and the political “guidance” of the Ministry of Justice must be added the direct pressure of Party functionaries and police officials. The record is replete with testimony of specific instances of interference in the administration of justice by officials of Party and police. But for the demonstration of the viciousness and universality of the practice it is only necessary to cite the words of the defendants themselves.

The defendant Rothenberger describes the manner in which the “administration of justice was burdened by the Party and by the SS”, and referred in his testimony to the “thousand little Hitlers who every day jeopardized the independence of the individual judge.”

The defendant Schlegelberger spoke with more caution:

“If in a trial, testimonials of political conduct were submitted for the characterization of the accused, it has to be left to the judge’s dexterity to avoid conflict with the department which furnishes the testimonial of political conduct.”

The defendant Lautz testified concerning attempted interferencewith his duties by the SS. We have already quoted the opinion of the defendant Oeschey as expressed in a letter to his brother.

A reliable witness, Dr. Hanns Anschuetz, testified:

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