2. FURTHER DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN THE DEFENDANT SCHLEGELBERGER WAS ACTING REICH MINISTER OF JUSTICE (JANUARY 1941–AUGUST 1942)

a. The Influence of Hitler and Others upon the Administration of Justice

LETTERS FROM DEFENDANT SCHLEGELBERGER TO HITLER AND LAMMERS, MARCH 1941 AND MARCH 1942, CONCERNING JUDICIAL SENTENCES DISPLEASING HITLER AND PROPOSING PARTICIPATION IN CIVIL PROCEEDINGS BY PUBLIC PROSECUTORS

[Stamp]

Reich Chancellery 5197 B-4 April 1941

The Acting Minister for Justice

Berlin, 10 March 1941

My Fuehrer,

In continuing the work of the deceased Reich Minister Dr. Guertner, I will do my utmost to install the administration of justice with all its branches more and more firmly within the National Socialist State. In the course of the large number of 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. In order that such judgments be dealt with rapidly you, my Fuehrer, have created the nullity plea and the extraordinary objection for criminal cases. For civil proceedings, the right of application by the Chief Reich Prosecutor at the Reich Supreme Court for the resumption of the procedure, could serve the same purpose as provided in an ordinance drafted by myself. So as to avoid all such wrong verdicts, the public prosecutor’s office is called on, in this draft, to participate in civil proceedings, and should stress the right of the national community against the individual interests of the opposing parties.

Apart from this it is desirable 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.

I feel that it is my duty to you, my Fuehrer, to bring it to the attention of the judges if a decision does not conform to the opinion of the State leadership.

Heil, my Fuehrer!

[Signed] Dr. Schlegelberger

[Stamp] 3868 B

[Handwritten] 1508/1

The Acting Reich Minister of Justice

[Handwritten] 11 March 2 enclosures

Dear Reich Minister Dr. Lammers:

In connection with our telephone conversation of today, I am sending you a copy of my letter addressed to the Fuehrer.[239] I consider it of great importance that the Fuehrer receive this letter as soon as possible. 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 the administration of justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects; for nothing is more dangerous than the creation of a so-called atmosphere, of the causes of which the Minister of Justice is unaware. That is the reason for my request to the Fuehrer in the last paragraph of my letter. I repeat, this attempt to establish a direct contact between the Fuehrer and the Minister of Justice must be made at once if irreparable damage is to be avoided.

In explanation of the first paragraph of my letter, I enclose the mentioned draft of the decree, which is to be provisionally discussed here on the 17th of this month with the Reich Chancellery. Basic approval has already been received from the Reich Finance Minister, the Reich Minister of the Interior and the Reich Minister of Economics. Participation by the prosecuting authorities in civil cases was already known in Roman law. Nowadays, in the recently published Italian code of civil procedure, this participation has been extended, following the general line of my draft, because, as is indicated in the report to the king, a purely platonic participation is no longer sufficient.

The deceased Reich Minister Dr. Guertner, during the last days he was still in office, advised me to examine the question of whether an extraordinary objection should be created for civil as in criminal cases. I have adopted the right of the Chief Reich Prosecutor to ask for the reopening of a case but deliberately with such limitations, that by human standards no offense can be created thereby; this special reopening will only be put into practice in so-called secular cases.

With best regards and Heil Hitler!

Yours very truly

[Signed] Dr. Schlegelberger

Enclosure to the Letter of 10 March 1941 from Defendant Schlegelberger to Lammers

Draft of a Decree Concerning Participation by the Public Prosecutor in Legal Proceedings of matters of Civil Law

dated....................1941

The Ministerial Council for the Defense of the Reich issues the following decree with force of law:

Article 1

(1) The public prosecutor is authorized to participate in civil law proceedings in order to plead the circumstances which have to be considered from the point of view of the national community and for the final judgment. For this purpose, the public prosecutor may be present at all proceedings and may give his opinion regarding the judgment which is to be passed. He may submit facts and evidence insofar as this does not affect the rights of either party with regard to the disagreement.

(2) Regulations which already provide for participation by the public prosecutor in matters of civil law, are not affected.

Article 2

In matters of civil law where a valid final judgment has been passed, the Chief Reich Prosecutor at the Reich Supreme Court may, within a year after the decision has become valid, file an application for reopening the proceedings if there are serious legal and factual objections against the justness of the decision, and if he considers new proceedings and a new judgment to be necessary because of the special importance of the judgment to the national community.

Article 3

(1) The high senate for civil matters at the Reich Supreme Court makes a decision by writ, on application.

(2) The participants in the previous proceeding may be heard.

Article 4

(1) If the Reich Supreme Court grants the application of the Chief Reich Prosecutor, it will again take up—as far as this is necessary—the previous proceedings and the judgments passed, and will order new proceedings and a new judgment.

(2) The Reich Supreme Court determines whether the new proceedings and judgment will be dealt with by the court previously concerned with the case, or will be replaced by another court of the same standing, or whether it will be dealt with by a senate of the Reich Supreme Court.

Article 5

(1) The new proceedings will be considered a continuation of the previous proceedings.

(2) The court is bound by the legal and factual judgment on which the Reich Supreme Court based its writ.

(3) No court fees will be charged for the new proceedings and judgment.

Article 6

The president or a member of the high senate for civil matters, appointed by him, may issue temporary orders regarding the execution of judgments concerned in the application of the Chief Reich Prosecutor at the Reich Supreme Court.

Article 7

The Reich Minister of Justice is authorized to issue supplementary regulations and regulations for the implementation of this decree.

Article 8

In the Protectorate of Bohemia and Moravia, this decree is only valid for proceedings before German courts.

The Acting Reich Minister of Justice

Berlin, 24 March 1942

My Fuehrer:

When I took office, I asked you to inform me whether, if a sentence did not meet with your approval, you would allow me to correct it. I ask permission to consider the telephone call made on Sunday, 22 March, concerning the case of Schlitt at Wilhelmshaven as granting my request, and I express my sincerest thanks for this.

I entirely agree with your demand, my Fuehrer, for very severe punishment for criminals [Verbrechertum], and I assure you that the judges have honest will 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 Chief Reich Prosecutor for an extraordinary objection against the sentence at the special senate of the Reich Supreme Court. I will inform you of the verdict of the special senate immediately it has been given.

Heil my Fuehrer!

[Signed] Dr. Schlegelberger

To the Fuehrer and Chancellor of the Greater German Reich, Adolf Hitler

CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND DEFENDANT SCHLEGELBERGER, MARCH AND APRIL 1941, AFTER HITLER HAD EXPRESSED DISPLEASURE AT A SENTENCE GRANTING EXTENUATING CIRCUMSTANCES TO A POLE

Berlin, 28 March 1941

Pertaining to Reich Chancellery 4729

Subject: Sentences against Poles

1. Memorandum:

According to information from Reichsleiter Bormann a sentence of the Lueneburg District Court (apparently in a rape trial) against a Polish farm hand has been submitted to the Fuehrer, in which the defendant is granted extenuating circumstances because it was felt that he did not have the same restraint in his relations to female co-workers as German farm hands have. The Fuehrer rejected this view of the court as totally misleading. Under Secretary Schlegelberger is to take the necessary steps to preclude a repetition of this view.

[Initial] F [Ficker]

The Reich Minister and Chief of the Reich Chancellery

Reich Chancellery 4729 B

[Handwritten] See Reich Chancellery 5021 B

2. To: Under Secretary Dr. Schlegelberger

Reich Ministry of Justice

Dear Mr. Schlegelberger:

The sentence of the Lueneburg District Court of 21 October 1940 on the Polish farm hand Wolay Wojcieck from Rolfsen has been transmitted to the Fuehrer. In it the court states:

“The defendant is granted extenuating circumstances in respect to the crime. The court considered in the defendant’s favor that, as a Pole, he does not have the same restraint in his relations with female co-workers as the German farm hand would have.”

The Fuehrer rejected the view of the court as totally misleading. The Fuehrer urges you to take immediately the steps necessary to preclude repetition in other courts of the view of the Lueneburg court. I should be obliged if you would inform me what steps you have taken in the matter.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

[Handwritten] with final copy

3. To Reichsleiter Bormann

Dear Mr. Bormann:

I transmitted the instruction of the Fuehrer as contained in your letter of 26 March 1941, concerning the consideration of extenuating circumstances in crimes committed by Poles, to Under Secretary Dr. Schlegelberger with the request for information about what steps he has taken in the matter.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

[Initial] L

(with original copy)

4. [to be submitted again] on 28 April

[Initials] Ri 29/3

F 28/3

Reich Chancellery 5021 B—2 April 1941 Kri-Fi Record RH 4729 B 1b, 392 B

The Acting Reich Minister of Justice

Berlin, 1 April 1941

See Reich Chancellery 5194

Dear Reich Minister:

Upon receipt of your kind letter of 29 March 1941 I immediately consulted the files of the criminal case against the Polish farm hand Wolay Wojcieck. In the statement of the court the passage quoted in your letter is indeed to be found. By means of a circular letter with the order for immediate transmittal to all judges and public prosecutors I brought the mistake in the viewpoint, as it is shown in this passage of the court’s statement, to the attention of the administration of penal justice [Strafjustiz] without delay. I consider it impossible that such an incident will occur again.

I also had the responsible president of the Appellate court and the judges concerned ordered to report here tomorrow with the intention of changing responsibilities at the Lueneburg district court with a view to excluding the judges who cooperated in issuing the sentence from further employment in criminal jurisdiction.

Heil Hitler!

Yours very truly,

[Signed] Schlegelberger

1. Reported to the Fuehrer. Also reported on the letter of Under Secretary Schlegelberger of 3 April 1941.

2. Office—The above letter is to be filed.

3. To be submitted to me again.

Berlin, 3 April 1941

[Handwritten]

1. Schl. has been provisionally informed by phone.

2. [Illegible] above Count 2

3. Min. Counsellor Kritzinger [illegible] L 4 April

[Stamp]

Reich Chancellery 5914 B—4 April 1941

[Handwritten] submitted with File Reich Chancellery 5021 B

The Acting Reich Minister of Justice

Berlin, 3 April 1941

[Initial] L [Lammers] 3 April

Your Excellency, Herr Reich Minister:

In addition to my letter of 1 April 1941 I beg to inform you that the presiding judge of the penal chamber which passed the sentence in the case against the Polish farm hand Wolay Wojcieck is no longer presiding and that the two associate judges have been replaced by other associate judges.

Heil Hitler!

Yours very truly,

[Signed] Schlegelberger

[Handwritten]

Reich Chancellery 5021, 5194 B

1. No further steps will be taken.

2. The Reich Minister of Justice is going to transmit the [Illegible].

3. To be submitted again on 24 April.

[Initials] Kr [Kritzinger] 10 April

See Reich Chancellery 5929 B

Justice 11

CORRESPONDENCE BETWEEN BORMANN, LAMMERS, AND DEFENDANT SCHLEGELBERGER, 25, 29 MAY AND 28 JUNE 1941, CONCERNING A SUGGESTION OF HITLER TO CONVERT A PRISON SENTENCE INTO A DEATH SENTENCE

[Handwritten] Reich Chancellery 7593 B

Reich Leader Martin Bormann

To Reich Minister Dr. Lammers,

Berchtesgaden

Reich Chancellery

[Handwritten]

1. [stamp] Miss Frobenius: (Reich Chancellery)

2. To Ministerialrat Ficker

[Initial] L [Lammers] 26 May

[stamp] See document of 29 May

Dear Mr. Lammers:

In yesterday’s edition of the “Voelkischer Beobachter” the Fuehrer read the enclosed report according to which the Special Court of Munich in a trial in Augsburg sentenced the 19-year-old Anton Scharff to 10 years’ hard labor for theft under cover of the black-out; the public prosecutor had asked for the death sentence.

In the Fuehrer’s opinion this sentence is entirely incomprehensible. The Fuehrer believes that in such cases capital punishment must definitely be given if crimes committed under cover of the black-out are to be kept to a minimum from the outset. The Fuehrer has also emphasized time and again that the criminals should receive severe punishment considering the heroic fighting of our soldiers.

The Fuehrer requests you to inform Under Secretary Schlegelberger again of his point of view.

Heil Hitler!

Yours very truly,

[Signed] M. Bormann

[Typed] (M. Bormann)

1 enclosure

[Handwritten] War 12

[Enclosure]

JUST MISSED THE SCAFFOLD

10 Years’ Hard Labor for a Pickpocket—Death penalty demanded

Augsburg, 23 May

The 19-year-old Anton Scharff was tried for theft under cover of the black-out before the Special Court of Munich in session in Augsburg. On the evening of 18 April in the Jesuitengasse in Augsburg, the perpetrator snatched the handbag from a young woman as she was going to unlock the door of her house. Upon the woman’s screams for help, the perpetrator was pursued and caught by passers-by. He was sentenced to 10 years’ penitentiary and corresponding loss of civil rights.

The public prosecutor had asked for the death penalty.

The Reich Minister and Chief of the Reich Chancellery

Reich Chancellery 7593 B

Fuehrer Headquarters, 29 May 1941

1. To Under Secretary Dr. Schlegelberger

[Handwritten] Charged with the management of the affairs of the Reich Minister of Justice.

Subject: Crimes committed under cover of the black-out
Enclose copy of enclosure of Reich Chancellery 7593 B

Dear Mr. Schlegelberger:

The Fuehrer took from the Munich edition of the “Voelkischer Beobachter” dated 24 May, a report, a copy of which is enclosed, according to which the Special Court of Munich in a session in Augsburg sentenced the 19-year-old Anton Scharff to 10 years’ penitentiary for theft under cover of the black-out; the public prosecutor had asked for the death penalty. The Fuehrer considers this sentence entirely incomprehensible. The Fuehrer believes that in such cases the death penalty must definitely be given, if crimes committed under cover of the black-out are to be kept down to a minimum from the outset. The Fuehrer has also emphasized time and again that the criminals should receive especially severe punishment considering the heroic fighting of our soldiers.

The Fuehrer requested that I reiterate his point of view to you.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

2. To Reich Leader Martin Bormann

In reply to the letter of 25 May 1941—Bo/Si—

Enclose copy of 1

Dear Herr Bormann:

Enclosed please find a copy of my letter of today to Under Secretary Dr. Schlegelberger for your information.

Heil Hitler!

Yours very truly,

(Name of the Reich Minister)

3. After dispatch to Ministerial Director Kritzinger for his information.

[Initial] Kr [Kritzinger] 2 June

4. To be filed.

(Name of the Reich Minister)

[Initial] L [Lammers]

[Initial] F [Ficker] 27 May

Berlin, 28 June 1941

Reich Chancellery 9687 B/29 June 1941

The Acting Reich Minister of Justice

III secret 23 1548/41

[Initial] Kr [Kritzinger] 20 June

[Initial] F [Ficker] 30 June

To: The Reich Minister and Chief of the Reich Chancellery

Berlin W 8

Voss Strasse 6

Submitted to the Reich Minister for his information.

[Initial] Kr [Kritzinger]

1 July

Subject: Crimes committed under cover of the black-out

Reference: Letter Reich Chancellery 7593 B dated 29 May 1940.[240]

[Handwritten]: To be filed. [Initial] L [Lammers]

Dear Reich Minister Dr. Lammers:

I am very much obliged to the Fuehrer for having complied with my request to take the sentence of the Special Court in Munich against Anton Scharff as an opportunity to have me informed about his views as to the proper expiation for crimes committed under cover of the black-out. I shall again inform the presidents of the district courts of appeal and the attorneys general of this view of the Fuehrer as soon as possible.

The short notice in the Munich edition of the “Voelkischer Beobachter” dated 24 May, which was enclosed in your letter of 29 May, does not make the sentence comprehensible in my opinion either. In the judgment the following facts are stated. Scharff, who was not quite 19 years old when he committed the crime, is the only child of a painter’s family and comes from a very poor home. On account of an infection of the lungs his father is unable to work as a painter and his only occupation is in the office of the Nazi Party Public Welfare Organization in Pfaffenhofen on the Ilm. The parents have barely the necessaries of life.

Since the middle of 1937 the defendant was thrown on his own resources and gained his living without parental help and away from home on poorly paid jobs, first by agricultural work and recently as an unskilled worker with a firm in Augsburg. His conduct and efficiency were satisfactory. As the defendant, whose wages amounted to 50 pfennig per hour, could not make both ends meet and contracted harassing debts, he absented himself from work several times in order to get better earnings through odd jobs, such as helping in the loading of wagons at the railroad station and also in this way to obtain dismissal from his employers who would not discharge him.

Around Easter 1941 he left his job after having spent his last wages. He reckoned with his early drafting into armed forces, since he had volunteered for an antitank unit and, with consent of his father, had enlisted for 12 years in order to bring his financial troubles to a final stop. This time he did not find work at the railroad station. Thus, it happened that he soon found himself without means, and hit upon the idea of getting money by stealing a handbag. After having watched the district in question, he thought that on 18 April 1941 at about 2200 hours he had found a fitting opportunity and snatched the handbag from under the arm of a young woman whom he had followed for some time when she was about to unlock the door of her house. When the woman, a war widow, called for help and people approached, the defendant fled and threw away the handbag but was arrested a short time later without offering resistance.

On the basis of these facts which help to elucidate the peculiarity of the offense and the character of the perpetrator, the court was induced to pass a mild sentence. Since no violence could be proved, the defendant was not convicted of robbery, but only of theft. As extenuating circumstances, the clean conduct sheet, satisfactory work, his youth and immaturity, as well as the hard life, full of deprivations, led by defendant, were put to his account by the court and for these reasons the death penalty was dispensed with.

I ask you to assure the Fuehrer that my unwavering attention is directed to the safeguarding of the protection of the people against public enemies through the severe punishment of criminals.

Heil Hitler!

Yours very truly,

[Signed] Dr. Schlegelberger

CORRESPONDENCE BETWEEN LAMMERS, SCHAUB, AND DEFENDANT SCHLEGELBERGER, OCTOBER 1941, CONCERNING TRANSFER OF MARKUS LUFTGAS TO THE GESTAPO FOR EXECUTION[241]

The Reich Minister and Chief of the Reich Chancellery

Rk/ 15506 B

[Handwritten] 393A

1. To: Under Secretary, Professor Dr. Dr. h.c. Schlegelberger, charged with the management of the affairs of the Reich Minister of Justice

Berlin W 8

Wilhelmstrasse 65

[Handwritten] Refer to newspaper

Dear Mr. Schlegelberger:

The enclosed newspaper clipping about the sentencing of the Jew Markus Luftgas to imprisonment for 2½ years by the Special Court of Bielitz has been submitted to the Fuehrer.[242] The Fuehrer wishes Luftgas to be sentenced to death. May I ask you urgently to instigate what is necessary and to notify me about the measures taken so that I can inform the Fuehrer.

Heil Hitler!

Yours very truly,

(Signature of the Reich Minister)

[Handwritten] Justice 11

2. To: SS-Gruppenfuehrer Julius Schaub[243]

Fuehrer Headquarters

Subject: Markus Luftgas

Dear Mr. Schaub:

After receiving your letter dated 22 October 1941 I got into touch with the Reich Minister of Justice and asked him to instigate the necessary measures.

Heil Hitler!

Yours very truly,

(Signature of the Reich Minister)

3. Copy of the newspaper clipping to be filed.

4. After dispatch—For the attention of Ministerial Director Kritzinger for information.

5. After 1 month.

(Signature of the Reich Minister)

[Initial] L [Lammers]

Copy

[Enclosure] to Rk. 15 506 B

Jew hoarded 65,000 eggs and allowed 15,000 of them to spoil

By wire from our reporter

Breslau, 20 October—The 74-year-old Jew Markus Luftgas from Kalwarja removed a huge number of eggs from the controlled economy and had to answer for it at the Special Court in Bielitz. The Jew had hidden 65,000 eggs in containers and in a lime-pit, 15,000 of which had already spoiled. The defendant was sentenced to 2½ years’ imprisonment as a just punishment for a crime against the war economy regulations.

Berlin, 29 October 1941

The Acting Reich Minister of Justice

III g-14 3454/41

To the Reich Minister and

Chief of the Reich Chancellery

in Berlin W 8, Vosst. 6

[Initial] L [Lammers]

[Handwritten] 3/11

1. Submitted to the Minister for his information

2. To be filed.

[Initial] Kr [Kritzinger]

Subject: Case against the Jew Luftglass (not Luftgas) Sg 12 Js 340/.41 of the Chief Public Prosecutor in Katowice —Rk. 15506 B dated 25 October 1941.

Dear Reich Minister Dr. Lammers:

In accordance with the order of the Fuehrer and Reich Chancellor dated 24 October 1941, transmitted to me by the Minister of State and Chief of the Presidential Chancellery of the Fuehrer, I have handed over to the Gestapo for the purpose of execution, the Jew Markus Luftglass who was sentenced to 2½ years’ imprisonment by the Special Court in Katowice.

Heil Hitler!

Very truly yours,

[Signed] Schlegelberger

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT COURTS OF APPEAL, 15 DECEMBER 1941, QUOTING FROM A SPEECH BY HITLER AND STATING THAT JUDGES AND PUBLIC PROSECUTORS MUST KEEP HITLER’S WORDS IN MIND

The Acting Reich Minister of Justice

33/2-IIa2 3024/41

To: The Presidents of the District Courts of Appeal and the Attorneys General

An important factor in keeping up the morale of the German people on the home front is the prompt and purposeful administration of penal justice.

The Fuehrer was referring to this when, in his speech before the German Reichstag on 11 December 1941, he said:

“The memory of those who died for the existence and greatness of the German people even before our time makes us realize the extent of our duties.

“He who tries to escape this duty, however, has no right to live among us as a member of the German national community.

“We shall be equally unrelenting in our fight for the preservation of our people as we were in our fight for power.

“At a time when thousands of our best men, fathers and sons of our people, are being killed in battle, nobody shall hope to live who attempts to depreciate at home the sacrifice which is made at the front. No matter under which disguise the attempt is made to disturb this German front, to undermine the resistance power of our people, to weaken the authority of the regime or to sabotage production on the home front; the culprit shall die! But there is this difference—while death brings highest honor to the soldier at the front, the other who depreciates this sacrifice shall die in shame.”

Every judge and every public prosecutor while doing his duty must keep these words of the Fuehrer in mind. This will enable him to fulfill his task in such a manner as is demanded by the Fuehrer.

I beg to give this outline immediately to all judges concerned with the administration of penal justice and to all public prosecutors, and to bring it to the notice of all judges who will in future be concerned with the administration of penal justice.

[typed] Signed: Dr. Schlegelberger

Certified: [Signed] Massmundt

First Secretary at the Ministerial Chancellery

[Stamp]

Reich Ministry of Justice,

Office of the Minister

LETTER FROM THE PRESIDENT OF THE BERLIN COURT OF APPEAL TO DEFENDANT SCHLEGELBERGER, 3 JANUARY 1942, COMMENTING UPON “INFLUENCE EXERTED UPON THE JUDGES”

The President of the Berlin Court of Appeal

File number—3130.—A. 522/36

To: Under Secretary Dr. Schlegelberger

in Berlin W 8,

Wilhelmstrasse 65

Subject: Report about the general situation in the districts.

Reich Ordinance of 9 December 1935—Ia 11012.

1. When I paid a visit to the criminal court a few months ago in order to attend proceedings of the Special Court, I heard from the representative of the president of the district court in Moabit that “the Reich Ministry of Justice was expecting two death sentences” in the criminal case which was on the docket. My investigations produced the fact that the competent public prosecutor had informed the president of the Special Court prior to the session that he had received a directive from the Reich Ministry of Justice to ask for a death sentence in two cases. The president of the Special Court had informed me the representative of the president of the district court hereof. I consider it undesirable that officials of the public prosecutor’s office pass on prior to the proceedings such directives given them by a higher authority to the president of the court, as it has been done here. For I am afraid that judges, including those sitting in the Special Court, are in some cases much more easily inclined to pronounce a given penalty, especially the death penalty, if they hear that “the Reich Ministry of Justice” has given a directive to the public prosecutor’s office to ask for such a sentence or that “according to the views of the Reich Ministry of Justice” this penalty is necessary. I consider such a communication, given to the court by the public prosecutor, as undesirable, also because the “opinion of the Reich Ministry of Justice” conveyed by the public prosecutor, might possibly, in an individual case, but represent the personal views of a minor official of the Reich Ministry of Justice, about which he had informed the competent official of the public prosecutor’s office.

2. The president of the Berlin district court, according to what he reported to me recently, in the course of a visit to a criminal trial in Moabit observed the following:

The trial was set for 0900 hours. Punctually at 0900 the president of the district court had taken a seat on the witnesses’ bench. The judges did not show up at first. Instead, loud voices could be heard from the conference room behind the courtroom. The president of the district court got the impression of a heated debate in which one voice could be heard above the others. According to what the president of the district court could observe, the defendant’s attention was aroused, and he listened in the direction of the conference room. No actual words could be understood by the president of the district court, but he thought it quite possible that the defendant who was very much nearer to the conference room could hear details. Therefore, the president sent a marshal to the conference room with the order to inform the court about that. Shortly afterward the public prosecutor appeared first in the courtroom, then the members of the court. They all came through the same door which leads directly to the courtroom from the conference room. After the beginning of the proceedings the president of the district court soon could undoubtedly recognize that the extraordinarily loud voice he had heard before had been the voice of the public prosecutor’s representative for that trial.

3. Recently I learned from an official complaint [Dienstaufsichtbeschwerde] that immediately prior to the session the president of a Special Court had conferred with the public prosecutor. Thereby the punctual beginning of the session was prevented, and the final results were that all other people involved in the trial had to wait unnecessarily for the beginning of the session. The president of the district court told the judge that if such talks seemed necessary they should be timed in such a way that the punctual beginning of the session would not be delayed thereby.

4. It has been reported to me that repeatedly, even after the beginning of the session, especially after the end of the producing of evidence and prior to the beginning of the pleadings, the public prosecutor’s representative repeatedly got in touch with members of the court in the conference room, during an intermission in the proceedings. In these talks, as I have been told, the question of guilt, but above all the sentence, had been discussed.

5. I have been informed confidentially that a Gau office for legal affairs [Gaurechtsamt] has conveyed the following information to the Reich Office for Legal Affairs of the NSDAP:

“According to a confidential instruction of the Reich Ministry of Justice, details of which I do not know, the public prosecutors have been requested to contact the judges about the sentence to be asked for before the pleadings take place. This request has caused extraordinary surprise, especially among lawyers. The pleadings of the defense counsel have practically become a mere formality. Prior to the pleadings of the defense counsel the court and the public prosecutor have already agreed upon the penalty. In practice, the court in almost every case always agrees to the penalty asked by the Chief Public Prosecutor.

“Naturally, this does not only strike the defense counsel, but gradually also the population.

“In this connection, a change must take place immediately. If a conference between the public prosecutor and the court concerning the degree of the penalty is considered necessary at all, at least it can be asked that the defense counsel, too, be present at these talks and be permitted to clearly state his point of view.”

It is my opinion that, as soon as the trial has begun, any contacts between the public prosecutor and members of the court are undesirable, because, as the events discussed above prove, misunderstandings are provoked thereby.

The public prosecutor’s getting in touch with the court, as requested in the decree of 27 May 1939—4200. IIIa-4-758, and as it was also suggested in the concluding speech of the late Reich Minister of Justice at the conference held in the Reich Ministry of Justice on 24 October 1939 (condensed report, pp. 50 and 51), therefore, will have to be limited to the time before the beginning of the trial. It seems practical to have it take place already the day before the trial or even earlier. At any rate I do not think it desirable that the contacts are made immediately before the beginning of the trial and that, in addition, they happen in the conference room of the court, because then occurrences such as I have described under 2 and 3 of this report cannot always be prevented. I consider it an illicit contact when the latter takes place after the end of the producing of evidence or, even more, after the pleadings have been concluded. Therefore, the president of the district court in Berlin, upon my request, has conferred with the attorney general of the district court. The latter has instructed the public prosecutors within his area of jurisdiction to get in touch with the president of the court—as far as this is necessary—already the day before the trial or still earlier, at any rate, however, to refrain from making contacts after the beginning of the trial. The presidents of the courts have been notified by the president of the district court accordingly, and have been instructed to refrain under all circumstances from any getting in contact in the conference room immediately prior to the beginning of the session. The prevention or limitation of discrepancies between the penalty demanded by the public prosecution and the sentence passed in court, which was the purpose of the decree of 27 May 1939 and of the detailed arguments of the late Reich Minister of Justice, should be safeguarded by a timely and comprehensive contact prior to the trial.

Moreover, and as stated above, I consider it as undesirable in the interest of the administration of justice, and in order to remove any fears concerning influence exerted upon the judges, that officials of the public prosecutor’s office communicate “the opinion of the Reich Ministry of Justice” in the case on hand, or any orders which may have been issued to them concerning the penalties to be asked, to the court outside of the proceedings.

In view of the general importance of the matter, I thought it advisable to report about it.

[Typed] Signed: Hoelscher

Certified.

[Signed] R. Ottilie

[Seal] Berlin Court of Appeal

Clerk

EXTRACT FROM HITLER’S SPEECH TO THE GERMAN REICHSTAG, 26 APRIL 1942, REQUESTING CONFIRMATION OF THE RIGHT TO KEEP EVERYONE AT HIS DUTY AND EXPRESSING HIS INTENTION TO INTERVENE WHERE JUDGES “DO NOT UNDERSTAND THE DEMAND OF THE HOUR”[245]

*******

I do expect one thing—that the nation give me the right to intervene immediately and to take action myself wherever a person has failed to render qualified obedience and service in the performance of the greater task, a matter of to be or not to be. The front and the homeland, the transport system, administration and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.

I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to 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.[246] And that just because among millions of decent people, there are only a few exceptions. For, today, one single common duty takes precedence over all rights, even the rights of these exceptions. It does not interest me therefore whether, in the present emergency, leave, etc., can be granted or not to an official or employee in every individual case, and leave which cannot be granted should not be saved up for a later date.

If there is anybody who is entitled to ask for leave, it would be first of all only our front soldiers and secondly the men and women workers who supply the front.

For months I have been unable to grant leave to the eastern front, and nobody at home, whatever his office, should dare therefore to insist on his so-called “established right” to leave. I myself am justified to refuse because since 1933 I have not taken 3 days’ leave—a fact which is probably not known to these individuals.

Furthermore, I expect the German legal profession to understand that the nation is not here for them but that they are here for the nation, that is, the world which includes Germany must not decline in order that formal law may live, but Germany must live irrespective of the contradictions of formal justice. To quote one example, I fail to understand why a criminal who married in 1937, ill-treated his wife until she became insane and finally died as a result of the last act of ill-treatment, should be sentenced to 5 years in a penitentiary at a moment when tens of thousands of honorable German men must die to save the homeland from annihilation at the hands of bolshevism, that is, to protect their wives and children.

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.

The achievements and sacrifices of the German soldier, the German worker, the farmer, our women in town and country, that is, the millions of our middle classes, imbued only with the idea of victory, demand the corresponding attitude on the part of those who themselves have been called by the people to protect their interests. In times like the present there can be no sacrosanct individual with established rights but all of us are merely obedient servants of the nation.

Deputies!

Men of the Reichstag!

A tremendous winter battle is behind us. The hour will strike when the fronts will come out of their rigidity, and then history will decide who was victorious in this winter—the aggressor who insanely sacrificed his masses or the defender who simply held his position. During the past few weeks I have read continuously about the violent threats of our enemies. You know that my duty is far too sacred to me and that I take it far too seriously ever to be careless.

Whatever man can do to forestall dangers, I have done and shall continue to do in future.

FOUR COMMUNICATIONS, MAY-JUNE 1942, CONCERNING THE AUTHORITY FOR THE CONFIRMATION OF SENTENCES[247]

1. A Letter from Schlegelberger to Hitler, Enclosing a Proposed Decree for Hitler’s Signature

The Acting Reich Minister of Justice

Berlin, 6 May 1942

My Fuehrer!

Repeatedly, and finally in the session of the Greater German Reichstag on the 26 April of this year, you expressed that the front and the homeland require the unrelenting punishment of criminals, and that the judgments of the courts which do not meet these requirements cannot be tolerated.[248]

In order to accelerate the setting aside of such decisions, you, my Fuehrer, created the extraordinary objection to the Reich Supreme Court.[249] With the help of this legal resource the judgment against Schlitt, which you mentioned in the session of the Reichstag, was quashed within 10 days by sentence of the Reich Supreme Court. Schlitt was sentenced to death and executed at once. I believe, however, that the desired aim could be achieved even better and quicker if the Reich Minister of Justice, by means of an authority of confirmation, were given decisive influence on the award of punishment.

If you, my Fuehrer, could decide, by signing the attached draft of a decree, to transfer to the Reich Minister of Justice this right of confirmation for cases in which you do not want to decide yourself, the following would be achieved thereby:

The entire administration of penal justice be placed under the supreme control of the Reich Minister of Justice as far as the award of punishment is concerned. He could then achieve an increase of insufficient punishment in every case.

The Reich Minister of Justice would pronounce the nonconfirmation either himself or, more probably, in view of the approximately 300,000 penal sentences per annum, through the presidents of the courts of appeal.

In case of a nonconfirmation, the president of the court of appeal would himself fix the punishment or bring about another judicial decision on the measure of punishment.

The Reich Minister of Justice could, as soon as it is obvious that a criminal court cannot master a case, transfer the matter to another court.

It is guaranteed that the Reich Minister of Justice will immediately be informed about all important criminal matters. The attorneys general who, according to the draft, would have to propose the nonconfirmation, are under his direction. I can absolutely rely on the insight and willingness to serve of the 35 presidents of the courts of appeal. Should they ever lack the necessary severity, I myself would pronounce the nonconfirmation.

Therefore I believe that, if you, my Fuehrer, will agree to the draft, I could assume the responsibility that the punishment awards of the courts will no longer lead to complaints.

Heil, my Fuehrer!

[Signed] Dr. Schlegelberger

[Draft]

Decree by the Fuehrer on the authority for Confirmation in

Criminal cases of

1942.

I

As far as I shall not decide myself, in my capacity as holder of the supreme judicial power, I charge the Reich Minister of Justice to regulate within his jurisdiction the confirmation of sentences passed by special courts and other penal courts. In this connection the following is ordered:

II

I authorize the Reich Minister of Justice to pass on to the presidents of the courts of appeal the right to refuse confirmation to the amount of penalty following a valid judgment upon application of the general prosecutor in as much as such nonconfirmation of the sentence is not pronounced by the Reich Minister of Justice himself.

III

In case the president of the court of appeal denies confirmation of the sentence, he will return the case to the same or another court for another award of penalty. In case it was wrongly denied or disregarded that the culprit was a people’s parasite [Volksschaedling], brutal criminal, dangerous professional criminal or a dangerous immoral criminal, he is also entitled to quash the sentence for award of a just penalty and to pass the case to the same or another court for a new trial and judgment.

IV

Upon demand of the general prosecutor, the president of the court of appeal, by calling in two judges as advisers, can also commute the sentence in free procedure himself.

V

The court to which the president of the court of appeal has passed on the case will, with the aid of the prosecutor, decide by writ or judgment in a proceeding that will be freely determined by itself.

VI

In case of urgent reasons dictated by public interest, the Reich Minister of Justice can pass a pending trial on to another court within his jurisdiction.

VII

The Reich Minister of Justice, in accordance with the Reich Minister and chief of the Reich Chancellery and the head of the Party Chancellery, is entitled to issue instructions for the execution of this decree.

1942

The Fuehrer

The Reich Minister and Chief of the Reich Chancellery

2. File Memo by Lammers Concerning Discussion with Hitler’s Subject Decree on Authority for Confirmation of Sentences

To RK. [files] 6832 u. 6833 B.

Fuehrer Headquarters, 11 May 1942

Subject: Draft of a Fuehrer decree on the authority for confirmation in criminal cases

1. Miss Buege: (a) The enclosed letter[250] of the Reich Minister of Justice, dated 6 May 1942, addressed to me and also the enclosed notes of the Under Secretary Dr. Schlegelberger are to be registered under Rk., (b) the original copy of the Fuehrer decree is to be placed into a separate file.

[Handwritten] carried out.

[Initial] Bg

11 May

2. I have presented the matter to the Fuehrer on 7th instant and recommended the suggested decree. It seems to me indeed the only and safe way to master insufficient punishment in legal sentences.

The Fuehrer agreed to the decree in principle but could not decide on signing it; moreover, suggested whether it was not appropriate to soon fill in the position of Reich Minister of Justice and to leave the reform in question as well as the other reforms also to the new Reich Minister of Justice.

3. Under Secretary Dr. Schlegelberger, who visited me here, has been briefly informed by me on 8th instant about the state of the affair. He told me that he had already interested the Reich Marshal [Goering] also in the draft of the decree, and that he [the Reich Marshal] had promised him to speak in favor of the decree.

Under Secretary Dr. Schlegelberger further stressed the fact that the decree would naturally lose all its value for him if the confirmatory authority would pass to party offices (Party Chancellery, Gauleiter). To that I replied that one could perhaps consider to listen to the party before using the confirmatory authority. With regard to this question on 9th instant, Under Secretary Schlegelberger presented the notes of the same day to me. (Rk. 6833 B). He promised me also to send more material to the case in hand.

4. Office—Please enclose files for the filling of the position of Reich Minister of Justice!

5. To UStS. Kritzinger with the request for consultation conferences for further adaption of this matter. (Support of chief of Party Chancellery, contact with the Reich Marshal.)

[Handwritten]

Rk. 1527 H 41

Mg. Rk. 553 Bg. 41

3. Letter by Bormann Opposing Schlegelberger’s Proposed Decree and File Note by Lammers Concerning It

[Stamp] Reich Chancellery 8457 B 13 June 1942 Fi

[Handwritten] Submitted with Reich Chancellery 7964 B 13 June

NATIONAL SOCIALIST GERMAN WORKERS PARTY

PARTY CHANCELLERY

The Chief of the Party Chancellery

[Stamp] See affair of 10 June—III C—Ku.

[Stamp] Submitted through adjutant

[Handwritten] Duly submitted to the Reich Minister

13 June

Settled R 15 June

To: The Reich Minister and Chief of the Reich Chancellery Dr. H. H. Lammers

Berlin W 8

6 Voss-Strasse

Subject: Draft of a Fuehrer decree concerning the authority for confirmation [of sentences] in criminal cases

Reference: Your letter dated 21 May 1942—Reich Chancellery 7010 B.

Dear Dr. Lammers:

During the session of the Reichstag held on 26 April 1942, the Fuehrer requested the Greater German Reichstag expressly in consideration of the exigencies of the war, for the authorization to take all measures he deemed expedient without being bound by the existing legal provisions.[251] The Fuehrer’s choice of [expressing his desire] this way shows the importance he imputes to sovereign acts of the State [Hoheitsakten]. It is not proper to limit pronounced sentences—which have a certain effect on legal affairs—in their guiding effect on legal and factual circumstances by questioning their irrevocability through further unpredictable interventions, after all lawfully provided legal resources have been exhausted. This applies to a special degree to the judgments of courts which, in every case, represent a considerable intervention into the personal conditions of the people involved and, moreover, have a certain effect on the entire nation, be it as an intimidation or as a satisfaction with the strong, order-establishing hand of the State. Moreover, the arrangement of the life of the people requires that the further development of legal conditions starts from certain fixed basic conditions which cannot be shaken from any side, and that the security of the law be guaranteed. If the Fuehrer expressly requested the right of direct intervention over all formal legal provisions, then this emphasizes particularly the importance of the modification of a judicial sentence.

The proposal made by the Reich Minister of Justice, however, is likely to obliterate the impression of this authorization, and to impair its importance. However, this would be an inevitable consequence of the transfer of the correcting authority to the presidents of the court of appeal and of the strong decentralization originating thereby. The proposed decree of the Fuehrer would be nothing more than another effort to correct insufficient sentences as has been repeatedly undertaken before by the Reich Justice Ministry. In addition to the analogy provision of article 2 of the Reich criminal (penal) Code, I am especially thinking of the extraordinary objection, the nullity plea, the participation of the public prosecutor in civil proceedings, the public parasite decree, the decree against desperate criminals, and the provisions concerning dangerous professional criminals and immoral criminals.

[handwritten] Justiz 3

Despite all these provisions we were not in the position to silence the complaints on judgment inadequate in consideration of the exigencies of war. We observed again and again how these provisions were applied as mildly as possible, and not at all with the required readiness for responsibility and strictness which actually would have been possible.

It is my conviction that the proposed decree of the Fuehrer will have the same fate as the measures whose execution remained with the administration of justice.

It must be expected that the presidents of the courts of appeal will shrink from an intervention into the independence of the judge, of which they still have the old conception. They will bring the judge concerned on to the right path, not so much guided by their own conviction, but in order to get him to pass a sentence which will satisfy the threatening criticism. Even less, however, can one expect, for the same reason, more rigorously enhanced measures against an obstinate or incapable judge. Therefore, we must not expect the elucidating and guiding decisions hoped for in the material and personal field, the value of which lies first of all in the educational influence on other judges and on the public, but only measures or indications limited to individual cases.

In a formal respect, the following misgiving should be stressed: With the wording provided under paragraphs I and II of the draft, the Fuehrer literally deprives himself to a vast extent of the right of correcting sentences. In all cases which are brought to the Fuehrer’s knowledge only after the president of the court of appeal or the Minister of Justice has decided on the confirmation of a sentence, this decision was taken “by order of the Fuehrer.” Even with regard to the authorization by the Reichstag there would not be any room for the Fuehrer’s decision, since by the proposed decree he would have renounced the authorization legally assigned to him, in favor of the Minister of Justice or even of the president of the court of appeal.

Because of these considerations I am not able to agree with the draft of a Fuehrer decree as suggested by Under Secretary Schlegelberger.

In view of the importance which I assign to these fundamental objections, I have refrained for the time being from showing the additional objections I have to the structure of the decree and its individual provisions.

Heil Hitler!

Yours very truly

[Signed] M. Bormann

[Typed] (M. Bormann)

1. During yesterday’s conference with Under Secretary Schlegelberger I informed him of the basic ideas in Reichsleiter Bormann’s letter dated 10 June 1942. Schlegelberger would appreciate a copy of this letter. I do not think that there are objections to this. However, I wish to answer Reichsleiter Bormann’s letter and perhaps make my reply available to State Secretary Schlegelberger.

[Initial] Kr [Kritzinger]

26 June

2. a. UStS. Kritzinger

b. RKabR. Dr. Ficker

With request for conference

[Initial] F [Ficker]

26 June

Berlin, 25 June 42

[Initial] L [Lammers]

4. File Memo Noting Postponement of Proposals for Judicial Reform Until a New Reich Minister of Justice is Appointed

Following report to the Reich Minister [Lammers]

To RK. 8457 B

Berlin, 26 June 1942

Subject: Confirmation of sentences in criminal cases

1. The Reich Minister does not consider to pass on the letter written by Reichsleiter Bormann to State Secretary Schlegelberger and intends to discuss the matter orally with Reichsleiter Bormann on occasion.

2. Submitted to the Reich Minister according to instructions. Reichsleiter Bormann’s objections are aiming essentially at two points:

[Initial] L [Lammers]

a. He does not expect much from a delegation to presidents of courts of appeal as these would not interfere with sufficient energy;

b. He fears the Minister of Justice’s proposal would flatten the impression made by the Fuehrer’s Reichstag speech.[252]

As to the doubts of a more editorial nature expressed at the end of the letter, it should be possible to remove them by another formulation, which will also be necessary for other reasons. This reediting might be taken in hand as soon as an agreement exists on the fundamental points.

3. In file Bormann.

[Initial] F [Ficker]

Turn over

[Reverse side]

1. Discussion with Reichsleiter Bormann took place.

We agreed that further handling of all proposals regarding justice reform must be reserved to the new Minister of Justice.

2. a. To UStS. Kritzinger. [Initial] Kr [Kritzinger] August 3

b. To RKabR. Dr. Ficker. [Initial] F [Ficker] July 31

Who are requested to take notice.

3. To files.

Fuehrer Headquarters, 28 July 42

[Initial] L [Lammers]

REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 4 JULY 1941, CONCERNING CRITICISM OF JUDGES BY THE SS PERIODICAL, THE DRAFT LAW ON “ASOCIALS”, AND THE LACK OF SUITABLE CANDIDATES FOR JUDGESHIPS

The President of the Hanseatic Court of Appeal

3130 E-1a/3/ (3x)

Hamburg 36, 4 July 1941

Registered

To: Under Secretary Dr. Schlegelberger

Reich Ministry of Justice,

Berlin

Subject: Report on the general situation

Reference: Your No. Ia 11012/35

I

The article “Mental Black-out” in the “Schwarzes Korps” of 17 April 1941 had a disastrous effect on the morale of the judges; in the last paragraph of this article the actions of the judges are compared with the conduct of a people’s parasite, who takes advantage of the black-out to commit his crimes. If the judges read the correction in the bulletin of the Reich chamber of attorneys of 20 May 1941 and then see there is no vindication of the judges to the public, a further increase of the displeasure among the German judges can scarcely be imagined.

II

I was confidentially informed of the draft of the law of April 1941 concerning the treatment of asocial elements.[253] According to this law the custody of these persons is exclusively in the hands of the Reich Security Main Office, and so the sterilization insofar as the decision of this office as to whether a person is asocial has been declared binding on the eugenics court. I consider so extensive a disregarding of a judicial authority very dubious, and I propose that the local court consisting perhaps of a judge, a physician, and a representative of the police should decide whether an asocial element should be kept in lifelong custody or should be sterilized.

III

Day before yesterday I undertook a careful review of the courts of Bremen, and I learned anew that there is in Bremen a complete lack of suitable younger men to become judges. One of the reasons for this lack was the fact that the customary manner in which lawyers had hitherto applied for the judicial career has been made impossible because only up to 4 years of their activity as attorneys may be included in their service age for purposes of calculating salaries. As the Finance Minister has agreed, for the annexed eastern territories, three-quarters of the period of service as an attorney may be added to the service age for purposes of calculating salaries. I propose that this provision shall also be issued for Bremen, because of the special circumstances. In view of the whole development of the judicial situation in Bremen, I should consider it very regrettable if the Bremen lawyers were deprived of the opportunity of becoming judges.

[Signed] Rothenberger

REPORT FROM THE PRESIDENT OF THE COURT OF APPEAL IN HAMM, 7 JULY 1942, CONCERNING THE ALARM AMONG JUDGES CAUSED BY HITLER’S REICHSTAG SPEECH OF 26 APRIL 1942, AND CERTAIN ACTIVITIES OF THE GESTAPO AND THE NAZI PARTY AFFECTING LEGAL MATTERS

The President of the Court of Appeal

File No. 3130 I

To: The Reich Minister of Justice,

Berlin W 8

Subject: General situation, Decree of 9 December 1935—Ia 110/2

Enclosures: 2 copies of the foregoing report.
3 copies of a report by the senior judge of the local court [at] Haltern, of 22 June 1942.

1. The Fuehrer’s speech at the meeting of the Reichstag on 26 April 1942 has, as far as the administration of justice is concerned, caused alarm among the judges of my district. Uncertainty in the administration of justice was threatening, since the Fuehrer’s reproaches—except in the Oldenburg case, particulars of which were, however, not given either—were held in general terms, and the question on what reasons the Fuehrer based his reproaches could not be answered. As soon as possible, I called together the judges of the court of appeal and informed them, and through the presidents of the district courts, the judges of their courts, and of the local courts that I, too, did not know the reasons for the Fuehrer’s reproaches, but that it was the duty of all of us to examine ourselves earnestly as to the extent to which he was to blame; the judges were to continue to do their duty and were to hold themselves responsible to the Fuehrer and to their own conscience; the sentences passed by the courts of this district have always been severe, except for some cases, and this standard should be kept up in the future. It has been reported to me that my words have had a calming effect; the administration of justice in this district continues to proceed along the proper lines, and according to my observations the standards of sentences have remained the same.

Among the population, the Fuehrer’s critical remarks about the administration of justice have given rise to spitefulness as well as to sympathy for the profession of the judges. At the moment the matter is hardly talked about, but it has not been forgotten. Above all, it is painful for the judges that the number of persons is increasing who do not believe that the judges pass unbiased sentences. In my opinion, endeavors must be made to restore the confidence of the people in the unprejudiced administration of justice. At any rate all things have to be avoided which could further that impression. I have asked the attorney general to take measures to prevent the sentence demanded by the prosecution from leaking out previously. It is quite natural that if it becomes known before the trial that the prosecutor will demand the death sentence with the approval of the Ministry of Justice, it will easily be believed that the judges are prejudiced.

According to my observations, information about the sentence which the prosecutor will propose with the approval of the Reich Ministry of Justice, is disturbing to the judges, even if mentioned only in the course of conversation, which is understandable on account of the authority of the Ministry of Justice and the position of the judges. Even old, experienced judges find their unprejudiced state of mind upset. But according to my observations, the judges are absolutely ready to accept general directives and to follow them in the administration of justice. Therefore, I think it highly desirable that the directives which are issued at the conferences of the presidents of the courts of appeal in the Reich Ministry of Justice as well as those given some days ago at the meeting of the attorneys general in the Reich Ministry of Justice should be submitted in writing to the presidents of the courts of appeal for the information of the judges. I think this will greatly assist the administration of justice.

2. The number of death sentences passed within the area of this court of appeal shows the following development. There were—

194027 death sentences.
194152 death sentences.
1942 (first 6 months)45 death sentences.

The increase is due to wartime conditions and to the extension of the sphere of the death sentence by the law of 4 September 1941. Of the death sentences passed this year, 6 were passed for offenses against war economy, 10 for sexual offenses, 8 for crimes of violence, and 20 for theft.

On an average, 5 to 6 weeks elapse between the pronouncing of the sentence and the execution.

3. Since last May, police officials have appeared frequently in the criminal court in order to report to their superior office about the proceedings. The president of the district court at Dortmund has reported the following cases to me:

“(1) In the middle of May 1942, a habitual criminal was tried before the criminal court and was sentenced to death. A Kriminalsecretaer [detective] of the local criminal police attended the trial as an observer. He told the president himself, and expressly pointed out during the trial, that the Reich criminal police office had instructed him by teletype to attend. I heard that this criminal police official telephoned the prosecuting attorney before the trial and told him that he could imagine why he had been sent. The official had a conversation with the prosecutor during the deliberation of the court. During this conversation he declared that the police would have no reason to take action if an order for security detention would be made. He indicated that his presence was connected with the speech of the Fuehrer. I have neither spoken to the prosecutor nor have I had any reason to ask for a written statement. For the president who informed me vouches for the truth.

“(2) At the end of May, a trial was held before the criminal court against another criminal who was condemned to death. An official of the criminal police was summoned as a witness. Before the opening of the trial this official submitted to the court a letter from the Reich criminal police office, in which the local police authorities were requested to inform that office of the result of the trial—especially whether the demand for the death penalty, which was to be expected, had been complied with—and of the mitigating circumstances mentioned in the court’s findings in the event that a punishment other than the death penalty be awarded. Unfortunately, the president failed to take note of the exact contents of the letter. The official attended the proceedings after having been interrogated in the witness box.

“(3) At another trial held before the criminal court, at which the death sentence had been demanded but was not passed, a criminal police officer who had been summoned as a witness took the court’s findings down on a sheet of paper.

“(4) An SS member in uniform, holding the rank of a sergeant, attended a trial before the Special Court in which, among other persons, the wife of a Landrat was involved. He asked for permission to be present at the hearing and said that he was coming from Kassel on behalf of a police or security authority.

“(5) An official of intermediate rank of the local secret State police office participated as observer at another out-of-town trial of the Special Court lasting several days. No further details are known.

“(6) A detective from Bochum participated as witness at the trial of a juvenile perpetrator by the Special Court in Bochum. He compared the penalty imposed by the Special Court with another penalty—a term of imprisonment for many years—allegedly imposed the day before by the penal chamber at Bochum upon a juvenile perpetrator (because of poisoning?). On this occasion he remarked, with regard to the sentence handed down by the penal chamber, that the police had but to examine whether there was a motive, in order to interfere. This remark was made after the trial.”

4. As the attorney general has already reported to the Reich Ministry of Justice, the Secret State Police recently did not commit two civilian workers from the Ukraine who had shot a forest keeper in the Dortmund district court area to the court for prosecution, although the court had issued a warrant for arrest and the Special Court was prepared for an immediate conviction. They were hanged later on by the secret State Police. Furthermore, it was reported to me by the local court at Haltern that on 19 June 1942 a Polish laborer was hanged in its district by the police because he was said to have had sexual intercourse with a German woman. I enclose a copy of the report dated 29 June 1942. If the rumors are true that the Fuehrer has transferred capital jurisdiction to the police to this extent, it would be desirable to inform the judges and public prosecutors of this arrangement through official channels, as it is assumed that the police are engaged in unauthorized and unlawful activity. Publications in the daily newspapers give the impression that these were executions of sentences which had been legally imposed.

5. The office of racial policy [Rassenpolitische Amt] of the NSDAP issued a treatise on “National Socialistic policy with regard to foreigners” for official use by the Party of which I received confidential information. It contains regulations for marriages between Germans and members of other nations which are of importance with regard to the exemptions of foreigners from the marriage clearance certificates which are subject to the approval of the presidents of the courts of appeal. I propose to ask the office of racial policy to submit this treatise to all presidents of the courts of appeal. Applications for exemptions from marriage clearance certificates have assumed large proportions within my district. The procedure which I have adopted is in accordance with the principles of the treatise “policy with regard to foreigners.”

6. The district of this court of appeal has been very disturbed by air-raid alarms at night during recent months, until about two weeks ago. Air raids occur only occasionally now, keeping within moderate limits. In a number of places the Wehrmacht has started employing male inhabitants to replace the antiaircraft personnel. Older age groups have been trained for this purpose in daily courses from 1900 till 2200 hours. 15 officials and employees of the court of appeal have been detailed for this.

[Signed] Schneider

SUMMARY BY DR. CROHNE OF THE REICH MINISTRY OF JUSTICE CONCERNING GOEBBELS’ SPEECH TO THE MEMBERS OF THE PEOPLE’S COURT, 22 JULY 1942

Report on the Speech of Reich Minister Dr. Goebbels before the Members of the People’s Court on 22 July 1942

Reich Minister Dr. Goebbels stated at the outset that he had been asked by President Thierack to address the members of the highest German court of justice. He had gladly complied with this request. What he had to say had a special political aspect owing to the Fuehrer’s approval of his comments, the draft of which he had submitted to the Fuehrer.

The civil servants of the administration of justice had, owing to the nature of their work, always been subject to public criticism. Also today decisions of the courts were criticized and called alien to the spirit of the German people. One must not reply to the reproach that justice had failed by protesting that always only certain cases of wrong decisions had been singled out and the great number of the good and correct judgments had been disregarded. We are dealing here with a principle, i.e., of a wrong attitude of many judges who could not redeem themselves from their old ways of thinking. The one-sided teaching at the universities is to be blamed for it to a considerable extent and also the fact that the judge lived secluded in his professional surroundings and knew too little of life itself. Decisions alien to the spirit of the German people had, however, very detrimental effects especially during wartime. All must be done to remedy the situation before it is too late for the administration of justice. No professional men except the judges had heretofore had the guaranty of being irremovable. Even generals could be removed. A powerful state could not renounce the right to remove officers unsuitable for their office because of inaptness or other reasons. This had to apply to the judge as well. The idea of the irremovable judges he went on to say, originated in an alien intellectual world, hostile to the German people.

The Minister then referred to individual judgments that nowadays were unbearable. He cited in the first instance the case of the Jew Leo Sklarek. (In the Minister’s speech stated by error is the case of “Barmat.”) He could not understand that this notorious Jewish profiteer, who after his emigration to Prague had been a spy, had only been sentenced to 8 years’ penitentiary (the judgment of the People’s Court of justice of 16 April 1942 was delivered for having incited to commit high treason, based on paragraph 92 of the Penal Code). The judgment which the court of Eichstaedt had delivered, in the case of a man killed in action in the East having been insulted, was also untenable. A woman upon receipt of the news of his death who had uttered, “Thank God,” had been acquitted by reason of impossible justification. The Minister also referred to Moelder’s letter.

While making his decisions the judge had to proceed less from the law than from the basic idea that the offender was to be 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. The criminal must know beforehand that he will lose his head, should he assault the foundations of the State. These drastic measures must not be left to offices outside of justice but are the duty of justice. The big sacrifices of life which must be made by the best part of the people during the war give us a special reason to treat the offender with all ruthlessness. We must bear in mind that during the winter 1941–1942 every criminal had better billets in the prisons than 3½ million German soldiers. Today we have an entirely different conception of certain offenses which in normal times would not have been considered serious at all, but are now regarded as deserving death penalty; (theft during an air-raid alarm, robbery of handbags during black-out hours, and heavy penalties in cases of listening to foreign wireless stations this action being mental self-mutilation). Justice ridiculed itself by placarding summons to missing persons prior to their being pronounced dead, as everybody knew the missing person in the East or even in any enemy’s country could not report at all.

In this connection the Minister went on to speak about the Jewish problem. He went on to say that if still more than 40,000 Jews whom we consider enemies of the State could freely go about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago. The officers of justice must recognize their political task also while attending to the Jews. To feel sorry for them would be a blunder. It was an untenable situation that still today a Jew could protest against the charge of a president of the police who was an old Party member and a high SS leader. The Jew should not be granted any legal remedy at all nor any right of protest.

In his final comments the Minister pointed out again that the State must apply all means to ward off its foes at home and abroad. During a war it was therefore necessary that the idea of the expedient decision took the first place in justice. The people had to be possessed with the will of absolute self-maintenance. He recalled the words which the Fuehrer had said on 30 January 1933 to him on their way from the “Kaiserhof” to the Chancellery of the Reich upon entering the chancellery, “Nobody will ever get me out of here alive.”[254]

After this speech President Thierack expressed his thanks to the Minister for his fundamental comments and said that the Minister had greatly assisted him once before and asked him to repeat his inspiring and directing instructions also in future.

[Typed] [Signed] Dr. Crohne

23 July

SECRET REPORT OF THE CHIEF OF THE SECURITY POLICE AND SD, 3 SEPTEMBER 1942, CONCERNING “THE CONTROL OF PENAL JURISDICTION” AND THE REACTIONS OF JUDGES THERETO

5 September 1942

[Stamp] Reich Chancellery

The Chief of the Security Police and of the SD Office III

[Stamp] Secret!

Personal—Submit immediately

Reports from the Reich No. 314

1. To be secretly submitted to the attention of the Reich Minister.

[Initial] L [Lammers]

10 September

2. Circulation—
Cabinet Counsellor Dr. [illegible]
Cabinet Counsellor v. Stutterheim
Cabinet Counsellor Dr. Ficker

3. To be filed.

Berlin, 5 September 1942

This report is strictly for the addressee personally and contains news material transmitted unreviewed in order to retain its character of fresh news.

ADMINISTRATION AND LAW

Reports on the Control of Penal Jurisdiction

Under the impression made by the Fuehrer’s Reichstag speech of 26 April 1942 and by the general criticism of penal jurisdiction, the former leadership of the Reich Ministry of Justice[255] had, according to additional clauses already previously existent, been persuaded to reinforce the so-called control of penal jurisdiction. This control consisted in an extensive participation of the Ministry and of the supervising judicial officials, and presidents of the district courts of appeal and of the district courts in the sentencing-activity of the individual criminal judge on the principle that, especially in criminal cases with a political implication, the judge must receive assistance when pronouncing a sentence. Actually, it involved then a substantial extension of the already existing consultative obligations of the public prosecutor to the Ministry and, on the other hand, the introduction of a consultative obligation in the relations of the courts to the Ministry as well. According to numerous reports from the whole territory of the Reich, these measures have met with an extremely dissentient reception among juridical circles. The complete break with the hitherto prevailing conception of judicial independence which the control of penal jurisdiction means, is said to have been, to a certain extent, very unfavorably commented upon within the judiciary. In certain cases, this is even said to have led to outspoken expressions of opinion against the National Socialist State which allegedly wished to suppress judicial independence in order to surrender justice to a right of control by political offices. The origin of this attitude on the part of certain judges in this respect is always the conventional conception of judicial independence according to which the judge was exclusively subordinated to the written law and therefore did not need to follow any directives even of the most general character, that may be issued by the administration of justice with reference to any precise line of conduct in jurisdiction.

Politically enlightened judges have likewise, according to the reports, viewed the control of jurisdiction with misgivings. In this, they have indeed not so much perceived a danger to judicial independence, for it was clear to them that its implication up to now, namely, exclusive subordination of the judge to the law, has been deeply altered to suit the National Socialist juridical philosophy, as in the fact that the obligations to the National Socialist ideology must have precedence over the obligations to the law if jurisdiction was not to be in opposition to the political objectives of the nation’s leadership. Since the execution of law in the National Socialist State has important political tasks to fulfill, a certain influence on the judges must be made possible in the form of instruction on important political viewpoints which the individual judge cannot grasp outright by himself.

As reported, however, these judges have likewise given an unfavorable reception to the method of control of penal jurisdiction, for it amounts only to an attempt with inadequate means to solve from a wrongly selected principle the very problem posed to the administration of jurisdiction, namely the uniform political and ideological adjustment of the judge.

The intention of the administration of justice to gain influence on legal jurisdiction through the channel of the Ministry and the presidents of the district courts of appeal and of the district courts was therefore doomed to failure. The indispensable prerequisite for the possible success of such a gain of influence would have been that the officials exercising the control base their action on a unified political principle. As shown by experience, however, this has by no means been the case.

On the whole, the objective pursued by the leaders, who have been at the head of the Reich Ministry of Justice so far, in introducing the control of jurisdiction in order to reduce the far from negligible number of wrong sentences, can only be reached under certain conditions. Indeed certain sources of error have been removed with great difficulty. Without active handling of the basic problem of the political and ideological adjustment of the judiciary itself, a real improvement [Gesundung] of the execution of law cannot be expected in the long run.

The following example extracted from a series of similar cases is characteristic of the situation created by the introduction of the control of jurisdiction.

Roaming about at night at his place of domicile for several months, a Polish civilian workman stole from gardens and dwelling places money, numerous articles of underwear and clothing, as well as other articles of daily utility. As the competent special court established, he had carried this out under cover of the black-out.

In line with provisions, introducing reporting as a duty, the president of the competent district court of appeal had brought the case by telephone to the knowledge of the Reich Ministry of Justice. In its reply to the telephone message the Ministry advised the following day that the death penalty would probably not be deemed necessary for the Pole. That in any case the public prosecutor would receive explicit instruction before opening of the court hearing as to the penalty which should be asked against the Pole. The Ministry thereupon instructed the public prosecutor to propose 10 years of particularly rigid confinement in a place of detention. The court ruled accordingly.

As reported, the hypotheses under which this verdict took place, as well as the degree of the sentence itself, met with lively criticism on the part of politically awake lawyers. On the one hand it caused concern that by the direction of the administration of justice in such a manner the judge might from the outset be relieved of personal responsibility for his verdict. In as much as in a very great number of cases it becomes known to the court that the public prosecutor is being supplied with instructions regarding the application in criminal proceedings, it merely needs to comply with the request of the public prosecutor, thereby evading embarrassment which might possibly result from mistrials through reference to the concept of the Ministry. On the other hand, the case as described illustrates that the success of such a control stands and falls with the persons to whom such control is entrusted. If confusion prevails in the Ministry itself as to the line which the administration of justice should follow in regard to the Pole, there naturally is no guaranty that mistrials are excluded through the concept of control. The verdict in the case under consideration must be considered a faulty judgment; because under prevailing conditions there is no justification for the leniency which it expresses on behalf of a Pole who commits crimes under the cover of the black-out.

In connection with this and a series of similar cases reports of judges whom this development fills with serious concern stressed over and over again the need for informing the judiciary about the great goals of the leaders of the State. At the present time there is but a comparatively small number of judges who make an earnest endeavor to analyze the State political necessities as such, and the political foundation of the administration of justice. Unfortunately, it has so far been a fact that any civil servant in the administration who has just passed his second state examination in law has been more fully informed about the political goals of the State leaders and the political opportuneness than perhaps any president of a senate.

Also, this circumstance should be recognized as an important reason for the failure so far experienced in the administration of justice. Consequently, there exists a greater need than ever for bringing the judges much closer to the problems of State leadership and of State necessities as they arise newly all the time due to the war.

In the opinion of others, the former heads of the Reich Ministry of Justice likewise failed to fully realize their intent of remedying the lack of judgment of some judges in the case of decisions on penal cases with political aspects by controlling the administration of justice. It was said that in meetings held in the Ministry, the presidents of the district courts of appeal had been instructed to explain in official meetings to the judges under their jurisdiction how serious the situation is which is now encountered in the administration of justice, and in that connection to discuss examples for faulty verdicts, among other things also dealing with such which the Fuehrer himself has criticized. Some of the presidents of the district courts of appeal and of the district courts had discharged this task in such a manner that they manifestly refrained from expressing an opinion of their own, thereby making known that they themselves held a different opinion. This led to increased insecurity on the part of many judges.

An extension of report requirements yielded in some districts results along similar lines. It was partly made compulsory for judges at local courts, for example, to report every case of even moderate import to the president of the district court who on his part passed it on to the president of the district court of appeal and he to the Ministry. In some districts every judge at the local court was held to make a report each session on all cases which had come up. According to another report all judges of a district court of appeal had met to consult on a verdict which a judge of the local court was about to pronounce.

Going by the Fuehrer’s criticism of some individual verdicts, the Ministry occasionally makes reference as to the Fuehrer’s opinion in principle—so it is reported—in regard to certain delinquencies, urging upon the presidents of the district courts of appeal to acquaint their judges with the Fuehrer’s attitude as it more or less was assumed to be. This, too, resulted, in part, in completely confusing the concepts of the judges. To cite an example, a verdict was discussed at a meeting of the presidents of the district courts of appeal held in the Reich Ministry of Justice, according to which a woman, whose child had fallen into a vessel of hot water while playing and scalded itself fatally, had been sentenced to 6 weeks of imprisonment. The Fuehrer criticized that case because the loss of the child was hard enough a punishment for the mother and that, therefore, court proceedings reflected the concept of justice in form but were not in harmony with the natural concept of justice. When this case was passed on by the presidents of the district courts of appeal and of the district courts to the court judges, it was, in part, understood to mean that in principle it was the Fuehrer’s intent that women should be punished very mildly only.

The following case is cited as an illustration of the practical result of an interpretation of the Fuehrer’s will along such lines.—A woman had planned to give to the judge, who was considering a civil complaint made by her, a parcel with foodstuffs, a few days before the case came up in court for a hearing. Thereupon, the judge initiated court action against her because of an active attempt to bribe a judge. Bearing in mind the purported will of the Fuehrer that mild sentences should be imposed upon women and using such will as justification, the instruction was given that the woman was not to be punished at all. Only at a later date was this instruction modified in that it was ruled that a small fine was to be paid.

In connection with these and similar cases it is reported that it is a very doubtful principle to bring to the knowledge of the judges what is merely the purported or assumed will of the Fuehrer. Naturally this is bound to lead to constant conflicts for the judge. Considering things from all angles it is evident from the numerous reports which have come to hand that the so-called directing of the administration of justice met with but a limited amount of the success at which it had aimed. Aside from the numerous doubts which arise as a matter of principle, the amount of work involved to make this directing practically possible is not commensurate with results so far achieved. Compulsory reporting, which met with a considerable amount of criticism by the public prosecution even before introduction of the directing policy, has been considerably increased after the introduction of the directing policy and now extends even to the presidents of the district courts of appeal and of the district courts. This is said to have brought about a very considerable delay and burden in work which can neither be reconciled with the simplification and acceleration nor with the number of personnel at this time still available to the judiciary. Over and above this, the duty to submit reports has considerably paralyzed the power of decision and readiness to assume responsibility on the part of the judges, in as much as in many instances they are relieved of responsibility by other instances, as a result of which they feel to have been deprived of their essential task as judges.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[256]

DIRECT EXAMINATION

*******

Dr. Kubuschok (counsel for defendant Schlegelberger): I am now starting on a new group of questions. Do you wish me to start on it before the recess?

The prosecution charges you with directing the administration of penal law through the Reich Ministry of Justice. Please state your views.

Defendant Schlegelberger: Concerning these questions, we must differentiate between the position of the public prosecutor and that of the judge. The public prosecutor is an administrative agency dependent upon the instructions from his superior agencies. The judge is responsible merely to the law and his own conscience and judgment. The question to what extent and under what prerequisites the prosecutor has to report to his superior agency has been laid down in administrative regulations. The more important the individual question, the higher the agency the opinion of which is requested. It has therefore always been a matter of course that the importance of penal cases according to the case itself, or according to the punishment which is to be expected, has to be reported to the higher authority. I notice the suggestion was approved and an instruction was issued, an instruction which as far as it concerned a matter which was being dealt with at the trial always had to be interpreted in such a way that in the last analysis the public prosecutor had to make his decision dependent on the course of the trial. In 1939 Guertner—I myself had no part in these matters at the time and I don’t know what part Freisler played—pointed out to the public prosecutor that they should see to it that a great difference between the demand for a sentence of the prosecution and the actual sentence pronounced by the judge be avoided.

[Recess]

Q. Witness, we were discussing the guidance of the administration of criminal justice. Please continue with your explanation.

A. Before the recess I had referred to a decree by Guertner which required a constant connection with the courts in order to avoid a discrepancy between the plea of the prosecution and the final verdict. May I continue on this point?

I should like to assume that this decree or this order finds its definite reason in the fact that at that time a large number of new laws had been promulgated for which precedence in sentences did not exist and could not exist. Only gradually it was possible, with regard to these laws, to form a firm foundation based upon sentences and opinions of the supreme judicial authority. Frequently, therefore, surprises occurred if the prosecution in applying the law had a definitely different position from the opinion of the Tribunal. The purpose of that decree was to avoid this ambiguity as far as possible, and to reduce these differences to the least possible measure, also concerning the extent of punishment, which depended on the findings of the court. That quite apparently, as a matter of course, could only be achieved by a conference before the trial. The reports submitted by the prosecution, by the president of the Kammergericht on 3 January 1942, and from the same year by the president of the district court of appeals at Hamm, revealed that some misuse had taken place. It is stated there that the prosecutor after the presentation of evidence—that is to say, during the proceedings—had pointed out to the court what sentence with the approval of the Ministry he would demand, and in so doing created the opinion in the court that he expected that sentence and that penalty.

From this report can be seen that the presidents of the district courts of appeal quite rightly considered this behavior a misuse. The report by the president of the Kammergericht I had not seen until now. I do not know what steps were taken after that report was received by Freisler. Maybe this is a case again, one of these cases, where important matters had been neglected by him.

The report from the president of the district court of appeal at Hamm I remember very clearly. I had made up my mind to put this matter on the agenda of the next meeting of the presidents of the district courts of appeal. These meetings had the express purpose to discuss such questions which had been raised in the reports. Owing to the fact that I left my office soon thereafter, there was no longer any opportunity for me to carry out these intentions.

Q. The two reports you mentioned were submitted by the prosecution as Document NG-445, Prosecution Exhibit 73 and Document NG-395, Prosecution Exhibit 74 with the Documents NG-505 and 508, Exhibits 71 and 72.[257] The prosecution also charges you with having influenced the jurisdiction of the judges. I ask you to state your position with regard to these documents.

A. In the course of the examination today I was compelled on various occasions to explain to what degree the Party intended and tried to wrest various fields from the administration of justice and turn these competencies over to the police. In July 1941 that question was especially acute because there was an attempt to take away from the administration the prosecution of Jews and Poles. The opposition based its arguments on sentences which revealed a certain ignorance on the part of the judges of conditions of actual life. Under any form of government one has heard complaints about the fact that the judges were far removed from the facts and experiences of daily life. In the old Reichstag there was hardly any debate on matters of justice without these complaints, and such complaints naturally coming up during the war and in the course of many events the complete changes of all conditions of life and national economy found plenty of nourishment. It was the duty of the central agency to acquaint the judges with such general points of view and to demonstrate to them what the influence of temporary conditions and recent conditions would have to be upon the policy of criminal law. Apart from that, one had to be vigilant against that danger which I have described, namely, that certain fields of the administration of justice could be wrested from them.

At that time sex crimes of Poles were very frequent. The reason for that could possibly have been that these laborers who had been brought into Germany, in many cases, came into a living community with the families of the employers, that the husbands were usually at the front, and that the Poles themselves, that is, the greater part of the Poles themselves were in Germany without their families. The ground for sex offenses, therefore, was conditioned by these elements, and some judges did not recognize that.

In the documents submitted by the prosecution one case is mentioned which was tried before the Penal Chamber Lueneburg. It is the case of a sex crime committed by a Polish agricultural laborer. That defendant was granted extenuating circumstances, because, and I quote, “He did not have the same restraint toward female co-workers as a German agricultural worker would.” That opinion apparently was untenable. The Reich Supreme Court sharply rejected it. It was also very dangerous at the same time, because if reasons of that kind had become known to Hitler there would have arisen a new grave danger to the entire administration of justice. Therefore, I saw cause to find a different job for this judge who apparently was not aware of prevailing conditions. Cases of this nature and many others which may not have been quite as wrong but could have made a certain impression gave cause and reason for a type of propaganda which promised a great deal of success and that made me write that letter of 24 July 1941 to the court authorities in the provinces where I pointed out that in the cases of definitely criminal elements a sexual crime as a rule should be considered according to the legal provisions and regulations as a crime to be punished with death. The actual documentary background for that letter is to be found in the document of the prosecution. Therefrom one can see in what cases the police may have corrected the sentences by the judges, and one cannot overlook the fact that such frequent interventions on the part of the police to improve on the sentences by the judges represented a signal for the much desired event of taking over the power to punish by the police, and the man in charge of the Ministry conscious of his duty had to take that into account.

Document NG-508, which my defense counsel has mentioned, is the reproduction of a passage from a Hitler speech concerning the administration of justice; it was a speech before the Reichstag; and that concerned in general the necessity of severe punishment in times of war; and according to my duty I brought this speech to the attention of the judges.

*******

Q. In Document NG-102, Prosecution Exhibit 75,[258] you made the suggestion for a confirmation of sentences by the presidents of the district courts of appeal. Under what circumstances did you make that suggestion?

A. This suggestion to have the sentences by the courts confirmed is in close causal connection with this practice of transferring prisoners to the police.[259] Hitler’s Reichstag speech of April 1942 left no doubt in my mind that these interventions would increase, and my suggestion was to the effect that Hitler should delegate the right, the prerogative which he reserved for himself, to the Ministry of Justice and to the presidents of the district courts of appeal. If this had been achieved, the whole matter would have remained in the hands of the administration of justice, for even the applications for nonconfirmation according to my draft were supposed to be made by the attorneys general who in turn had received instructions from the Ministry.

My letter in regard to this question of confirmation shows again what means I had to use. I could not reveal the real reason if I did not want to be unsuccessful from the very beginning. Bormann, however, in this case saw through my reasons. In a letter from Bormann to Lammers, Bormann writes, this attempt was again a confirmation of the will of the administration of justice to keep these matters in their own hands, as, for example, the question of analogy [analogy provision of article 2, Reich Criminal (Penal) Code], or the extraordinary objection or the nullity plea; but in the Ministry of Justice there was not the will to apply these means with the necessary severity. Above all, Bormann saw clearly that if my draft had become law, Hitler’s right of intervention would have been destroyed with one stroke. All the presidents of the district courts of appeal were supposed to pronounce their decisions in Hitler’s name, and if they had confirmed in the name of Hitler, Hitler could no longer have attacked their opinion. If I may use a common expression, I can say that Bormann, the fox, did not fall for the trap. In that connection, perhaps, I may point out two things. Lammers’ remark in the document shows that I refused to have the Party drawn into this confirmation procedure basically. Furthermore, the document shows how I had to go about such things. These confirmation sentences existed in the case of military courts, that is also in the case of air force courts which were subordinate to the Commander in Chief of the Air Force, that is Goering. Thus, I could count an understanding for my suggestion in the case of Goering, and, therefore, I secured his support through a special oral report on my suggestion.

*******

CROSS-EXAMINATION

*******

Mr. LaFollette: Doctor, I would like to go back, now, to Prosecution Exhibit No. 75, which is Document NG-102. Briefly that was the series of letters and correspondence beginning in May 1942, which contains your proposed method of handling clemency matters after Hitler’s speech of 26 April 1942. Do you remember?

Defendant Schlegelberger: Yes, it is a question of confirming the sentences.

Q. Yes. On 6 May 1942, you wrote Dr. Lammers—addressed the letter to Reich Minister Dr. Lammers—

“Dear Sir:

“During our last conversation, I already told you that I intended to propose to the Fuehrer the introduction of a confirmation of judgment passed; a plan to which you agreed.”

I am leaving out a sentence; I don’t think it is necessary. It’s in the record here.

“Today I am transmitting to you an open letter to the Fuehrer along with draft of the decree requesting them to the Fuehrer.

“Copies for your files are attached.”

Then on the same day, 6 May 1942, you wrote to Hitler, and you started the letter, “My Fuehrer,” and you stated, among other things:

“If you, my Fuehrer, could decide by signing the attached draft of a decree, to transfer to the Reich Minister of Justice this right of confirmation for cases in which you do not want to decide yourself, the following would be achieved.”

Then it lists a technical analysis of the decree, as you see it. Then I go to the last paragraph of your letter addressed, “my Fuehrer,” of 6 May 1942, which reads in the English text:

“Therefore, I believe that, if you, my Fuehrer, will agree to the draft, I could assume the responsibility that the punishment awards of the courts will not lead to complaints any more.”

Now that followed the speech of Hitler on 26 April 1942. Do you recall writing that letter?

A. Yes.

Q. On 12 May 1942, in this same exhibit and document, you write again to Dr. Lammers, and this time you say:

“Dear Reich Minister Dr. Lammers:

“With regard to your request, I am sending you today some material from which, I think, follows that a Reich Minister of Justice controlling criminal justice cannot dispense with the possibility not to confirm a sentence. I may add that when the draft of the decree was already under way to you, Reich Marshal Goering explained to me in detail at a visit in Karinhall that he in the sphere of Wehrmacht justice, sector Luftwaffe, could only overcome the difficulties of heterogeneous legal administration by this confirmation, and that in his opinion it was definitely necessary to introduce the confirmation also for civil justice.”

Then I am going to skip a sentence and I’d like to read the last paragraph of the letter:

“I would be especially grateful to you, dear Reich Minister Lammers, if you would present the matter to the Fuehrer again. I have the hope therewith that, if the Fuehrer rejects the present handling of criminal justice, and on the strength of your argument, knows that the confirmatory proceeding is the only and safe remedy, he will not withhold this remedy from the Reich Minister of Justice.

“With best wishes and Heil Hitler,

“Yours very sincerely, signed Dr. Schlegelberger.”

As I recall your testimony, it was that Hitler had been very abusive to you in his speech of 26 April 1942, and that after that you had made up your mind to resign. Is that what you testified to?

A. Yes. I have said that I wanted to make it clear whether these attacks were directed against the administration of justice, and in that case I was determined to let matters drift toward a break and to withdraw from my office.

Q. Now I know that you said in 1941 that Goering had said to you that he would never forgive you and Dr. Guertner for centralizing justice, is that correct?

A. Yes.

Q. And now when you desired to have a conversation with Goering, would you go to Karinhall or would he come to the Reich Ministry of Justice, as a rule?

A. No, no. In such cases when Goering wanted to speak to me, he called me up and asked me to come and see him. Goering at that time dealt with a case in which he wanted to have a legal opinion. That was why he wanted to talk to me. On that occasion, we came into that conversation.

Q. Did Goering agree to support your plan at this conversation you had with him between 6 and 12 May 1942, or do you recall?

A. I take the liberty to explain that. I told him what my plan was, and he told me, “But that is the only possibility to handle these things.” [He said] I could not get anywhere in my field if I did not have that right of confirmation.

Q. Now in May 1942—about that time during May and June 1942—Reich Marshal Goering would have had the capacity to be a very strong ally, did he not?

A. That could be stated in that general way, and now in retrospect I could not state for any particular month because the relations between Hitler and Goering changed continuously. And with Goering it might have been similarly. It depended upon the question in what temper Hitler was met.

*******

b. Defendant Rothenberger’s writings on judicial reform and his guidance of judges in his district

CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND HITLER’S ADJUTANT, MAY AND JUNE 1942, MENTIONING THAT HITLER HAD CONSIDERED “NOTEWORTHY” THE ROTHENBERGER MEMORANDUM ON JUDICIAL REFORM

The Reich Minister and Chief of the Reich Chancellery

Reich Chancellery 6837 B

Fuehrer Headquarters, 11 May 1942

Subject: Memorandum regarding judicial reform

1. When I reported to the Fuehrer on 7 May, the Fuehrer informed me that he had received a memorandum regarding a judicial reform from a well known lawyer which appeared noteworthy to him. He will arrange to have this memorandum sent to me.

2. On 8 May, State Secretary Dr. Schlegelberger casually remarked, while visiting me, that he believed that the memorandum which the Fuehrer mentioned was drawn up by the president of a district court of appeal, Rothenberger.

3. Miss Buege: Enter (Rk.) Letter remains here.

4. To the personal adjutant of the Fuehrer Major General Schaub.

Fuehrer Headquarters

Dear Mr. Schaub,

The Fuehrer told me when I reported to him on 7 May, that he had received, sometime ago, a memorandum regarding a judicial reform from a well known lawyer, which appeared to him worthy of consideration. The Fuehrer did not mention the name of the lawyer. The Fuehrer promised to have this memorandum sent to me. I should be much obliged to you, if you would take care of this matter.

Heil Hitler!

Yours obediently

(Name of the Reich Minister)

5. Resubmitted on 25 May 1942.

[stamp] Resubmitted

Office 25 May

[Handwritten] see Reich Chancellery 8230 B

[Initial] L [Lammers]

Reich Chancellery 8230 B/ 8 June 1942

1 enclosure

The Fuehrer and Chancellor of the German Reich

CS—The Personal Adjutant

NSKK—Major General A. Bormann[260]

[Initial] Kr [Kritzinger]

To Reich Minister Dr. Lammers

Berlin

Subject: Reich Chancellery 6837 B

My very dear Reich Minister:

In reply to your letter of 11 May, addressed to SS Gruppenfuehrer Schaub, enclosed please find the memorandum which you requested concerning the judicial reform drawn up by President of Senate Dr. Rothenberger, Hamburg.

Heil Hitler!

[Signed] A. Bormann

Personal Adjutant of the Fuehrer

Certified: [Signed] Schroeder

Enclosure

Reflections on a National Socialist Judicial Reform

I

Since 1914 the world has found itself in one of the greatest revolutions of history. National socialism, which was born during the First World War, is the pivotal point of this revolution. Having welded the German nation together politically from 1918 to 1933 into a national community it is about in the present World War to “organize” Europe anew and to create a new world philosophy. It goes without saying that during such a “world revolution” certain fields of human endeavor cannot keep pace. Among such fields belongs, in particular—along with all the arts and sciences—jurisprudence. The first decisions in history were always made by men and nations in the elementary struggle for power. But the aim of this tremendous reorganization of the world is that for the first time in history not power, but justice will be victorious. In periods of transition this justice must prevail in different ways from the ways it chooses in untroubled times of peace. The scope of a peacetime administration of justice is often too narrow to do justice to present events. Thus, a historical revolution such as the present one will, of necessity, bring about a crisis in law, and particularly a crisis in the administration of justice; and the extent and intensity of this crisis depend on the extent of the revolution. A crisis is customarily defined as a state of the most violent intensification of the symptoms of a sickness, which is followed by a decisive turn, either toward the worse, to final descent—death in the case of man, and dissolution in that of a public institution—or the pendulum swings to the other side after the climax of the crisis, toward recovery. The present crisis in the administration of justice today is close to such a climax. A totally new conception of the administration of justice must be created, particularly a National Socialist judiciary, and for this the druggist’s salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.

II

What is the present state of German justice? Complete and clear fronts are drawn—on the one side are all the activist forces in Germany, particularly the old guard of the Party, to whom today’s justice is a hindrance in the pursuance of their aims. Natural friction occurs daily between elementary law, such as it is experienced by the activists, and the law as it is administered by the legal authorities of today. In every German village, and in every German city, modern jurisprudence, as the representative of the law, especially the judge and his verdict, have lost their influence considerably in the ancient struggle between might and right. We find that the pronouncement of justice does not enjoy in our totalitarian state the authority it deserves. On the other side are the representatives of justice who complain about this condition, namely, about the extensive elimination of judicial procedures; the lack of authority of the verdicts; the revision of lawful judicial sentences by police measures; the dwindling confidence of the people in their judges; the slight regard generally accorded the judges’ position in the press, on the air, and in films, etc. The German judge, the true representative of justice, stands alone and unprotected, presuming upon his so-called independence, above all, justice; and the German judges have hitherto not succeeded in gaining the confidence of the Fuehrer. It is true, German justice has become, organizatorially speaking, a united Reich justice, and all efforts are being made to create a National Socialist justice. Jurisprudence strives—if only with varied success—to fit into the National Socialist ideology. A close relationship based on trust, however, does not exist between the Fuehrer and German justice, nor between the German nation and the NSDAP which represents the people on the one hand, and German jurisprudence on the other. This distinguishes the present crisis from all the previous ones. The fact that jurisprudence has been greatly criticized at all times lies in the very nature of the problem. It has even been stated that criticism follows the pronouncement of justice as inevitably as the shadow follows the body. From all periods of history, and from all civilized countries, cases can be cited which originate in the excitement over an injustice which a judge may have done to a person (Plato’s Apology; Voltaire’s writings in connection with the trial of Calas; Zola’s J’accuse). He who goes to the judge believes that he is in the right. If he triumphs, he considers it a matter of course; if he is defeated, he thinks he has been wronged. However, the present condition is basically different. Justice today cannot turn to anyone. It has not gained so far the confidence of the leaders nor that of the NSDAP, and it is about to lose the confidence of the people. But without such confidence, without a connecting link with the leaders and with the people, justice is condemned to a final decline. It requires this confidence as man requires the air he breathes, in order to be able to live.

III

In a situation of this nature those who are responsible for the administration of justice have a historical responsibility—self-recognition. There is a painting by Raphael in one of the rooms of the Vatican, the “Stanza della Segnatura,” which represents the goddess of justice [Justitia] with her three genii—the genius of truth, holding her torch on high; the two-faced genius of wisdom; and her third companion, holding up a mirror to the goddess, the genius of self-recognition. Why does the Fuehrer, the Party, and the people criticize the administration of justice? What are the causes? What suggestions can justice itself make to the Fuehrer, in order to eliminate this condition?

1. Occasionally, the opinion is expressed that an authoritarian state can tolerate no strong judiciary whatsoever. The dynamics of national socialism exclude, it is said, the static which is the very essence of justice. The independent judge is a sad remnant of a liberalistic epoch, and there is no real justification for a separate ministry of justice in addition to a national ministry of the interior and the police. Also the National Socialist Reich came to power without the support of law; indeed, it did so despite the law. Consequently, it can solve its future problems without the help of the law, or at least without a strong legal system. History shows time and again—and the period since 1933 has confirmed it in many spheres of public life—that progress is a series of contradictions. White follows black. It is understandable that many old Party comrades raise the cry: fight against the judge per se; and they do so as a reaction against the legalistic state of the 19th century, against the neutral, unpolitical administration of justice, against judges who were trained unpolitically, who were taught to follow closely to the letter of the law, and whose independence finally resulted in the separation of the people and the state. Two aspects of this reaction are valid.

a. The bourgeois-liberalistic state which, under the influence of the doctrine of the division of power, empowered the courts to control legislation and administration, has finally been superseded by the unity of the Reich. The courts are merely an organ of the state, as the arm is only a limb of the human body. However, this arm can never set its own head aright. Law must serve the political leadership. Justice is not control of the leadership, neither is it protection of the individual against the state; rather, it is a function of the community which should serve to regulate the community life. The functions and the jurisdiction of the judge, in particular his relation to other departments, will therefore have to be redefined. But before this decision is reached, which is of such far-reaching consequences for the entire development of our Reich, the administration of justice itself has to be reformed radically in the interests of the Reich itself. This decision must not be influenced in any way by the experiences which the leadership has had with the law during the past 10 years. Otherwise, the danger exists that an unorganic and planless undermining from within, and a gradual fragmentation of the administration of justice will occur—as they have already set in, because the administration of justice has failed. The criterion, however, for the functions of justice and particularly of the judge in the National Socialist Reich must be a justice which meets the demands of national socialism. Therefore, suggestions must be submitted to the Fuehrer which clearly define what such a justice, and particularly a National Socialist judge, must be like.

b. In the second place, this reaction of “antagonism toward law” is justified because the present moment absolutely 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. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand all outmoded institutions, concepts, and habits have been done away with—if need be, in a brutal manner—and if, on the other hand institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation. The question is solely: Is a strong judiciary incompatible with the National Socialist authoritarian state (Fuehrerstaat) per se, that is, permanently, or only temporarily?

2. He who is used to thinking along historical lines and who understands the essence of national socialism will have no doubts as to the answer. Justice has at all times been the strongest pillar of every great civilized state. Great empires fell when despotism and corruption took the place of justice and of order; great empires rose to heights beyond imagination when the central figure, the actual creator, the embodiment of the concept of justice—the judge—represented authority. It was accepted as a matter of course during the classical age of the Imperium Romanum that the most exalted and honored place in the state was occupied by the praetor along with the consul—not to mention the enormous cultural influence that Roman praetorian law has exerted for centuries on the whole of Europe. The judge was the highest official of the state also during the height of the British Empire. Italian fascism also recognized the importance of this question for the preservation of its empire by agreeing with me on the following propositions at the German-Italian Conference held in Vienna in March 1939.

Proposition 5

“The judge, in contrast to other civil servants, derives his authority directly from the state leadership.”

Proposition 8

“Among civil servants the judge occupies a unique position in the organization of both states.”

What a far-reaching influence was exerted on the Germanization process of the East in the early Middle Ages by the highly developed city laws, particularly by the law of Magdeburg and Luebeck! The law and therefore the judge has always been one of humanity’s most prominent representatives of civilization. Also the aim of the gigantic struggle for existence in which the German people are at present engaged is to replace power and despotism by justice and order (the new order) in Europe and the entire world. There is no order without a strong law. Likewise the inner worth of the National Socialist Reich consists in the fact that every citizen does not think of it, his Reich, as the embodiment of the interests of individual pressure groups or parties, but of his sense of justice. In the eyes of the German people, more so than in the eyes of many other peoples, justice is and remains the most treasured gift; it is not the illusion of “equal rights for all,” but is in line with the old Prussian saying, “to each his own.” The superficial view that an authoritarian state cannot tolerate a vigorous judiciary is therefore wrong. The better the inner strength of a state is consolidated, the better is justice assured and the stronger is therefore the judiciary. Only a state based on external force must be afraid of a strong judge, and history has shown time and again that nothing leads faster to self-annihilation than a paucity of laws and a feeble administration of justice. The judge is the representative of justice. It is he who in the eyes of the people is the guarantor of justice, not the professional jurist nor the public prosecutor, nor the attorney; because he, the judge, administers justice, uninfluenced by friend or foe, unbiased and unswayed by the quarrels and tendencies of the day, not prey to human foibles. With him rests the decision over life and death; he intervenes decisively in every sphere of human life and in the most treasured possessions of a people such as liberty, honor, family, work, land, etc. Here the people expect an unflinching representative of a strong law who seeks the truth and justice with intense devotion and a clear mind. Nor can a political leader, even the best, nor a Landrat nor a Gestapo official be at the same time a judge. They all perform completely different functions; they must direct, organize, plan, and look into the future. Their decisions too must be just, but the idea of justice is not the guiding principle of their vocation. They all require a counterpoise in the form of a magistrate of whom the great Ulpian says: “Priests are we, because we foster righteousness and preach the knowledge of what is good and just.” Corruption, personal selfish interests, vanity and craving for power which happen to play an important part in human life, cannot—apart from having a rigid political leadership—be better prevented than through the fact alone that a strict judiciary authority exists.

3. And this is where the awareness of their mission and the historical obligation begins for the men responsible for the German judges. They are to see that the fire of justice never quite dies not even during the most difficult times of a great world revolution. The German ideals of justice embodied in a strong judiciary must—since it is timeless—be fitted into the future construction of a National Socialist Reich. This, however, is possible only when the fire continues to glow. Political situations require constant measures of opportuneness, and every stubborn resistance to it—“on principle” or “fundamental deliberations”—is senseless. But one must be constantly aware of the danger that the very “convenient” putting aside of a regulated administration of justice conceals the tendency of habit. It is the task of a new German justice to prevent such a development. This cannot be achieved, however, by bewailing the present condition or even by resigning herself to it. She must look into the mirror and ask herself: What can I do to put at the disposal of the Fuehrer a justice and judges in which he may have confidence?

IV

Theoretically, the constitutional position of the German judge, especially his position in respect to the Fuehrer, is not difficult to solve. Overcoming the division of power the Fuehrer is not only the legislator and executioner of power, but also the supreme judge. Theoretically, the authority to pass judgment is therefore only his. If he could carry out this authority also in practice, there would be no more judiciary problem and no legal crisis. But he cannot do so. Therefore, he has transferred his authority to the individual judge, that is, directly without any further administrative channels. The judge acts differently from any other official who is a member of a sometimes rather long official hierarchy, by virtue of a decree issued to him direct by the Fuehrer. This is the meaning of freedom of the bench. Every other private Party official or public office has to abstain from all interference or influence upon the judgment. This superior position corresponds to the obligations of the judge to find justice exclusively according to National Socialist ideas. Because a judge who is in direct relation of fealty to the Fuehrer must judge “like the Fuehrer.” 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.

That only the best are considered worthy of a privileged position such as the judge holds can also be seen from another reason. The former legislation was suspicious and therefore casuistic toward the judge. It attempted to regulate every conceivable fact of law, thereby degrading the judge to a subsumptive mechanism. The Fuehrer as legislator, however, knows that a living people’s law which can be understood by every citizen and which is to reach a truly just sentence in the individual case can be established only by an elastic legislation with far-reaching opinions of the judge. The multicolored and versatile life is therefore fettered as little as possible by the law today. Every Reichsgesetzblatt teems with such general terms as—normal sentiment [of the people], dignity and etiquette, honesty, National Socialist ideology, etc. This loose binding to the law of the judge without an excellent judiciary personality is, however, a contradiction in itself and will forcibly endanger justice, unity, and security of law considerably. National Socialist free method of legislation, creation of a living people’s law, and quality of the judge therefore necessarily act and react on one another.

Repeated theoretical demands for a National Socialist personality as judge are not enough. One must recognize reasonably and clearly that the present type of judge—no reproach should hereby be made to an individual judge—in his historic development, his training, and his selection does not and cannot meet this demand. And just as reasonable are the practical deductions to be made from this.

V

The historic development of the German judiciary is in short the following:

At the same time at which the Roman law, which in no way whatever was connected with the German national consciousness, was introduced in Germany (15th century), the freely elected German people’s judge was replaced by the civil servant, the professional judge. He studied at first at Italian universities, and later—up to the present time—his method of thought was influenced by legal reasoning in accordance with Roman law. Originally he, though an alien, was nevertheless, in his capacity as the highest official of the individual sovereigns, an authority in the country; thus, 19th century liberalism, with its hypertrophy of laws, its plethora of courts, its wild pursuit of litigation, and its juridical thinking, led to a steady increase in the number of judges, and indeed to a debasing, vulgarization, and “bureaucratizing” of the judges. In a liberal state these judges became independent simultaneously in the sense of a complete detachment from people and state. The authority of the judge can be determined by two entirely different means: Once by granting him a superior position and by letting only few qualified men with a strong personality become judges—then the authority and the so-called independence will as a matter of course come out to a certain extent as a by-product—or else the judge’s position will be formally converted under severe stress into a bureaucratic civil service position in which he will attempt to carry through his conception of law by being granted independence through legal guaranty. Prussia, and with her the rest of the German states, consequently the second German Reich, took the latter way.

National socialism will have to proceed on the first path. Because the nature of national socialism is in direct contrast to this degeneration of the old German, nonbureaucratic people’s judge which occurred historically through foreign influence. National socialism will revive the concept of German judge as prototype the same as it created the concepts of Fuehrer, followers, folk-community, honor, loyalty, farmer, soil. It will also have to clear the concept of German judge as prototype of human society from all that is foreign to him, all that has stuck to him in the course of the developments of the last centuries, and ask itself the question: What does a German mind understand by the term “judge”?

According to the concept which every German has of a German community the judge is a fundamental type of human life. Just like the farmer, the soldier, and the various types of trade, the judge too belongs to every community developed beyond the most primitive state. The characteristics of the prototype of judge are—

1. That he is independent and not confined to directions. A judge who has to ask someone else for the sentence is just as much a caricature as a farmer without a plough and a soldier without a weapon. Upon the fact that the judge can use his own discretion is founded the magic of the word “judge.”

2. And a second item is in our description of a German community. The judge has a strong inner authority. He is the interpreter of law who is superior to all other servants of the state in knowledge, experience, and humanity. That the German people have a fine feeling for a strong, responsible, independent judge for the decision of its interests, can be seen among other things from the following: In spite of all judiciary crises and in spite of every reproach against the judges and their decisions, national socialism has never called: Dismiss the judges, we do not wish or require judges any longer! The discontented have always turned only against the present ones and have demanded better. Neither the laborer nor the farmer, neither the businessman, nor the tradesman has ever voiced the desire to appoint for the settlement of their arguments in place of a judge an official who is bound by instructions. 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 and judge.” The mail received in the Fuehrer’s office in one day would prove this. No wonder, that next to this man, the German bureaucratic judge who represents so little of long established judiciary grandeur had to lose further authority. The special interest we have in this election of the Fuehrer to supreme judge in the united Reich is the acknowledgement of the true judge. This does not infer a renunciation of the concept of the judges itself, as is sometimes concluded, but it does infer a renunciation of the bureaucratic judge. The spontaneous recognition of the Fuehrer as supreme judge of the German people is essentially due to the fact that the Fuehrer wholly independent, separate from any influence or person, not supported by any machine of state but solely by the loyalty of the people fights for the rights of the German people within and without its borders, that is, all qualities which personify a true judge.

3. And thirdly, there will be only one judge in our community. Just imagine! There is a judge on every corner of a market place which we see before us. One feels that 3 of them are too many, while there may safely be 4 tailors, even 40. That they might not have enough work would not fundamentally disturb our imagination. But 4 judges. The symbol that there is only one right, only one justice as presented so clearly in the single judge, would be obliterated. One would begin to compare as in the case of 4 stores—where do I get better right? The authority of the judgment suffers if more judges than needed are present.

Practical considerations also make a radical reduction of the number of judges imperative. During the next decades Germany simply will not have enough young students who have the requirements for the profession of a judge, who have the inclination and aptitude to become a lawyer, and especially a judge, in such an active period. The thorough laying off of personnel which must take place in the entire German administration after the war is even more urgent and justified in the case of judges, as this reduction is in line with the essentials of judges, they being the representatives of the one law and the one justice.

VI

The historic evolution of the German judge is also in conformity with his training and his selection. To decide what is right does not require constructive or scientific thinking but above all, it presupposes the art to appraise human beings, to understand human emotions and the ability to comprehend all phenomena of life. Training methods of today lead to abstract thinking, to materialism, and to an ignorance of the ways of the world. The theoretical scientific method taught nowadays in universities is apt to imbue the student after being first introduced to a juristic line of thought with abstract conceptions and with a system of logic which makes it very difficult for the student to find his way later on in a world of facts. The outcome is the abstract lawyer, subject to so much criticism who does no longer recognize human beings but only conceptions, moreover, it is also the source of ever recurring disagreements between politically trained National Socialists and lawyers. Very often there is a world of difference between them. The point from which all training reforms must go out must be paragraph 20 of the Party program, which reads:

“The curriculum of all educational institutions must be adapted to practical life.”

In detail this means—

1. Substitution of the logical, abstract method of thinking by a method of conception taken from practical everyday life. No “lecture” with a deductive training method, given by a professor to a hundred or more “listeners,” but some kind of working community of perhaps twenty to thirty students who will be introduced inductively to the system—that is empirically from life—by a teacher endowed with scientific, practical and educational talents. These teachers are either university teachers who carry out at the same time the duties of a judge or administrative lawyer, or else judges in office who teach simultaneously at a university. The selection of about 200 qualified leaders who must be held in readiness at the end of the war for a fundamental reeducation of our youth is the most pressing problem. Only such men are able to guide the productive energies of the beginners into the right channels, and so prevent a false, abstract education as well as the cutting of lectures and the cramming down of lessons.

2. These working communities to be established in universities must ever maintain close contact with practical work (court, administration, Party). The strict division practiced heretofore—at first 3 years’ university training exclusively, then 3 years’ practical work—has provided them with a dangerous, theoretical “preinoculation.”

3. A man who chooses to be a judge and who therefore administers justice to all phases of human endeavor must know life itself, the real and practical life. Therefore, anyone who after passing the probationary state examination, at the approximate age of 26, has worked for 2 years in the judicial sphere as a candidate with some court—as has been customary heretofore—has not the “calling” of a judge. He has only become acquainted there with a small sector of life from a very definite angle. Only he who has steeled himself and proved his mettle outside a safe civil service position shall pass judgment and decide over human lives. He may stand his test in accordance with his inclination in economic life (banking, industry, shipping, commerce, agriculture), or as an attorney who looks at the objects of justice from “another” angle, or by taking an active part in Party or administrative life either at home or abroad. The decisive factor is that the future judge has not lived his life only “behind bars.” He also must have stood “before the bars,” in real life. These requirements lead us to recognize two facts.

a. No one should be appointed a judge before the age of 35. To judge requires a ripe judgment, a certain spiritual detachment, and a very pronounced character; qualities which can hardly be asked of a 28-year-old candidate who has never had to struggle in real life.

b. No one who has acquired a life position in another profession wishes to become a judge at the age of 35, unless the following primary conditions are created: The position of a German judge must be of such high standard with regards to ideal and material rewards as to attract even the best of our youth. By an elastic legislation and the freedom of the bench, the leadership of the State places such full confidence upon the judges—as are granted to no one else in an autocratic state—that only the best can be considered to deserve this confidence. He who has begun a thing must go on with it; if there are to be men in an autocratic state invested with the freedom of the bench, then this freedom should be granted to a few and exceedingly well qualified men only.

VII

The demand to reduce the number of judges—I reckon with a reduction from about 16,000 to about 8,000 for Germany proper—gives us the problem of a fundamental reform of the entire organization for the administration of justice. A mere reduction of the personnel without a simultaneous reform of working methods and of the organization would not result in improving the work but only to its deterioration as is the case everywhere else in general administration. I have laid down my conception of this reform of justice in the following detailed proposals:

1. The general political satisfaction of the people and the concept of a national community of interest, which is growing more and more, will already by themselves relieve the courts of much work.

2. Much work is done which is only in a general way connected with the administration of justice and which is more of an administrative than of a judicial nature. This work can well be done and without harm by other administrative departments. I mean herewith a large part of the work done by voluntary jurisdiction, such as recording of deeds and general registry work. The core of the administration of justice from a political point of view—that is, the administration of criminal law—must, on the other hand, remain in its entirety in the care of the judiciary as it should under no circumstances be torn and split up among several other ministries.

3. The organization of the courts, comprised at present of four levels—lower court of first level, district courts [Landgericht], court of appeal, and the supreme court—must be converted into an organization of three levels—district court [Kreisgericht], Gau court, and supreme court—to conform to the new political organization of the Reich and to party jurisdiction.

All proceedings at law must be based upon the district court [Kreisgericht] which will no longer be provided with three judges as at present the district court [Landgericht] but only with one. Moreover, trial by one judge only will be the ideal and the rule of the administration of justice. The district judge is the principal link between the judges and the people. Establishing the facts at the source is decisive for all subsequent findings, as this established the closest contact with real life in respect of time and locality. The “exodus from the country” to “higher” positions, observed with much concern in the case of judges and which is in concurrence with the exodus from the country by the people in general and also of interior administrative organs, must be counteracted with all means with the aid of political pressure on the personnel concerned. The district judge must be—from a human and from a professional point of view—the most efficient judge of all. Legislation has placed all means at his disposal for a quick and correct judicial decision. It must be he who is directing all proceedings at law, and not the parties as has been customary heretofore. A state of affairs is untenable where the parties at times “just tested their ground” in the court of the first level, and where they were reluctant to admit the truth and the evidence, because “they will go to the Reich Supreme Court in any case.” The better the guaranties created in the first level with regard to personnel and proceedings, the less will be the justified demand for the means for legal redress. Of course, the possibility for a re-examination of each and every judgment (with the exception of petty cases) must remain. The authority that goes with the word “uncontestable” may be only accorded to the decisions of the Fuehrer. But the primary conditions for the application of legal remedies will be rendered more difficult. The capitalist conception of the value of matter in litigation shall no longer be the standard as at present, but the standard must be the importance and the effect a judgment will have on the public in general and on the further evolution of justice. The Gau court at the residence of the Gauleiter and Oberpraesident will be designated as court of appeal and will be provided with three judges in accordance with the Fuehrer principle; the Reich Supreme Court with three or five judges sits as court of revision also in accordance with the Fuehrer principle, therefore not subject to the outcome of voting but to leadership. I am, in principle, against all centralization. In spite of the foregoing, the place for the Reich Supreme Court of Greater Germany is in the capital of the Reich, consequently in Berlin and not in Leipzig (a compromise of the second Reich). The Reich Supreme Court will not act as at present as a court of revision for all cases of a certain value of the matter in dispute. It is only competent with regard to maintaining a uniform administration of justice and to guarantee stability of law.

Titles such as Amtsgerichtsrat, Landgerichtsrat, Oberlandesgerichtsrat, and Reichsgerichtsrat are out of place to describe the activities of judges of the future. A judge does not give “counsel” but passes judgment. Therefore, the only title that corresponds to the matter in question and with his activity is the title of “judge.”

4. The merger of the present day Amtsgerichte and the Landgerichte to establish a Kreisgericht [district court] with its seat probably at the residence of the Landrat [county councilor], or of the district party leader, means the abolition of many smaller courts not capable of sustaining themselves. Apart from this, the conception of the “Amtsrichter” as the father of a small community has died out long ago. In his place stepped the young and forever coming and going assistant [assessor] who has to prove himself or the Amtsgerichtsrat with his all too narrow outlook on life who has very often become embittered because he had not been promoted or did not have enough to do. The decisive factor is not his judicial wisdom but his authority as a human being. Consequently, the honorary (unpaid) justice of peace shall try petty cases of every day occurrence in each community. He is not requested to have a legal training, in as much as it is his duty to reconcile the parties and to restore the peace between neighbors. The man who enjoys the most authority of all men in the community—in accordance with the prevailing characteristics of the place, he may be a trusted senior party member, a pensioned officer, or a farmer—will be given the chance to perform here a most beneficial activity. Besides, for judicial matters requiring the attention of a trained lawyer, the judge of the district court [Kreisrichter] in his capacity as a circuit judge will hold court in case of need on special court days in communities belonging to his district. In this way every German fellow citizen has access to a court in his place of domicile, moreover, the judge heretofore confined to a too limited sphere for his activities will automatically disappear.

5. The duties of a judge must have an exclusively judicial character. All duties not requiring for their discharge the special schooling, experience, and training of a judge must be transferred to the judicial administrator, the higher, intermediate civil servant of the administration of justice. The satisfactory experience made by the general interior administration, and by financial and postal offices in regard to their well versed, old time magistrates and chief inspectors may well serve as an example. To relieve the higher officials of some of their duties and to delegate them to lower grade civil servants prevents the former from becoming narrow-minded, short-sighted, and trivial and imbues the latter with the readiness to assume responsibilities. The duties of a judicial administrator—in places not provided with an official domicile of a district judge—consists of preparing current work and applications intended for the district judge [Kreisrichter] but also for the justice of the peace.

VIII

Therefore, it will be possible to produce the type of National Socialist judge only by—

1. A radical change of training methods.

2. A radical reduction in the personnel.

3. Removing the judges from the civil service.

4. A radical change in the entire judicial organization.

This means a sweeping judicial reform top to bottom, talked about for decades, even for centuries, but which was not accomplished either by the second or by the intermediate Reich [Weimar Republic]. Administrative work and decisions on each and every point require a great deal of time. Consequently, these problems must be tackled as soon as possible from within the administration, not “although,” but “because” we are engaged in war; not because they will come into force and practice during the war, but because they must be held in readiness for after the war. Frontline soldiers returning from the war can be assured that the preparation made for the appointment of National Socialist judges will contribute its share of safeguarding for all time the ideals they have fought for. And the judiciary system, if not completely transformed and reorganized, will hardly attract to it the best of the returning soldiers primed with energy, wanting to quench their thirst for peaceful and constructive work. Well qualified and vigorous judges are indispensable for the enormous peacetime tasks in store for the great Germanic Reich.

Hamburg, 31 March 1942

[Signed] Rothenberger

REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 11 MAY 1942, NOTING ROTHENBERGER’S INTENTION TO INTENSIFY “THE INTERNAL DIRECTION AND STEERING OF THE ADMINISTRATION OF JUSTICE,” AND ENCLOSING COPIES OF ROTHENBERGER’S INSTRUCTIONS TO JUDGES IN HIS DISTRICT

The President of the Hanseatic Court of Appeal

3130 E—1a/4

Hamburg 36, 11 May 1942

Personal!

Registered

To: State Secretary Dr. Schlegelberger Reich Ministry of Justice

Subject: Report on the situation

Reference: Your ordinance of 9 December 1935—Ia 11012

3 enclosures

I

In April of this year I made a trip through various provinces [Gaue]—Dresden, Prague, Vienna, Graz—to inform myself to conditions in central Germany and Austria.

II

The Fuehrer’s speech of 26 April 1942 did not surprise me very much. It confirmed to me the regrettable fact that the Fuehrer has no confidence in the German administration of justice and in the German judges. A radical National Socialist reform of the legal system which I have suggested for years in verbal and written reports[261] has therefore become even more urgent.

The effect of the Fuehrer’s speech on the judges in my district was absolutely crushing. It is impossible to gauge the effect on the German judges of the proclamation regarding the removal of judges and the way in which this was made known to the world in the form of an enabling act[262] passed by the Reichstag with frantic applause. I therefore considered it my first duty to counteract this effect by taking the following measures:

1. On Tuesday, 28 April, I had a preliminary discussion with my presidents to hear how my staff felt about the matter.

2. On Wednesday, 29 April, I discussed the present situation in detail with the Gauleiter and asked him to address, together with me, all judges of my district.

3. We did this on Friday, 1 May. I spoke for approximately three-quarters of an hour, next the Gauleiter spoke for about 20 minutes. Neither of us glossed over the seriousness of the situation; we openly faced the Hamburg judges whose jurisdiction did not cause the present crisis, and we stressed the necessity for a fundamental reform. We pointed out that two dangers had to be forestalled:

a. further loss of authority of the judge’s verdict,

b. a feeling of doubt on the part of the judges or of anxiety with regard to their family’s livelihood.

I have, therefore assumed responsibility for each verdict which the judges discuss with me before passing it.

4. On Wednesday, 6 May, the Gauleiter upon my request addressed all political and economic leaders of Hamburg on the subject of the present crisis. I considered this necessary so as not to alarm the population and prevent attacks against the judges.

5. On the same day I made arrangements with all senior police officers (the Higher SS and Police Leaders, heads of the criminal police, of the Secret State Police, and of the SD) to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence).

6. I made similar arrangements with all representatives of the Hamburg Press. The press was to refer to me before subjecting a verdict to any form of criticism.

I cannot agree with the objection to these measures on the grounds that with other Gauleiter such procedure would not have been possible. In 1933, the Gauleiter was anything but favorably disposed toward the judges. I am of the opinion that every political minded National Socialist leader can be convinced of the necessity of an orderly legal system, provided the system is National Socialist in character. Not even the continued changes of political leaders in Hamburg, especially among senior police officers, which have occurred since 1933, ever disturbed our smooth cooperation.

III

In view of the present situation I am intensifying the internal direction and steering of the administration of justice which I have considered to be my main task since 1933. For that purpose, I have issued the instructions which are set out in enclosures 1, 2 and 3.

IV

The meeting of the chief presidents in the Reich Ministry of Justice on 5 May this year did not satisfy me. It was my impression that most of the chief presidents were very much depressed. I do not believe that their inner confidence was restored in the course of the meeting.

V

I suggest that the chief presidents should be confidentially informed of judgments passed in the Reich which have caused special criticism in the Reich Ministry of Justice, so that the judges may get some idea of the Fuehrer’s will regarding the various spheres of the administration of justice.

[Signed] Rothenberger

Enclosure 1

Hamburg, 6 May 1942

The President of the Hanseatic Court of Appeal

To: All Judges in the District of the Hanseatic Court of Appeal

As I already stated at the plenary meeting of the judges on 1 May 1942, I am prepared to advise every judge who in doubtful cases might desire to approach me personally. I shall in such cases ask the judges to arrange for an appointment with my staff and to bring along the respective files for report.

[Typed] [Signed] Rothenberger, Dr

Enclosure 2

The President of the Hanseatic Court of Appeal

Hamburg, 7 May 1942

To:

The President of the Hamburg District Court

The President of the Bremen District Court

The President of the Hamburg Local Court

In view of the present situation I issue the following instructions in agreement with the attorney general:

I

A meeting of the presidents will be held at my office every week at which the presidents of the district courts of Hamburg and Bremen and of the Hamburg local court as well as my expert adviser will be present. The attorney general and the Chief Public Prosecutors with the district courts of Hamburg and Bremen have promised to attend whenever the cases under discussion are of special interest to them.

On the basis of brief written notes containing the titles, file numbers, and a few key words of the matter to be discussed the presidents in the course of this meeting will report on the important decisions which were passed in penal and civil cases during the preceding week as well as on the essential penal and civil cases to be tried in the following week.

The attorney general as well as the Chief Public Prosecutors will also bring up for discussion important preliminary investigations, submitted to the attorney general during the preceding week.

Outside of these regular meetings the presidents will immediately report to me matters of special importance and urgency.

II

For the purpose of procuring the material I request the presidents to have the criminal and civil divisions and chambers submit brief reports to them every week in the form of a review and a summing up of important pending penal and civil cases, which, if necessary, will have to be supplemented by verbal reports.

III

Apart from the weekly presidents’ meeting, a special meeting with the presidents of the Special Courts in Hamburg will be held in my office every week at a date personally arranged by me in each case in which the attorney general and the chief public prosecutor of the Hamburg district court will also take part. With this meeting I shall connect a conference with the head of the public relations department for legal matters in Hamburg.

As stated under I, the chief prosecutor of the Hamburg district court will report on essential preliminary investigations on Special Court cases, which have been brought before the prosecuting authority during the preceding week.

The presidents of the Special Courts will report in the same way on essential decisions passed by the Special Courts during the preceding week as well as on important cases to be tried before the Special Court in the following week.

In case of urgent Special Court proceedings the presidents of the Special Courts have to report immediately and independently of these regular meetings.

The cases of the Bremen Special Court will also be discussed at the presidents’ conference.

IV

I consider as essential in the sense of these instructions all cases which are of special importance, among them primarily—

a. Penal cases in which the death penalty or a long term of hard labor is to be expected.

b. Penal cases which are of primary significance for the protection of the population.

c. Penal cases due to the war, especially cases of offenses against the war economy, illegal slaughtering and similar penal cases, as well as cases against prisoners of war and against public enemies, and cases concerning crimes committed under the cover of the black-out.

d. Penal cases against Poles, Jews, and other foreigners.

e. Penal cases of special importance concerning crimes committed by, or against minors.

f. Crimes due to tragic unfortunate circumstances.

g. Penal cases in which a decision on the kind and degree of punishment is especially difficult or in which uniform handling is especially urgent.

h. Penal and civil cases in which persons are involved who are State or Party officials, or dignitaries, or who hold other eminent positions in public life.

i. Penal and civil cases in which it is clearly the intention of the parties to call in agencies not connected with the judicial authorities.

k. Penal and civil cases in which there seems to arise a conflict between the established law and the necessity of an economically and socially, reasonable solution.

l. Penal and civil cases concerning the interests of State and Party, or political and economic problems, as well as problems of foreign policy and ecclesiastical problems, or the effects of the war (for instance bomb damage, matters concerning urgent payment of church rates in kind, etc.).

m. Penal and civil cases in which legal problems of a general nature arise which require uniform handling by the courts.

[Stamped] [Signed] Rothenberger, Dr

Enclosure 3

The President of the Hanseatic Court of Appeal

Hamburg, 7 May 1942

To the Presidents of the Civil Senates and of the Criminal Senate

The Fuehrer’s speech and the Reichstag resolution of 26 April 1942 make it necessary to do everything possible in the organizational field in order to secure jurisdiction of the kind the Fuehrer expects, especially in wartime. As announced in my speech of 1 May, I therefore intend to inform myself as extensively as possible prior to the trials of cases which are of political significance, or which involve the possibility of a certain contradiction between formal law and the public sentiment or National Socialist ideology in order to discuss matters if necessary with the presidents in question. Incidentally, I expect the presidents more than ever before to confidently submit to me for discussion matters involving the afore-mentioned problems. To obtain information as far as the civil senates and the criminal senate of the Hanseatic court of appeal are concerned, I have requested the president of the senate, Dr. Struve, at present my permanent deputy, to assist me by holding conferences with the presidents of the senates at regular intervals at which the presidents will furnish a review of the cases which will come up in the near future. Generally the report can be brief. But it must furnish sufficient details in cases which require special attention according to the Fuehrer’s speech, in order to enable my deputy to decide whether my intervention is necessary or expedient. In this connection the facts of the case and the decisive legal points of view will have to be discussed. I expect that these arrangements which are only destined to serve jurisdiction and to strengthen the position of the judges will meet with general approval, and I hope that my deputy will be fully supported by you. I shall of course continue to be at your disposal for personal discussions.

[Typed] [Signed] Rothenberger

The President of the Hanseatic Court of Appeal

3150 E—1a/4

Hamburg 36, 1 June 1942

Registered

To: State Secretary Dr. Schlegelberger

Reich Ministry of Justice

Berlin

Your Ordinance of 9 December 1935—Ia 11012.

Following up my report of 11 May 1942 on the situation, I beg to inform that I have, in the meantime, taken the same steps in Bremen which I had taken in Hamburg as a consequence to the Fuehrer’s speech. The authorities at Bremen (the Lord Mayor, the Kreisleiter, the President of the Police, the head of the Secret State Police, and the head of the SD district) have made the same arrangements with me as did the respective Hamburg authorities.

[Signed] Rothenberger

c. Testimony of Defendant Rothenberger Concerning His Memorandum on Judicial Reform

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[263]

DIRECT EXAMINATION

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Dr. Wandschneider (counsel for the defendant Rothenberger): Dr. Rothenberger, would you please first make some general statement about your memorandum?

Presiding Judge Brand: The exhibit number, please.

Dr. Wandschneider: We are concerned with Document NG-075, Prosecution Exhibit 27,[264] in document book 1-B, page 1. I have submitted a list to the Court on which the documents I shall mention are listed. Please begin with your statement.

Defendant Rothenberger: The memorandum is a brief summary of what I had worked out during the previous years in Hamburg. The reason for my writing such a memorandum at all, I believe, I already indicated yesterday. I had pointed out that the development in the Reich until 1942, when this memorandum was written, gave cause for growing dangers and misgivings for every jurist.[265] Furthermore, I had pointed out how the administration of justice was pushed more and more into a defensive position by the Party and the SS and how the jurists, as well as all Germans, either acquiesced in this condition and this development or even went along with it, and how the administration of justice was more and more in retreat battles. I did not want to and could not go along with this line of action. And I did not want the administration of justice again and again to be confronted with faits accomplis. The Party and the SS concerned themselves with ideas for reforms of the administration of justice and it was my opinion that the only office which was competent for this and an expert organization in the field was the administration of justice itself. And the starting point for the attempt to change the course of this development were my experiences which I had gathered in Hamburg and in England.

My conviction grew stronger and stronger to the effect that that question of the position of the judge in a state was significant not only for the administration of justice itself, but that it was a basic problem of political life in every state. Germany had always gone from one extreme to the other in politics, and now we were experiencing, during the year 1933 and the subsequent years, the extreme of a power state. And one of the causes for this was, in my conviction, that in Germany we were lacking a point of rest, an authority which due to tradition and out of its independence was in a position to influence the development critically. This impression in particular was very vivid to me from my experiences in England. Therefore, my belief that the idea of the so-called Judge-King in Germany too, if there was any chance at all, would exert an influence on the development. This memorandum represents a final warning to Hitler in order to hold him back from this development which had begun. If today I put the question to myself, whether I believed that I could convince Hitler at all from my knowledge that I have today I, of course, have to answer no to that question. According to my knowledge at that time I hoped for it and I believe that the fact alone that I undertook such an attempt at all is the best proof for this; and my belief of the time will be understood on the basis of the experiences which I had gathered in Hamburg where it had been possible by trying to swim against the current and to exert influence upon leading political personalities, that one could succeed there.

The aim of my memorandum was, in the final analysis, the same as has to be the aim of every state, namely, the rebuilding of an autonomous law which is independent of the form of government and without temporal limitation. In countries which have a tradition this may not be a problem at all, but in Germany this question had for decades been the problem, and already since 1905 leading jurists in Germany had occupied themselves with this problem again and again.

If I had described this idea in my memorandum in very dry and bare words then this memorandum as hundreds of others would immediately have been thrown into the wastepaper basket and I would have been described as a fool. Therefore, I had first to describe the means which could create the prerequisites for such a final condition and, therefore, I described the proximate aims which I wanted to reach first. I emphasized them first. In order to clarify to the Tribunal that the position of a judge in Germany is a completely different one than in England, and I believe also than in the United States, I have to go into the historical development of the profession of the German judge in a few words. I can do this more briefly since this historical development is indicated briefly in this memorandum; furthermore, because in a lengthy article which I wrote at that time, which will be submitted as an exhibit by my defense counsel, I went into this historical development in detail.

I therefore want to say here merely by a slogan that once due to the acceptance of the Roman law in Germany in the 16th Century which took place only on the continent of Europe and not in England, and furthermore caused by the development of the Prussian state where the administration of justice, as I already emphasized yesterday, was only a stepchild; that due to these two circumstances the judges’ profession played only a very modest and mediocre role. In Germany we had about 19,000 judges who belonged to the General Civil Service and who in no way differed as far as their income, or their position, or their reputation was concerned from an absolutely average civil servant.

The essential factor in this development was that the practical course of the education of a judge in Germany to this very day brought about that only persons who were merely average lawyers decided to take up the judge’s profession.

If I may be permitted to do so, I would like to mention briefly how one becomes a judge in Germany. At the age of approximately 25, one becomes assessor; at this time one decides whether one wants to become a judge. If one does decide to become a judge, one remains for a number of years and at that time it was about 5 to 8 years—a so-called assistant judge, Hilfsrichter.

This means that one exercises the functions of a judge, to be sure, but one can be discharged any day. And then in the course of years one finally achieves being appointed a judge. It happened only very rarely that a person who had been sitting as an assistant judge for a number of years was not appointed judge.

Then when one finally became a judge one received an income of about 300 marks. A fairly good skilled worker in Germany earned twice as much. Therefore, one had to lead a very modest life. One was treated as a civil servant to the extent that every year a so-called qualification or efficiency report had to be written about every judge. In other words, a report had to be made as to the qualifications of the judge. The superior of the judge had to go to the court session in order, as we expressed it, to examine the judge; that is, to examine whether the judge was able or not.

Then, the judge waited for his next promotion which played a very decisive role for him and for his family in view of his small income. There was a scale of promotions from the local court to the district court, to the district court of appeal, and finally, to the Reich Supreme Court.

This briefly described course of training thus demonstrates that the judge in a quiet existence of a civil servant was employed only as a judge all the time, and this gave cause to the leading German jurists since 1906 to do something about it. The first precursor of this idea was a certain Adickes. These jurists tried to suggest a basic alteration of this course.

Adickes was followed by an Under Secretary Muegel, and he in turn during the Weimar Republic was followed by the then Reich Minister of Justice Dr. Schiffer who today is again Minister of Justice in the Russian zone of occupation. All were of the same opinion that his position of the judge had to be changed fundamentally and that this would be possible only by a very severe reduction of the number of judges.

If the prosecution is charging me I believe even in the indictment itself with the fact that I in very clear words desired to change this condition, or suggested changing this condition, by saying that not the salve of the drug store but the knife of the surgeon, was needed then I am in good company in so saying to the extent that my predecessor for these plans was Reich Minister of Justice Dr. Schiffer who by the way is fully Jewish. He expressed the following thoughts about this problem at the time, and I quote:

“The wound should not be covered up and smeared over, it must be cut, pressed out, and scraped out. The reform in the administration of justice which we need is not an enlargement or a reconstruction but a thorough reduction.”

These plans which were discussed in Germany for 50 years, and the execution of which failed every time, I now made my own. As can be seen from the memorandum, I was confronted, above all, with the problem as to what means could be used at all to bring about this reduction in the number of judges without reducing the quality of jurisdiction. The means which I suggested were also very closely allied to those means which had been suggested for 50 years. These means were as follows: First, the concept of the justice of the peace. I believe that I do not have to go into the details of this position because, first of all, I assume that the Tribunal is very familiar with this institution of a justice of the peace; and secondly, because I said something about it in the memorandum itself; and thirdly, because I discussed it in a lengthy article which will be submitted.

The second method which I suggested, and which I also discussed in a lengthy article, which will be submitted as an exhibit is the idea of the administrator of justice [Rechtspfleger]. This is an idea which conforms with the investigations I made in England about the master, the registrar, and the clerk.[266] The aim here is clear too, namely, that the judge should act during the trial exclusively as a judge and must be relieved of the burden of all technical preparations and of the tasks which are not truly the tasks of a judge.

The third method which I suggested was a change in the structure of the German courts as a whole. Details about this too are not only in my memorandum, but in articles which will be submitted in evidence here. My aim was to introduce, in the place of the super organization of the German courts, a nonbureaucratic, simple, and clear structure of organization of the courts. In this organization of the courts the idea was decisive for me that every judge in Germany should have the same rank, but not as it had been up to now where the judge had to wait for and was dependent upon a promotion so that his activity, even subconsciously, was guided by his aim of being promoted. I wanted to do away with all titles. In my opinion, every judge deserves only the title “judge.” I was of the opinion that through these changes, the inner independence of the judge would be strengthened. The decisive factor for this inner strengthening of the judge was my suggestion to take the judges out of the general group of civil servants.

In my memorandum I attempted to explain to Hitler the basic difference between a regular civil servant and a judge.

This, of course, would have meant that the judge, from the point of view of his income, his position, and especially his reputation, would occupy an overwhelming position in Germany. I expressed this as follows and underlined it. The position of the German judge must, ideally and materially, be organized in such a way that it will appeal to the best of the future lawyers. And with this question namely the pure civil servant career of a judge, up to this time, is connected another request I made, that only a person should be appointed judge who before that had worked in another profession and had there gained experience, be it in economics, be it in another sector of the state, or above all, as an attorney. I was of the opinion that only a person of advanced age and older than was usual in Germany—I said that the minimum age should be 35—should become a judge, because a man who is very young and who has not, outside of a quiet life as a civil servant, been forced to fight and to gather experience, is not able to judge about the fate of people which is entrusted to him in the courtroom in a just and humane manner. And the last point of these suggestions for reform is the training of judges already at the university. I started with the assumption that the legal questions are very essential for the pronouncing of a sentence, but that the decisive question in every trial is the finding of the facts and the evaluation of the persons, be it the witnesses, the plaintiff, or the defendants. The training that was given at the German universities was in former times exclusively concerned with legal problems. At the university the students listened as an audience to a professor who read out his lectures on legal theory; that to be sure is necessary, but it had to be supplemented by a practical point of view. This recognition I had gained from my long experience as a tutor in Hamburg, and therefore my detailed suggestions which are mentioned in the memorandum which I later carried in Berlin. And perhaps I may be permitted later to go into them in detail.

*******

Q. I now go into the individual cases. First I put the question to you. On page 6 [section III] of your memorandum you said (NG-075, Pros. Ex. 27)[267]: “Occasionally the opinion is represented that an authoritarian state cannot bear a strong judiciary.” Whom did you mean? Who represented that point of view occasionally?

A. That is very clear that the Party and the SS represented that point of view.

Q. You meant thus your opponents in your daily life?

A. Yes.

Q. In your legal practice?

A. Yes, because I knew that these two organizations, the Party and the SS, in the course of the years exerted a very strong influence on Hitler. It was therefore decisive for me first to deal with the question as an immediate aim from the point of view to gain an influence on Hitler as a judge in order to exclude all influences of the Party and the SS. And out of that knowledge I made the requirement that between Hitler and the German judiciary there should be no intermediary; that, in other words, nobody should be allowed to influence the judge, be it a political leader, be it Bormann, be it Himmler, or any other organizations which so far had exercised a strong influence on the judge. And the second concrete requirement which I made, and which is contained in my memorandum is that the entire administration of the criminal law [Strafrechtspflege] should not be split up but its entire extent remain with the administration of justice. In connection with that are some formulations which I made in my memorandum which state that the political leaders and the official of the Gestapo cannot be judges at the same time. A corruption and hunger for power cannot be prevented in any better way than by a strong personality of a judge. And if I raised such requirements and then thought about how I could explain these thoughts to a man like Hitler, as I saw him at the time, how can I dare undertake such a step at all, the result of such an attempt was exclusively dependent upon the tactics or the methods which I employed. And therefore, in formulating my memorandum, my ideas, I made certain concessions but I always added the aim itself immediately afterward. I would like to cite two cases particularly which the indictment put into the record in that connection. First, the following sentence:

“All clamor about lawlessness, despotism, injustice, et cetera, is at present nothing but a lack of insight into the political situation.” And then I continue: “The question is solely: Is a strong judiciary incompatible with the National Socialist authoritarian state [Fuehrerstaat] per se, that is, permanently or only temporarily?” And another sentence with which I am being charged is the following: “Political situations require constant measures of opportuneness, and every stubborn resistance to it—‘on principle’ or ‘fundamental deliberation’—is senseless.” And I continue: “But one must be constantly aware of the danger that the very ‘convenient’ putting aside of a regulated administration of justice conceals the tendency of habit”—and that last phrase is underlined—“What can I do to put at the disposal of the Fuehrer a justice and judges in which he may have confidence?”

Now for me the basic problem existed—how is it possible to make these ideas of a judiciary at all compatible with the ideas of an authoritarian state, because the authoritarian state as such was a fact for me. I could not overthrow it; and to that extent, of course, there is a difference in regard to the position of the judge which I aimed at in Germany from the position of a judge in England. For me it was a fact that Hitler was the man who in Germany combined all power in his own person, but in order to make the dangers inherent in this concentration of power clear to Hitler, I emphasized two factors in particular in this memorandum.

First for one, a historical element. By referring to the Roman Empire, to the British Empire, and to other empires, I pointed out to him on the basis of history that: “Nothing brings about the self-destruction of a state more than the absence of law and a weak judiciary.” The second element with which I hoped to convince Hitler was a more nationalist element. I attempted to explain to him the picture which every human being makes himself of the position of a judge. I used the expression, “The original judge and arch judge,” and I told him that the essential characteristics of this arch judge consist of three conditions.

First, that it is a distorted picture if this judge has to ask another person what kind of a decision he should make. The independence of the judge and his freedom in issuing instruction was the most essential feature of a judge in contrast to a civil servant. The second element which I wanted to include in this picture in which I told him that he has to imagine a court on a market place was that a human being can really only imagine that there was just one judge. As soon as one has several judges in one case, one asks, “Well, who gives me a better justice?” I said that the symbol for the fact that there is only one law and one justice would be blurred. By saying so, of course, I meant that there should be as few judges as possible. The third element which I added to this picture was, and I quote: “The judge has a strong inner authority. He is the interpreter of the law who from the point of humaneness, wisdom, and experience must be superior to all other servants of the State.” The fact that Hitler, himself, was the highest legal reviewing authority in Germany was of course from my conception of the dignity and independence of the judiciary, a danger. The question exists anyhow as to whether this idea of the absolute independence of the judge is compatible with the concept of an authoritarian state.

After I was discharged, and after I had gathered the experience in Berlin during the 15 months that I was there, I absolutely denied that question. I said that those two concepts are not compatible with each other. At the time when I made this attempt, I believed that they were compatible, and that the separation of power which is necessary in every state for the purpose of controlling the people, in practice would be achieved by my program of having all influences on the judiciary eliminated.

*******

Q. Dr. Rothenberger, would you now please tell the court how your appointment to the post of State Secretary in 1942 came about? In this connection I would refer to [1964-PS, Prosecution] Exhibit 65. That is the authority dated 20 August 1942.

A. On 4 August 1942 the Reich Minister and Chief of the Reich Chancellery, Lammers, suddenly asked me to come to Berlin for the purpose of a conference. Lammers told me the Fuehrer had read my memorandum. He had liked that memorandum, and he would like to have the plans of that memorandum carried into effect. I asked Lammers specifically as to whether Hitler had given him any further reasons. He told me what had impressed Hitler was the question of the position of the judge. His opinion of the judge of the civil servant type was very low, and he thought that civil servants and judges were strangers to practical life.

In reply to my question, Lammers said to me, “Hitler is convinced that these plans must be carried out.” I then said to Lammers that I thought during the war it was altogether impossible to put into effect my plans and I would ask to be allowed to wait with carrying out my plans until the end of the war, all the more so as I myself had not yet finished my preparatory work in Hamburg. Lammers replied that Hitler counted on an early conclusion of the war, and the preparation for carrying out the reform would need some time after all, and I was to utilize that time.

*******

CROSS-EXAMINATION

*******

Mr. King: Dr. Rothenberger, I would like to come back to Prosecution Exhibit 27, which is Document NG-075. This is your memorandum to Hitler, or rather your memorandum which eventually reached Hitler, and to which you attribute your appointment to the position of State Secretary. The purpose of examining certain phrases from this memorandum is to enable me better to understand what your new program for the independence of the judiciary was. I am sure you know that memorandum much better than I do. I want to read to you several paragraphs from it. You say in one place: “Law must serve the political leadership.” Then you say in another place on page 8 of the document, “He who is striving toward a new world order cannot move in the limitation of an orderly Ministry of Justice. To accomplish such a far-reaching revolution in domestic and foreign policy it is only possible if on one hand all outmoded institutions, concepts, and habits have been done away with, if need be in a brutal manner.” Then you say still further on, “The Fuehrer is the supreme judge, theoretically the authority to pass judgment is only his.” Then you say still further on: “A judge who is in a direct relation of fealty to the Fuehrer must judge like the Fuehrer.” All of these phrases which I read appear in that memorandum and based on them, I want to ask you this and perhaps several other questions. You have repeatedly said that the purpose of your program was to establish an independence of the judiciary. However, the essence of your program, as it seems clear to me from reading your memorandum, is that the Fuehrer is the supreme judge. As you say here, theoretically the authority to pass judgment is only his. A judge in a position of direct relation of fealty to the Fuehrer must judge like the Fuehrer. Now my question to you, Dr. Rothenberger, is simply this: When you speak of the independence of the German judiciary, how do you reconcile that with these statements that the Fuehrer is the supreme judge, and that only he can actually judge, and that all judges must reflect his thinking?

Defendant Rothenberger: During my direct examination I have already tried to explain the thoughts which made me write this memorandum. It is extraordinarily difficult to do so briefly, especially to state one’s attitude only in regard to two or three sentences which are taken out of their context. Therefore, I am of the opinion that the memorandum as such should speak for itself, and that I leave it up to the Tribunal to form its judgment about the actual thoughts contained in the memorandum. And if in spite of that I may answer that question only very briefly in a concrete manner, I have to say the following: In 1942 the authoritarian state as such was a fact in Germany. That is to say, Hitler was also the highest judicial authority, and if any chance or possibility still existed to remove all the damage which had occurred during the course of years and all the burdens with which the administration of justice was loaded by the Party and by the SS—or, as we used to say at the time, on the part of the thousand little Hitlers who every day jeopardized the independence of the individual judge—under those conditions the only possibility to bring about any amelioration at all was Hitler himself. That it was impossible to convince Hitler I, and later on, everybody realized. But at the time I believed that it was possible to convince him, and I had to seize that possibility as a last chance. And if it would have been possible to convince him, then in effect the independence of the courts would have been reestablished again. For in that case this direct relationship between Hitler and the judiciary which I asked for would have been established and all other influences which burdened every judge every day would have been eliminated.

Q. Dr. Rothenberger, may I interrupt you at this point? I think that you are entirely too modest about the success of your program. If you meant what you said in your memorandum, and I assume that you did mean what you said, then isn’t it true that your program was a complete success, since the final result was that the Fuehrer became the supreme judge? Isn’t that true?

A. The fact that after only 15 months I again left my office is probably the best proof of the fact that my program was a complete failure.

Q. Dr. Rothenberger, do you distinguish between the success of your program and your own failure to get along with people in the ministry? Isn’t it possible that those two factors are separable?

A. No. A second reason also speaks for the assumption that it was a complete failure—and that is the intervention of outside offices with the activity of the judges which I wanted to prevent; this did not stop at all after this memorandum was submitted, but rather became worse. The independence of the court and the lifting of the judiciary from the civil service, which I was striving for, did not become effective at all. I request the Tribunal to tell me whether I should go into more detail in regard to this problem, which of course is a fundamental problem, or whether I should not say any more about it now.

Presiding Judge Brand: We will not interfere at this time.

Mr. King: Dr. Rothenberger, I am frankly puzzled by seemingly contradictory statements in your memorandum. Let’s go over it once more. You say, on the one hand, that you want an independent judiciary. You say, on the other, that the Fuehrer is the supreme judge, and all judges must act like the Fuehrer. Now, unless you meant that all judges must act in accordance with the wishes of the Fuehrer, your memorandum means absolutely nothing and is pure double-talk. If that isn’t what you meant—if you didn’t mean that the Fuehrer’s decisions should be the final decisions—just what do you mean by all that talk of the Fuehrer being the supreme judge?

Defendant Rothenberger: I said in my memorandum that theoretically the Fuehrer is the highest judge in Germany; I also expressed that the individual judge in his decision must be independent even in his relationship to the Fuehrer. What I attempted to achieve first was to eliminate all other influences on the judge and therefore to establish this direct connection between the Fuehrer and the judge. Therefore, my suggestion in order to say it clearly to put in place of the influence of Bormann or Himmler, the so-called “Judge of the Fuehrer,” who would influence the Fuehrer in the capacity of a judge, and would therefore not only try to direct the development in Germany into quite different channels in a legal respect but in every respect.

Q. Let me put this question to you. If, under your program, as you envisaged it in 1942, a judge came to a decision, and that decision was known not to be in accordance with the Fuehrer’s views, in your view whose opinion should have prevailed, as you intended it to work out?

A. The decision of the judge.

Q. Then what do you mean when you say the judge must judge like the Fuehrer?

A. The Fuehrer does not have the right to touch a decision made by a judge.

Q. Dr. Rothenberger, we know that that wasn’t so in practice, don’t we? We have seen instances where it didn’t work out that way, haven’t we?

A. Unfortunately, after I wrote this memorandum, especially here in this trial, and also when I was in Berlin already, I found out that the Fuehrer acted in a different way. The purpose of this memorandum, however, was merely the following: to convince the Fuehrer that the men who had influenced him so far and in that direction were wrong. My knowledge from Hamburg was not sufficient in order to know already at that time that the Fuehrer himself could not be convinced. But that is not only my own tragedy, but the tragedy of the entire German people.

Q. Did you ever consider the possibility that the Fuehrer in reading your memorandum read it literally and decided that when you said “The Fuehrer should be the supreme judge,” that you meant what you said? Did you ever consider that possibility?

A. Yes, I considered that possibility.

Q. Do you have any feeling that in practice it didn’t work out that way? In fact, the evidence adduced here at this trial tends to prove, don’t you believe, that by the end of the war the Fuehrer really became the supreme judge and interfered with all judicial decisions?

A. I saw that later, and if I had known that before, I would not have undertaken this daring attempt, because there was no hope for it from the very beginning. But at the time, I thought that as a jurist I was under an obligation to make this final attempt, because I just could not accept the conditions which existed.

Q. You knew what the Party platform was, did you not? You knew what Hitler had said in Mein Kampf, did you not?

A. About that problem, he did not say anything in a negative way in his Party platform and not in Mein Kampf either.

Q. Well, as a reasonable man, Dr. Rothenberger, you knew what his attitudes were on all of these questions, and if your program embodied having him become the supreme judge, you knew fairly well how he would judge on all these questions from your prior knowledge, did you not?

A. No. I can only emphasize again and again that as long as I saw the possibility of influencing him, I considered it my duty to make this attempt; otherwise I would have been a fool.

Q. No one denies that you did influence him, Dr. Rothenberger; the implication is that you did, and that you were completely successful.

A. I did not have any success. That is just it. Hitler could not be convinced.

Q. He became the supreme judge, did he not?

A. In effect, he interfered with the administration of justice, as we know now.

Q. All of the judges in Germany were in a position of fealty to the Fuehrer, were they not?

A. No fealty, no.

Q. What do you understand by “fealty”?

A. Dependence upon him.

Q. And you don’t think judges in Germany at the end of the war were dependent on Hitler?

A. I just wanted to prevent this fealty.

Q. You wanted to prevent it?

A. Yes.

Q. That is not what you said in your memorandum. You said in your memorandum, “A judge who is in direct relation of fealty to the Fuehrer must judge like the Fuehrer.” That doesn’t sound like you were trying to prevent it. That sounds like you were trying to induce it.

A. You do not distinguish between the dependence and fealty on the one hand, and an obvious natural relationship of trust and confidence which every German and therefore every judge too should have in the Fuehrer.

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Judge Harding: Dr. Rothenberger, with reference to the time you submitted your memorandum to Albrecht,[268] when did this speech of Hitler declaring himself the supreme law lord of Germany occur? What is the relationship between the time you submitted your memorandum and his speech?

Defendant Rothenberger: The Hitler speech was delivered on 26 April [1942].[269] When my memorandum reached Hitler’s hands, I cannot say.

Q. When did you submit it to Albrecht?

A. I can gather that only from the date which is below the memorandum and that is 31 March; in other words, I probably gave the memorandum to Albrecht during the month of April without knowing exactly when it was and also without knowing when Albrecht succeeded in putting it in Hitler’s hands. I don’t know that.

Q. It was submitted to Albrecht before you knew anything about this speech of 26 April?

A. Yes, that is certain.

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