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.