With great surprise you find that fills two fat volumes. As for administrative tasks, the Reich Justice Office as already mentioned only had to take care of the Reich Supreme Court, and in the course of time, the Reich Patent Office. Here, also, the various laenders had to cooperate. The selection of judges for the Reich Supreme Court required most difficult negotiations. One has to have seen that, in order to fully realize with what jealousy each individual state saw to it that these various posts were filled according to a definite key.
It could happen that a small stale could not even offer an appropriate candidate for such a position at the Reich Supreme Court, but then one had to preserve the claim and register it very carefully so that the next time, they could be given it. It was just as difficult to select officials for the Ministry of Justice. That, too, required negotiations and thus it came about, that long before 1933, everywhere, the desire for a uniform administration of justice for the entire Reich was expressed. I may remind you that the witness Behl has stated that even the Social Democratic Party of Germany was expressly of that same opinion.
THE PRESIDENT: We will take our noon recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing recovened at 1330 hours, 27 June 1947)
THE MARSHAL: Military Tribunal No. III is again in session.
THE PRESIDENT: You may proceed.
FRANZ SCHILEGELBERGER (Resumed) DIRECT EXAMINATION (Continued) BY DR. KUBUSCHOK:
Q Witness, you referred to the assumption of the Administrative of Justice by the Reich.
A Before the recess I pointed out that the desire for a uniform, centralized Administration of Justice had already existed in the period prior to 1933. The Reich Minister of Justice, Guertner, worked for that idea of that centralization of the Administration of Justice, with great energy. The fact that he as a Bavarian did so, although it is generally known how very much Bavaria interested in a life of its own, explains best the fact that Guertner had very good reasons for doing so. As often occurs in life, by accident a circumstance arose which speeded up the execution of that idea. This is what happened.
When once I had a conversation with Kerrl, the Minister of Justice of Prussia at that time, and visited with him the training camp for Prussian law students a camp which has been repeatedly referred to in this trial -- I said to him that it must have cost a great deal of money to set up that camp; Kerrl laughed and replied, quite frankly:
"Oh, it didn't cost me anything. The amounts were donated by large firms, in whose cases we were very considerate about prosecuting them under Penal Law." Naturally, he added, "the money was not transferred to me directly, but it came to me via the Winterhilfe Scheme account. However, the Winterhilfe Scheme made it available to me, and with that money we built up a very decent camp, as you can see for yourself."
I was more than disgusted when I heard about those practices he thus unveiled. I made a report to Guertner.
The right of supervision over the Ministries of Justice of the Laender, was not in the hands of the Reich Minister of Justice. Guertner and I agreed that those practices must be stopped at the earliest possible moment, all the more so since one did not know whether, or in any other Laender, similar things might not be happening as were happening in Prussia. One could hot tell what was happening because the Ministries of the Laender had throughout new men working with them concerning whose persons, in some cases, one had certain misgivings, and justified misgivings. Frank was the Minister of Justice for Bavaria, and Thierack wan the Minister of Justice for Saxony.
That experience increased Guertner's energy in carrying out his work of centralization. The basis for that work was laid down in the first and second centralization laws dated 16 February, and 5 December 1934.
The result of the centralization, the transfer of the tasks of the Ministries of Justice of the Laender to the Reich, was this, from the political angle: The entire Administration of Justice from now on lay in the hands of a minister who was not a member of the Party and who, as Minister of Justice for Bavaria, had enjoyed the confidence of all parties from the extreme right to the extreme left. I myself, who also was not a member of the Party, remained at my post. The National Socialist Ministers of Justice of the Laender lost their official positions in the Administration of Justice.
The opinions of the Party as to the centralization of the Administrative of Justice is evidenced best by a statement of Goering's, which he made to me in 1941 when, in the course of a conversation, I said to him that the Party, at every opportunity, made difficulties for our Ministry, he said to me, "That cannot surprise you. The reason lies in the centralization of the Administration of Justice under the circumstances which actually obtained. That is the reason why the Party, as a group is opposed to the Reich Ministry of Justice and makes life as difficult as possible for that Ministry.
The Party is of the opinion that the Administration of Justice should again be taken over by National Socialist hands." And Goering added, "I myself will never pardon you and Guertner for the way you acted in 1934."
DR. KUBUSCHOK: I shall submit Schlegelberger document No. 26 in reference to the aforesaid statements.
BY DR. KUBUSCHOK:
Q Will you please give us a brief description of the organization of the Reich Ministry of Justice?
A Under the very top, that is the Reich Minister of Justice, there were two separate under-secretariats: The under-secretariat for civil cases, the head of which was myself; the direction of the penal division was in the hands of Freisler. Further, he was in charge of the so-called Department Referat, the Hereditary Farm Law Office, and the Revision Office for Judicial Affairs.
Under the two Under-Secretaries there worked a total of six ministerial directors, (Ministerialdirektoren) who, each of them, were the heads of their specialized divisions. The number of these departments and their sphere of work changed several times in the course of time.
Inside some departments sub-sections had been created which were in charge of a "Ministeriai Dirigent". The number of higher officials in the Reich Ministry of Justice amounted to approximately 250. Personnel matters were divided into regions. As concerned the East, I was only in charge of my own home privince, East Prussia. Otherwise, I dealt with Southern Germany, I don't know who was in charge of the others. The People's Court Freisler was in charge of. The Supreme Reich Court and the Reich patent office were in my charge. The two divisions, directed by Secretaries ware entirely separate from one another. Freisler and myself had different times at which we went to report to the Minister. The Minister asked me to come to see him when Freisler had finished his report and had left the room. Only very rarely, and only when one of my officials was to be appointed to a head office in Freisler's sphere, or vice versa, the two of us met at the Minister's. If one of the under secretaries was absent his affairs were dealt with by the Minister together with the competent ministerial director. The other under secretary did not deputize for the one who was absent.
May I cite an example? I, too, in 1938 had to go to the hospital as a result of an accident and at that time the Minister did not discuss the new German marriage law with Freisler but with the head of the department. If the Minister was absent, too, the under secretary who was present in Berlin did only a certain amount of duty for his colleague. That is to say, he was available for matters which could not be postponed. In my recollection that happened only very rarely for this was one point over which Freisler and I were in absolute agreement. Neither had the wish to meddle with the other's affairs.
Furthermore, Freisler, when he went on a business trip or when he went away for the summer holidays, was practically always in contact with Berlin. Therefore, he told Dr. Guertner that a deputy for which only I was the possible candidate was neither necessary nor desirable.
It did happen that the Minister, when he did not feel well and left the office earlier, asked me by telephone to sign and to dispatch letters which he had already signed in draft from. Now and then that could have concerned matters which did fall in Freisler's sphere when Freisler could not be reached.
I should like to quote as example the letter which the prosecution submitted about the fight against political Catholicism. Concerning details accompanying that letter, I know nothing about this. In particular, I do not know what particular pressure was excercized or what instructions Hitler had issued in virtue of his right to lay down the directives of policy but I should like on this occasion to say something about what was the practice of the Ministry in regard to church affairs. I should like to point out what the witness for the prosecution, the Catholic chaplain Schowwer, on the 9th of May testified here. According to his testimony, the Ministry refused on the occasion of a church funeral for Poles to take steps against the Catholic clergymen.
Q The letter which you have mentioned is Exhibit 428, in Volume I, supplement. The examination which you mentioned here of clergyman Schosser is on page 3021 in the English transcript.
THE INTERPRETER: We are sorry, the microphone is out of order.
Q As the Jewish question is of particular importance for several points in the indictment, I would ask you first of all to tell us what your personal attitude to the Jewish question was.
AA s far as I am concerned, there is and there was no Jewish question. This is my attitude: all races were created by God. It is arrogant for one race to place itself above another race and tries to have that race exterminated. If a state deems it necessary to defend itself against being inundated and does so within the frame of a social problem, then it can and must be done by applying normal, decent means.
During the Goebbels campaign in 1938 I was abroad. When I heard about those events I said to my family:
"We must be ashamed of being Germans." That was my view at that time and that is my view today. The only person with whom I am united in faithful friendship until today because we went to school together is a full Jew. I succeeded in saving his life all through that era. He again holds his former office as a Judge. My physician, too, is half-Jewish. That attitude of mine naturally meant that on many occasions I was faced with inner conflicts. I ask you to consider that the Jewish problem was regarded as the central problem of the National Socialist State and the entire life in Germany was to be placed in line with that. Concerning that question Hitler and his followers worked in an entirely uncompromising manner; that an expert administrator could not bypass that basic attitude is a matter of fact. I shall have an opportunity to demonstrate what was my personal attitude towards those questions and how it always evidenced itself in an effort to put a check on the wishes of party policy, to make improvements and to exercise as far as possible a moderating influence on the practical application of those matters.
Q What were the manifestations of your attitude to the Jewish question in your office?
A The prosecution charges me with having cooperated in taking measures against the Jews. That the ordinance of 4 December 1941 against Jews in the Eastern territories must be evaluated under particular points of view, I shall show in connection with the Polish question. For the rest, I ask you to consider that in view of the strength of the powers with which I was engaged in a struggle, a hundred per cent victory of the Ministry of Justice was entirely out of the question. In that sphere, too, faithful to my basic attitude, I did work to make justice prevail; but frequently I had to content myself with making a compromise and I had to be pleased when at least I had achieved some amelioration.
To use a customary phrase, if I had drawn the consequences from every defeat, I would have deprived myself of all possibility to aid the Jews. Quite apart from the fact that the resignation from office, before the war would have been a factual impossibility, and during the war a legal impossibility until a new Minister was appointed.
With the permission of the Tribunal I will prove how difficult it was by citing an example. When the Party started a campaign against Jewish lawyers, I went to see Hitler and told him that it was untenable, to remove from their profession Jewish lawyers among whom research people of repute were included, and with whom I myself had worked. I was pleased when I succeeded in persuading Hitler that that was correct and in achieving his agreement that he would reject the wishes of the Party. To inform the agencies concerned, I called a meeting of Ministers of Justice of the Laender who were still in office in those days and informed them about Hitler's decision. The result was surprising. I encountered bitter resistance, and the meeting bore no result. Hitler asked for Guertner to come to see him and asked him for information as to whether I was not perhaps a Jew myself. Then the Party began to exercise pressure on Hitler. He abandoned his decision, and the Jewish lawyers were removed from office. So as to make it possible at least for the Jews to preserve their rights, I proposed to set up the institute of the so-called Jewish consultants where former lawyers worked as consultants.
As to my own attitude towards these problems, that I could show properly only where I, myself, had to make the decisions. In this connection, I attach importance to the fact in saying here that nothing is removed from me than here to play the part of the friend of the Jews. I am not a friend of the Jews; I am not a friend of the Aryans as such; but I am a friend of justice. And anybody who saw me at work and wishes to give a just opinion can confirm that with regard to all those who in my opinion were unjustly persecuted; no matter what their race or what their class, I tried to help them with all my strength.
Roosevelt, the former President of the United States of America, in 1944, in an address to the United Nations said, "Hitler asserts that he had committed the crimes against the Jews in the name of the German people. May every German show that his own heart is free of such crimes by protecting the persecuted with all his might." I can claim for myself that I acted accordingly. Concerning the members of the Ministry who were not fully Aryan, I kept them in office; and as has been established at this trial, concerning judges who were not fully Aryan, I left large numbers of them in their office, irrespective of the Party purge. I looked after those who had been dismissed from their posts and who were non-Aryans and who had Jewish relatives. As far as possible, I protected then against being driven out of their homes and being deported.
Q Concerning the question of civil servants remaining under Dr. Schlegelberger who were not fully Aryan, persons who were only dismissed on the basis of Thierack's list - I refer to Exhibit 42. On the legal provision concerning the facts that since 1933 a Minister could not resign on his own, I will submit Schlegelberger Document 79 end 80.
Witness, you also dealt with a bill concerning people of half Jewish race. The prosecution has included those documents under PS-4055. Exhibit 401, in Document Volume VIII-A, page 101. Will you tell us something about those documents?
A That document has been the subject of the discussion before the International Military Tribunal. The document, if my recollection is right, consists of two parts. On 12th March, there was a letter from me to Reich Minister Lammers and a letter of 5th April, to various agencies.
Q May I interrupt you for a moment. The first letter is dated the 6th March, and is in the English text on page 95.
A I thought you were talking of the discussion which took place on the 6th of March.
Q Yes, on page 95.
A First of all, I'd like to speak about the letter of 12th March. That was, as I said, a letter from me to Reich Minister Lammers. From that letter I gathered that on the 6th of March there was a discussion about the treatment of persons of mixed origin, partly Jewish, partly Aryan. In that conference, the SS had demanded that people of mixed origin were to be treated in the same way as full Jews and were to be sent to labor camps in Poland. If that had been done, a demand which for a long time had been voiced by the Party in a categorical manner, would have been carried out. If one reflects to what extent the police measures were carried out in those days against Jews, one had to recognize that now the question of the fate of the mixed Jews had entered into an acute phase.
When I heard about the subject of that discussion, the question arose immediately whether one could, and how one could, intervene. My moral obligation was clear to me. There was the difficulty that it was a different department; that in itself was difficult to interfere with a different department in its work; and again and again there would be the additional difficulty that I was no Minister. But to put it plainly, it was the case of an under secretary who was only appointed under a system by which he could be given notice every day. If I had attempted to attack that political solution with legal or ethical weapons, nothing would have been done and there would have been nothing but mockery about me. Thus I had to find a different way.
I had to try to approach somebody who perhaps might have the possibility to talk some sense into Hitler, and that person was Reich Minister Lammers, a man from the group of old civil servants, a man who had a feeling for right and justice, and whom I had frequently assisted in difficult situations. I could be quite open and frank with him; and, therefore, the quite open way in which I talked in my letter was without any pretense. I described the suggestions as entirely impossible. I did so knowing that thereby I was interfering with affairs which had nothing to do with me as far as my department was concerned, for the judiciary only had an outside interest in these affairs. There was a question of compulsory divorce, a question which naturally I answered in the negative; a question which was naturally very important for those whom it concerned, but the importance of which mas not comparable to the great problem which was now my concern. Lammers said I could talk to him, but that conversation never came off, and probably it did not come off because Lammers was away at the HQ. Thus, I had to act on my own initiative, and, as I have said, I could not act in basing myself on legal and ethical considerations becuase that would have amounted to doing nothing. I had to limit myself concerning the agencies in question to acquaint them with the fact that the solution which they intended to apply was not possible. The entire idea and the entire way of thinking concerning that question altogether was based upon the desire to see to it that a further increase of persons of mixed origin, Aryan and Jewish descent, was to be avoided. I used that as my basis, and this is what my proposal amounted to. Certain groups were to be exempted from the solution altogether from the very outset. First, persons of mixed descent of the second degree, that is to say those persons who had only one Jewish grandparent; second, a person of mixed descent of the first degree, that is to say a person who had two Jewish grandparents; of those the people who were not able to propagate; and three, those persons of mixed descent, first degree, whose off-springs under the law were not considered half-Jews. By that proposal, therefore, all persons of mixed descent, second degree, a very large number, and a considerable number of people of mixed descent, first degree, would have been excluded from this measure.
The remaining persons of mixed descent, first degree, for them I suggested that if they were to prefer it, they were to be sterilized rather than deported to Poland. May I draw the attention to this point: The idea of escaping deportation by voluntary sterilization did not originate within myself. That idea originated from the persons of mixed descent themselves. I knew that persons of mixed descent had asked physicians to exempt then from the application of the Nurnberg Laws and had themselves suggested to afford them the possibility of sterilization. In view of that situation in which they found themselves, I thought it justified to revert to the suggestion which these people themselves had made originally, and to afford them an opportunity in that manner to escape deportation to Poland. The Prosecution employed that suggestion of mine to raise charges against me. I believe that if one thinks things out until the last, is not so difficult to recognize that these charges are unfounded. My suggestion, altogether my work in that respect, as I have said before, was not one of the tasks of the judiciary. If I went beyond the limits of my department, one must bear in mind that the charge would only be justified if one took it for granted that I was a model of active National Socialists, and active National Socialist who overcomes every obstacle, even the limitations of his department, and I would assume that everything that has been discussed here so far will show that to assume such an active National Socialist ardor would be complete nonsense. I acted in accordance with my ethical feelings; the only motive for me was the intention to check a development which was fatal for a large number of persons. There are, after all, situations where one can only escape a larger evil by applying a smaller evil. But that somebody who all his life, has thought along the lines of law, found it extremely difficult to make a decision of that kind -- that the Tribunal will understand.
Q Under NG-151, Exhibit 204, Document Book III-H, English text page 38 to 66, the Prosecution has submitted documents concerning the limitations of the legal means for Jews in penal cases.
Please give us an explanation concerning those documents.
A Those documents begin with a letter by Freisler, I believe dated 3 August, 1942. In that letter Freisler tells the agencies in question about a bill concerning the problem we have just mentioned. The reason for his suggestion, he referred to the exigencies of the war; he says that the state of affairs is untenable and that it weakens the defensive will of the German people. Freisler wrote that letter without my knowing anything about it beforehand, but afterwards he told me about it, and he gave me his explanation. This is what he told me. Himmler and his agencies had again and again pointed out that the present state of affairs was an impossibility; only a radical emergency separation of the entire Jewish problem, from the judiciary and transfer to police would be possible. Again here we find -- I shall have to revert to that later. Himmler had also said that the administrative measures against the Jews had advanced so far that it would be nonsense, in particular concerning criminal Jews, to be more lenient; therefore, one had to guard against alloying these criminal Jews who already were under the supervision of the Judiciary such benefits as legal remedies.
Himmler's endeavor to transfer Jewish affairs to the police was too much even for Freisler. Perhaps he was also particularly proud of his paternity of the ordinance concerning Poles and Jews which he considered his own sphere. Therefore, so he told me -- and I believed him -- in all circumstances he wanted to adhere to the competence of the courts, but he then convinced himself that somehow or other he had to make a concession because otherwise events would move without us.
Furthermore, we of the administration of justice, particularly in the incorporated Eastern territories, suffered from a severe lack of judges, and we could only master that difficulty if we exempted a number of judges from service in the armed forces. If Freisler and we had refused consistently to comply with Himmler's wishes, it would have been easy for Himmler to get Hitler to agree to cancel such exemptions from service with the armed forces, and thus the administration of justice in the Eastern territories would have come to an end altogether. In order to avoid those dangers, Freisler believed that he had found a way out in limiting legal remedies and thereby to start out on a way which we later on inside Germany in cases against Germans had to take on account of the lack of judges. That is why he made the suggestion. I could not altogether deny the reasonableness of Freisler's arguments, but I attached importance to the fact that this new regulation was to be final and was to appear as such to the outside world too. That might strengthen out position towards the opposing forces and, there fore, in the letter I wrote afterwards, I discussed the question of whether Jews are able to take an oath, and I included that question in my draft so as to make that draft more wellsounded and complete. In itself this question of the oath was important, for under German law it is the duty of the judge to attach equal weight to statements made under oath and one made while the person was not under oath.
There again we were faced with the case where something which in was immaterial but a concession which to tho outside world, nevertheless, seemed important had to be made in order to pacity Party circles.
If one wants to evaluate such a procedure, one must bear in mind that Thierack one month later did find a final and comprehensive solution. He dropped my suggestion and transferred the Jews to the police.
Q The Prosecution also submitted Document NG-589, Exhibit 372, Document Book V-D, English text, page 264 to 268, a document which concerns a curtailment of the Poor Law privileges of the Jews. Was that ruling made at your suggestion?
A No. I only heard about that ruling here when the document book was submitted. At every Ministry certain matters which are not of much importance are dealt with quite independently by departments which are below the under secretary or the minister. It is altogether out of the question that an under secretary or minister deals with everything personally. He would even misunderstand his function if he were to do so. Those matters, for example, tho question of the Poor Law, fell within the competence of the then under secretariat Hueber, who signed the ordinance.
As I said, I only heard about it here, but I should like to add that the institution of the Poor Law was created so a s to enable poor persons to conduct civil litigations. The granting of poor law privileges does not mean that the person to whom it is granted can conduct proceedings free of costs, but it only exempts him from payment in advance. He is still under an obligation to pay.
The Poor Law institution, therefore, so to speak, is an institution of government welfare. For a long time before Hueber ordered it, government financial support of Jews had been stopped, and they had been referred to their own Jewish welfare organizations. The uncurtailed provisions governing the Poor Law, therefore, were not in accordance with the line otherwise observed, and Hueber refers to that when he considers the old ordinance as outmoded.
DR. KUBOSCHOK: I do not know whether the witness's statements were clear enough to elucidate the concept of the Poor Law. I hear that the expression in English has been translated by "Poor Law." That translation might perhaps load to confusion. We are concerned here merely with the question of costs and merely with the exemption of paying costs in advance, and that is the cost of civil litigation.
Q Witness, the Prosecution has also dealt with the loss of citizenship of the Jews in connection with the Ministry of Justice. To what extent did the Ministry of Justice play a part in this?
A That discussion took place on 15 January 1941, that is to say, when Guertner was still alive and before I took over the conduct of affairs. That discussion took place at the Reich Ministry of the Interior, and under the chairmanship of a Dirigent of that Ministry, and I add that questions concerning citizenship belong to the sole competence of the Reich Minister of the Interior. The other Ministries sent Referents to such discussions because it was possible that in the course of the discussions their sphere of work might be affected, also. Important, political questions, however, if they were discussed, were not the subject for an opinion to be given by the other Ministries; but I ask you to note that my very keen representative of the Ministry of Justice made the only suggestion for lenience that was made to the Ministry of the Interior. It concerned the exception to be made for Jews who lived in a so-called privileged mixed marriage, which he expressly made the subject of an agreement. As I said, that discussion took place before I took over the conduct of affairs, and apparently the whole matter was not followed up any further. Only in November of the same year -- that discussion had been in January -- the Reich Minister of the Interior by his own competence on the bases of the Reich Citizen's Law issued an ordinance.
The judiciary was interested in that ordinance only as far as a purely technical question was concerned, namely, transfers in the real estate register, that is, a measure of no material importance. In addition, I would like to draw attention to this point: another document which has been submitted by the prosecution reveals that the Foreign Office had suggested that their foreign holdings should be left to the Jews, and the Ministry of Justice expressly approved that suggestion.
Q. Concerning the last point, I refer to Prosecution Document NG424, Exhibit 369, Document 5-D, page 219-231 of the English text. During the course of the examination of the witness Doebig, the transfer in the real estate register of Jewish real estate which was initialed by the Deputy Gauleiter Holz was discussed. What have you to say about that?
A. In the document which has been submitted is contained the following statement by Amtsgerichtsrat Dr. Greiner: "I have no misgivings about the transfer desired by the Party." That statement is inconsistent with the facts.
Q. May I point out that that statement by Amtsgerichtsdirektor Greiner is contained in NG-616, Exhibit 370, Book 5-D, page 228 of the English text. Please continue.
A. Witness Doebig testified that I said to him that the decision as to whether the entry was to be made or not must be left to the judge. Evidentally, the contents of that conversation were imparted incorrectly by Doebig to the subordinate offices or they misunderstood him. Moreover, I would like to say this: Doebig told me that the transfer agreement at ten percent of the value of the real estate of Jews had been forced out of the Jews; he asked for intervention by means of a law or by means of administrative measures. I replied that naturally I could not issue a law in such a hurry, but administrative measures could not be taken either because that would mean interference with the judge's competence. I could not understand why measures were required. Every judge knew that they could not make an entry as a result of a forced agreement. Doebig was to leave the decision to the judges.
That was the only possible answer I could give him, and I would not reply differently today. Since conditions in Nuernberg had been clarified by an investigating commission, a member of which, as representative of the Reich Ministry of Justice, was the co-defendant Dr. Joel, the entries in the real estate register were cancelled at the instigation of the commission. Steps were taken via official channels against the notaries concerned.
Q. According to Document NG-306, Exhibit 60, Document Book 1-B, page III of the English text, there was a connection between the racial political office of the NSDAP and the Reich Ministry of Justice. How can you explain that?
A. That connection is based on the Law for the Safeguarding of the Unity of Party and State of 1 December 1939; according to that, the official agencies must cooperate closely with the agencies of the Party. So as to guarantee that that duty was fulfilled, in the same law the Deputy of the Fuehrer is appointed a member of the Reich Government; the Deputy of the Fuehrer who, as we know, was also the head of the Party under Hitler. In accordance with this legal situation, in 1935, at the request of Guertner, the letter which Reich Minister Hess, that is, the Deputy of the Fuehrer, had written on the propaganda treatment of questions of racial policy of 25 August 1934 was passed on to the Ministry of Justice. It was also in accordance with this situation that in my letter of 6 August 1938, as Deputy for Reich Minister Guertner, it was pointed out that that Ordinance of 25 August 1934 had, in part, been outmoded. My letter merely constitutes an administrative instruction which had become necessary in virtue of the law which have been passed since. For questions which had been settled by the Nuernberg laws, the establishing of a contact with the racial political office was no longer necessary. One had to stop that superfluous procedure. My letter, therefore, constitutes merely a limitation of the connection which had been ordered on 25 August 1934.
Q. 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.
A. 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 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. I am inclined to assume
THE PRESIDENT: It is now 3 o'clock and we will recess for fifteen minutes.
(Thereupon a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: One matter has come to our attention. The Tribunal desires to suggest to counsel for both sides that in order to avoid even an appearance of irregularity, that it is wise to avoid the delivery of notes to a witness while the witness is on the stand. I trust that counsel will comply with this suggestion.
You may proceed.
DR. KUBUSCHOK: I should like to state -
THE PRESIDENT: It appears that the Prosecution has not arrived. We will wait a moment for them.
While we are waiting, perhaps another announcement might be made. We were informed this noon that the Presiding Judge in Tribunal II made the suggestion to counsel in that case that the lawyers in that case should confer with the lawyer in this case with the idea of agreeing upon two members from the joint staffs to present the argument for the defense in connection with the issue of conspiracy. We also wish to suggest to counsel for the defense in this case that they confer with the members of the defense staff in the other eases in which the same issue is presented, and attempt to agree upon two members to represent you all in and upon that issue. Possibly joint briefs may be advisable, although I think we should not attempt to control that matter.
DR. KUBUSCHOK: That has already been done. The counsel of the two Tribunals got together, and two colleagues of mine have designated.
If I may, I would like to take this opportunity to mention another point, about which I was informed by several of the defendants during the recess. The defendants are suffering greatly from the present heat-wave. It would alleviate their condition greatly if they had an opportunity, during the recess, to be brought into a room where they have the possibility of drinking a glass of water. We discussed this question today with the prison officer, and his answer was that technically that is quite possible, but that he would ask for a decision by the Tribunal.