A set of uniform rules of procedure have been established by the joint acti n of Tribunals 1, 2, and 3. These rules, though not as important as substantive law, are nevertheless important and should be reasonable observed. Other rules laid down in the laws and ordinances which have established these tribunals are imperative. I desire at this time to call attention to only a few of the most important ones and especially those which apply to the day to day work of the Tribunal.
The prosecution may be allowed, for the purpose of making the opening statement in this case, time not to exceed one trial day. This time may be allocated by the Chief Prosecutor between himself and any of his assistants as he desires.
When the prosecution has rested its case, defense counsel will be allowed two trial days in which to make their opening statements, which will comprehend the entire theory of their respective defenses. The time allocated will be divided between the different defense counsel as they may themselves agree upon. In the event defense counsel cannot agree, the Tribunal will allocate the time, not to exceed thirty minutes to each defendant.
The prosecution shall, not less than 24 hours before it desires to offer any record or document or writing in evidence as part of its case in chief, file with the Defense Information Center not less than one copy of such record, document, or writing for each of the counsel for defendants, such copy to be in the German language. The prosecution shall also deliver to the Defense Information Center not less than four copies thereof in the English language.
When the prosecution or any defendant offers a record, document, or any other writing or copy thereof in evidence, there shall be delivered to the Secretary General, in addition to the original document or other instrument in writing so offered for admission in evidence, six copies of the document. If the document is written or printed in a language other than English, there shall also be filed with the copies of the document above referred to, six copies of an English translation of the document.
If such document is offered by any defendant, suitable facilities for procuring English translations of that document shall be made available.
At least 24 hours before a witness is called to the stand, either by the prosecution or by any defendant, the party who desires to interrogate the witness shall deliver to the Secretary General an original and six copies of a memorandum which shall disclose: I, the name of the witness; 2, his nationality; 3, his residence or station; 4, his official rank or position; 5, whether he is called as an expert witness or as a witness to testify to facts, and if the letter, a prepared statement of the subject natter on which the witness will be interrogated.
When the prosecution prepares such a statement connection with a witness whom it desires to call, at the time of the filing of thee statement two additional copies thereof shall be delivered to the Defense Information Center. When a defendant prepares such a statement concerning a witness whom it desires to call, the defendant shall, at the time the copies are filed with the Secretary General, deliver one additional copy to the prosecution.
I particularly call attention to the rule requiring all motions addressed to this Tribunal to be in writing end filed with the Defense Information Center and copies to be served upon opposing counsel at least 24 hours before being presented to the Tribunal. Each motion should be supported by a statement of the reasons therefor.
The charter of the Tribunal commands expeditious trial. It is therefore desired that the attendance of witnesses be provided for well in advance in order that there be no unreasonable delays. This applies more particularly to witnesses to be procured from other zones or jurisdictions.
For the information of all concerned, this Tribunal will, as a rule subject to exceptions, convene at 9:30 a.m. on Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays of each week, with short recesses. Adjournment each day, suchect to exceptions, will be at 1530 hours.
On arraignment day there were certain motions orally made before this Tribunal, and I understand that one of those motions has never been reduced to writing and that the other has been reduced to writing.
I think it is well to take those letters up at this time, more especially that motion which was a challenge to the sufficiency of the indictment.
DR. SCHILF: May it please the Tribunal, I received a copy of a declaration from the prosecution, according to which my motion which I filed on the 17th in an open meeting and which I submitted in writing on the same day was not received by the prosecution. In view of this, another request reached me yesterday to repeat the motion. Unfortunately, I was not in a position to determine in opportune time whether my written motion of 17 February 1947 has reached the Tribunal. This motion in itself merely presented the request to discuss the question whether the indictment which was submitted to the defendants on January 4 called for a supplement because the regulation, according to Regulation 4, Article 4, Paragraph A, has been disregarded inasmuch as the necessary details were lacking. If I may be permitted to cite one example from the indictment, under Count 2 the continued enumeration is No. 11. There, as an example, it is stated, Count 2, continuing No. 11, a series of supplementary statements and distortions ...
THE PRESIDENT: May I inquire whether the matters you are now citing have been incorporated in a written Action?
DR. SCHILF: On 17 February I submitted my written motion. However, I doubt whether my application reached the Tribunal because the Prosecution advised me yesterday that the prosecution has had no knowledge of my motion.
THE PRESIDENT: I think at this time we should not further discuss this matter until these matters have been brought to the attention of the Tribunal. And inasmuch as this entire day will probably be occupied with the opening statement, that matter can be brought to the attention of the Tribunal from the reading desk after the Tribunal has had an opportunity to see the text of the motions and the reasons in support of them.
DR. SCHILF: Then I shell repeat my notion in writing and I shall ascertain in the office of the Secretary General that my notion is being received.
THE PRESIDENT: What I have said applies to both motions, but of course the one that relates to the furnishing of the interrogation is not emergent. That motion which challenges the sufficiency of the indictment is emergent and must be disposed of finally before we begin to take evidence, and I trust that counsel for the prosecution and the defense will take action accordingly.
DR. SCHILF: I understand that perfectly. Yes.
MR. LAFOLLETTE: May it Please Your Honors, I think some of this confusion has arisen necessarily out of the starting of the new Tribunal. Dr. Schilf has stated, I think quite correctly, the situation. Certainly he has stated it as far as the prosecution is concerned, and I have no reason to doubt that he did not file his written motion. However, as this record stands this morning on the two motions attacking the sufficiency of the indictment, up until now I had never know that Dr, Schilf had reduced his motion to writing. It had never reached me. Dr. Koessl's motion for the defendant Rothaug had reached me.
But we had a conference in my office after the 17th, I think probably on the 19th or 20th, and after that conference I, the next day, reduced to writing my general understanding of what we had discussed, and I asked, that by the following Monday at eleven o' clock I be advised as to whether counsel chose to insist on their motions or their attacks on the indictment or would abandon them.
THE PRESIDENT: What day of the month was that?
MR. LA FOLLETTE: We met on the 19th of February, and my written statement was made on the 20th of February. I do not know whether Dr, Koessl chose to abandon or not. In a sense, I did not require an affirmative statement but I did not receive it, so I do not know at this time whether we have two motions pending which can be disposed of later or not. It occurs to me by simply attempting to show that there has been good.
faith on both sides that after we have completed the opening statement we nay well discuss what disposition can be made thereafter, if it suits the Court.
THE PRESIDENT: That will be agreeable to take this matter up at the conclusion of the opening statements. But after the emergent matter of disposing of the challenge to the sufficiency of the indictment, I think there should be a conference between counsel on each side so that matter may be presented to this Tribunal as soon as possible.
MR. LA FOLLETTE: I will be available for that conference with defense counsel immediately after the close of court today.
Dr. KUBOSCHOK: The translation from English into German can hardly be understood. Possibly, it might be considered to appoint a new interpreter. It is not possible to follow the proceeding in German except with great effort and sometimes not at all.
THE PRESIDENT: Does that refer to the proceedings here and now?
DR. KUBOSCH0K: Now.
THE PRESIDENT: Very well. Are there any other matters either the Prosecution or the Defense that should be called to the attention of the Tribunal before the statement is made?
The prosecution will therefore, at this time, proceed with the opening statement.
BRIGADIER GENERAL TELFORD TAYLOR:
This case is unusual in that the defendants are charged with crimes committed in the name of the law Those men, together with their deceased or fugitive colleagues, were the Embodiment of what passed for justice in the Third Reich.
Most of the defendants have served, at various times, as judges, as state prosecutors, and as official of the Reich Ministry of Justice. All but one are professional jurist; they are well-accustomed to courts and court-rooms, though their present role may be new to them.
But a court is far more than court-room; it is a process and a spirit. It is the House of law. This the defendants know, or must have known in times past. I doubt that they ever forgot it. Indeed, the root of the accusation here is that those men, loaders of the German judicial system, consciously and deliberately suppressed the law, engaged in on unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter.
The methods by which these crimes were committed nay be novel in some respects, but the crimes themselves are not. They are as old as mankind, and their names arc murder, torture, blunder, and others equally f familiar. The victims of those crimes are countless, and include nationals of practically every country in Europe.
But because these crimes were committed in the guise of legal process, it is important at the outset to set forth certain things that are not, here and now, charged as crimes.
The defendants and their colleagues distorted, preverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals, obedient only to the political dictates of the Hitler regine. They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The "trials" they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims.
This conduct was dishonor to their profession. Many of these misdeeds may well be crimes. But, in and of themselves, they are not charged as crimes in this indictment. The evidence which proves this course of conduct will, indeed, be laid before the court, as it constitutes an important part of the proof of the crimes which are charged. But the defendants are not now called to account for violating constitutional guaranties or with holding due process of law.
Ont the contrary, the defendants arc accused of participation in and responsibility for the killings, tortures, and other atrocities which resulted from, and which the defendants know were an invovitable consequence of, the conduct of their offices as judges, prosecutors, and ministry officials. Those men share with all the loaders of the Their Reich---- diplomats, generals, perty officials, industrialists and others --- responsibility for the holocaust of death and misery which the Third Reich visited on the world and on Germany herself. In this responsibility, the share of the German men of law is not the least. They can no more escape that responsibility by virtue of their judicial robes than the general by his uniform.
One other word of clarification. Some of the evidence in this case will relate to acts which occurred before the outbreak of war in 1939- These acts will be proved in order to show that the defendants were part of a conspiracy and plan to commit the crimes charged to have been committed after the outbreak of war, and to show that the defendants fully understood and intended the criminal consequences of their acts during the war. But none of these acts is charged as an independent offense in this particular indictment.
The charges in the indictment have been so limited for purpose of clarity and simplicity. There is no need to test in this case delicate questions concerning tho criminality per se of judicial misconduct, since the accusation and the evidence cut much deeper. The defendants arc charged with using their offices and exercising their powers with the knowledge and intent that their official acts would result in the killing, torture, and imprisonment of thousands of person in violation of international law as declared in Control Council law No. 10. Nor is there any need to inquire here into what acts committed before the war are cognizable as crimes against humanity under law No. 10, since the bulk of the proof relates to acts which Occurred during the war.
In summary, tho defendants are charged with judicial murder and other atrocities which they committed by destroying law and justice in Germany, and by then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale. It is the purpose of this proceeding to he r these charges and to render judgment according to the evidence under law.
The true purpose of this proceeding, therefore, are broader that the mere visiting of retribution on a few men for the death and suffering of many thousands. I have said that the defendants know, you should know, that a court is the House of Law. But it is, I fear, many years since any of the defendants have dwelt therein. Great as was their crime against Germany was even more shameful. They defiled the German temple of justice, and delivered Germany into the dictatorship of the Third Reich, "with all its methods of terror, and its cynical and omen denial of the rule of law.
" The temple must be reconsecrated.
This cannot be done in the twinkling of on eye or by any mere ritual. It cannot be done in any single proceeding or at any one place. It certainly cannot be done at Nurnberg alone. But we have here, I think, a special opportunity and grave responsibility to help achieve this goal. He have here the men who delayed a leading part in the destruction of law in Germany. They are about to be judged in accordance with the law. It is more than fitting that those men be judged under that which they, as jurists, denied to others. Judgment under law is the only just fate for the defendants; the prosecution asks no other.
There are fifteen defendants in the box, all of whom held high judicial office, and all but one of whom are trained lowers. To understand this case, it is necessary to understand the general structure of the German judicial system. and the places occupied by the several defendants within that system.
To assist the Court in this regard, the Prosecution has prepared a short expository brief which is already in the hands of the Court and which has been made available to defense counsel in German and English. The brief inclosed a glossary of the more frequent German words or expressions which will occur during the Trial---most of them from the vocabulary of governmental and judicial affairs. It includes a table of equivalent ranks between the American Army and the German Army and SS, and a table of the civilian ranks used in the German judicial system It also includes two charts, showing respectively the structure of the Reich Ministry of Justice, and the Hierarchy of German courts. Finally, it includes a copy of the composite chart now displayed on the wall of the courtroom, which shows the positions occupied by the defendants in the General scheme of things. This chart has been certified by the defendant Schlegelger, and will be introduced as an exhibit in this case when Mr. Lafollette commerce the presentation of evidence.
It is being displayed at this time as a convenient guide to the court and to defense counsel, to enable them more easily to follow the opening statement.
Because Germany was divided into a multitude of states and provinces until modern times, German law is not the product of a continuous or uniform development. However, while some elements of old Germanic low have survived, German law has for many centuries been based primarily on the principles of Roman law. As is the case in most continental motions, German law today is enacted to substantial degree in the form of codes.
Even t the present time, the principle source of German criminal law is the Criminal Code of 1871. Amendments have been frequent, but it has never been completely overhauled. For our present purpose, it is sufficient to note the Code's three-fold division of criminal offenses. Serious crimes, punishable with death or imprisonment for more than five years, are called "crimes" (vorbrechon); lesser offenses punishable with imprisonment or substantial fines are called "delicts" (Vergehen), and minor offenses are called "contraventions" (Ucbertretungon).
Questions of criminal procedure are regulated by the Code of Criminal procedure of February, 1877; hatters of jurisdiction and of court organization are prescribed in the General Judicature Act of January, 1877.
Under both the German Empire and the Weimar Republic, the authority to appoint judges and prosecutors and the mower to execute sentences were jealously guarded prerogatives of the individual German states. The Reich Ministry of Justice, therefore, remained predominately a Ministry of federal legislation. The anomaly of a highly unified federal law, as contrasted With a court system administered by the individual states, endured, until after the advent of Hitler.
In spite of the fact that the authority for supervision and appointment of judges rested with the numerous states, the German court system was well organized and highly unified before Hitler came to power. The "basis of the court system was the local courts (Amtsgerichte), of which there were over 2,000, which had original jurisdiction over minor civil suits and over the less serious criminal offenses ("delicts")and "contraventions"). Original jurisdiction in the more important civil and criminal cases was exercised by the district courts (Landgerichte), of which there were same 150.
The principal appelate courts in Germany were called the District Courts of Appeal (Oberlandsgerichte). Of these there were 26, or generally one to each state and province. The District Courts of appeal entertained civil appeals from all decisions of the local and district courts, and second criminal appeals from cases originally board in the local courts.
The President of the District Court of Appeals ***arlandesgerichtspraesident) was also the administrative head of all the courts in his district.
The Supreme Court of the Reich (Reichsgericht) in Leipzig formed the apex of the judicial pyramid. It determined Important legal questions, involving the interpretation of Reich laws, and entertained appeals from the decisions of the district courts of appeal and from criminal cases originally heard in the district courts. It was also the court of first and last instance for important treason cases.
The judges of the Reich Supreme Court were appointed by the President of the Reich. The judges of the lower courts were appointed by the respective state governments. Before the advent of National socialism, a judge could not be removed by the government, but only by formal action before a disciplinary court composed of his peers. This security of tenure was guaranteed by Articles 102 and 104 of the Weimar Constitution.
The impact of Hitler's seizure of power on the German judicial system was swift and drastic. The Enabling Law of 24 March, 1933 authorized the executive to issue decrees with the force of law and provided that the "decree laws" could deviate from the Weimar Constitution, the civil rights provision of which had already been suspended by a decree of 28 February, 1933. For practical purposes, therefore, legislative and executive powers were merged in Hitler's cabinet, and the Constitution was robbed of all practical effect.
In 1934, the administration of justice was taken entirely out of the hands of the German states and was concentrated exclusively in the Government of the Reich. The first law for the transfer of t he administration of justice to t ho Reich was proclaimed 16 February, 1934; it provided that thereafter all courts should pronounce judgment in the name of the German people, vested in the President of the Reich all clemency po wors formerly held by the states, and authorized the Reich Minister of Justice to issue regulations for the transfer of the administration of justice to the Reich.
This general directive was put into execution by the second and third laws for the transfer of the administration of justice to the Reich, promulgated in December 1934 and January 1935 respectively. The Justice Ministries of the several states were thereby abolished, and all their functions and powers were concentrated in the Reich Ministry of Justice, which became the supreme judicial authority, under Hitler, in the Reich. Hitler had already proclaimed himself the "supreme law lord of the German people" in his speech to the Reichstag defending the killings which occurred during the suppression of the Roehm putsch. The centralization of the German administration of justice brought about of course, a great increase in the scope and functions of the Reich Ministry of Justice. Its more important divisions are shown in the composite chart on the wall of the courtroom; a more detailed chart of the Ministry alone is included in the expository brief.
For the first eight years of the Hitler regime, the Minister of Justice was Franz Guertner, who had taken this office under the von Papen cabinet and retained it until his death in January, 1941. Under Guertner, the two principal officials were the defendant Schlegelberger and Roland Freisler, each with the title of Under-Secretary (Staatssekretar). Schlegelberger took charge of the Ministry from Guertner's death until August 1942, but throughout that period he was "Acting Minister" and was never officially given cabinet rank. In August 1942, Dr. Georg Thierack, then President of the People's Court, was appointed Reich Minister and the People's Court appointed the defendant Rothenberger, but in January 1944, Rothenberger was put on the retired list and replaced by the defendant Klemm.
Besides the defendants Schlegelberger, Rothenberger and Klemm, four of the other defendants held high office in the Ministry of Justice, and still others served in the Ministry at various times during their careers.
The defendant Klemm, as well as being the Under-Secretary, headed Division II of the Ministry, which concerned itself with legal education and training. The defendants von Ammon and Mettgenberg, as well as the deceased Westphal, were officials of Divisions III and IV, which were ultimately merged, and which governed virtually all questions of criminal legislation and procedure, and prosecutions. The defendant Altstotter headed Division VI, which dealt with civil law and procedure. The defendant Engert, after having served on the People's. Court, became the head of Division V --- Penal Institutions --- and of Division XV, first created in 1942, and dissolved in 1944. Division XV concerned itself with the secret transfer of certain classes of persons from ordinary prisons to the Gestapo. The Ministry of Justice controlled a variety of other judicial institutions, including various Special Courts and the examining office for candidates fer admission and qualification of judges and lawyers. It controlled the academy for German Law and various other associations of attorneys, as well as a special training came for the Nazi indoctrination of young attorneys. most important of all, it supervised and administered the entire court system from the Reich Supreme Court clear down to the local courts. This function included the assignment, transfer, and promotion of all judges.
The centralization of judicial administration in the Reich Ministry of Justice did not at first have any pronounced affect upon the structure of the regular court system. The established hierarchy of courts --local courts, district courts, district courts of appeal, and the Reich Supreme Court continued in effect. The most important development in the early years of the Third Reich was the creation of extraordinary and Special Courts, which increasingly out into the jurisdiction of the regular courts.
Under the impact of war, however, the system of regular courts was substantially altered, although its general outlines remained the same. These alterations were intended for economy and expedition, and to reduce the number of judicial personnel.
This was accomplished chiefly in two ways: by reduction in the number of judges required to hear particular kinds of cases, and by drastic curtailment of the right of appeal.
Many of these changes were made at the outbreak of war in 1939. Thereafter, all cases in the local courts and all civil cases in the district courts were heard by one judge only; criminal cases in the district court were heard by three judges, but the President of the court could hear such cases alone if the issues were simple. Criminal cases heard by the local courts could be appealed only as far as the district courts; civil cases heard in the local courts could be appealed directly to the district court of appeals, by-passing the district court.
Further drastic curtailments of the right of appeal occurred in 1944 and 1945. In general, appeal could only be taken by permission of the court which heard the case, and permission was ranted only to settle legal questions of fundamental importance. The judicial functions of the district courts of appeal were almost, if not entirely, eliminated, although their supervisory administrative functions continued.
The most crucial and radical change in the judicial system under the Third Reich, however, was the establishment of various extraordinary courts. These irregular tribunals permeated the entire judicial structure, and eventually took over all judicial business which touched political issues or related to the war.
Within a matter of weeks after the seizure of power, by a decree of 21 march, 1933 "Special Courts" (Sendergerichte) were established. One Special Court was set up within the district of each d strict court of appeal. Each court was opposed of three judges drawn from the judges of the partner district. They were given jurisdiction over off me is described in the emergency decree of 28 February, 1933, which included Inciting to disobedience of government orders, crimes in the nature of sabotage, and acts "contrary to the public welfare." There were drastic provisions for the expedition of proceedings before the Special Courts, and no appeal whatsoever lay from their decisions.
A few weeks later, special military courts, which had been abolished by the Weimar Constitution, were re-established and riven jurisdiction over all offenses committed by members of the Armed forces. In July, 1933, special "hereditary health courts" more generally known as "sterilization courts", were established at the scats cf the local courts, with special appellate "hereditary health courts" above them.
But the most notorious Nazi judicial innovation was the so-called "People's Court" (Volksgerichtshof), established by the decree of 24 April, 1934, after the Reich Supreme Court's acquittal of the defendants in the Reichstag fire trial. The People's Court replaced the Supreme Court as the court of first and last instance for most treason cases.
The People's Court sat in divisions, or "senates", of five members each. Two of the five had to be qualified judges; the other three were trusted Nazi laymen selected from high-ranking officers of the Wehrmacht and SS, or from t he Party hierarchy. They were appointed for five-year terms by Hitler, on the recommendation of the minister of Justice. Six "senates" were established, each of which heard cases from a particular geographical section cf Germany. In 1940 a "Special Senate" was established to re-try cases where, in the judgment of the Chief Public Prosecutor of the Reich, an inadequate punishment had been imposed.
As time went on, the concept of "treason" was much enlarged by a variety of Nazi decrees, and both the Special Courts and the People's Court were given jurisdiction be try a great variety of offenses. In 1936, for example, the snuggling of property out of Germany was proclaimed an offense against the rational economy, and the People's Court was given jurisdiction over such cases. In 1940, a new decree undefined the jurisdiction of the special Courts and people Court and all soris of offenses such as avasiom of conscription and listening to foreign broadcasting stations were brought within their preview.
Toward the end of the war, by a decree cf February, 1943 emergency civil courts martial (Standegerichte) were set up in areas "managed by the approaching enemy." Each consisted of three members appointed by the Reich Defense Commissar (usually the gauleiter) of the district; the President was a professional judge, who sat with one associate judge from the Nazi party, and one from the Wehrmacht or SS.
These courts martial could only condemn the accused to death, acquit him, or transfer the case to a regular tribunal.
Thierack was President of the People's Court prior to his appointment as Reich Minister of Justice. He was then succeeded by Freisler, the former Under-Secretary of the ministry of Justice, who remained as President until nearly the end of the war, when he was killed in an air raid. The defendant Engert was Vice-President of the People's Court prior to his transfer to the Ministry of Justice in 1942. The defendant Webelung was President of the Fourth Senate of the people's Court. The defendant Petersen, the only non-lawyer in the Pock, was a general of the SA, who sat as a lay judge on many occasions in the First and Special Senates of the People's Court.
Three of the defendants were judges of the Special Courts. The defendant Cuhorst was President of the Special Court in Stuttgart, and the defendant Rothaug was President of the special Court in Nurnberg. The defendant Ooschey also sat on the Special Court In Nurnberg, and succeeded Rothaug as its President when the latter came a public Prosecutor.
Oeschey was also president of the emergency civil court martial at Nurnberg.
The prosecution of criminal offences, under the Third Ref was handled by a special group of state attorneys (Staatsanwaltschaft) directed by the ministry of Justice. Increasingly under the Third Reich there was interchange of personnel among judges and prosecutors.
The defendant Rothaug, for example, left the bench of the Special Court at Nurnberg to become a Senior Public Prosecutor of the Reich (Reichsanwalt). The defendant Barnickel also held this title. The defendant Joel, in 1343, left the Ministry of Justice and became the Public Prosecutor-General of the district court of appeals for Westphalia, at Hamm.
The most important prosecutor among these defendants, however, was Ernst Lautz, Chief Public Prosecutor of the Reich (Oberreichsanwalt). In this capacity, Lautz prosecuted any important cases before the People's Court.
I turn now to an examination of the means by which the defendants and their colleagues seized control of Germany's judicial machinery and turned it into a fearsome weapon for the commission of the crimes charged in the indictment.
The destruction of law in Germany was, of course, part and parcel of the establishment of the Third Reich dictatorship. Initially, the dictatorship arose out of the decrees in the early part of 1933 which suspended the Constitutional guaranties of freedom, and vested Hitler's cabinet with legislative power, unrestrained by Constitutional limitations These early decrees put an end to lair as we know it in a democracy.
But much more had to be accomplished in order to achieve a dictatorship of the proportions envisaged b the authors of the Third. Reich. Freedom of the ballot had to be suppressed so that a false veneer of electoral approval could be spread over the Nazi edifice. The civil service had to be purged of dissident officials. An ubiquitous and ruthless police system had to be created.
A multitude of other measures were necessary. But, above all, law and justice had to be utterly stamped out.
At first blush, the reason for his may not appear. The Nazi cabinet could decree any law it wanted to with the flourish of a pen. The courts, unless they were bold enough to deny the very basis of Hitler's authority, which they did not do, were bound to punish violations of these laws. was this not enough for even Hitler's purposes?
The answer is two-fold. Particularly in the early years of the Third Reich, Hitler's government pursued aims and employed methods which it did not, at that time, see fit to authorize by formal, public legislation. The regime was not yet strong enough, externally or internally, to face the storm of disapproval which such legislation would have encountered. The Nazi government thought it wise to pursue these aims and employ these methods outside of, and often in violation of, the letter and spirit of the law. And it did not wish to be embarrassed or obstructed by an independent judiciary respectful only to the law. The outcome of the Reichstag fire trial, for example, was highly embarrassing and promptly bore sinister fruit in the creation of the People a Court.
But there was another and much more fundamental reason. The ideology of the Third Reich was totally incompatible with the spirit of the law. It could not live under law, and the law could not live under it. To take but one example: even under stringent anti-Jewish legislation, there were bound to be situations where an over greedy German in a civil suit, or an over-zealous police official in a criminal case, had erroneously haled a Jew into court. In other words, even under Nazi legislation, there were bound to be cases when the Jew was legally right. Yet, it was unthinkable that a German court should exalt the Jew and discredit the German with a decision in favor of the Jew. Such perplexing problems could be dealt with only by courts which were not true courts at all, and which could be trusted to suppress the law and to render an ideological judgment or, as was done later, by declaring the Jew to be an animal beyond the judicial pale entirely who could not, any more than a wrongfully beaten dog, ask judicial intervention or protection.
This sort of problem was far more delicate in the case of the Poles, whom the Nazis chose toregard as less than human but more than Jewish. Later on in this case, we will, I think, derive some macabre humor from the documentary spectacle which some of those defendants made of themselves in vainly wrestling with the insoluble problem of how to achieve a. certain amount of legal order and stability in occupied Poland, without at the same time giving the Poles any true law on which they could rely.
In short, the very idea of the "law" mas inimical to the ideology of who Third Reich, and it is not surprising that its principal authors recognized this fact at a very early date. In 1930, Hitler himself declared, with reference to a court decision against certain Nazis:
We can assure the judges that, if National Socialism assumes power, then they will be fired without any pension.
Joseph Goebbels expressed the same thought even more bluntly in 1934, after the Nazis were in power:
We were not legal in order to be legal, but in order to rise to power. We rose to power legally in order to gain the possibility of acting illegally.
Later on in this case, the Tribunal mill have offered to it documents which speak at length about the creation of a new, National Socialist system of law. By then, it will be apparent, I believe, that a "National Socialist system of lam" is a preposterous contradiction in terms. It never was an objective of the Third Reich to create any system of law. On the contrary, it was its fundamental purpose to tear down every vestige of law in Germany, and to replace it with a mere bureaucracy which would mete out reward and punishment in accordance with the tyrannical ideology and tactical necessities of the dictatorship. The one-time sage of Nazi jurisprudence, the late Dr. Hans Frank, summed this up aptly in 1934:
National Socialism is the point of departure, the comment and the goal of the legal policies of the Third Reich.