It was the absolute monach who took the lead in the abolition of this higher law; the nations followed later. Bodin, the french political scientist (died in 1596) established as highest principle: the indivisibility of the powers. According to him the leadership of a state can only be exercised by one authority and must not depend on any external or internal forces, nor on the paralyzing fetters of antiquated laws. The doctrines of the Errastianism and of the realistic policy of Macchiavelli destroyed the Christian organic conception and resulted in making "the family of the nations" an anachronism. Kant, Hegel, Fichte, Treitschke and von Ihring transferred the doctrine of the divine rights of kings and of the passive duty of obedience of the people from the absolute monarchy to the modern state. The state now appears as a personified deity, and any diverging opinion is considered not only as treason but, as a sacrilege.
Utilitarianism as coined by the Englishmen Bentham and Mill had nothing but contempt for the attempts to restrict sovereign powers. These men consider the natural law to be senseless and misleading. Positivism which maintained that Knowledge is relative and subjective and which is characteristic for the second half of the nineteenth century, found its American variant in Pragmatism. Related to Utilitarianism in emphasizing the predominance of the practical, pragmatism considered truth as equal to usefulness. In the course of the 19th century the Englishman John Austin and his disciples, among others, completed the separation of law from morals by incessantly repeating the theory that law and ethics had nothing to do with each other. This can hardly be called a declaration of war on the power of the state. The casuistic system of Jurisprudence which originated at the Havard University in 1870 and which was dominated by the "Austin ideology" likewise separated Law from social science and morals. There were jurists who concentrated their attentions on individual cases and who saw therein the sole task of law.
Many American jurists therefore, untouched by philosophical questions, are, in the words of Pound, of the belief that everything that is done in the course of the judicial decision, is Law, because it is done. But it is not done, because it is Law.
Ben William Palmer, with reference to Continental Europe, writes in the June number 1946 of the "American Bar Association Journal":
"At about the end of the 19th and in the first half of the 20th century a veritable deluge of law regulations came to pass, Formerly, law had been regarded as the incarnation of reason, because, originally, law had meant law cases settled by reason. But then the accumulation of legal prescriptions came into being, prescriptions which, issued precipitately and contradictory to one another, were not connected by a leading principle nor in accordance with reason. And only too often they were obviously nothing but more orders. And looking at it realistically, and perhaps somewhat cynically, law was regarded or interpreted ass nothing but the expression of the will of the interests of some groups. The people forget the natural law, and, in their eyes "law" had no relation to reason and morals........
The "due process-clause" of the 14th amendment to the Constitution was raised, to the level of an independent legal principle. Although the idea, that this clause was being applied to the disadvantage of philanthropic legislation spread more and more, the dislike for a clause which was based on the true natural law grew stronger at the same time. Instinctive dislike thus completed the philosophical undermining of the perception of natural law." (End of quotation) Subsequently I should like to quote from this periodical the following words of Mr. Palmer:
"Certain inferences from the philosophy of a Justice Holmes can be traced back to Hobbes and are leading directly to Hitler, as: "law is Power, not reason, Man has no inviolable rights. In the treatment of its nationals or of other nations, the sovereign state is not subject to any higher law."
(End of quotation) This is the field of intellectual tension which had to be described in detail in order to convoy a. true appreciation of the precarious position of the judge in the "Dritte Reich".I will now skip the Chapter on "Legal Positivism and Judges" and will continue on page 7 of the English version, beginning with the chapter:
"International Law and Judges":
Professor Jahreis states on page 4202 (German Record): "Gerhard Anschuetz whose last position was that of professor at Heidelberg was, actually the temple guard of the Weimar Constitution, and if he merely sensed the attempt to shake the foundations of democracy, perhaps by creating a group of judges who had the right to review decisions by the Reichstag, he could get extremely furious." (End of quotation) On page 4205 (German Record) we read:
"On the European continent in the course of four centuries a development has taken place in which law and morality in legal and in legislative thinking are sharply separated. And as soon as a question of morality arises, the jurist on the European continent says: As a jurist this has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but , after all, that is the historical truth."
In order to show how far this goes, may I not submit to the High Court the opinion of Gerhard Anschuetz with regard to section 102 of the Constitution, namely his opinion with regard to the problem whether the courts in Germany are permitted to doubt the validity of a law, decreed by the Reichstag, for reasons of morality. I quote; this is from the commentary to the fourtheenth edition, page 176:
"If it cannot be admitted that the judge is entitled to examine whether the law was constitutional, he is even less entitled to refuse to obey the law which was created in conformity with the constitution, because in his opinion the law is not compatible with certain norms - which .are higher than the legislator (for instance customs, morality, good faith, law of nature) or certain judgments of value (justice, equity, reason)." (End of quotation).The law concerning the constitution of the courts (Gerichtsverfassungsgesetz) of 27 January 1877; Art.
1 states:
"The judicial authority is exercised by independent courts which are subject only to the law." (End of quotation) We read in the sentence of the Supreme Court of Bavaria of 24 October 1927:
"The judge decides whether the defendant is guilty or not guilty, not according to his free discretion or arbitrarily, but he is bound by the law and the forms of law." (End of quotation) In a decision in volume 118 (published in 1927) we road:
"The legislator is an autocrat, and is not bound by any limits except those which he has set for himself in the constitution or in other laws." (End of quotation) In the decision of the Reich Supreme Court of 15 December 1939 we read:
"In awarding punishment the judge is not allowed to exceed the limits, set by the penal laws, except in cases provided by the law. If the prerequisites for such a case are not existing, the judge has to award punishment within the limits set by the lawn even if in his opinion the minimum penalty provided by the law should be too severe or the maximym penalty too mild." (End of quotation) The witness Dechant declared in the witness box:
"Purely human points of view were limited by the legal provisions, the knowledge and correct application of which was the task of the jurists."
These quotations describe the legal situation. The consequence was that the German jurist or judge was made defenseless with regard to laws with arbitrary contents by the positivism and its conviction "Law is law". There can be no doubt that the judge is merely an executive agent of the power of the state, if he applies laws which are merely enforced orders without moral dignity.
But it is another question whether this judge rendered himself liable to punishment, when he applied laws which are incompatible with the law of nature, and recognized or had to recognized that the laws were unjust, or that the political power which he protected in trials for high treason, acted in an immoral way. The problem is based on the fact that here two postulates confront each other, both of which have their source in the moral fundaments of law. The postulate to emphasize by penal laws the binding of the positive law to principles of the moral law of nature, and the postulate of limiting the authority of the state to punish, which is expressed in the proposition "nulla poena sine lege", the violation of which the prosecution charges in this case. This proposition sets a limit not only to the power of the legislator, but also to the power of the judge. In addition to that: The demand for punishment cannot be based on moral values. The law of nature asks that we should not obey certain laws which are incompatible with the principles of justice and morality. The law of nature offers a right of resistance, but not a right to punish those who do not make use of this right of resistance, The death of all those who offered resistance to the laws and orders of the dictatorship-state would lose its moral value if we would punish those who acted in direct obedience to the positive law.
There is further another point of view which should not be overlooked, The Weimar era did not know the right of the judge to examine whether laws are inconformity with the principles of the law of nature. Also science has denied that such a right exists. In this connection may I not refer to the conferences of the German Professors for Public Law in 1926. It is, therefore, extraordinarily doubtful, whether, it is correct not only to assume now such a right to examine laws, but, even more.
to construe a duty to examine the law in that respect and to provide punishment for the nonfulfilment of this duty. These doubts are even greater if we want to punish the judge for sentences for high treason etc. For us human beings it is impossible to consider a certain form of government as just. As a result of this consideration, the science of law, and also the science of International Law, has up to this time, made the recognition of a government dependent upon the fact, whether this government has actually exercised an authority. In consequence of this the judge applied the high treason laws of a government which fulfilled these prerequisites.
Therefore, judges who applied laws which are not compatible with the law of nature, cannot be punished. This result conforms to the doctrines of the rational law of nature of the 18th Century. According to this doctrine, there exists a right of resistance and a right to refuse obedience, but no punishment.
International Law and Judges.
The Prosecution has submitted in its case against Peterson 3 sentences against Czech people. These are:
Prosecution Exhibit 512 (Case Zelezny) " " 513 (Case Chalupa.)
" " 514 (Case Pichrt) (German Record pages 3406/3407).There is no doubt that the proceedings were carried out properly, and also that the penalties were within the limits of the law.
Even the prosecution has not claimed anything to the contrary.,Formally permit me to refer to Petersen Exhibit 31. With regards to facts may I not add, that if these cases had been brought before the Supremo Military Court, the same penal laws would have been applied. There is also no doubt that a Czech Legion existed. This question has been clarified by the submission by the Prosecution of Exhibit 127 and exhibit 220 and by the statement of the witness Brem (German Record page 3502 and following).I will now skip pages 8, 9 and 10 and 11 and will continue on page 12:
The problematic question which has been raised by the prosecution is as fellows: "Have the German judges who passed judgment on Czechs in matters of high treason and applied German laws in so doing, rendered themselves liable to punishment thereby? For the support of its argument the prosecution submitted exhibit 378, the Czech Government report, on 23 April 1947 (German Court Record page 2559). The latter states:
"The Czecho-Slovak Republic has not only been occupied by the German Reich, but also completely annexed. The resistance of the Czecho Slovak people against this annexation was expressed by different means. The people's court was one of these courts engaged in the suppression of all actions, even the insignificant ones aiming at a termination of this condition which represented a violation of international law......
The jurisdiction of the People's Court extended over the Protectorate.
........We, therefore, restrict ourselves to this fact of its actions which lies outside of the rights of an occupying power......
It is manifestly so, that high treason can be committed only by persons who are subjects......
...... It is entirely clear, that the GermanPenal Code did not justify the protection of a state which had unlawfully been created, i.e., through annexation, and that the judicial procedure end the right to impose drastic sentences for aiding and abetting the elimination of the state does not have a foundation in International Law......" (End of quotation) The opinion of the International Military Tribunal established that the annexation of Czecho-Slovakia was contrary to International Law.
From this, Colonel Ec'er, the Plenipotentiary General of Czecho-Slovakia for the United Nations Commission for War crimes deduces that the verdicts of the People's Court against the Czechs are illegal.
The legal position is not as simple as Col. Ec'er thinks it is. This showed itself already in 1927, when the International Court in the Hague wap hearing a complaint brought by France against Turkey. 6 of the 12 judges took the position, that the state was justified in punishing foreigners for acts which had been committed abroad. 6 judges were against it. However, it is interesting that, in addition to the opinion of the court six diverging opinions of the dissenting judges are on hand. In this case, the so-called lotus case, it was established in the opinion, that the states may especially then bring a case before their courts, when the acts of the foreigners have been directed against the foundation of the existence of the state. (German Record, page 4253 and following).
That the foundation of the existence of the German Reich had been affected by the acts of Zelezny, Chalupa, Pichrt need not especially be emphasized, if the facts of the case are brought to bear.
The International Court of the Hague made, among others, the following statements, the great significance of which justified their complete reiteration:
"The significant limitation of sovereign power through International Law consists in that it prohibits the execution of sovereign power on the territory of another state, when there is no special norm of authorization. In this sense judicial procedure is certainly territorial. It cannot be practised outside of the territory unless a special norm of the customary or conventional International Law permits the same. However, it does not follow therefrom, that International Law prohibits a state from practising judicial procedure over events outside of its territory, if it is unable to show support in a special res 16 0ct-A-FL-22&23-11-Cook (Int.
Steuer) pective norm of authorization in International Law.
Such a thesis could be stated only, if International Law generally would prohibit the states from extending their legislation and judicial procedure over persons, property and actions outside of their territories, and would grant them such an extension only in specially determined cases, as an exception to this prohibition. However, this is certainly not the present status of International Law. Far from prohibiting the governments from extending their laws and judicial procedure over persons, property, and actions outside of their territories, it allows them in this respect far reaching freedom (large liberte), which is restricted only in a few cases by prohibitions. In every other respect every state remains at liberty to chose the principles which it considers the best and the most expedient" (Petersen Exhibit 61).
With this thesis of the International Tribunal Wegner, Cybichowski and Triepel are in agreement. The latter even represents the view in his "Voelkerrecht und Landesrecht" page 275 that International Law allows every state "complete freedom." to extend purely penal laws even over the actions of foreigners abroad. The same view as that of Triepel is represented by Beling, Hegler, Harburger. The French authority in the realm of International Law, Maurice Travers, also considers it admis sible according to International Law to extend the application of penal laws to foreigners abroad within a certain scope. According to him every social group, especially every statem can breely determine with respect to law, how it wants to safeguard its social life through penal laws; therefore, it may also establish freely how the territory in which these penal laws are valid, is to be measured off to insure this protection. In consequence, we read as follows in the work: "comparative Presentation of German and Foreign Penal Laws" (Lautz exhibit 227);
"The action of high treason committed abroad against the German Reich can also be prosecuted according to the penal laws of the German Reich, without regard as to whether the perpetrator is a German or a foreign," (End of quotation) During the discussions of the penal committee of the Reichstag regarding the planning of a general German Penal Code the delegate Dr. Havemann refered to the following passage:
"if a foreigner abroad has committed high treason, (or) treason; then a public complaint can be brought against him only with the approval of the State Minister of Justice", and pointed cut that Russia, Argentina, Finland, Denmark, Jogo Slavia, and Spain furthermore claim protection for themselves under penal law for a whole series of other offenses, even for petty offenses committed by foreigners abroad. (Lautz exhibit 22). Within this frame is also contained the provision, that a foreigner who has committed abroad an action of high treason against the German Reich can be prosecuted. It must not be forgotten in connection with the facts of the Pichrt and Zelezny case under consideration, that the aim of the Czech Legion was not only to participate actively in the Battle against the German Reich on the side of the hostile powers, and to eliminate the Protectorate of Bohemia and Moravia by force, but much more, to set up a Czecho-Slovak state, at least within the old boundaries, that means, inclusive of the so-called Sudentengau, if not actually according to the vision of the Czech Major Kufner (compare prosecution exhibit 514). After the Nurnberg IMT Trial, solely the annexation of Bohemia and Moravia were designated as contrary to International Law.
In the Chalupa case the facts of the case are similar, The activity of the Communist P.C. aimed at the elimination of the Protectorate by force of arms, as well as the overthrow of the order of the state in the old Reich, since the P.C. was a fact of the not yet reformed Comintern. It is regrettable in this connection that only the writ of indictment but not the opinion was submitted by the Prosecution.
Through the decree governing the penal judicial procedure in the Protectorate Bohemia and Moravia, dated 14 April 1939 (Petersen Exh. 56), the following was decreed for the execution of the penal judicial procedure :"The following penal regulations of the Reich Law from the Penal Code of the German Reich apply to crimes committed by persons who are not German nationals:
Articles 80-93 a (High treason and treason) Article 94 (Attacks on the Fuehrer and Reich Chancellor) Articles 102-104 (Hostile actions against friendly states) Article 110 (Incitement to disobey to laws) Article 112 (Incitement of soldiers to disobedience) Articles 134a, 134b (Insults to the Reich or the Party) Article 135 (Disregard of National Emblems) etc."
It is not the task of Petersen's defense to exhaust completely the question of the introduction into the Protectorate of German law, it is rather their task, to decide if the judge has to examine whether the laws of the Reich correspond to International Law and whether he renders himself liable to punishment, if he applies laws which are not in accordance with International Law.
Professor Jahrrcis has expressed himself on this question in the witness box. His opinion is a follows:
"If the Reichstag made a law, in democratic Germany, which contradicted International Law, this law was binding for all German offices. What applied to the democratic Fuehrer order, applied all the more, to Hitler's decision. No State on earth thinks that it's own laws should not apply to its own officials. Judges and subordinates are bound also to apply and observe National Law which is in contradiction to International Law. It is not their affair, but the affair of the Government, to consider the differences from International Law, which might Arise from this. A judge who in a case of conflict had applied International Law instead of the Reich Law, would, if this were intentionally done, be guilty 16 0ct-A-FL-22&23-14-Cook (Int.
Steuer) of a punishable wrong application of the law.
If this judge is now called to account for the fact that he applied the German law instead of international law, then he would be in a tragic situation. Because whatever he does, he will always be doing the wrong thing." (German transcript page 4236 ff).
Professor Hahrreis's opinion is supported by a passage in the "Manual of German Constitutional Law" published by the crown lawyer of the Weimar period, Gerhard Anschuetz. We read on page 145:
"International courts of arbitration, to which the German Reich has submitted by treaty, not only have to examine German administrative acts as to their being in accordance with international Law, but also if necessary German laws (including constitutional laws), and if the result is negative, to deal with them as legally invalid. German courts on the other hand, do not possess these powers. It is a mistake to think that the opposite arises from the theory of the primacy of International Law. International Law is directed at the State as a whole, it does not break the outer shell of the edifice in order to disturb the hierarchy of it's inner organs." (Lautz Exh. 90).
In the decision of the Reichsgericht (Reich Supreme Court) in penal matters, volume 62, No. 114, I Penal Senate, verdict of 23 November 1928 (Petersen Exhibit 63), we also read:
"It could be conceived, however, that the opium law and the regulations for execution decreed for it had not satisfied the commitments as undertaken in 10A; in this case the judge would of course then be restricted to the limits imposed on him by the law."
In the course of Professor Jahrreis' cross-examination, the Prosecutor quoted from the work of Charles Hyde, "International Law":
I will now skip the next two lines and the first half of page 14 and will continue with the paragraph starting "Mr. La Follette":
International as well as National Law of every State is necessarily above every administrative regulation or law or public decree to the contrary.
There can be no conflict on the same level: the exact relationship between the recognized law of International Law and a local law contradictory to it, before the superiority of the former has been finally established. A local court can therefore be bound, in view of the nature of the matter and the limitations of the rights conferred upon it, to apply a law and even a National Court of the highest instance, may be found to approve of such an action. This, however, only means that no local court has the possibility of forcing the state to apply that law. It does not mean that this kind of relationship can be defended from an international point of view, or that the judges approve of it as such."
Mr. LaFollette has quoted Hyde Volume I page 16 par. 5. If the Prosecutor had quoted Volume II page 57 par. 527 and following, it would have become clear that the American Courts were bound to the interpretation of the Government in dealing with "political"questions. Wright (Legal Nature in American Journal of International Law X, 1916, page 735) and More are of the same opinion. In English law too, we find acts of state to be outside the jurisdiction of the English judge, in the same way as he is unable as a judge, to criticize a law which was properly promulgated (Petersen Exhibit 64). At the beginning of my final plea, I referred to Austin. The latter contrary to the handed down tradition of the liberalistic conception of world law, according to which International law as a generally valid law must ipso facto be a component part of the English legal system, emphasized definitively the radical positivistic point of view that international law only comes into question as an indirect source for National Law proper, since, in point of fact, all positive law must be instituted by national organs, be it by the immediate legislative organ, the Parliament, or by the delegate organs, the English judges. In this connection, the verdict in the Mortensen case is of interest (c.f. Petersen Exhibit 66). This dealt with the question of whether an English law, as opposed to Inter national Law, can legally apply the English Criminal Court laws on the high seas to foreign nationals as well.
The defendant was declared guilty and condemned.
In addition, by document Petersen-Exhibit 66 I have proved, that, although, according to Article VI of the constitution of the Union, State treaties are to be the highest State lawn, in spite of the fact that American law, when taking over the English common law system also took over the English statute, according to which the generally recognised International Law is to be a part of common law, it is especially the American practice of law which has, perhaps, worked out the principle the mosts, that in spite of the continuance of duties under International Law the American legislator can make valid laws contradictory to International Law which, regardless of that fact are to be applied and observed by the authorities, courts and citizens. The American practice has developed on some-what parallel lines to the corresponding English practices, in the closest connection with the systematic positivism as observed by Austin in the nineteenth century. This radical positivistic legal theory strongly was met by the need for a strict organization within the State, the need to counter balance more and more the International claims of the International community with the specific claims of their own State, in making the laws.
In the case of Foster and Flam v. Neilson, the Supreme Court as early as the first third of the 19th century, gave priority to congressional legislation over any possible norms of International Law. (Supreme Court of the United States, 1829, 2 Pet. 253, 7 L Ed. 415).
Even if this decision may still give rise to all kinds of limiting attempts at interpretation, the verdict in the case of Whitney v. Robert son made entirely clear that, in a conflict between a state treaty binding the U.S.A. and a later contradicting federal law (unionsgesetz) the latter merits preference before the public courts. Judge Field in his judgment explained:
I will now skip the paragraph on page 16 beginning with "The act of congress" and start on page 17:
"The act of Congress.... was passed after the treaty with the Dominican Republic, and, if there be any conflict between the stipulations of the treaty, is primarily a contract between two or more independent nations, and is so regarded by writers or public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other.... If the treaty contains stipulations which are self-executing, that is, require translation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether., By the constitution a treaty is placed on the same footing, and made of like obligation, with an Act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other... if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. The duty of the Courts is to construe and give effect to the latest expression of the sovereign will. In Head Money Cases, 112 U.S. 580, 5 Sup. Ct 247, 28 L Ed. 798, it was objected to an act of Congress that it violated provisions contained in treaties with foreign nations, but the court replied that so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country." Precisely the same principle is propounded in the case of Botiller v. Dominguez (1889) (130 U.S. 238, 247, 9. Sup.Ct 525, 32 L. Ed. 926).
Thereby, however, the validity of the American federal law - which is contrary to international law - is fully recognized. The American judge in deciding the legal conflicts before him, must be guided not by the perpetuated state treaty, but solely by the onesided newer law as far as it contradicts the former.
16 0ct-A-FL-22&23-18-Cook (Int. Steuer) This practice is shown to be in constant use in a series of other decisions, so that its legal recognition cannot be doubted - and this is practically unanimously recognized by the American theoreticians.
Thus we have the strange result that Art, VI of the American Constitution was in effect used as a basis for the recognition of the law of the country, which was contrary to international law. The decisions are numerous (compare for example Taylord v. Morton 1855, 2 Curtis, 454; Clinton Bridge, 186, 1 Wollworth, 150) Cherokee Tobacco, 1870, 11 Wallace, 6l6) Ropes v. Clinch 1871) 8 Blatchford, 304, Head Money cases, 1884, 112 U.S. 580) Hijo v. United States, 1904, 194).
In view of all this, it is objectively considered puzzling, how the prosecution can demand Petersen's conviction in the three named cases To this be added, that international law only stipulates the privileges and duties between the states as such) its norms are directed exclusively to the states, not to the judges or the citizens.
I will skip the Chapter beginning "The Peoples' Court" and will continue on page 23 of the English version: "The Lay Judge":
The People's Court Lessing coined the saying:
"If God held all truth in his right hand and the ever lasting urge for truth in his left, but with the stipulation that I should be eternally wrong, and said to me: Choose. - I should grasp his left in humility and reply: Give, oh Lord. For the truth is thine and only thine alone."
This solution is perhaps not exactly satisfying the mortal man. But it contains that which has been brought again to the fore in our time It is perhaps not for us to find the truth.
In history, legal decisions have always been disputed, the more so when political questions were involved. There was a crisis concerning the confidence enjoyed by the judicial system already in the period before 1930. After 1933 it was above all the people's court and the special courts, which moved into the focal point of criticism. The peo ple's Court was described as being an extend arm.
of the Gestapo and a terror court.
By the fact, that the people's court was set up as a special court, it is assumed that it constitutes an exceptional court.
To this the jurisdiction regulation, dated 21 April 1934 states as follows:
"The people's court is a proper court in the meaning of the law governing the constitution of courts," This short sentence refutes the assertion of tho expert witness for the prosecution WEHL (compare 724 German Record). The people's court replaced the Reich court solely and alone in the proceedings against high treason and treason. Thus again the Reich court was reinstituted as the highest court of appeal guarding the uniformity of law in tho Reich.
The critics of the people's court overlook the fact that there existed before 1933 a state court for the protection of the Republic. The critics overlook the fact that it was especially the Reich court, which in the sphere of treason - above all by applying the useless experiment, which it developed out of the so-called theory of volition on an Extensive group of cases - considered the possibility of punishment and thereby opened the way for an important sphere. Nor must it be overlooked when considering the jurisdiction in the people's court, that the law of 24 April 1934 eliminates the admission of mitigating circumstances, which were almost everywhere provided in the former law, for the entire sphere of high treason and treason.
One of the chief arguments of the prosecution against the people's court was, that the judges worked according to directives, that is to say, they were no longer independent. The prosecution itself, however, submitted documents, which rendered its accusation doubtful. I refer to prosecution exhibit 127, 194; 220. The Reich Ministry of Justice reprimands inadequate reasons for verdicts, it emphasizes the points of danger when tes 16 0ct-A-FL-22&23-20-Cook (Int.
Steuer) timonies of witnesses are shaken.
It is here admitted off hand, that the function of the judge within the National Socialist system has deviated from the conception in the liberalistic state. It was not up to the judge to control the political behavior or to guarantee the sphere of individual liberty. The adherance to the law, however, remained the requisite basis of jurisdiction for him. The law was regarded as the expression of the conscience of the community. He judged and was independent of official directives. The conception, that the law served only to protect the rights of the individual, was considered to be superseded.
When we consider that already before 1933 the word was spoken: "reasons of state stand above the independence of the examining magistrate", and that it was demanded that behind the judicial decision there should be a political principle, namely the preservation of the democratic, republican people's state, it is not to be wondered at, that the National Socialist law doctrine described the judge as the "sovereign guardian of the living rights of the community". This conception, in war-time, entailed prodigious burdens for the individual judges This is also indicated by that speech of Hitler in the Reichstag in which he said: "I therefore ask the German Reichstag to confirm explicitly, that I possess the legal right to hold everyone to the fulfilment of his duties or to remove him from office and position regardless of his person or the right he may have gained." (End of quotation) The picture which the people's court represents differs from the assertion of the prosecution.
12 presiding judges were discussed here. Only two were generally rejected: Freisler and Engert; opinion vary concerning Albrecht. 9 presidents (Vorsitzende) were described as being alright. The witness Boden, after rejecting Freisler, described Laemmle as just and impartial, Springmann as objective, calm, and as a good judge Dr. Greulich he described likewise, Kohler a strict, just and objective, and Hartmann as objective and just.
(German Record p. 6033). The witness for the prosecution, Dr. Gruenewald, Attorney-at-Law, too, describe Laemmle - of whom we know, as we know of Dr. Greulich, that he was Freisler's assistant judge (Beisitzer) - as most understanding, cal, and professional, man who treated the. defendants humanly and always let them have their say. (German Record p. 3848). Dechant assesses Laemmle's Character in a similar vein. The witness states literally: "Laemmle impressed me favorably as an assistant judge as well as a person. He conducted his trials calmly and professionally, without duress and without violating or jeopardizing the rights of the defendants. His attitude towards the witnesses was equally correct. His justice and sense of responsibility could be recognized without doubt." (End of quotation) These testimonies show that there were men around Freisler who were the opposite.
It is therefore entirely understandable, that the witness Boden states that differences arose between Freasler and his assistant judges during the sessions, just as there had constantly existed strong contrasts between Freisler, judge, and assistant judge.
Concerning the people's court the following facts were established in general by the witnesses for the prosecution Wergin and Gruenewald: It was not a prerequisite for the official defense counsel to belong to the NSDAP. The proceedings were public, and governed by the Code for Criminal Procedure. The rights of the defense counsels were not climinated. A real defense before the people's court was possible, when the time limits, for which the presiding judges were responsible, were too short, recess on a the basis of request for evidence was possible. The shortness of the time Units, especially from 1944 on, was due to technical difficulties. (Bombardment, transport and delivery difficulties). (German Record p. 3806 and 3837 and the following). The witness Storbek in his affidavit (Pertersen Exhibit 33) points out that no external influence had been exerted on the proceedings. Nor had the judges at the people's court been made to attend lectures by Gestapo officials.
Strong contrasts had existed between extensive circles within the sphere of the judiciary and the Gestapo. It was feared that the division of powers would be eliminated. There had been no differences in the treatment of Germans and nationals of other states. There were no regulations regarding exceptions. The proceedings had been conducted in conformity with the Code for Criminal Procedure which provides for the exclusion of the public in stipulated cases. Concerning the conception of "sound sentiment of the people" (Gesundes Volkeempfinden) and Freisler's personality, he states as follows: "The concept of sound sentiment of the people was made the subject of jokes at the people's court as well as at the other courts, We used to consider public sentiments as a slogan which only served to cover up a certain incapacity; for a reasonable, realistic attitude was entirely a matter of course. Freisler cannot be described as a typical judge. He was a man of great opposites, These opposites manifested themselves rather strongly. Freisler gave the impression of a hysterical mistress." (End of quotation) If we consider furthermore that, according to prosecution exhibit 147, the question of access to the files was handled very obligingly this is also confirmed by other witnesses - the exaggeration in the claim that the people's court was a terror court bound by directives, becomes obvious.
The severity of the verdicts lay in the law, The method of procedure, used under Freisler in the cases of the 20 July, is an exception.
In the fact that Gestapo denunciations were screened by investigating magistrates of the Reich public prosecution (Compare testimony DREM), and the conduct of the judges when members of the Gestapo violated the law in any way, (Petersen Exhibit 33) afford proof that the courts were not bound by directives. The judges letters do not prove either that the courts were bound by directives. For these were only of a critical nature. The criticism was similar to the criticism in other works.