(A recess was taken.
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: Your Honors, may I just say something about the order of the day. The defendant would like this evening to discuss their last words with their Defense Counsel. Technically that would be impossible if we proceeded beyond half past five because after halfpast five the prison authorities cannot allow the defendants to go to the visitor's room. Therefore, we would like to make the request to recess at half-past five -- before half-past five, and tomorrow morning we can give you assurance that tomorrow morning in good time the final pleas of the Defense Counsel will be finished.
THE PRESIDENT: To will continue until five-thirty. Go ahead.
DR. BRIEGER: In view of the fact that the Tribunal wishes me to start with my plea today, I should like to say that I am very willing to do so, but so far I only have had the first nineteen pages from the office. I think perhaps I shall leave out some of those nineteen pages, and, therefore, I should like to leave it to the discretion of the Tribunal to make a ruling as to whether it is worth while my starting today at all.
THE PRESIDENT: It is worth while for you to start if Dr. Koessl finishes before 5:30.
You may proceed, Dr. Koessl.
DR. KOESSL: Continuing with the Lopata case.
The verdict pronounced by the Amtagericha Neumarkt on 26 April 1942 was based on the fact that Lopata had reached for the sex organ of a peasant woman three times through her clothese in spite of her physical and verbal resistance. The Reich Supreme Court suspended the sentence because the Amtsgericht had not examined the applicability of par. 4 of the decree against public enemies.
The sentence was unjust because a substantially higher penalty was called for if the decree against public enemies would have been applied which was applicable to the case.
The confinement of the Special Court to the mandatory judgment of the Reich Supreme Court existed in the fact that, if the defendant had actually taken advantage of the proven war time conditions, it had to apply par. 4 of the decree against public enemies.
A further question was to what extent the verdict of the Reich Supreme Court contained a confinement with regard to the amount of punishment. (With reference to this see Rothaug-Exh. 31) In a concrete case the principles expounded here signify the confinement of the judge of facts namely that, in case par.
4 of the decree against public enemies was applicable, he had to decide for a substantially higher penalty. The formulation "substantially higher penalty" was, because nobody could foresee the final result of the coming main trial with regard to the penalty, the only possible and therefore could not indicate any maximum limitation of punishment, especially it could not exclude the death sentence, on the other hand it did not make it mandatory.
Based on the testimony of Dorfmueller, Rothaug is accused of having brought the idea of the death sentence in connection with the matter. Dorfmueller cannot disclose the source which gave him the instruction to treat this case as deserving the death sentence, but he suspects that Rothaug, prior to the time the change in the judgement of the criminal act had appeared in the files, was in possession of the files, as well as in consideration of Rothaugs mentality allegedly known to him. Such an assumption is about the opposite of a conslusive evidence. The entire evidence facts are in contradiction to it.
The fact that a positive file note concerning the contents of a directive is missing is easily explained by the high handed manner in which Dorfmueller admittedly handled such cases. As it is evident from the decrees dated 12 August 1942 and 14 August 1942, Dorfmueller presented the files to the Court with the motion to get a date for the trial without having prepared the indictment of all (Rothaug-Exh.
107).
When he had handed in the indictment it had to be given back to him again by order of 27.8.1942 because documents were still missing. Actually, he had made a note, if only in his own way, about the change of opinion regarding the amount of punishment imposed, in that on the note on the Prosecution copy, which as a documentary report was in his inter-office files, he had crossed out the words "6 years at hard labor in a punishment penal camp" and replaced them by the words "death penalty," without adding a date or indicating who was responsible for the change. In this way, 5½ years after what at the time had been a daily routine, he had left the matter open to anybody's guess.
In spite of this, the date of the alteration can be ascertained with certainty. Exhibit 107, page 10, reveals that the files on 28.8. 1942 were resubmitted by Dorfmueller on 21.9.1942. His order of 1.9. 1942, which has the superscription "very urgent", shows that he had already had the files resubmitted on 1.9.1942 for the purpose of requesting the photographs of the defendant.
It necessarily follows from this that the alteration in the draft concerning the punishment imposed was made on this day. Since then two weeks had passed since the signature had been affixed under the indictment and 5 days had passed since Rothaug had had anything to do with the matter. Therefore, there was certainly time enough for Dorfmueller's superior offices to issue orders either personally or by telephone.
That Rothaug did not think that the crime deserved the death penalty at the time when the files were before him on 27.8.1942 is evident from the fact that he did not assign a defense counsel in the order of 27.8.1942, which his office would have obliged him to do if he assumed that the crime was one calling for the death penalty (Rathaug Exhibit 109). The mysterious ways which Dorfmueller supposed, him to have used for this purpose were not necessary in this connection.
Neither Rothaug nor his Assistant Judges Ferber and Pfaff had at the time intended to pass the death sentence, if only the facts could have been proved which had been submitted to the Neumarkt District Court. This is supported by the viewpoint of the court as stated on 25 October 1942 in connection with the petition for a pardon. (Prosecution Document No. NG 337). This had been put on the record following the deliberations on the verdict in the judges' room, even before the verdict had been pronounced. The verbatim text of this considered viewpoint reads: "The complete picture of his character, described at the main session, especially the fact that the defendant was found guilty apart from the proved severe offense, judging from the execution and the perseverance used therein, also of using violence towards his employer, demand that the penalty be executed". Besides, the reasons for passing the sentence particularly emphasize that the defendant used violence. During a cross-examination (English court records, page 3793 to 2800) the witness Paulus had to admit that he demanded the death penalty because his superiors - not Rothaug - instructed him to do so. This incident had to be taken into consideration to judge the crime as well as the character of the perpetrator. I refer to the Rothaug-Exh. 7 page 65. It is mentioned therein that there are objections, when the penalty is to be determined, also to consider other criminal acts which had been proved, and which were to be further incriminating factors, because of the criminal perseverance which was manifest in those acts. Until violence was used the crime appeared more as a primitive-audacious and impertinent action. However, judged by the behavior of the defendant - considering the action as a whole - this crime assumed the character of a brutal, terroristic-contemptuous act. The act of violence constituting a criminal action in itself was a specially severe offense according to verdicts which had been passed by the Supreme Reich Court.
In such a case the death penalty could even be imposed on a German - whether it would be imposed depended on the question of the *---* reaction remained coupled with the principles and considerations of criminal law which the law required.
If, on the other hand, it is pointed out that mention was made in the Lopata verdict of the defendant's belonging to Polish subhumanity, then the word "sub-humanity" (Untermenschentum) did not mean the same as what was supposed to have been said, as expressed in the incorrect translation "subhuman race" (Untermenschenrasse).
The word "subhumanity" is not taken from the political vocabulary, but is meant in the old traditional sense. In the language of crime the term "subhumanity" was understood, and is still understood, to mean persons who by criminal disposition have an attitude which is fundamentally hostile to the community. The opposite of the subhuman being is not the superman, but rather the normal human being who approves of the community by nature. The "superman" of Nietzsche, in whom the witness Buchtal sees the opposite of the subhuman being, is not, like the subhuman being the normal human being, a real phenomenon in the sociological structure of a nation, but is rather the personification of a visionary philosophical prognosis as the result of the revaluation cf all values. This purely scientific doctrine of a philosopher who died in Switzerland, and which is over half a century old, has not the slightest thing in common with the political "gentlemen's point of view", or with "upper class morality" (Herrenmoral).
The restriction in meaning of the term "Polish subhumanity" in the verdict of the Special Court in the sense of a criminal class is shown by the context of thought in which the term appears, since the reasons given for assuming that the defendant belonged to polish subhumanity are found in his own purely personal traits of degeneracy. The mode of expression used by the Special Court was based on the fact generally known at that time that primarily the reason for the great increase in serious, non-political crimes among the Poles in the Reich was that no discrimination was being exercised in recruiting workers and that in this way many criminals were entering Germany. This mode of expression was particularly familiar to the Special Court, which almost daily had to apply the laws which had been developed against its own subhuman citizens.
Rothaug Exhibit 108 contains the Prosecuting Attorney's views on clemency. Under IV it says: "The act of the defendant was one of common and shameless provocation. No extenuating circumstances of any kind are present. Therefore, I call for the execution of the death sentence. On the previous page under the words "Author of this report" is Prosecuting Attorney Dr. Dorfmueller, that is the same man who, as a witness before this Court, indulged in an especially disapproving criticism of Rothaug's opinion in the Lopata case. The statement of Dr. Georg Engert, who was examined as a witness and who exerted himself with suppositions for his own protection and disapproving criticism, is to be judged in this light (Prosecution Exhibit 156, English transcript, pages 3694 - 3698).
In his opinion on the question of clemency he writes that such excesses as the defendant has been guilty of should be proceeded against with the strict execution of the recognized punishment. (Prosecution Document No. NG 337, report of 5. 11. 1942 to the Reich Minister of Justice.)
I now skip several pages. I would like to draw your attention in particular to Number 14, the Schosser Case. You will remember that that deals with Rothaug's work with the Reich's Public I shall refrain from reading those passages and I now come to the concluding passage of my plea:
Rothaug is a man whose private life is without fault or reproach, also with regard to party matters. Everything he is charged with pertains to the sphere of his official duty. Here, according to his character, his moral impulse to absolute fulfilment of his duty at all times and in all situations turned out to be fatal for him.
As a judge he ascertained the facts of the cases conscientiously and according to his convictions, and guided by the decisions of the Supreme Court and to the best of his knowledge and belief he ascertained the intent of the laws.
Nowhere did he apply a method contrary to the law, neither in general nor in an individual case. It is not his fault that he was the product of his time. Every one is that after his own fashion, the one more, the other less.
The punishment demanded by the Prosecution could only be imposed upon him for not having consciously sabotaged, in violation of his holy oath of office taken before God, the legislation of his country which, according to the principles laid down in the constitution, he was not allowed to examine in regards to those points of view which constitute the essential points of this trial.
DR. BRIEGER (Counsel for the Defendant Guhorst): Before I begin with my plea for my client, I should like to hand to the Tribunal a memorandum concerning the special courts which I had prepared at the request of all defense counsel.
As was pointed out earlier this afternoon a translation of my plea has been made of pages 1 to 19 and I now hand two copies to the Tribunal.
CORRECTION SHEET 17 October 1947 MORNING SESSION The following pages arw 10477 A to 10477 We are to be incorporated into the transcript for the above day.
FINAL PLEA ROTHAUG The verdict pronounced by the Amtsgericht Neumarkt on 26 April 1942 was based on the fact that Lopata had reached for the sex organ of a peasant woman three times through her clothes in spite of her physical and verbal resistance.
The Reich Supreme Court suspended the sentence because the Amtsgericht had not examined the applicability or par. 4 of the decree against public enemies.
The sentence was unjust because a substantially higher penalty was called for if the decree against public enemies would have been applied which was applicable to the case. The confinement of the Special Court to the mandatory judgment of the Reich Supreme Court existed in the fact that, if the defendant had actually taken advantage of the proven war time conditions, it had to apply par. 4 of the decree against public enemies.
A further question was to what extent the verdict of the Reich Supreme Court contained a confinement with regard to the amount of punishment. (With reference to this see Rothaug-Exh. 31) In a concrete case the principles expounded here signify the confinement of the judge of facts (Tatrichter) namely that, in case par.
4 of the decree against public enemies was applicable, he had to decide for a substantially higher penalty. The formulation "substantially higher penalty" was, because nobody could foresee the final result of the coming main trial with regard to the penalty, the only one possible and therefore could not indicate any maximum limitation of punishment, especially it could not exclude the death sentence, on the other hand it did not call for it either.
Based on the testimony of Dorfmueller, Rothaug is accused of having brought the idea of the death sentence in connection with the matter. Dorfmueller cannot disclose the source which gave him the instruction to threat this case as deserving the death sentence, but he suspects that Rothaug, prior to the time the change in the judgement of the criminal act had appeared in the files, was in possession of the files, as well as in consideration of Rothaugs mentality allegedly known to him. Such 10477 a Court III Case III FINAL PLEA ROTHAUG an assumption is about the opposite of a conslusive evidence.
The entire evidential facts are in contradiction to it.
The fact that a positive file note concerning the contents of a directive is missing is easily explained by the high handed manner in which Dorfmueller admittedly handled such cases. As it is evident from the decrees dated 12 August 1942 and 14 August 1942, Dorfmueller presented the files to the Court with the motion to set a date for the trial without having prepared the indictment at all (Rothaug-Exh 107).
Then when he had handed in the indictment it had to be given back to him again by order of 27.8.1942 because documents were still missing. Actually, he had made a note, if only in his own way, about the change of opinion regarding the amount of punishment imposed, in that on the note on the Prosecution copy, which as a documentary report was in his interoffice files, he had crossed out the words "6 years at hard labor in a punishment camp" and replaced them by the words "death penalty", without adding a date or indicating who was responsible for the change. In this way, 5½ years after what at the time had been a daily routine, had left the matter open to anybody's guess.
In spite of this, the date of the alteration can be ascertained with certainty. Exhibit 107, page 10, reveals that the files on 28.8.1942 were resubmitted by Dorfmueller on 21.9.1942. His order of 1.9.1942, which has the superscription "very urgent", shows that he had already had the files resubmitted on 1.9.1942 for the purpose of requesting the photographs of the defendant.
It necessarily follows from this that the alteration in the draft concerning the punishment imposed was made on this day. Since then two weeks had passed since the signature had been affixed under the indictment and 5 days had passed since Rothaug had had anything to do with the matter. Therefore, there w s certainly time enough for Dorfmueller's superior offices to issue orders either personally or by telephone.
That Rothaug did not think that the crime deserved the death penalty at the time when the files were before him on 27.8.1942 is evident 10477 b Court III Case III FINAL PLEA ROTHAUG from the fact that he did not assign a defense counsel in the order of 27.
8.1942, which his office would have obliged him to do if he assumed that the crime was one calling for the death penalty (Rothaug Exhibit 109). The mysterious ways which Dorfmueller supposed him to have used for this purpose were not necessary in this connection.
Neither Rothaug nor his Assistant Judges Ferber and Pfaff had at the time intended to pass the death sentence, if only the facts could have been proved which had been submitted to the Neumarkt District Court. This is supported by the viewpoint of the court as stated on 25 October 1942 in connection with the petition for a pardon. (Prosecution Document No. NG 337). This had been put on the record following the deliberations on the verdict in the judges' room, even before the verdict had been pronounced. The verbatim text of this considered viewpoint reads: "The complete picture of his character, described at the main session, especially the fact that the defendant was found guilty apart from the proved severe offense, judging from the execution and the perseverance used therein, also of using violence towards his employer, demand that the penalty be executed". Besides, the reasons for passing the sentence particularly emphasize that the defendant used violence. During a cross-examination (English court records, page 3793 to 3800) the witness Paulus had to admit that he demanded the death penalty because his superiors - not Rothaug instructed him to do so. This incident had to be taken into consideration to judge the crime as well as the character of the perpetrator. I refer to the Rothaug-Exh. 7 page 65. It is mentioned therein that there are no objections, when the penalty is to be determined, also to consider other criminal acts which had been proved, and which were to be further incriminating factors, because of the criminal perseverance which was manifest in those acts. Until violence was used the crime appeared more as a primitive-audacious and impertinent action. However, judged by the behavior of the defendant - considering the action as a whole - this crime assumed the character of a brutal, terroristic-contemptuous act. The use 10477 c Court III Case III FINAL PLEA ROTHAUG of violence constituting a criminal action in itself was a specially severe offense according to verdicts which had been passed by the Supreme Reich Court.
(Reichsgericht).
In such a case the death penalty could even be imposed on a German whether it would be imposed depended on the question of the concrete injury and danger to the community with all its criminal and individual characteristics. And here it is difficult to construct parallel sets of facts. Indeed, as a matter of course, there is a fundamental difference, as Rothaug has said, (English transcript, page ---) whether in wartime there are five million native and loyal men living in a specific area or five million people of a race which stands opposed to one's own nation with an invincible hatred which is kept alive from abroad.
This difference in the danger of the situations cannot be summarily wiped out with a theoretical example. This is what Rothaug expressed in his examination, and not what is now being put into his mouth. But even if the Special Court had imposed the death sentence without also taking into consideration the circumstances of violence, this result would have been in keeping with the principles developed by the Reich Supreme Court. (Rothaug Exhibit 110). The Reich Supreme Court states here: "Due to wartime circumstances workers of alien race and nationality are being employed in Germany to a great extent who through their work come in contact with German women and children, while the latter, because of the absence of so many men, are without the same protection as in peacetime for their personal safety and womanly virtue. Molestations and injuries against individuals disturb the feeling of security of all and make the men of the front uneasy about the fate of their relatives. This is calculated to weaken the home front and the front beyond our borders. The need of our women and children for safety requires that such offenses be countered with the severest means.
In the field of the application of law against Poles even the severest reaction remained coupled with the principles and considerations 10477 d Court III Case III FINAL PLEA ROTHAUG of criminal law which the law required.
If, on the other hand, it is pointed out that mention was made in the Lopata verdict of the defendant's belonging to Polish subhumanity, then the word "sub-humanity" (Untermenschentum) did not mean the same as what was supposed to have been said, as expressed in the incorrect translation "subhuman race" (Untermenschenrasse).
The word "subhumanity" is not taken from the political vocabulary, but is meant in the old traditional sense. In the language of crime the term "subhumanity" was understood, and is still understood, to mean persons who by criminal disposition have an attitude which is fundamentally hostile to the community. The opposite of the subhuman being is not the superman, but rather the normal human being who approves of the community by nature. The "superman" of Nietzsche, in whom the witness Buchtal sees the opposite of the subhuman being, is not, like the subhuman being and the normal human being, a real phenomenon in the sociological structure of a nation, but is rather the personification of a visionary philosophical prognosis as the result of the revaluation of all values. This purely scientific doctrine of a philosopher who died in Switzerland, and which is over half a century old, has not the slightest thing in common with the political "gentlemen's point of view" or with "upper class morality" (Herrenmoral).
The restriction in meaning of the term "Polich subhumanity" in the verdict of the Special Court in the sense of a criminal class is shown by the context of thought in which the term appears, since the reasons given for assuming that the defendant belonged to Polish sub humanity are found in his own purely personal traits of degeneracy. The mode of expression used by the Special Court was based on the fact generally known at that time that primarily the reason for the great increase in serious, nonpolitical crimes among the Poles in the Reich was that no discrimination was being exercised in recruiting workers and that in this was many criminals were entering Germany. This mode of expression was particularly 10477 e Court III Case III FINAL PLEA ROTHAUG familiar to the Special Court, which almost daily had to apply the laws which had been developed against its own subhuman citizens.
Rothaug Exhibit 108 contains the Prosecuting Attorney's views on clemency. Under IV it says: "The act of the defendant was one of common and shameless provocation. No extenuating circumstances of any kind arc present. Therefore, I call for the execution of the death sentence. On the previous page under the words "Author of this report" is Prosecuting Attorney Dr. Dorfmueller, that is the same man who, as a witness before this Court, indulged in an especially disapproving criticism of Rothaug's opinion in the Lopata case. (Transcript of 1 and 13, 5). The statement of Dr. Georg Engert, who was examined as a witness and who exerted himself with suppositions for his own protection and disapproving criticism, is to be judged in this light (prosecution Exhibit 156, English transcript, pages 3694 - 3698).
In his opinion on the question of clemency he writes that such excesses as the defendant has been guilty of should be proceeded against with the strict execution of the recognized punishment. (Prosecution Document No. NG 337, report of 5. 11. 1942 to the Reich Minister of Justice.)
12.) The case of Wild, which was held up to the witness Fritsche in cross-examination, (English transcript 5236 -38, German pages 5139 - 44) is of importance here, because Heinz Hofmann (Prosecution Exhibit 556) spoke of an inhuman death sentence in which in a far-fetched way the concept of dissemination according to the Radio Decree was considered to apply. In cross-examination (English transcript 8821 - 24, German 8453 - 56) the latter had to admit that he did not take part in the trial and knew nothing about it from his own knowledge. He knew, however, that an unsuccessful attempt was made to reopen the proceedings against the verdict, so that the proper judicial authorities were in agreement with the verdict. Further documents of importance for judging the case are lacking.
10477 f Court III Case III FINAL PLEA ROTHAUG 13.)
The same is true in the Kreisler case, of which Hofmann (Prosecution Exhibit 556) had to admit in cross-examination (English transcript 8821 24, German 8453 - 56) that his statements were based merely upon newspaper clippings which were shown to him when he gave his affidavit.
14.) The Schosser case is mentioned by the witness Ferber. Moreover, Schosser has been examined as a witness. The charge that Rothaug instigated the trial was refuted by the original records. (English transcript 7484 et seq., German 7200 et seq.)
Schosser made an announcement in church about carrying the body of a Pole to the cemetery, and got the population to take part in the church proceedings. This led to a disturbance. According to Figure 5 of the Decree of the Reich Defense Commissioner VII and XIII only the technical personnel was allowed to participate in the burial procession on the German side.
The announcement of the funeral procession and the participation of the people which resulted from this was regarded as a demonstration against the State regulations.
The State Prosecutor's office, and not, as the Prosecution says, the local examining magistrate in Amberg, was the authority responsible for notifying the office of the Kreisleiter in Amberg. Rothaug had nothing to do with this.
Exhibit 84 shows that the President was the competent authority for issuing the order of arrest applied for by the State Prosecutor's office.
10477 g Final Plea Rothaug (Page 122 of original) Rothaug's lack of interest in the matter is shown by the fact that the case was handed over to Ferber for preparation, even if he also took over the matter again himself after conferring with Ferber.
The order of arrest of 15-6-1942 was based on the strong suspicion that there had been an inflammatory demonstration against the State regulation of the Polish question.
Legally, Par. 130 a of the Reich Penal Code, dating back to the time of Bismarck, and Par. 2 of the Law Against Malicious Attacks on State and Party, were thereby violated. (Exhibit 121).
(Page 123 of original)
Neither in fact nor in law did the occurrence have anything to do with persecution for religious reasons.
The protective custody imposed by the Regensburg police was not known at that time and was without any significance for the duty of the State Prosecutor to prosecute, since police measures could only be taken in cases of breaches of the peace, but could not, however, apply to cases constituting a crime at law.
Against the order of arrest Schosser pleaded that since he had been inducted into the Wehrmacht he had acted out of ignorance of the State decree and moved for a suspension of the order of arrest. On 7-7-1942 the Special Court, without Rothaug being present, issued a decision in which Schosser's motion against the order of arrest was rejected as being without foundation in fact. (Rathaug Exhibit 209). This decision bears the signature of the man who has attacked Rothaug to an exceptional degree in this matter, namely, Ferber. It is true that the Prosecution witness Ferber finally did suspend the order of arrest, but here he is only making a virtue of necessity. Since no charge was brought, he was compelled, according to Par. 126 of the Code of Criminal Procedure, to suspend the order of arrest, and, indeed, without examining the facts of the case, because the State Prosecutor had made a motion to this 10477 h Final Plea Rothaug effect.
(Rothaug Exhibit 73).
(Page 124 of original)
The proceedings were suspended on 27 August 1942 (Rothaug Exh. 209).
With reference to the action concerning the sermon about the "ravening wolves in sheeps' clothing" it could be proved on the grounds of the original documents that the witness Kurt Hofmann made this case in virtue of a political judgment in which the sermon was mentioned. The basis of a new preliminary proceedings against Schosser.
A record of proceedings was kept in the internal files of the Office of the Public Prosecutor. With regard to this the witness for the prosecution Wilhelm Hoffmann reported to the Chief Public Prosecutor on the 17 October 42: "The matter was taken up because the case was contained in a political judgment of the Local Chapter Vilseck, which the witness Stubenvoll delivered up "as interrogation material I c Sg 948/42." (Exh. 209).
(Page 125 of original)
Rothaug therefore has not caused this either.
The deed was not ended by prescription and had to be prosecuted after the Ministry on 19 Nov 1942 ordered punishment according to the Heimtueckegesetz (Exh. 209). (Law against malicious political acts or insults to the State and Party.)
Schosser was the accused in those proceedings of 5 years ago and was convicted. The convicted person experiences everything under the psychic pressure of the oppressing trial and inevitably has his passion form the picture of it in his memory. Schosser was at that guided by 4 cues which he took down immediately after the sentence was pronounced. Towards the background of the subjective picture of this witness I want to state the essentials; Schosser is said to have accused the leadership of the State of depriving the people of their religion, as the Communists and Social-democrats have done in former times. Besides he was said to have called the constitutional principle of freedom of religion idle talk.
10477 i Final Plea Rothaug The judgment (Roth.
Exh. 209) shows in which way factual, legal and political problems were discussed, Schosser was convicted because he pursued political intentions under the cloak of religion. This he conceded here to a much greater extent (Page 126 of original) as was assumed in the judgement.
He was in the first place convicted on the basis of Par. 130a of the Penal Code. The discussions at the trial were, besides the evidence questions, to sum it up briefly conducted on the following basis: Since the population is composed of people of various faiths and the state has to demand the same from all its citizens, it must let them achieve salvation according to their own taste. Schosser may as a minister stand for the correctness of his faith. He may send all who do not share his faith to hell, but he had no right to attack the principle of religious liberty as such.
After the Peace of Westphalia in many territorie s of Germany the principle was established: "cuius regio, eius religio". This brought about cruel persecutions and expulsions. Against this principle the Great maintained that in his country everybody may find salvation as suits him best. This idea was accepted in all later constitutions and became the foundation of Germany's State and Folk life.
It was further discussed that in religious activities clergy and citizens are free. Forbidden are only politics from the pulpits. People go to church to hear the word of God, but not to listen to political lectures. If the accused feels a calling in this respect than he has missed his profession.
The minister has no responsibility in the question of political leadership, therefore he cannot be granted the possibility of exerting any influence in an adverse sense.
The clergy that goes in for politics, dispensing of heavenly favors according to political colour, always has been an evil.
10477 j FINAL PLEA ROTHAUG (Page 127 of original) In so far as anyone concerns himself with publications in the religious field Schlosser may oppose him from the point of view of his faith.
Only he must say what he is opposing and whom. It must never happen that the statements can be referred to the Government.
Moreover the clergyman is not suited either, in view of his whole upbringing and his calling which concentrates on the after-life, to mix himself up in the political sphere. He sees the life of the nation to too great an extent through a glass.
The church tries to get hold of the young as early as possible, the state tries to do the same. As long as each remains strictly within the limits of his own sphere no quarrel should ensure. He - Schlosser -- had no understanding for that because he grew up in another time.
It is correct that the case of the Poles was mentioned. The Public Prosecutor with the order of 27 August 1942 (Exh. 209) had allowed these documents to be included in the new proceedings as evidence.
Therefore, Rothaug was obliged to mention these documents at least by way of the charge. In the question of the Poles Rothaug adopted the point of view which was generally adopted in public by the representatives of the state. At the same time to justify (Page 128 of original) the Security-police measures he pointed out the case of murder in which one Pole had slain another with a wooden stick in a brutal manner and on which a decision had been reached a short time previously.
If Schlosser knows nothing about it then he either missed it or it slipped his memory. He discussed general, as was stated in Supreme Court decisions, that the serious murders of Germans had created a situation which would have to be the basis of the understanding of the whole thing. There were even things for which individuals could not forgive themselves nor nations and peoples. That is holy hatred which is just as real as love.
Since nothing incriminating of a compelling nature was produced for 10477 k FINAL PLEA ROTHAUG Schlosser the matter was not used against him.