and continued through the war years thereafter. As an illustration of the nature of this program as carried out throughout the Reich, we cite the report of the Secret State Police Rain Office, Nurnberg-Furth; Branch Office Wurzburg. This report refers to the deportation from a comparatively small area around the city of Wurzburg and shows evacuations of Jews to the East in the following numbers: On 27 July 1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942, 850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on 23 September 1942 (to Theresienstadt) 562 persons; on 17 June 1943 (to Theresienstadt) seven persons; on 17 June 1943, 57 Jews were evacuated to the East. The report continues: "With this last transport, all the Jews who had to be evacuated according to instructions issued have left Main Franken." The report shows that the total number of 2,063 Jews were evacuated from the Main Franken area alone. The furniture, clothing and laundry items left by the Jews were given to the Finance Offices of Main Franken and turned into cash by them.
Even before transfers to the Gestapo had been substituted for judicial procedure time position of a Pole or a Jew who was tried by the courts was not a happy one. The right of self defense on the part of a Pole was specifically limited. Poles and Jews could not challenge a German judge for prejudice. Other limitations upon the right of appeal and the like are set forth, supra (Law against Poles and Jews, 4 December 1941).
On 22 July 1942 Reich Minister Goebbels stated that "it was an untenable situation that still today a Jew could protest against the charge of time president of the police, who was an old Party member and a high SS leader. The Jew should not be granted any legal remedy at all nor any right of protest."
The defendant Lautz testified that according to time provisions of a decree which antedated the war and by reason of the general regulations of the law in every case it had to be pointed out in the indict ment if the person was a Jew or of mixed race.
On 23 January 1943 the Oberlandesgerichts President at Koenigsberg wrote to the Minister of Justice concerning defense of Poles before tribunals in incorporated Eastern territories. We quote:
"The decree of 21 May 1942 * * * states that in accordance with the order on penal justice in Poland of 4 December 1941 attorneys are not (to) undertake the defense of Polish persons before tribunals in the incorporated Eastern territories. This decree has been received with satisfaction by all the judges and prosecutors in the whole of my district."
These directives by the authorities in the Reich under Hitler were not mere idle threats. The policies and laws were rigorously enforced. We quote from a sworn statement of former defendant Karl Engert as follows:
"The handing over to the Gestapo Of Jews, Poles, and Gypsies was not under my supervision, but under that of Mr. Hecker, who worked under me in my division. However, he was not responsible to me, but directly to the Minister Thierack."
Again he said:
"About 12,000 inmates of the correction houses were assigned for transfer to the Gestapo * * * Out of the total 12,000 , my division assigned. 3,000 for transfer in 1942.
How many Jews, Poles, and gypsies were assigned I do not know; that must be in the statistics."
Reich Minister Goebbels, in an address to the judges of the People's Court, on 22 July 1942, stated that "if still more than 40,000 Jews, whom we considered enemies of the State, could freely go about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago."
Between 9 and 11 November 1938, a pogrom was carried out against the Jews throughout the Reich, and upon direct orders from Berlin. Defense witness Peter Eiffe testified that he heard rumors of the proposed pogrom on the night of 8 November and called at tho Ministry of Propaganda where he was told that "somebody has let the cat out of the bag again". During the three-day period Jewish property was destroyed throughout the Reich and thousands of Jews were arrested.
In Berlin the destruction of Jewish property was particularly great. To cap the climax on 12 November 1938 Field Marshal Goering issued the following decree:
"Article 1.--All damage done due to the indignation of the people at the incitement of international Jewry against National Socialist Germany carried out on the 8, 9, and 10 November 1938, on Jewish enterprises and living quarters is to be removed by the Jewish owners immediately.
"Article II.--The costs of restoration are to be borne by the owner of the Jewish business concerned * * * .
"Section 2.---Insurance claims of Jews of German nationality will be confiscated in favor of the Reich. " (RGB1. 1938 I, page 1581).For this purpose a fine of one billion marks was imposed upon the Jews.
The witness Eiffe, who was an attorney in Berlin, acted in behalf of Frau Liebermann, the widow of the internationally known artist, Max Liebermann. Frau Liebermann was at that time eighty years old and the share of the fine imposed upon her was 280,000 marks. Ultimately orders were issued for her deportation to the East. She, however, died, either from heart failure or poison, as she descended tho steps to be carried away. Defense witness Eiffe also testified concerning other methods of Jewish persecution. He Said:
"* * * When a Jew wanted to emigrate, I had much to do with it. He had to pay the Reich excape tax, that was so and so much percent of his property and then a large amount was taken away from his by assessing his property very high. After all of that was done and the day he went to the Passport Office in order to get his clearance, his passport, and get his visae then he was told that now he still had to go to the Notary, Dr. Stege, and had to deposit a voluntary fee to promote the emigration of the Jews, and that is where he paid the balance, and then left with his personal satchel, with his little valise."
Speaking of the "a-social" persons, Dr. Thierack, on 5 January 1943, at a mass meeting of the NSDAP, stated:
"I have seen to it that these people shall no longer be employed for any sort of work that is not dangerous. The most dangerous tasks are just the thing that is for them. Now, today, when thousands of these people are carrying supplies in the far North or building roads, I cannot help it if some of them die, but at least they are of some use. " The Roman Catholic chaplain at Amberg prison stated under oath that a large proportion of the inmates of that prison were Poles who had been sentenced under the "Poles Act". Many of them died from under-nourishment.
They were forced to eat potato peelings and hunt through rubbish heaps for eatable refuse. From this prison "a-social elements" were picked out and sent in batches to the Mauthausen concentration camp. All of the first batch was said to have perished. Among the prisoners were Jews who had been sentenced for race pollution.
The witness Hecker stated under oath that after Thierack's "doubtful decree" concerning tho transfer of Jews, Poles, and gypsies, prisoners in protective custody, and a-social elements from the Justice prisons to the RSHA in the autumn of 1942, the Jews as a whole were immediately handed over. The work was carried out by Department V of the Ministry of Justice. Lists were prepared monthly and sent to Minister Thierack through the chief of the department.
On 22 October 1942 a directive under the letterhead of the Reich Minister of Justice was issued to various prosecuting officers in which it was stated that "by agreement with the Reich Fuehrer SS, lawfully sentenced prisoners confined in penal institutions will be transferred to the custody of tho Reich Leader SS. " Those designated for transfer to the SS included "Jews, men and women, detained under arrest, protective custody, or in the workhouse, * * * and Poles, residing in the former Polish State territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is above three years, * * * . With completion of the transfer to the police, the penal term is considered interrupted.
Transfer to the police is to be reported to the penal authority and in cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice" The directive is signed "Dr. Crohne".
A secret directive dated Berlin, 5. November 1942, was issued to the heads of the SS and to the police services, in which it was stated:
"Re: Jurisdiction over Poles and Eastern Nationals.-
"I. The Reichsfuehrer SS has come to an arrangement with the Reich Minister of Justice Thierack whereby the Justice waives the execution of the usual penal procedure against Poles and Eastern nationals. These persons of alien race are in future to be banded over to the police. Jews and gypsies are to be treated in the same way. This agreement has been approved by the Fuehrer.
"II. This agreement is based on following considerations: Poles and Eastern nationals are alien and racially inferior people living in the German Reich territory."
The order continues:
"Such considerations which may be right for adjudicating a punishable offense committed by a German are, however, wrong for adjudicating a punishable offense committed by a person of alien race. * * * As a result of this, the administration of penal law for persons of alien race must be transferred from the hands of the administrators of justice into the hands of the police."
On 24 September 1942 the defendant Joel prepared a secret report concerning the Reich Marshal's plans for action in the occupied Eastern territories. The report states that "the Reich Marshal is looking for daring fellows who will be employed in the East for special purposes and who will be able to carry out tasks of creating confusion behind the lines". The suggestion was that "poachers" and "fanatical members of smuggling gangs who take part in gun battles on the frontiers" should be employed for this purpose.
A copy of the report was sent to State Secretary Rothenberger for Ms attention and was submitted in connection with a proposed conference to be hold on 9 October 1942. Minutes of a conference of 9 October 1942, signed by Dr. Crohne, incorporate the substance of Joel's report and state that the poachers have already been turned over to the Reich Fuehrer SS for special duties. The report recommends that the district attorneys be given the task of obtaining the convicts for this special service, and provides further:
"Delivery of A-social Convicts,--Persons in penal institutions designated as a-social persons by judicial decision are to be turned over to the Reichsfuehrer SS.
"1. Persons in custody for reasons of security.--Persons in custody for reasons of security who are in German penal institutions will be put at the disposal of the Reichsfuehrer SS. The execution of sentence will be regarded as interrupted by the delivery. * * * "Whether women are also to be delivered is still doubtful.
* * * In this regard it will have to be a fundamental point from the beginning that in the case of female Poles, Jews, and gypsies no doubt about the delivery can exist.
"Foreigners are not affected. Poles, Russians, Ukrainians, Jews, gypsies, do not rank as foreigners. * * * "2. Jews, gypsies, Russians, Ukrainians will be delivered to the Reichsfuehrer SS without exception.
"3. Poles.--Ethnic Poles, who are subject to the Polish criminal law regulations, or have been delivered to the polish penal authorities and who have more than three years sentence to serve will be delivered to the Reichsfuehrer SS.
"Poles with smaller sentences will remain in custody of the prison system. After serving their sentences they will be reported by name to the police just the same."
It will be observed that the decisions concerning special treatment for Poles and Jews which were reached at this conference of 9 October 1942 antedate by almost nine months the enactment of the 13th Regulation Concerning the Reich Citizenship law of 1 July 1943 which provided "that criminal actions committed by Jews shall be punished by the police".
On 1 April 1943 a letter from the Reich Ministry of Justice to the public prosecutors of the courts of appeal and others, stated that the "Reich Security Office has directed by the decree of 11 March 1943 as follows:
"a). Jews, who in accordance with number VI of the guiding principles, are released from a penal institution, are to be taken by the State Police (Chief) Office competent for the district in which the penal institution is located, for the rest of their lives to the concentration camps Auschwitz or Lublin in accordance with the regulations for protective custody that have been issued. The same applies to Jews who in the future are released from a penal institution after serving a sentence of confinement.
"b). Poles, who in accordance with number VI of the guiding principles are released from a penal institutional to be taken by the State Police (Chief) Office competent for the district in which the penal institution is located, for the duration of the war to a concentration camp in accordance with the regulations on protective custody that have been issued.
"The same applies in the future to Poles who, after serving a term of imprisonment of more than six months, are to be discharged by a penal institution."
THE PRESIDENT: Judge brand reading further from the opinion of the Tribunal.
JUDGE BRAND: It was stated that the ruling replaces previous orders. The instrument is stamped "Reich Ministry of Justice" and is signed by Dr. Eichler.
As a crowning example of fanatical imbecility, we cite the following document issued in April 1943, which was sent to tho desk of the defendant Rothenberger for his attention and was initialed by him.
"The Reich Minister of Justice "Information for tho Fuehrer 1943 No."After the birth of her child a full--blooded Jewess sold her mother's milk to a pediatrician and concealed that she was a Jewess.
With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage, for mother's milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for so that the parents, who are unaware of the true facts, need not subsequently be worried.
"I shall discuss with the Reich Health Leader the racialhygienic aspect of the case.
"Berlin, April 1943."
The witness Lammers, former Chief of the Reich Chancellery, testified as follows:
"Q: * * * Now, you answered Dr. Kubuschok that the subject of sterilization of half-Jews was an alternative to their being moved to the East and that it had been raised by half-Jews themselves in 1942 or prior thereto.
"A: Yes, I said so."
He testified further that the half--Jews were not subject to any compulsion. He was apparently of the opinion that a person was a free agent if he had a choice between sterilization and deportation to a concentration camp.
It will be recalled that the law of 4 December 1941. against Poles and Jews applied to the "incorporated Eastern territories". Those territories were seized in the course of criminal aggressive war, but aside from that fact it is clear, as we have indicated, supra, that the purported annexation was premature and invalid under the laws and customs of war. The so-called annexed territories in Poland were in reality nothing more than territory under belligerent occupation of the military forces of Germany. The extension to and application in those territories of the discriminatory law against Poles and Jews was in furtherance of the avowed purpose of racial persecution and extermination. In the passing and enforcement of that law the occupying power in our opinion violated tho provisions of The Hague Convention from which we quote:
"Until a more complete code of the laws of war has been issued, the high contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by then, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."
Other relevant portions are as follows:
"Article 43.--The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
"Article 46. -- We have already quoted before - -
The prosecutions which were proposed by Lautz cannot be justified upon any honest claim of military necessity.
Although the authorities are not in accord as to the proper construction of Article 23h of the regulations annexed to The Hague Convention of 1907, we are of the opinion that the introduction and enforcement of the law against Poles and Jews in occupied Poland resulted in a violation of that prevision which is as follows:
"It is forbidden * * * to declare , suspended, or inadmissible in a court of law the right and actions of the nationals of the hostile party." (Hyde, International Law, Vol . 2 (2d edition, page 1714).
The evidence discloses that the trans fer of persons to concentration camps was done even before the war and on direct orders of Hitler. Dr. Lammers, Chief, of the Reich Chancellery, on 8 August 1939, notified the Reich Minister of Justice that "the Fuehrer has given an order that all dispensable persons in security detention are to be put at the disposal of the Reich Fuehrer SS immediately. " The same procedure was employed as to persons who had never been convicted.
On 24 January 1939; a conference was held at which reports were received from eight different court districts. The subject was "Protective Custody after Serving Term of Imprisonment after Acquittal, after Release from Imprisonment on Remand." Among the cases reported were those of defendants who were taken into custody by the police in the courtroom immediately after their acquittal. Others were taken by the police in cases where there had been refusal to issue a warrant of arrest. The report on the Hamburg situation by the defendant Rothenberger states that the number of persons taken into protective custody has increased.
Rothenberger reports that in six cases Jewish women had been taken into protective custody because of sexual intercourse with Aryans. He quotes the State Police file as follows:
"1) protective custody, 'to make the punishment finally effective'* "2) protective custody, 'to make the served sentence still more effective' * * * "3) protective custody, 'because of the big number of previous convictions' "4) protective custody 'to prevent prejudicing the course of justice through the interference of lawyers as defense counsels'. " The report on the conference ends as follows:
"The Minister concludes the discussion by indicating that it is to be the task of the chief presidents to see that arrests in the courtroom by the State Police are avoided and recommends for the rest to maintain the connection with the State Police."
The report is signed by the defendant Klemm.
Former defendant Engert as Vice President of the People's Court, and Thierack, the President of the People's Court, protested in July and August 1940 against the trial of minor cases in the People's Court as not being compatible with the dignity of the Tribunal and suggested that the defendants in such cases should be transferred to a concentration camp. As Thierack put it:
"However right it is to exterminate harshly and uproot all the seeds of insurrection , as for example we see them in Bohemia and Moravia, it is wrong for every follower, even the smallest, to be given the honor of appearing for trial and being judged for high treason before a People's Court or, failing that, before an appellate court. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and that it will take action accordingly.
But that can also be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small-hangers-on who are somehow connected with the high treason plans which have been woven by others, are brought to their senses by being transferred to a concentration camp for some time."
As early as 29 January 1941 the senior public prosecutor at Hamm wrote to the Reich Minister of Justice, for the attention of State Secretary Schlegelberger:
"Upon inquiry; the Reich trustees for labor for the economic territory of Westphalia-Lower Rhine has informed me that 'in accordance with an agreement between the Reich Minister for Labor and the Reichsfuehrer SS as Chief of the German Police; breach of work contracts by Poles are to be punished by the Secret State Police with protective custody or concentration camps. The meaning of this step' - so writes this Reich trustee --' is that in the case of Poles the strictest measures are to be taken at once * * *.' For this reason we made it a point in my office to transfer the cases involving breach of work contract by Polish civilian workers, to the Gestapo (Secret State Police ) for further action."
The same letter informs the defendant Schlegelberger of uncertainty which has arisen in the treatment of Polish civilians because in some cases the courts would sentence to two or three years imprisonment while the State Police may pronounce the death sentence for the same crime.
While the part played by the Ministry of Justice in the extermination of Poles and Jews was small compared to the mass extermination of millions by the SS and Gestapo in concentration camps, nevertheless the courts contributed greatly to the "final solution" of the problem.
From a secret report from the office of the Reich Minister of Justice to the judges and prosecutors, including the defendant Lautz, it appears that 189 persons were sentenced under the law for the protection of German blood and honor in 1941, and 109 in 1942. In the year 1942, 61, 835 persons were convicted under the law against Poles and Jews. This figure includes persons convicted in the incorporated Eastern territories, and also convictions for crimes committed in "other districts of the German Reich by Jews and Poles who on 1 September 1939 had their residence or permanent place of abode in territory of the former Polish State". These figures, of course, do not include any cases in which Jews were convicted of other crimes in which the law of 4 December 1941 was not involved.
The defendants contend that they were unaware of the atrocities committed by the Gestapo and in concentration camps. This contention is subject to serious question. Dr. Behl testified that he considered it impossible that anyone, particularly in Berlin, should have been ignorant of the brutalities of the SS and the Gestapo. He said: "In Berlin it would have been hardly possible for anybody not to know about it, and certainly not for anybody who was a lawyer and who dealt with the administration of justice." He testified specifically that he could not imagine that any person in the Ministry of Justice or in the Party Chancellery or as a practicing attorney or a judge of a special (or) People's Court could be in ignorance of the facts of common knowledge concerning the treatment of prisoners in concentration camps. It has been repeatedly urged by and in behalf of various defendants that they remained in the Ministry of Justice because they feared that if they should retire, control of the matters pertaining to the Ministry of Justice would be transferred to Himmler and the Gestapo. In short, they claim that they were withstanding the evil encroachments of Himmler upon the Justice Administration, and yet we are asked to believe that they were ignorant of the character of the forces which they say they were opposing.
We concur in the finding of the first Tribunal in the case of United States et al. vs. Goering, et al., concerning the use of concentration camps. We quote:
"Their original purpose was to imprison without trial all those persons who were opposed to the Government, or who were in any way obnoxious to German authority. With the aid of a secret police force, this practice was widely extended, and in course of time concentration camps became places or organized and systematic murder, where millions of people were destroyed. * * * "A certain number of the concentration camps were equipped with gas chambers for the wholesale destruction of the inmates , and with furnaces for the burning of the bodies.
Some of them were in fact used for the extermination of Jews as part of the 'final solution' of the Jewish problem. * * * "In Poland and the Soviet Union these crimes were part of a plan to get rid of whole native populations by expulsion and annihilation, in order that their territory could be used for colonization by Germans.
Hitler had written in 'Mein Kampf' on these lines, and the plan was clearly stated by Himmler in July 1942, when he wrote:
'It is not our task to Germanize the East in the old sense, that is, to teach the people there the German language and the German law, but to see to it that only people of purely Germanic blood live in the East." (IMT Judgment, pages 234, 237).
A large proportion of all of the Jews in Germany were transported to the East. Millions of persons disappeared from Germany and the occupied territory without a trace. They were herded into concentration camps within and without Germany. Thousands of soldiers and members of the Gestapo and SS must have been instrumental in the processes of deportation, torture, and extermination. The mere task of disposal of mountainous piles of corpses, (evidence of which we have seen), became a serious problem and the subject of disagreement between the various organizations involved.
The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned? Did the defendants think that the nation-wide pogrom of November 1938, officially directed from Berlin, and Hitler's announcement to the Reichstag threatening the obliteration of the Jewish race in Europe were unrelated? At least they cannot plead ignorance concerning the decrees which were published in their official organ"The Reichsgesetzblatt". Therefore, they knew that Jews were to be punished by the police in Germany and in Bohemia and Moravia. They knew that the property of Jews was confiscated on death of the owner. They knew that the law against Poles and Jews had been extended to occupied territories and they knew that the Chief of the Security Police was the official authorized to determine whether or not Jewish property was subject to confiscation . They could hardly Court No. III, Case No. III.
be ignorant of the fact that the infamous law against Poles and Jews of 4 December 1941 directed the Reich Minister of Justice himself, together with the Minister of the Interior, to issue legal and administrative regulations for "implementation of the decree". They read "The Stuermer". They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands never.
The evidence conclusively establishes the adoption and applica tion of systematic governmentally-organized and approved procedures amounting to atrocities and offenses of the kind made punishable by C.C. Law 10 and committed against "populations" and amounting to persecution on racial grounds. These procedures when carried out in occupied territory constituted war crimes and crimes against humanity. When constituted war crimes and crimes against humanity. When enforced in the Alt Reich against German nationals they constituted crimes against humanity.
The pattern and plan of racial persecution has been made clear General knowledge of the broad outlines thereof, in all its immensity, hits been brought home to the defendants. The remaining question is whether or not the evidence proves beyond a reasonable doubt in the case of the individual defendants that they each consciously participated in the plan or took a consenting part therein.
When the Tribunal recesses, gentlemen, in a few moments, we will recess to convene and continue with the reading of the Opinion tomorrow morning at the usual hour, 9:30. On tomorrow the Tribunal will also make certain minor corrections in the written record relating to pagination and certain other matters; and we will also call attention to the fact that in the course of the reading today there have inadvertently in a few occasions been mistakes in the reading of the dates of certain specified events. The dates are specified correctly Court No. III, Case No. III.
in the text which we have read, but in a few instances were incorrectly read through inadvertence. Those matters will be corrected and of course the written text will control and not the inadvertent mistakes as to date which was stated in reading.
We will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 0930 hours, 4 December 1947.)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 4 December 1947, 0930-1800, the Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honor, all defendants are present in the Courtroom with the exception of Schlegelberger and Klemm who one absent due to illness.
THE PRESIDENT: Is it the desire of counsel for defendant Schlegelberger that he be excused from attendance upon the Tribunal for the period of this day?
DR. GRUBE: (For Dr. Kubuschok for the defendant Schlegelberger):
I was asked to request that the defendant Schlegelberger be excused from attendance today.
THE PRESIDENT: Schlegelberger is excused. Is the same request made for the defendant Klemm? Dr. Schilf indicates the same request is made for the defendant Klemm. Both of them will be excused for the period of this day. The proper notation will be made. Judge Blair will continue reading the opinion of the court.
JUDGE BLAIR: Judge Blair continuing reading the opinion of the Court.
The Defendant Schlegelberger The defendant Franz Schlegelberger was born on 23 October 1875 in Koenigsberg.
He received the degree of Doctor of Law at the University of Leipzig in 1899 and passed the higher State Law examination in 1901. He is the author of several law books. His first employment was as an assistant judge at the Local Count in Koenigsberg. In 1904 he became judge at the District Court at Lyck. In 1908 he was appointed judge of the Local Court in Berlin and in the fall of the same year was appointed as an assistant judge of the Berlin Court of Appeals.
He was then appointed Councillor of the Berlin Court of Appeals in 1914, where he worked until 1918. During the first World War, on 1 April 1918 he became an assistant to the Reich Board of Justice. On 1 October 1918 he was appointed Privy Government Councillor and department chief. In 1927 he was appointed Ministerial Director in the Reich Ministry of Justice. On 10 October 1931 he was appointed Secretary of State in the Reich Ministry of Justice under Minister of Justice Guertner, which position he held until Guertner's death. Upon Guertner's death on 29 January 1941 Schlegelberger was put in charge of the Reich Ministry of Justice as Administrative Secretary of State. When Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger resigned from the Ministry.
In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger testified that he made no use of the Party, that he never attended a Party meeting, that none of his family belonged to the Party, and that Party attitudes often rendered his position difficult. However, upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger received a letter of appreciation from Hitler together with a gift of 100,000 RM.
Later, in 1944, Hitler gave Schlegelberger the special privilege to use the 100,000 RM to purchase a farm, which under the rule then prevailing could have been purchased only by an expert agriculturist. Schlegelberger states that the 100,000 RM were on deposit in a Berlin German bank to his account when the collapse came. Thus it is shown that Hitler and Schlegelberger were not too objectionable to each other. These transactions also show that Hitler was at least attempting to reward Schlegelberger for good and faithful service rendered, in the performance of some of which Schlegelberger committed both war crimes and crimes against humanity as charged in the indictment.
We have already adverted to his speech at the University of Rostock on 10 March 1936, on the subject "A Nation Beholds Its Rightful Law". In this speech Schlegelberger declared:
"In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the New Reich has been opened up by a new wording of Section 2 of the Criminal Code, whereby a person is also (to) be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto."
As amended, Section 2 remained in effect until repealed by Law No. 11 of the Allied Control Council. The term "the sound people's sentiment" as used in amended Section 2 has been the subject of much discussion and difference of view as to both its proper translation and interpretation. We regard the statute as furnishing no objective standards "by which the people's sound sentiment may be measured." In application and in fact this expression became the "healthy instincts" of Hitler and his co-conspirators.
What has been said with regard to the amendment to Section 2 of the Criminal Code is equally true of the amendment of Section 170 a of the Code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides:
"If an act deserves punishment according to the common sense of the people but is not declared punishable in the Code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law." (RGBL. I, page 844).
This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism.
This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries. German criminal law was therefore introduced in the incorporated areas and also in the nonincorporated territories, and German criminal law was thereafter applied by German courts in the trial of inhabitants of occupied countries through the inhabitants of those countries could have no possible conception of the acts which would constitute criminal offenses.
In the earlier portions of this opinion we have repeatedly referred to the actions of the defendant Schlegelberger. Repetition would serve no good purpose. By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitlers Night and Fog. For this he must be charged with primary responsibility.
He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the "final solution of the Jewish question" was under discussion, the question arose as to the disposition of halfJews. The deportation of full Jews to the East was then in full swing throughout Germany.
Schlegelberger was unwilling to extend the system to half-Jews. He therefore proposed to Reich Minister Lammers, by secret letter on 5 April 1942:
"The measures for the final solution of the Jewish question should extend only to full Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree.