The aim of my memorandum was, in the final analysis, the same as has to be the aim of every state, namely, the rebuilding of an autonomous law which is independent of the form of government and without temporal limitation. In countries which have a tradition this may not be a problem at all, but in Germany this question had for decades been the problem, and already, since 1905, leading jurists in Germany had occupied themselves with this problem again and again.
If I had described this idea in my memorandum in very dry and bare words then this memorandum, as hundreds of others, would immediately have been thrown into the waste paper basket and I would have been described as a fool... Therefore, I had first to describe the means which could create the prerequisites for such a final condition and, therefore, I described the proximate aims which I wanted to reach first. I emphasized then first. In order to clarify to the Tribunal that the position of a judge in Germany is a completely different one than in England and I believe also than in the United States, I have to go into the historical development of the profession of a German judge, in a few words. I can do this more briefly since this historical development is indicated briefly in this memorandum; furthermore, because in a lengthy article which I wrote at that time, which will be submitted as an exhibit by my defense counsel, I went into this historical development in detail.
I, therefore, want to say here merely by a slogan, that once, due to the acceptance of the Roman law in Germany, in the 16th Century, which took place only on the Continent of Europe and not in England, and furthermore, caused by the development of the Prussian State, where the Administration of Justice, as I already emphasized yesterday, was only a stepchild; that due to those two circumstances the judges' profession played only a very modest and mediocre role. In Germany we had about 19,000 judges who belonged to the General Civil Service and who in no way differed due to their income or their position or their reputation from an absolutely average civil servant.
The essential factor in this development was that the practical course of the education of a judge in Germany to this very day brought about that only persons who were very average growing lawyers decided to take up the judge's profession.
If I may be permitted to do so, I would like to mention briefly how one becomes a judge in Germany. At the age of approximately at this time whether one wants to become a judge or not. If one does decide to become a judge one remains for a number of years-and at that time it was about five to eight years -- a so-called assistant judge, Hilfsrichter.
This means that one does exercise the functions of a judge, to be sure, but one can discharged one day. And then, in the course of years, one finally achieves being appointed a judge, and it only happened very rarely that a person who had been sitting as an assistant judge for a number of years was not appointed judge.
Then, when one finally become a judge, one received an income of about 300 marks. A fairly good skilled worker in Germany earned double amount. Therefore, one had to lead a very modest life. One was treated as civil servant to the extent that every year a so-called qualification or efficiency report had to be written about every judge. In other words, a report had to be made as to the qualifications of the judge. The superior of the judge had to go to the court session in order, as we expressed it, to examine the judge, that is, to examine whether the judge was able or not.
Then, the judge waited for his next promotion, which played a very decisive role for him and for his family, in view of his small income. There was a scale of promotions from the local court to the district court, to the district court of appeal, and finally, to the Reich supreme court.
This briefly described course of training thus demonstrates that the judge, in a quiet existence of a vicil servant, was employed only as a judge all the time, and this gave cause to the leading German jurists, since 1906, to do something about it. The first precursor of this idea was a certain Adikes. These jurists tried to suggest a basic alternation of this course.
Adikes was followed by an Undersecretary Muekel, and he in turn during the Weimar Republic, was followed by the then Reich Minister of Justice Dr. Schiffer, who today is again Minister of Justice in the Russian Zone of Occupation. All were of the same opinion that this position of the judge had to be changed fundamentally and that this would be possible only by a very incisive reduction of the number of judges.
If the Prosecution is charging me, I believe even in the indictment itself, with the fact that I, in very clear words, desired to change this condition, or suggested changing this condition by saying that not the salve of the drugstores but the knife of the surgeon, was needed, then I am in good company in so saying to the extent that my predecessor plans was Reich Minister of Justice Dr. Schiffer, who, by the way, is a full Jew. He expressed the following thoughts about this problem at the time, and I quote:
"The wound should not be covered up and smeared over it, must be cut, pressed out, and scraped out. The reform in the Administration of Justice which we need is not an enlargement or a reconstruction, but a thorough reduction."
These plans which were discussed in Germany for fifty years, and the execution of which failed every time, I now made my own. As can be seen from the memorandum, I was confronted, above all, with the problem as to what means could be used at all to bring about this reduction in the number of judges without reducing the quality of jurisdiction. The means which I suggested were also very closely allied to those means which had been suggested for fifty years. These means were as follows: First the concept of the Justice of the Peace. I believe that I do not have to go into the details of this position because, first of all, I assume that the Tribunal is very familiar with this institution of a Justice of the Peace, and secondly, because I said something about it in the memorandum itself, and thirdly, because I discussed it in a lengthy article, which will be submitted.
The second method which I suggested, which I also discussed in a lengthy article which will be submitted as an exhibit, is the idea of the administrator of Justice, Rechtspfleger. This is an idea which conforms with the investigations which I made in England about the master, the registrar, and the clerk. The aim here is too clear, namely, that the judge should act during the trial exclusively as a judge and must be relieved of the burden of all technical preparations and of the tasks which are not truly the tasks of a judge.
The third method which I suggested was a change in the structure of the German courts as a whole. Details about this too are not only in my memorandum, but in articles which will be submitted in evidence here. My aims was to introduce, in the place of the superorganization of the German courts, a non-bureaucratic, simple and clear structure of organization of the courts. In this organization of the courts the idea was decisive for me that every judge in Germany have the same rank, but not as it had been up to now where the judge had to wait for and was dependent upon a promotion, so that his activity, even subconsciously, was guided by his aim of being promoted. I wanted to do away with all titles. In my opinion, every judge deserves only the title "Judge". I was of the opinion that through these changes, the inner independence of the judge would be strengthened. The decisive factor for this inner strengthening of the judge was my suggestion to take the judges out of the general group of civil servants.
In my memorandum I attempted to explain to Hitler the basic difference between a regular civil servant and a judge.
This, of course, would have meant that the judge, from the point of view of his income, his position, and especially his reputation, would occupy an overwhelming position in Germany. I expressed this as follows and underlined it. The position of the German judge must, ideally and materially, be organized in such a way that it will appeal to the best of the future lawyers. And with this course that the judge is a pure civil servant is connected another requirement which I stated, that only a person would be appointed judge who before that worked in another profession and had there gained experience, be it in economics, be it in another sector of the state, and above all, as a lawyer. I was of the opinion that only a person of advanced age and older than was usual in Germany -- I said that the minimum age should be 35 -should become a judge, because a man who is very young and who has not, outside of a quiet life as a civil servant, been forced to fight and been forced to gather experience, is not able to judge about the fate of people which is entrusted to him in the courtroom in a just and humane manner. And the last point of these suggestions for reform is the training of judges already at the university. I started with the assumption that the legal questions are very essential for the pronouncing of a sentence, but that the decisive question in every trial is the finding of the factual questions and the judgment of the person, be it the witnesses, the parties, or the defendants. The training that was given at the German universities was in former times exclusively concerned with legal problems. At the university the students listened as an audience to a professor who read out his lectures, and on legal theory that, to be sure, is necessary, but it had to be supplemented by a practical point of view.
This recognition I had gained experience from my activity for a long time as a tutor in Hamburg, and therefore my detailed suggestions which are mentioned in the memorandum which I later carried in Berlin. And Perhaps I may be permitted later to go into them in detail.
THE PRESIDENT: Dr. Rothenberger, I wonder if it wouldn't aid you in selecting from your material that which you wish to state under oath to the Court if I were to suggest to you that the very great proportion of all of the comments you have made this morning with reference to proposed efficiency reforms in the judicial system has not been criticized by the Prosecution at all, and I very gravely doubt if it ever will be. You are not being tried for every good deed which you ever did. I think if you would direct your attention to the matters which the Prosecution is likely to consider against you, you will aid us more. Reorganization and efficiency measures in the judicial system, I think, have not been criticized. If that was your policy it may very well be that it was an admirable one. Go ahead.
THE WITNESS: I beg your pardon, Your Honor. I have just concluded with these problems. I only went into them in detail because the Prosecution described these plans as Nazification and I therefore believed that I would have to defend myself against this charge briefly.
DR. WANDSCHNEIDER: After concluding the general statements may I go into the specific questions which I consider essential? May it please the Tribunal, in spite of that I am not of the opinion that this examination served no purpose, because an extensive personal impression of the -
THE PRESIDENT: Argue the case later.
BY DR. WANDSCHNEIDER:
Q: I now go into the individual cases. First I put the question to you on Page 6 of your transcript you said, usually the opinion is represented that an authoritarian state does not bear an independent judge. I repeat. Occasionally the opinion is expressed that an authoritarian state cannot bear a strong judiciary. Whom did you mean? Who represented that point of view occasionally?
A: That is very clear that the party and the SS represented that point of view.
Q: You meant thus your opponents in your daily life?
A: Yes.
Q: In your legal practice?
A: Yes, because I knew that these two organizations, the Party and the SS, in the course of the years exerted a very strong influence on Hitler. It was therefore decisive for me first to deal with the question as an immediate aim from the point of view to gain an influence on Hitler as a judge in order to exclude all influences on the party of the Party and the SS. And out of that knowledge I made the requirement that between Hitler and the German judiciary there should be no intermediary, that in other words nobody should be allowed to influence the judge, be it a political leader, be it Bormann, be it Himmler, or any other organizations who so far had exercised a strong influence on the judge. And the second concrete requirement which I made, and which is contained in my memorandum is that the entire administration of the criminal law, Strafrechtspflege, should not be split up but to its entire extent remain with the administration of justice. In connection with that are some formulations which I made in my memorandum which say the political leader and the official of the Gestapo cannot be a judge at the same time.
A corruption and hunger for power cannot be prevented in any better way than by a strong personality of a judge. And if I raised such requirements and then thought about how I could explain those thoughts to a man like Hitler, as I saw him at the time, how can I dare undertake such a step at all, the result of such an attempt was exclusively dependent upon the tactics or the methods which I employed. And therefore in formulating my memorandum, my ideas, I made certain concessions but I always added the aim itself immediately afterwards. I would like to cite two cases particularly which the indictment put into the record in that connection. First, the following sentence:
"All the fuss that is made about lack of justice, arbitrariness and insecurity of the law is today due to lack of insight in the political situation." And then I continue: "The only question is whether a strong judiciary is per se, that is permanently or only at this time, not compatible with the National Socialist State." And another sentence with which I am being charged is the following: "Political situations require expedient steps every day, and every stubborn opposition against these steps on principle or for fundamental considerations is pointless." And I continue: "But in the same way one had to be conscious everyday of the danger that the very comfortable pushing into the background of an orderly administration of the laws involves the tendency of a habit" -- and that last phrase is underlined -- "To prevent such a development, that is the task of a new German Administration of Justice."
Now for me the basic problem existed: how is it possible to make these ideas of a judiciary at all compatible with the idea of an authoritarian state, because the authoritarian state as such was a fact for me. I could not overthrow it, and to that extent of course there is a difference in regard to the position of the judge, which I aimed at in Germany, from tho position of a judge in England. For me it was a fact that Hitler was the man who in Germany combined all power in his own person, but in order to make the dangers inherent in this concentration of power clear to Hitler, to that purpose I emphasized two factors in particular in this memorandum.
First, for one, a historical element. By referring to the Roman Empire, to the British Empire and to other empires, I pointed out to him, on the basis of history, that, and I quote:
"Nothing brings about the selfdestruction of a State more than the absence of law and a weak judicature." The second element with which I hoped to convince Hitler was a more nationalistic element. I attempted to explain to him the picture which every human being makes himself of a position of a judge. I used the expression, "The original judge and arch judge," and I told him that the essential characteristic of this arch judge consists of three conditions.
First that it is a distorted picture if this judge has to ask another person what kind of a decision he should make. The independence of the judge and his freedom in issuing instruction was the most essential characteristic of a judge in contrast to a civil servant. The second element which I wanted to include in this picture in which I told him that he has to imagine a court on a market place, was that a human being can really only imagine that there was just one judge. As soon as one has several judges in one case, one asks, "Well, who gives me a better justice?" I said that the symbol for the fact that there is only one law and one justice would be blurred. By saying so, of course, I meant that there should be as few judges as possible. The third element which I added to this picture was, and I quote: "The judge has a strong inner authority. He is the interpreter of the law, who from the point of humaneness, wisdom and experience, must be superior to all other servants of the State." The fact that Hitler, himself, was the highest legal reviewing authority in Germany was of course from my conception of the dignity and independence of the judiciary, a danger. The question exists anyhow as to whether this idea of the absolute independence of the judge is compatible with the concept of an authoritarian state.
After I was discharged and after I had gathered the experience in Berlin during the 15 months that I was there, I absolutely denied that question. I said that those two concepts are not compatible with each other. At the time when I made this attempt, I believed that they were compatible, and that the separation of power which is necessary in every state for the purpose of controlling the people, that in practice this would be achieved by my program of having all influences on the judiciary eliminated.
Q: Dr. Rothenberger, may I say something in regard to this last point? It seems to me that you did not make it clear enough, because the problem which you discussed was after all that in effect you maintain that you wanted to bring about and strive for the independence of the Administration of Justice. On the other hand, at that time you affirmed the authoritarian state -- the Fuehrer state -and with that you have to admit that in the person of Hitler there was a man who was the highest legal reviewing authority, who in his own person eliminated the separation of power and in effect made the judiciary dependent upon him. That is the problem, isn't it? And now you may that this concession which you had to make because you recognized the existence of an authoritarian state you explained that to the court. In what do you have any aim that practically can be strived for in regard to the immediate and practical independence of the Administration of Justice throughout the country?
A: I believe I emphasized that already, that from the point of view of an idea, the authoritarian state was a fact for me, but that in practice by my wanting to eliminate all influences on the Administration of Justice through eliminating all intermediaries, that in practice I achieved again a separation of power.
Q: Two concrete questions. On Page 25 of your memorandum you mention when you plans were supposed to be put into effect. Did you think? when you wrote this memorandum, of having your plans realized already during the war?
A: No, not at all. On another occasion I shall have to discuss that point again briefly. It was a matter of course? that these plans meant such a change and would necessitate such difficult preparations that long years would have been required before they could have been put into
Q. Is it correct that your plans on pages 24 and 25 of the memorandum are explained in summary form in the four points which you mentioned: the radical reform of training, the radical reduction in the number of judges; taking the judiciary out of the civil service; and the radical change in the structure of the courts?
A. Yes.
DR. WANDSCHNEIDER: Thank you, I have no further questions.
THE PRESIDENT: We will recess for a period of fifteen minutes.
MR. LaFOLLETTE: One moment, if Your Honor please. If Dr. Kubuschok will be in court after the recess, I will then present the Schlegelberger documents, and also offer the exhibit which was offered yesterday; I think the twenty-four hours notice has practically expired.
THE PRESIDENT: We will recess now for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. LAFOLLETTE: If the Court please, the Prosecution now offers in evidence Exhibit 517, Document NG-1029.
THE PRESIDENT: Will you speak very slowly, please?
MR. LAFOLLETTE: Yes, your Honor. Document NG-723, Exhibit 518-
THE PRESIDENT: Perhaps we had better rule on them as you offer them.
MR. LAFOLLETTE: Yes, if your Honor please.
THE PRESIDENT: Exhibits 517 and 518 are received in evidence.
MR. LAFOLLETTE: Exhibit 519, Document NG-1612.
THE PRESIDENT: The Exhibit is received.
MR. LAFOLLETTE: Exhibit 520, Document NG-1613.
THE PRESIDENT: Received in evidence.
MR. LAFOLLETTE: Exhibit 521, Document NG-1615.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 522, Document NG-1513.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 523, Document NG-1061.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 524, Document NG-391.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 525, Document NG-670.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 526, Document NG-1847. I send this exhibit to the desk and also copies for distribution.
THE PRESIDENT: It will be received.
MR. LAFOLLETTE: And Exhibit 527, Document NG-839. I ask that it be received at this time although only the German document copy is available. I will see that the Bench gets copies and I furnish one copy now to Dr. Kubuschok in German and more to the German counsel when they wish them.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: The Prosecution also at this time offers Exhibit 534, Document NG-797. There was an objection to this document yesterday.
THE PRESIDENT: Well, the objection was on account of time.
MR. LAFOLLETTE: That was the only objection stated, yes, your Honor.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: I furnish copies in English and German for distribution, your Honor.
THE PRESIDENT: Would you inform us if convenient to whom the Documents from 517 on specifically or more apply?
MR. LAFOLLETTE: You mean Exhibit 517, your Honor?
THE PRESIDENT: To 527, all inclusive.
MR. LAFOLLETTE: Those are all part of the cross examination of the Defendant Schlegelberger, your Honor.
THE PRESIDENT: They are received as a part of the cross examination.
MR. LAFOLLETTE: Yes, your Honor.
JUDGE HARDING: What is the status of 530 to 533?
MR. LAFOLLETTE: I will have to check, your Honor. My recollection was that Exhibits from 530 to 533 inclusive were offered and received. On 533 and 534 I believe there is yet some preparation needed and for that reason I did not offer them.
THE PRESIDENT: We have marked 530 and 531, 532, 533 and 534 as received.
MR. LAFOLLETTE: Yes. Your Honors are right. They were received with the understanding that there was yet some preparation to be made on them but they were received in evidence. Those were documents with reference to the defendant Klemm.
THE PRESIDENT: Yes. They are received as part of the cross examination.
MR. LAFOLLETTE: Exactly, for the cross examination.
DR. WANDSCHNEIDER: May I continue with my cross examination of Dr. Rothenberger?
BY DR. WANDSCHNEIDER:
Q. Dr. Rothenberger, would you now please tell the Court how your appointment to the post of Under-Secretary in 1942 came about? In this connection I would refer to Exhibit 65. That is the authority dated 20 August 1942. That authority is in Volume I-B on Page 25. It is Exhibit 65.
A. On the 4 August 1942 The Reich Minister and Chief of the Riech Chancellery, Lammers, suddenly asked me to come to Berlin for the purpose of a conference. Lammers told me the Fuehrer had read my memorandum. He had liked that memorandum and he would like to have the plans of that memorandum carried into effect. I asked Lammers specifically as to whether Hitler had given him any further reasons. He told me what had impressed Hitler was the question of the position of the Judge. He had no opinion whatsoever of the judge of the civil servants type and the question officials, of civil servants and judges being strangers to practical life.
In reply to my question Lammers said to me, "Hitler is convinced that these plans must be carried out." I then said to Lammers that I thought during the war it was altogether impossible to put into effect my plans and I would ask to be allowed to wait with carrying out my plans until the end of the war, all the more so as I myself had not yet finished my preparatory work in Hamburg. Lammers replied: "Hitler counts on an early conclusion of the war and the preparation for carrying out the reform would need some time after all and I was to utilize that time.
As I myself was in no way able to judge the war situation, I had to accept that fact as being correct. Then I asked Lammers whether the prerequisites concerning personnel in regard to carrying out the plans were assured. At that time it was the general belief that the next Reich Minister of Justice would be Herr Frank, since Frank, at an earlier time, had been Hitler's advisor, and had been such an advisor to Hitler for about twenty years. I told Lammers that it would be quite out of the question to carry out such a reform under Frank. Lammers then said "You need not worry; Hitler has dropped Frank, he will not become Reich Minister of Justice." And, to stop me from worrying about other matters, ho told me that Frank would also be dismissed as Reich Justice Leader.
That made things a great deal easier for me since, as I have already stated, Frank, in that capacity, always raised great difficulties for the Administration of Justice; his competition therefore had been eliminated.
I then asked whether Freisler would remain in office. I thought that was out of the question too. That question was denied too, and I was told that Freisler would not remain in office. Lammers told me: "Hitler would like to have you, as an expert and as Undersecretary, carry out your plans, and that Bormann had suggested to Hitler, as Minister of Justice, Thierack, and it looked as if Thierack might receive that appointment. To me, in those days, Thierack was a name that meant hardly anything. I hardly know him. I met him a few times at the conferences of the presidents at the Reich Ministry of Justice. Occasionally ho had stated his opinion concerning the reform plans which were under discussion at that time at the Ministry, and he took a positive view of those plans.
It has been said about me that I have no insight into human character. That outer form in which Thierack appeared to me at the time was such that it seemed to me ho had an entirely unproblematic character. His mental abilities seems to ms to be, at the utmost, average. He appeared to be of a certain type of Saxon, suburbanite, and cunning. His massive toughness, his love for intrigue, and the brutality of that man -- those qualities I underestimated. If I had recognized them, I would have refused to collaborate with him, just as I refused to collaborate with Frank and Freisler.
All personal reasons were against my assuming that task, for in Hamburg I hold a regal position: I was a judge, I could act as I thought right without having to make concessions. I had a Reichsstatthalter, a Reich Lieutenant, who, as I discovered later, was for superior to all other Reichstatthalter/Reich Lieutenants, in Germany. I had never liked Berlin, but I accepted the task because I was of the conviction that it was necessary to carry it out to influence the development of the Reich.
Q. Did you pay another call on Lammers later on?
A. Yes. A fortnight later Lammers rang mo up again and I was told that I was to be introduced to Hitler, whom I had not met before. I went to Lammers' field headquarters, which at the time was in Schitomir. There the first conference and meeting took place between Lammers, Thierack-who had also been ordered there -- and myself. On the way there I had boon thinking it over and had arrived at the conclusion that, judging from the experience of decades, it was only possible to carry out the task with which I was confronted, if I were given the authority to carry out that task, according to my own plans.
I know that before Reich Minister of Justice Schiffer too, who wished to carry out those plans during the Weimar era -- my attorney will submit an exhibit on that subject -- had requested and received that authority too from the Reichstag. It was clear to mo that if I was to be dependent on the approval of Bormann, Himmler, or any other quarters, it would never be possible to carry out my plans. Therefore, at that conference I suggested that Hitler was to grant special authority to the Reich Minister of Justice; and that is the authority which has been discussed here a groat deal, and the idea of which originated with me. I had also drafted a text for that authority; I had done that on the way to Schitomir. The text stated:
"A strong Administration of Justice is the pillar of the Greater German Reich. The Reich Minister Of Justice is authorized to take all measures which are required to carry out this task."
It is necessary for mo to say a few words about the term "strong", because at this trial the word "strong" has been mixed up with the word "severe". In those days, immediately after I assumed office, on the 4th of September I published an article in "Deutsche Justiz", where I defined in more detail what I understood by that term.