Q Thank you. A little while ago you said yes in reply to a question as to whether Rothenberger was also head of the Gauleiter Office. Did he ever tell you why that state of affairs seemed desirable to him?
A Yes. We did talk about that in connection with the attempts that were being made everywhere. For example, to merge the offices of Kreisleiter and Mayor. He said that in Hamburg that had been done a long time ago and I only had to imagine what would happen if those two functions were being held by two different people. There would be continuous arguments. But such state of affairs was not known in Hamburg.
Q Now, by that arrangement interferences with the Administration of Justice by small party leaders were warded off?
A Yes.
Q Thank you. According to your knowledge of Hamburg affairs were you of the opinion that it was at the expense of the Administration of Justice that these two positions were held by the same person? In other words do you think it was meant that the Administration of Justice gave way to the party?
A I am convinced that it went at the expense of the party and I am referring to Bormann.
DR. GRUBE: Thank you. I have no further questions. The direct examination of this witness if finished.
THE PRESIDENT: You may cross examine.
CROSS EXAMINATION BY MR. KING:
Q I am a little in doubt as to how you should be addressed, as Commander or your Excellency, so I will just refer to you as Witness, and avoid any possible confusion.
You joined the party first in 1932, did you not, and then you were out for about a year and then you got back in. What was the reason for the year's non-activity in the party?
A I joined the party when I was under the influence of a speech by Hitler at the National Club in Hamburg. That speech was held before Hamburg business men.
Q Was Rothenberger present at that speech?
A I don't know that. I don't believe he was.
Q That was in 1932?
A Yes, that was in 1932.
Q And then why did you later think better of it?
AA few weeks later -- I believe it was three weeks later -- there was a brawl between the Steel Helmet Men and the SA men, and in my opinion the SA men were the guilty ones. I myself wasn't there. My friend Lauenstein, a former naval officer with whom I had been together during the war, the leader of the Steel Helmet, was wounded. I told the local Ortsgruppenfuehrer, who was competent for me -
Q Please, witness, I don't want to cut you short, but can you abbreviate it to the bare essentials?
A I told him that I would withdraw my membership. When a new senate was formed in Hamburg the Gauleiter asked me whether I would like to go to Berlin. At that time I did not belong to any party. Afterwards, when I was under the influence of Hitler's first speech, when he said he was in favor of peache and disarmament -a speech in which I believed -- I again joined the party.
Q Now, this Gauleiter that offered to appoint you to Berlin if you joined the party, his name was Kauffmann?
A Would you please repeat that question?
Q Yes. The man who appointed you to your position in Berlin on the condition that you join the party, his name was Kauffmann, was it not?
A That was Gauleiter Kauffmann, yes.
Q Witness, did you ever have any legal training?
A No.
Q You were not a lawyer?
A No. I was sent to Berlin as specialist on economic affairs.
Q While you were in Berlin you maintained, as you said this morning, a private telephone line between your office and Kauffmann's office in Hamburg?
A That line had already been there before my period of office.
Q The line was there during your period of office, was it not?
A Yes, it was.
Q Now, in your position as an economic representative of Hamburg in Berlin and as a party member, you got to know, among others, as you mentioned this morning, the following: Heydrich, Hess, Goebbels, Bormann, Himmler. How many others of the party men who really counted did you get to know as a result of your appointment in Berlin in this economic position?
A Naturally I had official contact with these men. I had to call on them when I assumed office.
Q They were all exporting things to the Azores, were they?
A No. Until the dissolution of the Reichrat I was the Hamburg delegate who had to represent Hamburg in all matters, but first of all, naturally, they were business matters.
Q Did you get to know any of the other big party men, the men who really counted, with the exception of those you named this morning?
Did you see Hitler very often?
A I reported to Hitler and after that I can answer that question exactly because the Denazification Board asked me that question in Hamburg. Well, I met Hitler twice in Hamburg, once when the Hamburg civil servants were introduced to him and once when we made a trip through the port to discuss new arrangements there. Three times I accompanied the Gauleiter when he showed him models of the Elbe Bridge. There were 10 or 12 other men present. I also knew Gauleiter Wagner, Schwede-Coburg -- I met him in Stralsund when he was an officer -- and Buerkel, who was a friend of Kauffmann's and who was occasionally asked to Kauffmann's house as a guest. As far as I know, I did not know any other Gauleiters. I mean, I didn't know them personally.
Q You did pretty well, though, even so.
A I didn't understand what you meant, I did pretty well.
THE PRESIDENT: That was not a question and you need not trouble about it.
BY MR. KING:
Q You said this morning that at one time during the war you talked with the Defendant Rothenberger at the time when he was visibly very much disturbed and he told you that it had always been his feeling that no one should be condemned to death without adequate trial and legal safeguards. Did he at that time discuss the fact with you that in a period of three days he had passed on the clemency matters of 150 condemned men. Was that what was bothering him, do you know?
A He did not talk of that and I know nothing of that matter. No further word was said, but what I mentioned here.
Q You didn't go into any specific reasons as to why he made that comment at that time?
A No.
Q You were in the insurance business too, were you not?
A No. I am a maritime broker and an importer. Naturally I understand something about insurance matters too. As maritime broker one also has to deal with the insurance of ships.
Q There are certain publications extant which do carry a short notice that you were engaged in insurance business. I will ask you this question anyway, and if you don't know the answer based on your experience you may say so. In 1938, when the excesses against the Jews reached a very high pitch, do you recall a policy which is very many times attributed to Goering in which he decreed that the claims on damage policies held by Jews should be paid to the State rather than to the policyholder where the policyholder was a Jew? Perhaps from your insurance connections you will recall something about that. Do you?
AAll that is quite new to me. I am willing to state that, under oath, for the first time I have heard that now from your mouth, counsel.
Q Then you couldn't be of any help to me on that. You said the man Pfauth was also indicted because of an insurance fraud, is that right, as well as other matters?
A He was denounced for insurance fraud. He had insured a stock of goods for about 20,000 Marks, these goods were valueless and then he committed arson.
MR. KING: I understand. I have no more questions.
THE PRESIDENT: May I ask you one question, please?
BY THE PRESIDENT: I am not entirely sure that I recollect exactly your testimony, but I think you said that shortly after Rothenberger was appointed you had a conversation with someone in which you discussed the question as to how Rothenberger and Thierack would get along together and you thought that Rothenberger would be a good check on Thierack. Is my recollection correct?
A. Yes, Your Honor, I had that conversation with Gauleiter Kauffmann.
Q. When was that?
A. Shortly after appointment to the under-secretary. I had read about it and I was on leave. My home was still in Berlin and when the Statthalter came to Berlin, I called on him. Knowing that nothing was done in Hamburg without him, I had to assume that he approved of the appointment and even had caused it.
Q. I have your answer, thank you. In that connection, you said you knew that Thierack was a fanatical party men. I think that is a correct quotation.
A. Yes, I knew that.
Q. When did you come to that conclusion?
A. It is twelve years ago now and I cannot say now with certainty who told me but occasionally I had some business at the ministry of Justice and the experts there frequently discussed these matters and they used such expressions as "The Terrible Thierack". They also criticized Frank and in those days one did not know what role Thierack would play one day. Then once I had a look at him on the podium as I told yesterday.
Q. Is it safe to say that you had that knowledge before August 1942
A. I think that is saying too much. I did not like him but as I have heard now that he was a butcher, I did not know at the time.
Q. I referred only to your knowledge that he was a fanatical party man.
Q. Yes and I did not like him. I cannot tell you why. I simply did not like him. It was just an instinctive dislike. I said yesterday we saw him on that podium and my wife said to me: "What an unpleasant face that man has."
Q. When was that, do you remember?
A. That must have been at the May celebration in 1934 or 1935. I cannot recollect for certain. We were discussing many prominent men who were sitting on that podium and I said: "This is that man and that is that man", as far as I know them.
Q. Then your impression was formed before August 1942, wasn't it?
A. Yes, your Honor.
THE PRESIDENT: That is all.
BY DR. WANDSCHNEIDER:
Q. May I ask your permission to ask two questions on re-direct examination?
I would like to refer to the President's last question to you, that is to say, Dr, Kauffmann's remarks to you when Dr. Rothenberger became under-secretary. Do you think Kauffmann meant to say that he wanted to have Rothenberger in Berlin representative of a definite line of policy?
A. I believe that. He wanted Rothenberger to exercise a moderating influence just like myself.
Q. You said to the Tribunal yesterday, you answered the Prosecutor just now, speaking of the exports in which some circles were in Germany were supposed to have been interested. Would you please tell us in what sense you were working on the export questions in respect to these government circles in Berlin so that we can understand the comparison between yourself and Rothenberger?
A. I will try and outline that in a few brief words. I had written an article for "The Hamburger Nachrichten" with the headline: "More Sea Breeze to Berlin". I believe that said everything and after that I was sent to Berlin.
In those days Germany was producing in abundance. It was a state of affairs of economic abundance.
Q. Witness, may I interrupt? All I want to know is one thing. Did you attempt to work against those autarky endeavors which were doubtlessly being made in Berlin as a Hamburg representation?
A. Yes, with all means. There was only the alternative of free trade or autarky and hunger.
Q. Thank you.
THE PRESIDENT: The witness will be excused.
DR. WANDSCHNEIDER: Your Honor, I have finished with the witnesses whom I have ready here for the moment. Therefore, I have temporarily concluded my submission of evidence and I would like to reserve the further submission of evidence for a later stage of the proceedings, because the document books are still outstanding as are also some more witnesses.
THE PRESIDENT: Have you any of your document books?
DR. WANDSCHNEIDER: Unfortunately, not yet. Your Honor, but I hope I shall have them soon. I am going now to inquire. According to the information I had yesterday or day before yesterday no definite date could be given as to when they would be ready.
THE PRESIDENT: The Tribunal assumes no responsibility in any sense for checking up on document books. That is the duty of counsel and the proper officials but we have been advised that three books prepared on behalf of the defendant Klemm are now ready and in possession of the Secretary General. Are any of counsel prepared to proceed with those books?
DR. GRUBE: For the defendant, Lautz:
May it please the Court, I would ask you to permit me before the examination of the defendant Lautz to introduce document book 1, 2-a and 3-a. They are all documents which will be submitted within the frame-work of the general defense. I have not yet received the German mimeographs, but I have been told that the English copies have been distributed.
MR. KING: I was wondering if it was possible for the Prosecution to furnish copies of the document book which Mr. Grube is about to introduce. So far we have not seen them. It is a little difficult to follow the testimony without having the documents in front of us.
THE PRESIDENT: You are entitled to receive them.
DR. GRUBE: The defense center has told me that the document books have been distributed to the Court and to the Prosecution, 7 copies in English language. Further document books in English have not yet arrived. Yesterday the Marshal of the Court also told me that the Tribunal was in possession of English copies. I was, therefore, asked to submit the document books at the earliest moment.
THE PRESIDENT: Let me see the document books which we are supposed to be in possession of. We have not seen any of then. I have no knowledge of the receipt of any document books in the case Lautz. The Secretary General will procure them for us. Have you a copy for the Prosecution?
DR. GRUBE: Unfortunately, I have not received one single English copy and I haven't received the German copies either but the defense center has told me that 7 copies of English have been sent to the Tribunal and to the Prosecution.
THE PRESIDENT: Let me repeat that these are matters which the Tribunal should not be troubled with. It is a mechanical matter, purely administrative.
DR. GRUBE: I beg your pardon, I didn't get the translation.
THE PRESIDENT: I was merely intimating that if the Tribunal takes care of the judicial problems before it, it will have enough to do without taking over the defense information center and the secretary general's office.
Now, can we find a copy for the Prosecution?
SECRETARY-GENERAL: I have only five, sir, and this one I must have to keep my records.
THE PRESIDENT: Dr. Grube, in what manner do you propose to introduce these exhibits? By the book, or by separate numbers?
DR. GRUBE: Starting with book I, I wanted to introduce these exhibits in the order in which they appear in the books, that is to say, in that order in which these documents appear in each document book.
THE PRESIDENT: Were you able to find any copies?
SECRETARY-GENERAL: The defense center had not yet assembled them.
THE PRESIDENT: What are the rules with reference to the number of copies which should be presented?
DR. GRUBE: We know nothing about that. The defense center told me that German copies were not at all available yet, but that only seven copies in English were available. Yesterday the Marshal urged me to introduce my documents, and he gave as a reason the fact that seven copies were in fact here.
THE PRESIDENT: We apparently have found only five so far. What do the rules require, Mr. La. Follette?
MR. LA FOLLETTE: So far as I know, there are no rules requiring any distribution -- I mean, I don't know what the rules are with references to distribution for the defendants, but surely they should include, by comparison with what they require us to do -- that is all I can say -- one for each member of the Bench, one for the Secretary General, one for the interpreters, that is five, and there should be at least one or two to sent to the Prosecution. We were required to send one to each member of the defense, as I recall it, of the German. I have received no notice from anyone as to whether these rules are in the defense center.
THE PRESIDENT: Well, it is certainly necessary that the prosecution should be furnished, and the defense center will be required to furnish a sufficient number so that the prosecution can have at least two copies.
Now, Mr. La Follette, in order to save time, can we proceed with the introduction of some of these documents before you receive this extra copy?
MR. LA FOLLETTE: We have no copy.
DR. GRUBE: Your Honor, to clean up matters, may I just say that some time ago the defense center sent us a collection of the rulings which have been laid down and which are valid for this and all similar trials. In that collection there is contained ruling number 5, which deals with the submission of document books. Under figure 9 it states that the defense center shall provide every defense counsel with a German copy. The defense counsel who submits the document book receives fifteen German copies and ten English copies. Figure 10 further says that the defense center distributes the remaining copies in accordance with the distribution list which is attached. Document books must be submitted to the prosecution 24 hours before these documents are submitted in evidence. The attached distribution list sets out in detail to whom the document books are to be distributed. The document books are not distributed by the individual defense counsel, but exclusively by the defense center.
THE PRESIDENT: Yes; that gives me the information which I requested. The prosecution are entitled to document books 24 hours in advance of their introduction.
MR. LA FOLLETTE: Exactly, and we certainly should have at least one set in German, Your Honor. We can make no check. I don't know what he read here; I didn't here it all.
THE PRESIDENT: That is a matter for you gentlemen to straighten out with the document center.
You find yourself, Mr. La Follette, unable to consent to the introduction of any documents until you receive these?
MR. LA FOLLETTE: Well, I don't like to hold the Tribunal up. If I may borrow one from the Bench that I could look at, I guess we could go ahead and receive some. However, I will say to the Court that I am going to have to insist on the 24 hour rule; I had to comply with it. I don't want to come in here every time -- and I did it with the Schlegelberger documents -- and just get them practically the day they are introduced.
THE PRESIDENT: You are entirely within your rights.
MR. LA FOLLETTE: If we may borrow one from the Bench, let us try selectively, to proceed.
THE PRESIDENT: Judge Blair and I will share a copy, and we will proceed for the time being.
MR. LA FOLLETTE: Thank you.
DR. GRUBE: I am starting with document book I. Book I deals with the People's Court.
The first document which I wish to offer is document 281. In it is contained Section 105 of the Weimar Constitution, which was the starting point for the question as to whether the People's Court was contrary to the constitution.
I am offering this document as Exhibit No. 1.
THE PRESIDENT: The exhibit is received.
MR. KING: One moment, please. Your Honors, because of the situation which has developed, vis-a-vis the document books, we have not had a chance, of course, to examine these documents. We hesitate to have them admitted in evidence without having had some opportunity to look them over. We request, therefore, that for the time being they merely be admitted for identification, and admitted in evidence only after we have had a chance to look them over.
THE PRESIDENT: We will rule on the admissibility tomorrow, and the documents will be only marked for identification with exhibit numbers at this time; and that rule will apply to exhibit for identification and admitted in evidence only after we have had a chance to look them over.
THE PRESIDENT: We will rule on the admissibility tomorrows, and the documents will be only marked for identification with exhibit numbers at this time; and that rule will apply to exhibit for identification 1, which we had stated would be received.
MR. LA FOLLETTE: Perhaps it would be all right to deliver the document to the Secretary General and then we may inspect it through his office. In that way Dr. Grube gets it out of his possession; that is, the identified document.
THE PRESIDENT: Yes. Proceed just as if you were introducing them in evidence, and we will simply postpone the ruling until counsel has had an opportunity to examine them.
DR. GRUBE: May I ask you within what time limit the ruling will be given?
THE PRESIDENT: The Prosecution is entitled to 24 hours. We will rule tomorrow.
DR. GRUBE: Thank you, Your Honor.
I next offer document 234, which contains Article 16 of the Judicative Act. I am offering the document as Exhibit 2.
THE PRESIDENT: We will let it be marked, for identification, Exhibit 2.
DR. GRUBE: I next offer document 16. That is an excerpt from the commentary on the Weimar Constitution by Gerhard Anschuetz. I would like to read the following from that document:
"The following is to be said concerning the very much disputed concept of 'Irregular Courts.'
"It is different from the concept of the 'Special court', or, as it is also expressed, Sondergericht. Special courts are permitted by section 103 (Compare No. 1 of the same) as well as by Section 105, but not irregular courts. Special courts (Sondergerichte) are courts which take the place of the otherwise competent regular courts for certain groups of people or litigation matters designated generally and in advance by the law."
There follows an enumeration of various courts:
"For example, to this category belong the Labor Courts, the Juvenile Courts, the former and still existing Military Courts."
I am continuing now on page 4 of the German document book:
"The irregular courts differ from these Special Courts in that they are not appointed to judge all matters of litigation of one and the same category defined according to the character of the issue, the position of the litigants or in any other way by a generally applicable abstract provision, but by a concrete ordinance (regulation) for one definite, single case, or, which is the same, for a specifically designated number of individual cases. In this case, it is of no consequence: firstly, whether this individual case has already occurred or has yet to happen; secondly, whether the order setting up the Irregular Court issues from the government or from another administrative office, or from the legislature; and thirdly, whether the court appointed contrary to the prohibitive provisions is a regular or Special Court, newly created ad hoc or already existing."
I would ask you to identify this document as Exhibit 3.
THE PRESIDENT: Let it be marked Court No. III, Case No. 3.
DR. GRUBE: I next offer the document which appears on page 5 of the German text, No. 285. This is an extract from an article by Professor Dr. Eduard Kern in the Commentary on German Constitutional Law. I am quoting from Page 5 of the German Document Book.
"An emergency court is a court existing outside the regular courts which was established by transgressing the legal rules of competence for the purpose of passing sentence in a certain individual case or in a number of such cases."
I am offering this document as Exhibit 4, for the purpose of identification.
THE PRESIDENT: It will be marked for identification.
DR. GRUBE: I am not coming to Document 284, on Page 4 of the German Document Book. Dr. 284 represents an extract from the Manual for German Constitutional Law by Professor Dr. Eduard Kern, in the Commentary on German Constitutional Law dating back to the year 1932. I am starting on page 7.
"The legally competent judge is the judge appointed in accordance with the law to decide a legal case, thus first of all, it is a court which rests on a legal basis. Law is to be taken to mean the law in a factual sense. Not only a regular court can be the legal authority but also a special court. Furthermore, the court must be qualified to judge the case. Which means that it must have jurisdiction in the case in question and must furthermore be competent."
I am leaving out a few lines and starting with the next paragraph:
"Article 105, sub-heading 2 of the Reich Constitution, does not want to generally prohibit changes in the competence of courts with retroactive power. In this way shifting of competence within regular courts occurs frequently in legislation; they are also not subject to any misgivings, if they concern matters already being dealt with by a court. Thus the Reich Supreme Court has rightly emphasized in the case of the legal reform by Emminger, that the referring of a case from the Court of Assizes to a division of the Criminal Court did not violate Article Court No. III, Case No. 3.105, subheading 2 of the Reich Constitution.
It is consistent with Article 105, sub-heading 2 if by means of a simple Reich law a legal remedy hitherto applicable is being restricted or a new authority is established also for cases already under trial. It is furthermore consistent with paragraph 105 of the Reich Constitution, if the laws refer to matters which up to now belonged to the competence of a special court, to the regular courts, if this is done regularly for all cases of the same kind and not only in certain individual cases. The legislation is even permitted to create special courts and to assign matters to them with retroactive power, matters in which regular courts had been competent up to that time, if this retroaction occurs as a general rule. A prerequisite for cash change in competence with retroative force is, that a legal regulation in the sense of a valid legal norm is involved. In spite of an apparently general regulation it can be that only an individual case or a number of individual cases should be affected by this new regulation. In such a case, a violation of Article 105 of the Reich Constitution has been perpetrated.
I am offering this document as Exhibit No. 5, for purposes of identification.
THE COURT: Let it be marked.
DR. GRUBE: I am now coming to Document 275 on Page 9 of the German Document Book. May I interpolate here. Unfortunately I am not able to say on what page of the English Document book these documents appear, as I have not yet the English Document book available.
Document 275 consists of an extract from the Commentary on the Code of Criminal Procedure by Leo Rosenberg. I quote from page 10 of the German document book. May I interpolate? The commentary here deals with the question as to when a Judge is a legally competent Judge within the meaning of Article 16 of the law. I am quoting from page 10:
"'Legal' is not synonymous with 'competence per se', moreover according to article 16 a competent judge is the one who is qualified, on the basis of a legal provision, to take the place of a competent judge per se, similarly the judge, who is qualified to pass sentence by a new, Court No. III, Case No. 3.but general provision:"
I am leaving out a few lines.
"Thus a legal authority is the authority to which anyone, who makes himself liable to certain criminal acts, is subject on principle."
I am offering this document for identification as Exhibit No. 6.
THE PRESIDENT: Let it be marked Exhibit 6.
DR. GRUBE: I am now coming to Document No. 114.
THE PRESIDENT: Our time has expired, and now the court will recess for 15 minutes.
(Thereupon a recess was taken.)
THE MARSHAL: The Court is again in session.
THE PRESIDENT: The report comes to us from the court reporters that it is impossible to follow such rapid readings as you have been making. The report also should be made from the bench that we find it exceedingly difficult to get any benefit from the reading of matters of this kind, which of course we will examine and read very carefully from the documents. It's necessary, therefore, to suggest first that what reading you do be read more slowly, and second that it would greatly convenience us if you would indicate by general reference the matters that you wish to call particularly to our attention and avoid reading as much as possible, because we will also read these documents. May I say we made the same suggestion to the prosecution in their case and the result was beneficial.
DR. GRUBE: I now come to Document 114 on Page 11 of the German Document Book and Page 11 of the English. It is concerned with the decision of the Reich Supreme Court of the 2 of June 1942. May I direct the attention of the Court to the following places on Page 12 of the German Document Book. I quote:
"Article 105 does not contain a basic law according to the meaning of Article 48 Section 2."
I now skip some pages and continue, and I quote:
"The 'legal judge' is not appointed by the constitution itself, but by the laws governing the constitution of the courts and the proceedings before the courts; their changing is not connected with the aggravating conditions valid for changes of the constitution."
May I also direct the attention of the Court to the end of the document. That is on Page 13, and I quote:
"A court is to be regarded as an exceptional court, if it has been established outside the circle of the court institutions generally entrusted with the granting of legal protection, in order to judge one certain individual case or several definitely limited individual cases."
I offer this document as Exhibit No. 7 for identification.
THE PRESIDENT: That will be marked for identification.
DR. GRUBE: The next document is on Page 14, Document No. 272. It is also a decision of the Reich Supreme Court and this time of the Supreme Reich Court in civil cases. May I direct time attention of the Court to the following quotations on Page 14:
"If Article 103 of the Reich constitution orders that the ordinary jurisdiction be practiced by the Supreme Court of the Reich and the courts of the States (Launder), nothing has been said yet as to the extent of this jurisdiction. The Reich constitution left the limitation of this jurisdiction to the legislation of the Reich and the States. Only this legislation, with the exception of a few special regulations of the Reich Constitution, is to state, who is to be legal judge of whose judgment according to Article 10$ Sentence 2 of the Reich constitution nobody may be deprived. A limitation of the competency of the ordinary courts does not require a Reich law changing the Reich constitution."
Then there is a further decision of the United Civil Divisions of the Reich Supreme Court of 22 February 1924. I quote Page 15 of the German Document Book:
"Thus the general draft of the Articles 103 and 105 excluded the possibility of concluding from them the extent of the jurisdiction of the ordinary courts. With regard to this point the Reich constitution requires necessarily to be implemented by the ordinary legislation. Only the ordinary legislation states who is legal judge according to Article 105 Sentence 2."