The German Judges! Association at that time sent a letter to the Reich Minister of Justice and announced that the German judges would, under certain circumstances, refuse to apply this law because it was contrary to usage. This letter is copied here in Document 278. It is the letter of 8 January 1924. As Professor Jahrreiss further explained on the witness stand, this attitude was rejected at that time by the German Reich Minister of Justice in an open letter. This letter too is copied in this document and is on Page 25 and the following pages of the German Document Book.
In this open letter, the Reich Minister of Justice states that it would lead to the dissolution of the legal order and a disturbance of the Reich if a court would assume the right not to apply a law which was issued in accordance with the Constitution, because in the opinion of the majority of its members, it was not in accordance with the general law of usage.
I offer this document as Exhibit 95 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 118 on Page 26 of the German Document Book is a further excerpt from the Book "Introduction into Jurisprudence" by Professor Radbruch, of the year 1925. Radbruch in this book states his opinion on the question to what extent natural law can be applied in a legal system; he says it cannot be applied, and states that only what the legislator has laid down is valid law. I offer this document as Exhibit 94 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 119 is a further excerpt from the book by Professor Dr. Radbruch, from 1925.
He states here that it is the mission of the jurist to apply the law also whore the law is contrary to justice.
I offer this document as Exhibit 95.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 120 too is an excerpt from Professor Dr. Radbruch's book. He bases his acceptance positivism at that time on the reason that the security of the law requires that the German official applies the law even when in his own mind he is not in agreement with it.
I offer this document as Exhibit No. 96 for identification.
THE PRESIDENT: Let it be marked.
DR.GRUBE: Document 188 on Page 35 of the German Document Book is an excerpt from a decision of the Reich Supreme Court in criminal oases, from 1923. The subject of this decision was, among others, the question as to whether an ordinance of 1922 was contrary to the constitution. At that time, the defense claimed that the ordinance, which was issued on the basis of Article 48 by the Reich President, was not valid because the actual prerequisites for ordinances on the basis of Article 48 had not existed.
The Reich Supreme Court states in this sentence whether the actual conditions as prescribed in Article 48 for the promulgation of the ordinance existed, could only be decided by the discretion of the Reich President, whose judgment is not subject to examination by the Court.
I offer this document as Exhibit 97, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 271 is a decision of the Reich Supreme Court in civil matters of the year 1924. In this case, too, the defense attorney, who represented the plaintiff, referred to the fact that a regulation was contrary to custom. Here, too, the Reich Supreme Court stated that the judge is not authorized at all not to apply a law which has been promulgated in accordance with all regulations because of its contents. I offer this document as Exhibit 98, for identification.
THE PRESIDENT: Exhibits 97 and 98 will be marked.
DR. GRUBE: Document 187 is a decision by the Reich Supreme Court in criminal matters, of 30 October, 1924, and also is concerned with the question as to what extent the court is authorized to review ordinances as to whether the prerequisites for their promulgation existed. The Reich Supreme Court stated in this case too that whether the continuance of an ordinance was still in accordance with the conditions of the time was to be decided exclusively by the legislator, not by the judge; for the judge, the only decisive thing was whether a formal law was still valid.
I offer this document as Exhibit 99, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 18 is a sentence by the Supreme Bavarian District of 24 October, 1927.
It deals with a case in which a judge refused to apply paragraph 350 of the Penal Code; because he considered it untenable that the father of a family should be condemned to a penitentiary because of twenty pfennigs. He considered this provision too severe. The Bavarian Supreme District Court declared expressly in this case that if there is such a provision, the judge has to apply it even if he considers it too severe.
I offer this document as Exhibit 100, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 273 is an excerpt from the famous decision by the Civil Senate of the Reich Supreme Court of 4 November, 1927. The expert Jahreiss referred to the famous sentence in that decision -- "the legislator is self-governing, and is bound by no other restrictions than those which he has imposed upon himself in the Constitution or in other laws."
I offer this document as Exhibit 101, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document No. 37 also is a decision by the Reich Supreme Court in civil matters. It is a decision by the VII Senate of 6 July, 1934, in proceedings against the New York Life Insurance Company. In this case, too, it was stated that the law was untenable; here too, the Reich Supreme Court was of the opinion that the judge did not have the right to refuse to apply a law because he considered it undesirable for economic or other reason - this was exclusively the affair of the legislator.
I offer this document as Exhibit 102, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 157 contains a decision by the Reich Supreme Court in penal matters of 8 December, 1936. This decision is of importance in so far as it states an opinion on the question to what extent, and whether at all, the binding force of the law on a German official, especially a judge, was changed by the analogy provision in Article 2. The Reich Supreme Court states in this sentence that without consideration of this analogy provision in Article 2, the judge was still bound by the law. Thus, it still affirms positivism.
I offer this document as Exhibit 103, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document No. 17 is also a decision by the Reich Supreme Court in a criminal case, of 15 December, 1939; here too, the question was -- whether the judge can deviate from the scope of penalty which is laid down in the law because he considers it too severe or too lenient. In this decision of 1939, the Reich Supreme Court also stated that the judge is bound by the law and has to apply the penalty provided in the law without consideration of his personal attitude.
I offer this document as Exhibit 104, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 19 is an excerpt from the second supplement to the commentary on the Penal Code by LoeweRosenberg, and the supplement is by Professor Emil Niethammer.
Niethammer states, too, in that document that the judge is bound by the penalty provided in the law, even if the penalty which he has to apply in accordance with this is by him considered, under the conditions of the individual case, too severe or too lenient.
I offer this document as Exhibit 105, for identification.
THE PRESIDENT: It will be marked Exhibit 105.
DR. GRUBE: Document 170 is an excerpt from the Leipzig commentary on the Reich Criminal Law Code, from the edition which appeared in 1944, immediately before the collapse. The Leipzig Commentary states, as is shown in this document, without a doubt that the court cannot deviate from the law even when it considers the law too severe or untenable for other reasons. Merely the legislator is authorized to change it.
I offer this document as Exhibit 106, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 149 is an excerpt from an article by Professor Dr. Radbruch. It has already been mentioned repeatedly here in documents in which Radbruch agreed entirely with the points of view of positivism. Radbruch states in this document that positivism -- with its teaching that law is law ---- made tho German jurist powerless to change laws because of their criminal contents; and this article was written after the collapse.
I offer this document as Exhibit 107, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 150 is an excerpt from an article by Prof. Dr. Jerusalem. He, too, states in his article that legal positivism in Germany was decisive and, that this theory of law was also made tho basis by the Weimar Constitution. I offer this document as Exhibit 108, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: The last document in this volume is Document 148. It is an excerpt from an article by the Judge of the District Court of Appeals, Dr. Robert Figge, Zelle about the responsibility of the judge. The author describes in this article the development and especially states that the theory of natural law could never be applied in the practice of law in Germany; that it was immediately pushed out by positivism and he makes positivism responsible for the fact that individual laws, which may perhaps appear to be too severe, were applied by tho German officials.
He states in this article that they could not act otherwise because, in legal theory and practice in Germany, positivism was the only theory that was recognized.
I offer this document as Exhibit 109.
THE PRESIDENT: Let it be marked.
MR. KING: Dr. Grube identified tho last document as Document 148. In my book it seems to be 150.
THE PRESIDENT: Your last two documents have the same number.
DR. GRUBE: But that is an error, your Honor. The last document, this Article, "The responsibility of the Judge", actually bears the number 148.
MR. KING: It appears that the English book, according to what Dr. Grube has just told me, beginning on page 56 and continuing through the end, should be 148 instead of 150.
THE PRESIDENT: We have made the correction.
DR. GRUBE: Your Honor, I have concluded the submission of the documents which I have so far received in translation and now I intend to begin the examination of the defendant Lautz on his own behalf.
THE PRESIDENT: You may call him. Will you raise your right hand had repeat after me:
swear by God the Almighty and Omniscient that I will speak the pure truth and will withhold and add nothing.
(Witness repeats oath.)
You may be seated.
DIRECT EXAMINATION BY DR. GRUBE:
Q. Herr Lautz, may I first ask you to tell the Tribunal when you were born, where you were born and what was your professional career, until 1920?
A. I was born in 1887 in Wiesbaden. There I attended preparatory school and then followed a classical course in a Gymnasium, that is, high school. In 1906 I passed the high school graduation examination. From 1906 to 1909 I studied law at the Universities of Marburg, Bonn and Munich. In 1909 I passed the first State examination. I did my legal preparatory service up to 1914 at the local court at Bad Nassau on the Lahn, at the District Court of Wiesbaden, the District Court of Appeals at Frankfurt on Main. Since I had served in the Army, this preparatory service was interrupted on 1 August 1914 until 1919 when I was an artillery officer during the World War and was on the Western Front. After my return from the Front I completed my preparatory service and in the Spring of 1920 I passed the great State examination. Since I was interested in criminal law, I applied for service with the prosecution. In accordance with my wish, I was assigned to the District Court Neuwied on the Rhine.
Q. Herr Lautz, may I interrupt you briefly here? Would you please tell the Tribunal in what spirit you were educated as a student of law and as a referendar?
A. Before World War and also after the World War the young jurist was educated in Germany in the spirit of obedience to the law. In questions of politics a judge was expected to stand above the parties and to remain distant from political life.
Q. Herr Lautz, you just stated that in Neuwied you exercised your first professional activity.
What were your tasks as public prosecutor in Neuwied, since you were active in Neuwied since 1920?
A. As public prosecutor I worked in the field of general criminarlity. In addition I was entrusted with working on political and press matters, but these were not very numerous and finally I concerned myself with working on those criminal cases in which the then occupying authorities of the Rhineland were interested, that is, in those criminal cases in which a German was being prosecuted who had violated the regulations of the occupying authority.
Q. At that time did you gain insight into the jurisdiction of the military courts of the occupying authority?
A. Yes, I did.
Q. Will you please describe it in detail to the court?
A. Neuwied belonged to the District of Coblenz which from 1918 on until the beginning of 1920, was occupied by the Americans; from then on it was French occupied territory. Since I worked on the criminal cases, which interested the occupying authorities, I frequently had contact with tho American Delegate in Neuwied and the Military Court in Coblenz. Therefore, of course, I also gained insight into the practices followed there.
Those two authorities at that time, in handing over the prosecution of those cases of Germans who were supposed to be prosecuted because they had violated the interests of the occupying authorities, were very generous, because they were of the opinion that the German courts would handle these natters justly and orderly.
As concerns the law which the occupying authorities themselves applied, this was in part the law for the purpose of the occupation which had been issued in the 300 ordinances of the Rhineland Commission For the rest, however, they judged according to the law of the home state, in accordance, that is either in accordance with the American, French, Belgian or British law.
Q. Herr Lautz, how long did you work with the District Court in Neuwied?
A. I worked there for ten years, that is, until 31 December, 1929.
Q. Where were you transferred after that?
A. First January 1930 I became First Public Prosecutor at the then District Court II in Berlin.
Q. Will you please tell the Tribunal what activity you exercised there at District Court II in Berlin?
A. As the youngest First Public Prosecutor I had to be in charge of the political division which involved a great deal of work and was unpleasant.
Q. For how long did you have to carry out that task?
A. On the first of June 1932 I became senior public prosecutor at tho District Court I, Berlin.
Q. May I ask you, what Ministry of Justice was competent for that promotion at that time?
A. The Prussian Ministry of Justice.
Q. Can you also state what parties were at the back of that government?
A. That was the then Prussian coalition which was composed of the Centre Party and Social Democrats.
Q. Did you have any relationship with those parties?
A. No.
Q. Will you please tell the Tribunal what functions you exercised in your capacity as Senior Public Prosecutor at District Court I in Berlin?
A. As Senior Public Prosecutor I was in charge of economic cases.
Q. In an affidavit by Herr von Harke, which I shall submit later on, it is stated that in 1933, you were subject to severe attacks in the press of the NSDAP, especially in articles by a Herr Zarnow who wrote the infamous book, "Chained Justice" ("Gefesselte Justiz"). Will you please make some statements about this?
A. We public prosecutors in Berlin were used to attacks in the press. It happened not only to me but to others also who worked in the Administration of Justice on political cases that the opposition Press attacked us. Since I entered the public prosecution in Division 2 in Berlin that happened to me frequently. The most severe attacks, however, originated with Moritz Zarnow who, in the Spring of 1933, attacked me and vilified me, especially in the Journal "Deutsche Spiegel".
Q. In 1933, Hitler came to power. Did this have any influence on your attitude toward the law?
A. No, I continued to carry on my work in accordance with the law as I had done bofore.
Q. Did you not have a severe conflict with Minister Kerri once?
A. Toward the end of 1933 that happened for the following reasons: At that tine I was carrying on an investigation against a cigarette manufacturer whose name was very well known and when the investigations continued I happened to come upon an affair which was very unpleasant for him. Although not only from the defense counsel but also from other sources, it was known to me that he was in favor with Goering. I would not let go and this brought it about that Bering went to Kerri and made a serious complaint to him that I did not have tho necessary feeling in my finger tips in order to handle the matter differently. I could only state that for a Prosecutor there is only one law and that is the law of the State and that everything else beyond that is up to other authorities, not to the Public Prosecutor.
Q. I may say here that an application for evidence which I have already made has been approved by the Court. At the present the District Court of Hamburg has a trial pending against the well-known cigarette manufacturer Reemtsma. That is the case which the defendant Lautz has described. The indictment in this case is on the whole based on Lautz' attitude. The indictment against Reemtsma, as Dr. Kempner informed me, has not arrived in Nurnberg as yet. However, it is to be put at my disposal as soon as it does. Therefore I would request permission to introduce the document which has already been approved as evidence as soon as it arrives here. Herr Lautz, in an affidavit by Thyssen a Reusch case is mentioned. Will you please make some remarks, what you know about it and when it happened?
A. This occurred about two years later. At that time I was already in charge of the Public Prosecution in Berlin, as acting Public Prosecutor.
Reusch was in charge of the business of the Reich Civil Service Organization, that is, the civil service organization of the Nazi Party and was the right hand of the Reich Civil Servants Leader Neeb. Through indecent manipulations, the details of which are not interesting here? he had defrauded several thousand narks from the civil service organization. I dealt with this case immediately and I could not be prevented from carrying on this trial with energy. He was an intimate friend of Gauleiter Springer from Frankfurt on the Main, which was the home town of Reusch. When this Gauleiter appeared in my office and indicated to me that I would draw upon myself the anger of the Leader of the Reich Civil Servants organization if I did not operate with greater care in this case.
A. Later on Reusch was condemned to a penitentiary sentence of several years in the trial.
Q. Witness, is it correct that in 1936 you became General Public Prosecutor of the District Court I in Berlin?
A. Yes, I did.
Q. Can you make some remarks as to whether this was an extraordinary career?
A. I did not consider it as far as my own person is concerned to be unusual. I was of the opinion that if the rise to power had not occurred I might have become General Public Prosecutor even earlier.
Q. Can you state at whose suggestion this appointment was made?
A. My then superior in office, the General Public Prosecutor of the Highest Prussian Court of Appeals promoted it.
Q. What was your attitude?
A. I myself did not aspire to this position, for the reason alone because I had worked in a disciplinary case against my predecessor as an investigating prosecutor. It was very unpleasant for me to occupy a position which I had helped to fall vacant.
Q. For how long were you a general public prosecutor at District Court I in Berlin?
A. For one year, until 30 June 1937.
Q. And subsequently you became general Public Prosecutor in Karlsruhe is that correct?
A. Yes, on 1 July 1937 I became General Public Prosecutor at the District Court of Appeal at Karlsruhe.
Q. What was your attitude about the transfer at the time?
A. I was very happy about that transfer, because first of all it took me away from exciting and restless Berlin and secondary I came to a district which belonged to one of the most beautiful from the point of view of Scenerr in Germany, because it reached from Heidelberg to Lake Constance.
Q. Herr Lautz, before you already cited several examples which showed that, without consideration as to whether they were prominent party members or people who were strongly protected by the party, you proceeded against them after you found out that they had committed unauthorized acts. Did you maintain that course of action in Karlsruhe?
A. Naturally I maintained it there too. These occurrences after 1933. I considered the manifestations corruption of a transition time. I considered it obvious that the Prosecuting authority should not field in those cases but should unerringly act and could therefore bring about orderly condition. I did not act any differently in Karlsruhe either.
Q. In documents, which I shall submit later on, the Heim case is described. Are you in a position to make some statements about this?
A. Yes, the case occurred a short time after I arrived in Karlsruhe. Heim was the acting Police President and higher SS leader. I heard that he had a prisoner who was in detention for investigation pending trial who had stolen his dog, so that he was a prisoner in a case which concerned himself personally, called to him and that ho ill-treated him. Through this investigation it became known furthermore that he had raped one of his domestic servants.
Thereupon, I caused that he be arrested and indicted him before the penal chamber. He was condemned to a prison term of more than a year.
Q. Is it correct that thereupon you had some encounters with SS people in Stuttgart?
A. The SS leader in Stuttgart, who was the superior of the police president, was very angry with me, that I had not informed him about the facts before I filed the indictment. Apparently he hoped in that case he would have been able to prevent the filing of an indictment.
Q. Herr Lautz is it correct that in 1938 you received an offer to become senate president in the Reich Military Court?
A. That is correct. I was well known to the ministerial director at the High Command of the Wechrmacht, Lehmann, who appeared as a witness before this Tribunal and who offered me in 1918 to become senate president at the Reich Military Court.
Q. Just a moment, I believe you made a mistake, you meant to say 1938?
A. Yes, 1938.
Q. At that time would you have improved your financial situation if you had accepted?
A. Yes, the position was much better paid.
Q. Why did you not accept that position?
A. I did not accept it only for the one and decisive reason that I did not want to leave the beautiful district of Karlsruhe for the time being.
Q. For how long were you General Public Prosecutor in Karlsruhe?
A. Unfortunately only until 1939.
Q. May I now ask you, who was Parey?
A. Parey was Reich Public Prosecutor since 1936, later Chief Public Prosecutor at the People's Court in Berlin.
Q. And for what reason did Parey leave his office of Chief Reich Public Prosecutor at the People's Court?
A. At the beginning of November 1938 he had an automobile accident.
Q. When did you find out for the first time that you were being considered as Parey's successor?
A. At the beginning of December 1938, the then Undersecretary Freisler, on order of Minister Guertner, informed me that Guertner had chosen me as his--that is, Parey's--successor.
Q. Did you make any efforts to obtain that position?
A. Not at all.
Q. Did you do anything against your appointment as Oberreichsanwalt at the People's Court?
A. I was very much interested in getting out of being appointed to that position, and because of that I consulted with the Personnel Division of the Ministry as to how I could prevent my appointment. However, I was told that Minister Guertner attached importance to my taking that position, and therefore, being a civil servant, I complied.
Q. May I ask you why you had an aversion to that office?
A. First of all, because the exclusive occupation with political penal cases and in connection with that, the absolute dependence upon the Ministry which was my superior, was not an inducement for me; even though, at that time, I could not have the remotest idea that was would shortly break out, that Minister Guertner would die, and that through all these events a course would be followed in politics which, in any case, was not in accordance with the one that I imagined.
That was my main reason. My second reason was that I wanted to remain in Karlsruhe.
Q. When were you appointed Oberreichsanwalt?
A. I was appointed on the 1st of July 1939.
Q. At that time did you still count upon becoming Oberreichsanwalt since Parey had already left the office some time before?
A. Since it took such a long time, I had the hope, quietly, that perhaps another person would be found.
Q. Did you ever find out whether any office of the Party or any other organizations of the Party was in favor of your appointment as Oberreichsanwalt?
A. I never heard anything about that.
Q. When, in effect, did you assume your office as Oberreichsanwalt at the People's Court.
A. Due to illness, I only assumed office on the 20th of September 1939, in Berlin.
Q. However, you had already been appointed on the 1st of July?
A. Yes.
Q. Herr Lautz, may I ask you this? Before 1933, did you belong to a political party?
A. From 1924 to 1930 I was a member of the Deutsche Volkspartei, German People's Party. That was the party of Minister Stresemann, who became well known through the policy of understanding which he followed toward the victorious countries of 1918, and in whose efforts in particular to reach an understanding with France in order to bring about peace in Europe, I welcomed very warmly and supported.
Q. When did you become a member of the National Socialist Party?
A. On the 1st of May, 1933.
Q. Will you please tell the Tribunal for what reasons you joined the Party?
A. Before the spring of 1933 I belonged to tho Prussian Judges' Association, in which organization I worked on press matters as a member of the board of Directors. The Prussian Judges' Association decided to urge its members to join the Party. I joined because, according to the situation prevailing at the time, I considered it to be the correct and proper thing to do.
Q. Herr Lautz, at that time, in 1933, did the joining of a Party have the significance of 100 percent approval of the Party platform? Was it not rather, like this, that since the Weimar era, joining a Party by no means implied that one approved of its ideology?
A. In the case of many persons who joined the Party at that time, that was so.
Q. When you joined tho NSDAP in 1933, did you know anything about the fact that Hitler was striving towards war?
A. I considered that to be absolutely impossible. I could not imagine that a statesman, no matter where he had experienced the horrors of the years 1914 to 1918 and who actually had gone through it as a soldier, could assume the responsibility or burden his conscience with plunging the world into a war which would be much worse than what had occurred in 1914 to 1918. I was continued in that opinion due to the continuous assurances by the German Government that they wanted peace. The actual outbreak of war surprised me just as much as it did most of my fellow citizens.
Q. Did you hold office in the NSDAP?
A. In the Party? No.
Q. Were you ever a member of the SA, the SS, or any other organization of the NSDAP?
A. No.
Q. Were you an honorary member?
A. No.
Q. Before 1933 were you a member of a professional organization?
A. I have already said that I was a member of tho Prussian Judges' Association, and I worked with the Board of Directors.
Q. The Judges' Association was not a Nazi organization?
A. No, it was a purely professional organization of the Prussian judges and public prosecutors.
Q. In document book 1-A which the prosecution has submitted, document NG-325 is contained at pages 28 to 30 of the German copy. However, the prosecution did not submit it as an exhibit. In spite of that, I would like to ask you to make some statements about this document.
A. I can clarify that very easily. When the Prussian Judges' Association was transferred into the so-called NS Lawyers' League, I was appointed to that function.