Witness, on the basis of your own experiences, can you say that in those cases where only a brief interval existed between the filing of the indictment and the opening of the trial you were not in a position to conduct a defense in an orderly manner?
AA case of that kind never occurred to me. In every individual case, even when the time limit set was very short, I always was afforded the opportunity to speak to the defendant, and, of course, to prepare the case.
Q. In such cases where there was a short time limit, did you have the possibility to file motions for submission of evidence?
A Yes, indeed. I could do that in two ways. Either before the trial, and in that case, I did it in writing. Or, I did it in the course of the trial -- then I did it either orally or in writing.
A Did the court accept these motions?
A If they were relevant in any way, certainly.
Q May I ask you what in general was the attitude of the court concerning motions or petitions for submission of evidence?
A They were granted if they were of considerable importance. The more time advanced, the more severe the punishment became; I remember that I heard of a Senate where the maximum penalty was in question and there we had to investigate each case especially carefully. If a petition to submit evidence was justified, that is, important then the trial was adjourned and in a new session, the important witnesses were heard.
Q. Did yon have the impression that you were impaired in any way in your activities as defense counsel before the People's Court?
A No, I never had that impression.
Q. Therefore, you had the opportunity to carry out to the fullest extent your duties as defense counsel?
A. Yes, fully.
DR. GRUBE: Thank you, I have no further questions.
THE PRESIDENT: It appears there is no further examination of this witness. The witness is excused. Is Dr. Grube through?
DR. BRUGE: I have no more witnesses, but I have several document books to be introduced, but as yet they have not been translated. I therefore ask to be permitted to conclude the case Lautz to that extent, and then when I receive the document books, to be committed to submit additional documents.
THE PRESIDENT: The case of the defendant Lautz is rested subject to your reserved right to introduce document books as soon as they are available; is that right?
DR. GRUBE: Yes, thank you very much.
THE PRESIDENT: Very well.
DR. SCHILF: (Attorney for the defendant Mettgenberg) With the permission of the Tribunal, I should like to begin my defense of the defendant Dr. Mettgenberg by calling the defendant into the witness box as a witness in his own behalf.
May I ask the representative of the Secretary General to submit the lists to the bench. I have made a list of the exhibits which the Prosecution has submitted in the case against Dr. Mettgenberg, and in that sequence I shall refer to the exhibits.
WOLFGANG METTGENBERG, a witness, took the stand and testified as follows?
BY JUDGE BLAIR:
Hold up your right hand and be sworn, please.
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
WITNESS: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing. So help me God.
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY DR. SCHILF: (Attorney for the Defendant Mettgenberg)
Q. Dr. Mettgenberg, will you please describe to the Tribunal briefly your life and your career.
A. The Court has already been submitted Exhibit 11 which describes my personal circumstances. Therefore, if I may be permitted to repeat only briefly: I am sixty-four years old; I was born in Lleve on the lower Rhine close to the Dutch Border. My father at that time was a pastor in Kleve, and was later called to the administration of the Evangelical Church in Koblenz. Thus, I attended schools in Kleve and Koblenz. After completing my studies at these schools, I studied law, first in France at the University of Grenoble, later at Bonn and Berlin. The final examination I passed in 1909, and immediately after that examination I reported to the prosecution. I was employed with various prosecution offices in the Rhineland until the winter of 1919/1920 when I was called to servo in the foreign office. About half a year later, that is to say, in April, 1920, I was transferred to the Reich Ministry of Justice, and from that time on -- April 1920 -- until the collapse in 1945 I was a member of the Reich Ministry of Justice, that is to say, altogether twenty-five years. In 1920 I became Oberregierungsrat at the Ministry of Justice; in 1923 Ministerialrat; and in 1939 Ministerialdirigent.
Q. Dr. Mettgenberg, in the course of your professional career did you also work in the scientific and literary fields?
A. At the University of Bonn I passed my doctor's examination in 1906, and since that time I was always active in the literary field. My literary activity during that entire time was in the field of international penal law, in its widest scope. That literary activity was also the reason why I was called, into the foreign office at the time and later into the Reich Ministry of Justice.
This activity, as is self-evident, brought me into contact with nemerous authorities in that field at home and abroad. Among those connections abroad, which were based upon my literary activities, I might mention here especially the American Professor Preuss, who came to see me in Berlin and with whom I had literary connections in this field until the outbreak of the war. He was at that time at Ann Arbor University in Michigan. Now, I have no contact with him, as yet.
DR. SCHILF: May I interpolate here, Your Honor, that as to the literary works of Dr. Mettgenberg, I shall submit a synopsis in my document book.
BY DR. SCHILF:
Q: Dr. Mettgenberg, you mentioned that as an expert in the field of international criminal law, in its widest scope, you had been called into both offices which you mentioned. Would you please tell the Tribunal whether you had anything to do with those things in these positions?
A: Yes, immediately after I assumed office in the Reich Ministry of Justice I received the task of drafting a German extradition law, a task which took me many years. The law went into effect after same adoersities and as such, is still valid today. In addition to that extradition law, and, of course, other tasks, I was particularly charged with the mission of representing the German Government in International negotiations whenever these international negotiations dealt with matters of criminal law. This brought it about that I made relatively many trips in order to take up such matters with the League of Nations, with the Rhineland Commission after the end of the First World War, and with numerous representatives of foreign governments. That was sometimes done in the foreign capitals and sometimes in Berlin. On the whole these negotiations dealt with extradition treaties. Thus, for instance, the International Convention of Geneva against the counterfeiting of money of the 20th of April 1929, and the German-American Extradition Treaty of the 12th of July 1930, were signed by me as a representative of the German Government. Also the drafting of principles and the extensive administrative work in the field of international penal law, especially the matter of legal aid in penal cases, were within my field in the Reich Ministry of Justice.
There I worked mostly with two referents and several assistants in carrying out these tasks. At the Ministry I was always given a great deal of latitude in carrying out that work. It was a marginal field, a specialty, that could only be mastered after years of handling it and study and experience.
Q: Dr. Mettgenberg, that describes your official activities. Now I am asking you about your attitude toward politics? Were you ever active in a party, in a political sense?
A: I did not belong to any party; and I did not belong to the National Socialist Workers, Party either; and it was in accordance with my entire temperament and inclination that I was not interested in the party struggle. During the years from 1920 to 1932, when I was already at the Reich Ministry of Justice, we had ministers from all parties existing at that time, and the ministers came and left in accordance with the party-political situation. I, myself, in the course of my tasks had much to do in the Reichstag and that afforded me a certain insight into the party system and was only inclined to increase my dislike of anything that had to do with party politics. Of course, in 1933, when Hitler became Reich Chancellor, the question of my joining the Party was suggested me, but at that time I was already fifty-one years old, and I was not inclined to change my attitude; that this could not be carried out without disadvantages for me, was clear to me, and there were various periods during which I definitely expected to be retired on account of my remaining aloof. That it did not occur is based, as far as I can judge, probably on the fact that I happened to be a specialist for the field which I have described, and was not easy to be replaced.
I was simply permitted to continue to work in that particular field.
Q: Dr. Mettgenberg, although you were not a member of the Party, the Prosecution has submitted two documents against you from which it allegedly can be seen that you approved the persecution of the Jews. The Prosecution, and I must say, unfortunately, did not submit your personal file. It may be possible that the personal file may have shown something in your favor in this connection. Referring to the submission of one or two documents which were submitted against you, on the Jewish problem, I want to ask you now, on principle, what was your attitude toward Jewry?
A: The matter which you, Counsel, have broached now, is not without some grim humor, because the situation is as follows: I am now charged by the Prosecution with being hostile to the Jews while it is not so long ago that the National Socialists accused me of being a friend of the Jews. In fact, I had rather extensive scientific, literary, and artistic interests, and, was, therefore, fully aware of the contributions Jewry had made in both of these fields, the fields of art and the field of science. It was, therefore, quite incomprehensible for me that anybody could dedicate himself to the mania of racialism. I was always primarily interested in the person with whom I had to deal and that of course applied also to my personal contact with the Jews. That at present it is made somewhat difficult to retain that point of view. I cannot deny, but fortunately there are people like Victor Gollanez who do make it possible for me to retain that point of view. How unbiased I approached these matters can best be proved by the fact that I had my major works published by a Jewish Publishing firm, and I had the best personal relations with the owner of that firm.
Q: Dr. Mettgenberg, the Prosecution submitted exhibit 198 against you, as well as exhibit 368. Moreover, the Prosecution in it's document books, not as exhibit, however, submitted a file which dealt with the question as to how far the so-called persons of mixed descent were permitted to marry people who were not of Jewish descent. That document bears the number of the Prosecution NG 1066, With reference to these documents I should like to ask you to explain briefly to the Tribunal to what extent you were guided in your actions by the attitude towards the Jews which you have just described?
A: I should like to say frankly that I really dislike to speak here about the so-called good deeds of mine, but the charges which are made against me by the Prosecution force me to do so. Quite briefly, may I be permitted to mention a few things which may give an impression as to how I behaved toward individual Jews. I just want to touch on the fact that my wife and I for years entertained a close friendship with the former manager of the well-known department store in Berlin, Wertheim, a man by the name of Haac and his wife. The Haac couple was able to emigrate in time to the United States. They live now in New York, Their sons fought at the front against their native country, and since the end of the war we have again taken up our friendly relations with that family. I also want to touch briefly upon the fact that I intervened to the best of my ability on behalf of a Prosecutor of Jewish descent, who was a friend of mine, and who had to bear the severe fate of being a Jew. The unfortunate man was transferred into a camp with a severe heart disease and did not survive It. In Berlin I lived in a large apartment house which was occupied almost entirely by Jewish families, and it went without saying for me, even after the war, and after all the hardships which we bore together bombings, burning down of the building, that together with my sons we were always at the disposal of our Jewish co-tenants just as much as for anybody else.
And it was not without deep emotion on my part each time when in the morning, or in the evening, again, one of the unfortunate tenants in the house was transferred away to an uncertain fate.
However, I have to describe in more detail one occurence which caused great difficulties to me in my official career. I was the Chairman of the Council of Parents. That was a committee formed by the Parents of the pupils at one school, which was authorized to discuss with the director of the school any matters which were of concern to the parents of the pupils. I was Chairman of such a Parent's Council and since there were many Jewish children in that school, of course there were also Jewish Parents in that Parents' Council.
In 1933, when Hitler became Reich Chancellor, there were some hotheaded individuals in that Parents' Council who demanded the immediate elimination of all Jewish members of that Committee. These matters assured such chaotic forms that, in consideration of my principles of order, I could not let that go on. At first I tried to put matters on a calmer level by delaying tactics, when that did not succeed and they did not want to follow my calm suggestions, I was forced to resign as Chairman of the Parents' Committee.
The personal consequence for me was that that occurence was immediately reported to the Gau executive Office in Berlin, and it was also explained to the Gauleitung how that Ministerialrat from the ministry of Justice dealt with Jews. In fact I found out later that this incident was the reason why I had to wait for my promotion for many years, because every time the request was made, the Gau Office in Berlin said that they could not approve the promotion of that "suspect Ministerialrat."
Q Dr. Mettgenberg, I believe what you have told us about the details of your attitude is sufficient is sufficient. I only want to ask you this. In your official contacts, that is, from 1920 on, did you entertain any close relations of friendships with people of Jewish descent?
A Yes, and I would much rather talk about that, because I am permitted here to remember one person to whom I owe a great deal.
When I entered the Reich Ministry of Justice in 1920, I met there, as Undersecretary, Dr. Kurt Joel --the same name, but not a relative of the defendant Joel who is here in the courtroom. Dr. Kurt Joel was the Undersecretary, later Secretary, and finally Reich Minister of Justice and during the years from 1920 to 1932. I owe him my training in the Ministry. He was my ideal of a person: thrifty, fair, upright, and straight. The Ministers--and I mentioned this before --came and left according to the political situation, but Dr. Joel remained. When he resigned in 1932, the year he himself had become Reich Minister of Justice, I did not discontinue friendly relations with him or with his family, not even after 1933; when people were looked at ascance for doing so. On the occasion of his 80th birthday, in 1945, I could still congratulate him; and I remember --it must have been around 1936--a conversation during which I, so to speak, made a promise to him, a promise to the effect that I would not write a single line, for publication which one could not want to read with approval ten year hence. He and I understood very well what was meant by that. That was to mean that I did not believe in the duration of the National Socialists era either, and that It was not inclined to give in to the political trend of the time in my writings. Dr. Joel died in 1945; I continue to maintain friendly contact with his family.
Q Dr. Joel was of Jewish descent, I don't think you mentioned that.
A I think that a German can almost deduce that from the name. I have to state that he was a full Jew, according to the race.
Q Dr. Mettgenberg, you were not a member of the NSDAP?
I only have to breack these questions because of the documents submitted by the Prosecution. We shall talk about these documents now. May I ask you to comment first about Exhibit 198?
A I don't think I have to speak about the contents of that exhibit. To explain this letter which I have signed, may I say the following?
As Subdepartment Chief, I received that letter from the competent Referent dealing with the District of Hamburg. The letter was in order so far as its contents was concerned, it was in accordance with the legal situation, and I could not stop it. I signed it and sent it out.
Q I believe, however, for the benefit of the Tribunal, we have to elucidate and state the fact that in this Exhibit 198 a large number of decrees or laws are cited; the letter gives the impression that it was merely a reproduction of these laws and decrees.
A Yes, that is so. That letter is only a reference to a number of legal provisions which had not been abided by in Hamburg, and that was pointed out to the District Court of Appeals in Hamburg.
Q The second exhibit is 368. The prosecution, when submitting that document, mentioned your name, but your name cannot be found on the document.
First, would you please tell the Tribunal -- It is 368, a file designated with the words "Concerning legislation for Jews." It contains a notation and a memorandum of 15 January 1941. That memorandum reveals that we are concerned here with matters of so-called citizensship of Jews (Staatsangehoerigkeit) in the German Reich. To that document--as I said, of 15 January 1941--a distribution list is attached, and you are not mentioned on that distribution list. Would you please tell the Tribunal whether you had any connection with that document at that time?
A I could not find any connection with that document, neither factually nor formally. My name is nowhere on that document. It would be quite improbable, because I had nothing at all to do with the legal matter with which is concerned. These are documents which emanated from the Reich Chancellery. It was a conference with many representatives of the Reich Ministry of Justice attended-persons concerned with these matters -- but not I. There is no connection in the case of another document, which I am not quite sure -- but which I don't think the Prosecution has submitted. That is designated as NG-1066. It seems to me that was not submitted as an exhibit. This document bears several notations that is to be submitted to me, and I have put my initials on it to signify that I had seen it. That was for a very specific reason. It deals with the question whether the Nuernberg laws, which were as such only applicable to full Jews, should also be extended to half Jews, a question which, according to our distribution of work, was none of my business. That in spite of that there are various notations on this document to show that it head been submitted to me for information was based on a personal wish on my part, quite unofficially, a request which I had submitted to the Referents.
At that time I happened to advice a couple about to get married, but did not get any approval. Therefore, they wanted to go abroad in order to get married there. I was, so to speak, at the source where I could perhaps get some information ahead of time, and had been asked to try and find out what the probable development of matters concerning hakl--Jews would be. Therefore, and for that personal reason alone, I had asked the gentleman concerned with that matter to keep me posted, that is the reason why those documents were submitted to me and why I initialed them.
Q Just for the purpose of further explanation, would you please tell the Tribunal whether you were actually able to find out anything on the basis of these documents?
A I did not find out any more than can be seen from the documents themselves. They are drafts, which remained drafts; they never became law. However, I was in a position to explain to the couple that a certain danger existed that the Nuernberg laws would also be applied to half-Jews, that is to say, would apply to them also.
DR. SCHILF: May it please the Tribunal -
THE PRESIDENT: We will recess until 1:30 this afternoon.)
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 31 July, 1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Before you proceed, Dr. Schilf, I desire to revert for a moment to the contempt proceedings which were concluded this morning in order to correct, for the record, my own error. In one sentence I find from the transcript that I referred to the testimony of the two German doctors and then said that it was opposed only by the somewhat equivocal denials of the respondent Engert. Of course, I meant to say the respondent Marx. It was an inadvertant slip of the tongue. I am now correcting it for the record and have directed that a note be placed in the transcript, showing that the error has been corrected.
My associates have agreed with me that we should also state to you that we consider this unfortunate matter entirely an isolated circumstances and that it should not be treated or considered in any way as a reflection upon the body of German counsel who have appeared in this Tribunal and whose conduct we consider to have been high minded and ethical. We would add that the two counsel, one lady counsel and Dr. Orth, who conducted the defense in the contempt proceeding, in our opinion, performed their duties conscientiously and capably. That is all we have to say about that matter.
You may proceed with your case.
WOLFGANG METTGENBERG - Resumed DIRECT EXAMINATION (Continued) BY DR. SCHILF:Q.- Dr. Mettgenberg, at the Reich Ministry of Justice you last held the position of a subdepartment chief.
In the course of this trial a great many things have been said about that subdepartment chief, but you are the only defendant who last held that position. Therefore would you please give the Court an outline of that last position you held?
A.- Perhaps I may somewhat exceed the scope of the question and say a few words about the structure as a whole of the Reich Ministry of Justice, of which so far nothing has been said here. The entire personnel of the Reich Ministry of Justice amounted to approximately 800 men. Those 800 people were composed of three groups, the workers, the employees, and the officials. As an example for the workmen may I perhaps mention the cleaning women and the boileman. As an example for the employees, the majority of the secretaries and typists. And officials were all those who held the posts of civil servants. Conditions to fulfill the status of a civil servant were mainly of a formal nature. Within the body of civil servants there were three groups which must be distinguished, the lower grade, the intermediate grade, and the higher grade, Lower civil servants were, for example, those who carried the files, etc., the chief messengers, etc. Officials of the intermediate grade were the men whose task it was to keep the registers and to draft documents, which were made by the dozen. The higher grade of civil servants was held by all beginning with assessor up to the minister himself. The scope of work for the higher grade civil servants was distributed in such a way that the younger among these civil servants were employed as so-called collaborators, Mitarbeiter assistants. Above the collaborators there were the referents, Referenten. They were older officials who held the rank of an Oberregiorungsrat and Ministerial Counsellor. Above them there was the next category. They were the subdepartment chiefs. These subdepartment chiefs were either the more senior Ministerial Counsellors or Ministerialdirigenten. Above them there were the department chiefs, as a rule a Ministerialdirektor, sometimes it was a Ministerialdirigeant. Above them, but only temporarily, there was an assistant undersecretary. Above him there was one undersecretary or several undersecretaries, and at the very top there was the Reichsminister. When one keeps that survey in mind then the answer to the question which counsel put to me becomes fairly clear. The subdepartment chief was bet ween the Referent and the department chief.
His task was to take reports from the Referent on matters which were of a somewhat supernormal importance; matters which were altogether normal and clear and unambiguous, where there were no misgivings, no doubts, there the Referent made the decision. But as soon as a matter from any point of view achieved somewhat greater significance he had to report on it to the subdepartment chief who, in turn, had to consider as to whether he himself was competent to decide on the question. If it was of real significance a report had to be made to a higher authority, to the department chief, to the undersecretary, and possibly to the minister. In the absence of the department chief the subdepartment chief had to deputize for him in his business as department chief. And the organization with us was such that every subdepartment chief for his sphere of work had to undertake that work as a deputy. In the big Department IV which has been discussed here such a great deal there were at the end six subdepartment chiefs, each of whom had his own sphere of work. When the department chief was absent each one of the six subdepartment chiefs had to deputize for the department chief within and for his own sphere of work. In the main, my defense counsel has already explained the matter in his opening statement, and I may therefore refer to it. As concerns myself as a subdepartment chief, I too had to deputize for the department chief when matters were concerned which belonged within my sphere of work as a subdepartment chief.
Perhaps it is not unimportant to say at this moment that I, on account of my international affairs, frequently was absent from Berlin for weeks at a time. I remember, for example, that in one year in the '40's I was absent on trips to Budapest no fewer than six times and sometimes I had to work there for a fairly lengthy period.
DR. SCHILF: May it please the Court, the Prosecution has introduced Exhibit 510. That Exhibit contains the socalled distribution-of-work plans. That exhibit contains in brief the information which the defendant has just given to us.
BY DR. SCHILF:
Q: Dr. Mettgenberg, those work distribution plans which the Prosecution has submitted refer only to certain periods. Those plans were not submitted in respect of all years. In Exhibit 510 there will be found on Page 2 of the German text that your name appears under Department 3. Would you tell us briefly what work you did in Department 3?
A: During the whole of the time since the Administration of Justice became centralized, that is to say, since 1935, I worked in Departments 3 and 4. In Department 3 -- that is the legislative department for penal matters, a legislative department as opposed to an administrative department --- in that department I was a referent for legislation in the field of international penal law. And in the Administration Department 4 I was sub-department chief in charge of a sphere of work which, above all, also concerned affairs of international penal law. Beyond that, however, it also concerned itself with district referate and referate which were of a different type than of the international variety. The allocation of work changed a great deal in the course of time.
Therefore, the distribution plans in every case only provide a picture of a certain period.
Q: Herr Mettgenberg, you said that the sub-department chief, as you yourself have been one for a long time, in the absence of the department chief had to deputize for him. Now, I ask you. The Prosecution has submitted two documents and I am referring to Exhibit 244, which refers to the Jankowitsch case, and Exhibit 493 which refers to the Deibel case. Your name appears in these documents and in both cases what was at stake was whether a death sentence which had been passed on these two men was to be executed or not.
The documents show that evidently, while deputizing for the absent chief of department, you acted officially. As this was a question of whether a death sentence was to be carried out or not, I would like to ask you first as to what your basic attitude to the death penalty was.
A: As regards matters of penal law, I am a student of the Berlin Professor Franz von List. He was an ingenious teacher who enriched the theory of penal law a great deal. Von List had a very great influence on me and it was he who made me take up penal law as a profession. Politically he was far to the loft and in particular, as regards the death penalty, he was very skeptical. I inherited his views on that subject. Experiences of my own of many years and my own conviction led me to the belief that the death penalty in normal times is an utterly useless, superfluous punishment and that it should, therefore, not be applied.
I expressed that conviction in my writings. The wellknown letters by Charles Dickens against the death penalty I translated and published and my view to which I testified in those days has changed in no way today. I know for certain that point of view, in times of tension, in times of war that is to say briefly, in abnormal times -- cannot be applied.
I know that in such times the death sentence is indispensable.
But on account of this my basic opinion I am of course of the opinion that in difficult times too the death penalty should not be misused because an overfrequent use of the death penalty can only produce a blunting effect.
When I had the referate for the Administration of punishment incorporated in my sub-department, I became competent for this very question of the death penalty. As an expert I had an unusually efficient and legally minded man, my friend Westphal, who has unfortunately since died.
The execution of the death penalty in my eyes is always something so disgusting that I went close to the limits of the impossible not to have to be present when such sentence was carried out. One single time I had to overcome my disinclination, and my sense of duty took me to Ploetzensee, there to be present at an execution. That was the first and last time in my life when I personally attended an execution.
Q: Herr Mettgenberg, will you now please comment on the two documents which I named, that is to say, Exhibit 244 and Exhibit 493? When a decision was made about the execution of sentences which amounted to the death penalty, did you have to do any preparatory work for those or did you participate in any way in these two cases, Jankowitsch and Deibel?
A: What usually happened was this. The subdepartment chief did not participate in the examination of the question whether a death sentence was to be executed or not. That has been mentioned here in various contexts.