The State could demand of the judge that ho was to be loyal to the state. That is something which every state demands; but here the question was only how, by what methods he could demand that of the judge, and those methods were dangerous, starting with the purge, until the final attempt of restoring cabinet justice by introducing the method of confirming sentences passed by judges through agencies of the Administration of Justice.
That method included the judges' letters, curtailment of jurisdiction and finally, the Fuehrer's speech in April 1942.
Q Acorrding to your personal knowledge of conditions, did not the Administration of Justice find itself in an emergency?
A I did not ask about the guilt. What was decisive for mo were realities. I could not judge what was the political game up above and to what pressure the very tops were subjected. The information that reached us by speeches in writing and through measures that ware adopted had to give us the conviction that at the top there were people who were at least good National Socialists as those with us.
The information which reached us from above was considered by the Administration of Justice itself as the only possible and as the only truthful methods. The idea that all those things were merely tactical manoeuvres, part of a political campaign, that idea could not occur to us and even less that one could ask of us tactical actions in place of actions by conviction may be on the basis of giving artificial opinions to explain our own sentences.
For that would have been contradictory to the most primitive ideas of the judge's professional ethics. So-called artful opinions on judgments within the meaning of a certain purpose contrary to the purpose of the law were out of the question with us.
Q According to your knowledge what were the contexts?
A One must base one's self on conditions such as they had actually developed within the decades prior to 1933. The changeover of those who had been brought up differently, the judges who had grown up, so to speak in a different world, that change was very slow and very difficult. Again and again judgments were passed which were not in accordance with official requirements. On principle, and above all, one held the Administration of Justice politically responsible for that. In affect, what happened was that the Administration of Justice was intended to be the whipping boy for the judiciary.
The administration of Justice, by novel opportunities of attacking the jurisdiction, tried to relieve itself of responsibility. It created the extraordinary legal remedies and emphasized the unreserved loyalty to the state of the judges. As far as that went no objections could be made. What was more dangerous was the influence by means of judges' letters and the guidance of jurisdiction.
Q What was your attitude concerning that development?
A I was of the opinion that the judge, without any considerations for his inner attitude, on the basis of his official oath, and of his duties laid down in the law, had to observe absolute loyalty to the law and that ha had to boar the responsibility for that and if necessary, also the consequences.
Therefore, and I don't want to be misunderstood in my attitude, in my opinion ho had to find his own way loading to the point which the Administration of Justice wanted him to reach. Furthermore, I was of the opinion that the judge should be guided only by his own convictions.
I would not have found anything wrong if, generally speaking, his attention had been drawn to his duties in a general way. The matter became critical owing to two factories; the use of the authority of the state and by making guidance concrete.
Q. What measures do you have in mind when you say that?
A. There are three factors: first of all, the decree concerning internal service conditions; then; the attempt to exert influence by the socalled judges letters; and, above all, guidance.
Q. Can you tell us something about that decree concerning internal service conditions?
A. It had been said here that, for the judge, it was extremely easy to apply the laws in such a way as nowadays one would like to see them applied. The judge after all, in his position, had been completely independent. I would like to describe a concrete occurrence to you, an occurrence which explains that freedom, that independence. We had - and I think Oeschey played a part in that judgment too - in about 1940, we had to deal in that year with a very serious criminal case. A young man of about eightteen years of age, who had no previous convictions and who came from a good family, stole a rabbit from his neighbor, the value of which was about eighty pfennigs. The motive was that he had promised a friend to get him a rabbit and so as to be able to keep his promised he did this silly thing. It was established that, before the war, the farmer, from whose farm the rabbit had been taken, had a big lantern hanging outside the farm yard which; since the war had had to be extinguished. The youngster had exploited the situation and no knew that perfectly well. He confessed fully. That is to say, he had actually exploited the measure which had been taken on account of air raid danger and had commited a theft; a crime against property. He made a full confession. We refused to apply Article II of the Enemy of the People's law, acting from the legal point of view that it could not possibly be in accordance with the law that such trifles should be punished with the high minimum penalty of one year in a penitemtiary which was laid down to the Public Enemie of Law.
However, the decision was contradictory to the text of the law - but it was only an apparent contradiction for the law was called "La" Against Pu Public Enemies". In the opinion, the fact were described just as I have described them hero and the same legal views were explained. That judgment was submitted to the Ministry of Justice. I fully admit that there may have been people who were of a different opinion , in particular, people who held the opinion that the conditions of the law had been fulfilled but...
Q. (Interrupting) Please repeat that sentence.
A. But on no account could it be that the following decree should have been formulated: "The presiding judge of the social court at Nurnberg is requested to give his opinion as to how it happened that, in such a completely clear case, Article II of the Law Against Public Enemies was not applied."
When that request came, I refused to give an explanation and I didn't hear any more about it, but soon after, there was a big change in jurisdiction and, in the course of that change, principles were developed which made it impossible for this Ministerial point of view to be accepted.
THE PRESIDENT: May I asked you a question? I didn't understand what the judgment of the special court was in the first instance?
THE WITNESS: The young man sent about three weeks in detention, pending his trial, and then we passed judgment for theft and we declared that he had already served his term because of the time he had spent in detention.
THE PRESIDENT: And can you fix the date of that case more accurately?
THE WITNESS: That event occurred at the beginning of the war. I think it must have been between 1939 and 1940.
THE PRESIDENT: And do you remember the name of the defendant? the boy who stole the rabbit?
THE WITNESS: I can't remember it. I have been looking for the files. He was a young man from the surroundings of Nurnberg. He came from the suburb of Feucht or some such place. It is just possible we can find that out.
THE PRESIDENT: And do you recall who, in the ministry of Justice par ticipated in the inquiry?
THE WITNESS: I can't tell you, but I assume that it was Freisler.
BY DR. KOESSL:
Q. Did any other case occur with you of that type?
A. Yes. That was a case which also shows that we judges did not occupy that regal position. At any rate, it shows that our regal position was not acknowledged. Those who did not arrogated such position to themselves, did not actually have it. I am thinking of this case: A Polish woman had given birth to a child, and about eighteen days after his birth, she did away it by - how shall I put it? When she was nursing it, by placing the baby's head so tightly between her own breasts that the baby, as we were told, was smothered to death within a few seconds. In other words, she, the mother, smother the child in between her own breasts and she did that about eighteen days after the birth of the child. That time element played certain part according to German law. An indictment was filed under the murder paragraph. The defendant herself made a full confession. I asked two experts to give their opinion to clarify the legal question as to whether read murder had occurred here or only the killing of a child. I would like to say that, at that time, under German law, murder had occurred when a person killed another person on purpose and if he had deliberately set about killing that person. Killing a child - that was understood to have occurred when special facts applied. Such killing of a child was supposed to have occurred if the other had given birth to an illegitimate child and had killed it immediately after birth. That is to say, when at the time she killed the child, she was still under the influnence of the psycholgical state of mind depression, a depression which does befall a mother who has given birth to an illegitimate child.
Court No. III, Case No. III.
BY DR. KOESSL:
Q. Please don't give so many details.
A. On the basis of the opinions received from the experts, we established that murder had been committed and, consequently, we sentenced the woman to death, because the death sent tence was mandatory here. After judgment had been passed, a request came to sent the judgment immediately to the Obersalzberg. We ourselves were highly surprised about that request, because we couldn't imagine what the reason might be. Shortly afterwards, the sentence was commuted to two or the years in prison. Two or three years in prison, with the instruction that - I believe it was after something like eight months - another report was to be made about the clemency question. In that connection, further directive was received - or perhaps it was a decree - according to which it was altogether undesirable, in the case of foreign nationals, to exercise extreme severity.
THE PRESIDENT: Do you mean it was undesirable to exercise extreme severity as to foreigners who killed their children?
THE WITNESS: Yes.
BY DR. KOESSL:
Q. How did your court react?
A. We repudiated that principle. In particular, the method because we did not feel ourselves bound by the law. We - that is to say, all of us, without one exception, were of the opinion - my deputies, Oeschey and Ferber, and my associate judges, as well, - that we would ignore such decrees because, in our opinion, murder was murder and it was impossible for us to discriminate.
Another occurrence has been discussed at the trial here and that is the Schosser Case. A Polish case is mentioned there and I succeeded in ascertaining the name. I had Court No. III, Case No. III.
forgotten all about that occurrence, actually, which happened in Bamberg a long time ago, but here my memory was refreshed when this matter was discussed. In the Schosser Case I'm supposed to have remarked that one day before we had sentenced a Pole who, afterwards, had attempted to commit suicide, and then I'm supposed to have said; "mow we still nave to deal with him", but I allegedly didn't say what the circumstances concerning that Polish case were. But I did mention all these circumstances at that session and I did point out, in particular, what the charges against the Pole were. He had murdered another Pole in a brutal bestial manner. He had been lying in wait for him and, with a wooden fence, he had shattered his skull. I mentioned that case at the time in order to demonstrate that it was a fact that elements were entering our country without any control, elements who were inclined to commit the must violent crimes. That was a case where particular brutality was shown, and now I see that the list of death sentences does not include this case and from that, one can deduce that clemency was exercised so that the principle to which we adhered, that murder is always murder, was not applied. I am of the view that if the leaders of the state were truly of the opinion that such offenses were not to be punished with severity or, at any rate, not with such severity as was normally customary then, under no circumstances, a court could be put in charge of such a case.
Q. What did you suggest should take the place of the judges' letters?
A. Concerning the judges' letters as such, in my view, there would have been no objections if, the criticism contained in them, had not been made as coming directly from the authority of the Ministry of Justice for, in Germany, it had always been the custom for the judgment, at the moment at which it was passed, to be made subject to public and scientific criticism in the press and in the periodicals.
After 1933, that was not changed but, in my view, it was not really tolerable that, under the protectorate of the Minister himself, as his opinion, criticism should be exercised against individual judgments even though the names of the courts concerned were not mentioned. That was the reason why I was against these judges' letters. Besides, there was another point which caused me to wonder. In reality, it wasn't the opinion of the Minister of Justice, but it was the opinion of a comparatively young man who, on account of his age alone, could hardly nave had the experience which was necessary to classify things correctly. He was distinguished not so much by the depth of his thoughts, but by his dialectics. I am almost inclined to call it rabulistics.
Q. What suggestions did you make in place of the judges letters?
A. The need which we felt for our jurisdiction in the sphere of war time laws.... Perhaps I may begin my sentence all over again.
THE PRESIDENT: May I interrupt you before you do that, Please?
In order that there be no misunderstanding, who is the young man to whom you referred?
THE WITNESS: His name was Schmidtleichner.
THE PRESIDENT: And what was his position?
THE WITNESS: I believe when he started on this job he was a counsel of a district court (Landgerichtsrat) and, later on, I believe he was promoted. What rank he occupied I don't know.
The need which we, who dealt with the administration of penal law, felt, above all, was the procurement of documents of evidence which would show the degree of danger, of criminality of the various types of crime.
That is to say, statistics for the Reich territory, which showed the incidence and the method of certain crimes. Outside influences were the purpose of mobilizing certain elements dangerous to us. Concerning all those questions, we would have liked to have had information. I frequently suggested, through channels, that we open to me, that an exchange of judgments passed by all special courts were to be ordered so that the special court at Graz would know what was happening in the Rhineland, and the special court in the Rhineland would know what the situation and developments in East Prussia were. But all those efforts were of no avail.
Q What importance is attached to that secrecy clause on the judges' letters ?
A These judges letters had a secrecy clause, a confidential clause, and I would like to say this. I wasn't upset by that, and I was convinced that the people who had hit on the idea of the judges' letters certainly didn't think they were doing anything illegal by that. Nor can one say that, so simple. Further more, certainly they were trying in good faith to apply the law correctly. I saw the danger in the method itself. At any rate, the secrecy clause certainly was not employed because of a bad conscience. It would be altogether incorrect to conclude as the prosecution has done that from the secrecy it results that the people who dealt with the judges' letters were doing a job which shewed day light. The reason was in effect this. It is known that both the administration of justice and the judiciary on a broad front were attacked constantly by certain press organs above all the "schwarze Korps", usually about facts, which had never occurred, but which were artificially adapted to make them fit and to have the desired effects. One must bear in mind that the judges' letters mainly dealt with incorrect judgments. They were printed and kept with great care, and one would have played into the hands of those people if one had allowed them to get hold of those letters. Far from these letters they could see, so to speak, in black and white, the criticism that the minister himself had to make concerning his own judges. That means the secret clause was to give protection against the judges' letters falling into the hands of circles who were interested in using them in public against the administration of justice and the judiciary.
Q I believe that is clear enough. Now, we are coming to the guidance problem. Ferber says, English transcript page 1725, that you had said in connection with the guidance principle, if there is anybody who guides it is me.
Is that true?
A In order to avoid an error, I believe it was Engert who said that.
Q No, it was Ferber who said it.
A It doesn't matter. That doesn't matter, but it is quite true that I did say that. I said if there is anybody who guides, it is me.
Q What did you mean to say with that?
A I meant to say that every chamber with us in German, such as it was organized, was not only based on a legal structure and a legal foundation but I also consisted of a number of human beings who were connected with one another; and therefore there existed the old principle which was an old establishment can be understood on its merits, that is the principle that the president of the chamber, vdio was usually an older judge of higher rank, but not an official superior to the others, -- that he should see to it by methods of a judge that is to say, by a method which gave the reason for his point of view in an affair with the intention that the jurisdiction of the chamber should be on a even level without affecting the privilege of every member by better reasons to bring about a change in the opinion of the majority and consequently, of the course, that was the situation under the old laws.
Q Was an attempt made to make you play a part in this guidance matter?
A That attempt was made, but from the very beginning , I was altogether against this question. That is to say, I showed that I was against it in the face of everybody, also of Herr Doebig, because I was of the opinion that by such guidance one would achieve the result of anonymous jurisdiction. We had the jurisdiction of the Supreme Reich Court which had become the historic guidance of German jurisdiction; it moved within the sphere of judiciary; and therefore, one could not object to that type of guidance. But it was an impossibility that any civil servants suddenly not because of the quality of jurisdiction but to eliminate political embarrassmenttried to interfere with the administration of justice.
And that I opposed.
Q In what year was that?
A I think it was around '41 or '42. I was asked by Herr Doebig to go to see him. First he tried, and that was what he always tried to do with me, to talk kindly toward me as if I had been a sick horse, and then there followed the famous reference, that he wishes to draw my attention to the fact that this was an order from up above, and in reply to that I said to him, "There are no orders here." I did not attend one single of there meetings, but I did ask him what it was all about. And he then told me to begin with there were to be periodical discussions of cases, and that they were to be held on Saturdays, where those cases were to be discussed that had occurred during the previous week, and also the cases pending for the following week, but it was not intended by those discussions to exert any influence on the judge. All the same, he could decide how he liked. I then asked what the reason was for nicking all this fuss and after all, if the people from the administration of justice believed that they could do the job better than we, they had better come and sit down themselves and put their names to it as well. But this way it wouldn't do. That was my point of view.
Q Did you attend any guidance discussions later on?
A No, I never did attend any guidance discussions.
Q Did you hear what happened at those conferences?
A I heard that what happened there was just what had been originally described to me. I was told that it happened once that a presiding judge came a little late, reported on his case and then when everybody had given their opinion, he apologized and said he had no more time now because the case was under consideration in a downstair's office.
That was the incorrect development, and those were the reasons why I was against the whole matter, and if I give you my reasons here today, I am only doing so because people want to make it appear as if political motives had made me take up that point of view, but that was not the case.
Q Were you taken to account for your refusal?
A No, but, I am convinced that Doebig considering his friendly attitude towards me has seen to it that the proper people came to hear about it.
THE PRESIDENT: We will take our 15 minutes recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. KOESSL: (Attorney for the Defendant Rothaug) I ask to be permitted to continue.
THE PRESIDENT: Proceed.
Q: Witness, by the statements which you have made before, do you wish to say that the aim was wrong?
A: I do not want to be misunderstood. We, in the sphere of judges, such as it was our duty, wanted to realize the intentions of the laws, and I am convinced also that the Administration of Justice with its measures did not have any other aim in mind. What I objected to was the method, because that method was fatal for the judges.
Q: Would you have found any protection or support for your point of view from the party?
A: My point of view was in just the opposite direction of what the party thought about the judges, and the profession of the judges because on account of their totalitarian point of view the administration of justice also should be nothing but an instrument in the hands of the leadership of the state, and the measures which were desired here were in the direction of that principal attitude of the party.
Q: Would you please look at the Loewe commentary, the remarks in thenatations which can be found on page 1073; that is a footnote which deals with the relations of the judge to the administration of justice, in connection with paragraph 1 of the Judicature Act; and that passage should show what the accepted legal point of view was before 1933. There is the sentence here -- can you find the passage? It is just one sentence down here. It begins with the word "consequently".
A: This is the commentary which has already been mentioned by Loewe, the rules of penal procedure for the German Reich. Counsel has referred to footnote 1b, concerning Article 1 of the Judicature Act. It deals with the principle which he elucidates, the limitations set for the administration of justice in dealing with the judges. It says -- Accordingly the principle has to be established that the disciplinary supervision exerted by the administration of justice in connection with decisions made by the judges goes just as far as the punishable violation of an official duty is concerned. The law of the country which cannot change paragraph 1 of the Judicature Act, can limit the extent of that disciplinary supervision, but it cannot extend it any further. Then, there are a number of names of authors mentioned. And he continues: The writer who was last named asserts that the authority who exercises disciplinary supervision had the same right of criticism as any other office or private individual: but one has to say to that that the criticism by the authority which exercises disciplinary supervision is of an entirely different nature than the criticism of any third person. The former contains either an admonishment or a blame. In both cases it is a disciplinary measure which can only be applied in those cases provided for by law. Then, there are some more quotations.
Q: I believe that is sufficient. Would you -
A: Maybe I can still read the last sentence. Since the authority that has disciplinary supervision is not entitled to interpret the laws with any authority its criticism is only admissible in cases of violations against official rules and regulations, but in other cases it is not permitted. The courts can disregard such inadmissible criticisms on the part of the authority which has disciplinary supervision over them just the same as the unauthorized criticism on the part of the prosecution or the police authority.
Q: Thank you. It is alleged that you had spoken your mind about the administration of justice quite frankly; that is what Ferber says. He says you spoke of Schlegelbergerism, is that right?
A: Yes, I said that too.
Q: Ferber said, in the English transcript on page 1403 -- or if you want to say any more concerning the term Schlegelbergerism -
A: That was quite a common term with us -- such as others. One spoke of Schleglebergerism, of a Hamburg invasion and of the Saxon Royal court; that is where Thierack came in. Guertner was called Franzl. That, therefore, as one can see, wasn't serious in any way, but it may have been of a serious nature insofar as the situation on the top level was -probably more serious than we were in a position to judge. Of course we had no idea that government matters in Berlin were decided by consideration of a tactical nature. We assumed, of course, that all that was based upon ideological principles. Of the fact that the people of the Miethsam, etc. type were opposed to National Socialism, that therefore basically Hitler had to work with people at top level who were not really National Socialists, that we, the little people, at our level did not know. We had no idea of that. Therefore, if I spoke of Schlegelbergerism and if others used that term too, that did not meant to express that we had doubts in the wisdom of our government offices as far as party politics were concerned, but it was a criticism of a certain clumsiness which in our position at the lower level we were not able to judge appropriately.
Q: Now, Ferber, on page 1403 of the English transcript - alleges that you said - kings are in power, but they don't rule. And that expression was supposed to have been directed against the administration of justice.
As I cannot with absolute certainty accept it that I was the author of that statement, but if I should have said that, then I only wanted to characterize the amount of red tape, the bureaucracy and the manner in which difficulties and problems were handled. My confidential friend at that time, Ferber, of course, was quite informed about the basis for my opinions, but I do not want to be unjust. It is quite possible that at the top level there were situations of necessities, emergencies of which we could not have the right impression at the lower level. We at any rate did not welcome that state of affairs.
Q: Now, the witness Ferber also says, in the English transcript on page 1716, and I quote: "The difference of opinion between Rothaug and the Administration would not have gone so far if Rothaug had not had at his disposal a large source of information concerning the party and the SD." What can you say about that?
A: That it is a complete misrepresentation of things as they really were because my point of view towards the administration of justice remained the same for twenty-five years, but Ferber did not know me that long, because he only knew me since 1937; and that may be the reason that particularly today he sees matters in such a way as he describes here. My principal attitude had nothing to do with the party or the SD. First of all, because in this question at any rate, it was opposed to the attitude of the party and the SD.
Q: At that time a lot was said about the royal judges -- or autonomous judges. What did you think of that?
A: One spoke most of that at times when the independence of the judge was in greatest danger. That was the famous question of words and deeds.
Q: Doebig, in his Exhibit 237, says that you had been in favor of the Hitler speech of the 26th April, 1942. What is true about that?
A: It is true that I discussed that event with Doebig, and that we were of the one unanimous opinion, and that was that as far as we in Nurnberg were concerned, we did not feel that it was directed against us, because we had applied the laws to the best of our knowledge and our conscience, according to our conviction as they were intended to be applied. any rate, we based ourselves at that time on the opinion that there had been justified reasons for complaints. We regretted, however, that it had come that far that now all the judges were now disqualified. That was quite a dispassionate, sober evaluation of the problems which had arisen such as we could have evaluated in our positions of minor importance. Nobody thought that the method with which Hitler threatened was an ideal one, and that same point of view was shared by my assistants, because the passage from that speech dealt specifically with violations of duty, matters which did not touch us. At any rate, that we did not welcome such things made as a statement before the public of the entire world -- that of coarse goes without saying.
Q. What was your relation with Doebig, and how and when did it develop?
A. When on the 1st April, 1957 I assumed office in Nurnberg, I had vary little contact with Doebig, who at that time was general public prosecutor at Nurnberg.
He was considered in the entire building an absolute National Socialist. I have read evaluations of his personality which surpassed anything that I have seen in that field at any time. He also had good relations, by way of family relations, to the party which supported him strongly, and above all, he always pointed that out that he had very close relations to the SB Obergruppenfuehrer Schmauser at Nurnberg. He discussed it frequently with me and also with others and one had the impression that it was intended that everybody should know he had those good relations. He also told me where these good relations came from, and told me that they were based upon a time of good, close cooperation at Munich.
Q. Doebig says, in the English transcript on page 1754, that he was a Ministerialrat at Munich, but at the time of the unification of the administration of justice he did not want to go to Berlin, but preferred to accept a position as Oberlandesgerichtsrat at Nurnberg; is that correct according to your recollection?
A. That is not quite correct because the main thing has been forgotten. Even at that time the former general public prosecutor at Leuss, with whom I had worked as an assistant, was shortly before being pensioned, shortly before retirement. Doebig was supposed to become his successor. That was the reason why he did not go to Berlin, but accepted the some what lower position of a district court of appeals counselor in order to obtain the higher, stronger and better position a few weeks later of public prosecutor.
Q. Did he become public prosecutor?
A. Yes, of course, that was the purpose.
Q. Who at that time was Gauleiter at Franconia?