THE PRESIDENT: Isn't the exhibit which somewhat restricts the right of self defense in evidence in this case? I think it is.
A Yes, Your Honor.
DR. KOESSL: Those restrictions which were applied to Germans too.
A I said that those restrictions and that discussion of restrictions had always played a part in the problem, where to grant self defense. The question is, for example, whether one farmhand -
Q Would you be quite brief, please.
THE PRESIDENT: Just a minute. My question was this: Does not the regulation which restricts the right of self defense for Poles appear in the evidence already received?
A No, Your Honor. I cannot remember that.
THE PRESIDENT: All right; go ahead.
A We are not talking of a legal provision, but we are talking about the legal doctrine.
THE PRESIDENT: It was a direction from higher authority which is in evidence in this case now.
A No, no.
THE PRESIDENT: Yes, it is.
DR. KOESSL: This was the interpretation of the right of self defense in certain dependency cases, and that restriction for many decades had applied not only to the Poles but also to Germans -
THE PRESIDENT: Go on with your testimony. We will ascertain later.
THE WITNESS: The question was that of a legal doctrine, developed for decades by legal science. It was a question of whether, for example, a farmhand abused or threatened wrongly by his master has the right, in such a case, to defend himself against this attack, shall we say, with a pitchfork. In such cases the legal doctrine involved the principle that it might be possible to assume that the farmhand or the defendent should escape from the danger by fleeing from it. However, those were purely theoretical considerations which, as far as I remember, never had any practical results.
However, in a case which involved the principle as such, a case which referred to concentration camps, the decision was made at the very beginning of the war, and the witness Markl mentioned it. That decision referred to a man called Zemlitzschka, and in that case a legal principle for concentration camps was evolved, a principle which attracted a great deal of notice at the time, and of which the concentration camps strongly disapproved. That principle stated that the inmate in a concentration camp, just like any other creature, has the right of self defense.
DR. KOESSL: I have no further questions, but I would like to reserve the right, if necessary, to cross-examine the affiants.
THE PRESIDENT: The witness is excused.
(Witness excused)
Does the counsel for the defendant Rothaug have his documents ready to introduce at this time?
DR. KOESSL: Your Honor, as far as I know there are still two English document books available, but the further document books are not yet available. I would therefore ask you to allow me to present all document books together, as soon as I have procured all the English translations.
THE PRESIDENT: We suggest that the defense counsel and the prosecution confer in advance as to what exhibits are to be offered so that exhibits may be offered more expeditiously. I see no reason why you shouldn't be able to say, for instance, that you offer exhibits 1 to 100 inclusively, and counsel then states what if any objections he has to any of the exhibits contained in the exhibits offered.
This is an appropriate time to call attention of the defense counsel to the fact that there is a deadline which must be met for the completion of this case, and I think we should tell you frankly that if the cases of the other defendants should be drawn out to as great a length, and unnecessary length, as we think, as has been the case with the testimony of the defendant Rothaug, an emergency would arise near the end of the case which night work great hardship upon the last defendants to present their cases. Now that simply means that you gentlemen of the defense must cooperate for your own mutual benefit in seeing to it that no one defendant absorbs so much time as to result in hardship to the last defendants who present their cases.
You may proceed, then, with the defendant Barnickel.
DR. TIPP (Counsel for the defendant Dr. Barnickel): Your Honor, with the permission of the Tribunal I would like to present my evidence by examining the witness in his own case. Would you permit the defendant Barnickel to enter the witness stand?
THE PRESIDENT: The defendant Barnickel may take the witness stand and be sworn.
DR. TIPP: May I make a technical remark? I have a number of documents which I would like to offer during the examination of the witness. I have been told by the Defense Center that my document book was distributed on Friday, and therefore I don't think there is any reason why I should not offer documents from that book during my examination.
THE PRESIDENT: You may do so.
PAUL BARNICKEL, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
You may be seated.
THE PRESIDENT: Dr. Tipp, I have your report, I think, but I don't recollect--how many document books have you requested?
DR. TIPP: So far I have submitted two document books. One has already been distributed; the other one has not yet been completely translated.
THE PRESIDENT: Thank you.
DIRECT EXAMINATION BY DR. TIPP:
Q Witness, please tell the Court your name and the date and place of your birth.
A Dr. Paul Barnickel, born on the 4th of May, 1885, in Augsburg.
Q Please give a brief description of your education.
A I attended the grammar school, the Humanistk Gymnasium, at Augsburg, and Munich and Erlangen Universities. I spent six months of my student days in Paris. I had been to Paris while I was a schoolboy; my mother came from Paris. When I returned from the Paris University--at that university I had attended lectures on jurisprudence philosophy, and history--I spent some time in England. When, in 1907, I had passed my first examination, I went through the usual preparatory service, and in December of 1910 I passed my big state examination.
Q Please give us a brief account of your legal career up to 1933.
AAfter I had passed the big state examination I joined the staff of the well known machine factory Augsburg-Nurnberg at its seat at Nurnberg. I spent a year there. Part of the time I worked in the factory, and part of the time in the legal office.
Then, I worked as an attorney in Nurnberg. In the spring or 1913 I joined the prosecution office at Nurnberg. From that time onward my career was the usual career in Bavaria, that is to say, it was the usual career for people who had passed their state examination with a good grade.
That is, one alternated between the work of a judge and a prosecutor until, at a later age, as was the custom, one finished one's life work as a judge.
Q Witness, I suppose when you worked at a machine factory that was something unusual, was it not? Will you tell us briefly, please, why you went to work in a factory?
A In view of the conditions which prevailed in the Administration of Justice at the time, it took some time until one was given one's first state post, and until one obtained such a post one could do what one liked. I joined the staff of that factory because that was the main place where the Diesel engines were being made. The inventor of that engine, Dr. Rudolf Diesel, was my mother's brother, and since my boyhood I had been greatly interested in the manufacture of those engines. However, I worked there as a voluntary worker, as a trainee, and when I had been there for a year I left, because I had achieved what I had set out to achieve, and I wanted to earn more money, because, shortly after my examination, I had married.
Q Please go on, now, describing your career after this interruption.
A: At the end of 1919 I became a civil judge in Munich. I worked in Munich until 1938, although I held various posts. At the time of the seizure of power I was an investigating judge; before that I had been a judge in a Civil Chamber. In recognition of my work at the Civil Chamber it was suggested, in 1932, that I was to be employed, at a later time, at the Reich Supreme Court.
DR. TIPP: May I offer, in Barnickel Document Book I, Barnickel Document 1, as Barnickel Exhibit I? It is an affidavit by President of a District court Dr. Heinrich Kuehlewein, given on 4 February 1947. The witness, at the time which Barnickel has just mentioned, was his superior, and in this exhibit he confirms that because of his qualifications Barnickel was suggested for employment with the Reich Supreme Court. The exhibit number of this document is No. 1.
THE PRESIDENT: Just a moment. On what page of the document is that?
DR. TIPP: On page 1, Your Honor.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q: Witness, I will now ask you, were you ever actually employed at the Reich Supreme Court?
A: Not to begin with. I was a Landgerichtsrat, a District Court Counsellor, at the time, and, starting from that office, I could not go to the Reich Supreme Court as a Reich Supreme Court Counsellor or Reich Chief Prosecutor. I had to get to a higher grade first. Furthermore, for the moment, I was interested in staying in Munich because of my family being there.
Q: What do you mean when you say because of your family?
A: As I have already pointed out, I had married young and I had lost my wife during the influenza epidemic in 1919 which followed the First World War, and I had a son. Later I married again, and my wife, who had lost her husband in the first World War, also had a son; and we also had a son from our second marriage.
At that time our three sons were still at school, and therefore I wanted to stay in Munich. May I add that I lost both my sons in the last war.
Q: You have just given us an account of your career until 1933, Witness, would you now please tell the Tribunal whether you were active in the field of politics, and if so, in what way until that time?
A: Up to 1933 I did not engage in any political activity, apart from the fact that when there was an election I voted for a conservative party, but I never voted for the Nazi Party. Naturally, I was interested in political developments in my homeland. Occasionally I went to listen to a political speech and I also listened to Hitler, who lived in Munich, but I was interested in entirely different matters. Moreover, among Bavarian judges it was a general custom not to join any one party, and I approved of that custom.
Q: After the 30th of January 1933, politics entered the life of the individual to a far greater extent than before. What was your position after 1933 concerning political questions, in particular concerning the Party and Hitler?
A: May I first state the following? For about 20 years I have kept a diary, almost continuously. To begin with, the purpose of that diary was only to make entries on my own life, the life of my family, in broad outlines. From 1933 onwards, however, politics entered the life of the individual so much that I frequently made entries that referred to political matters.
I still have some of those diaries available, and I believe that my attitude in those days can be described best by making reference to my diary. As to your question as to my position concerning Hitler and the Nazi party -- I should like to answer that first by giving you two extracts from my diary. The first extract is from the 1st of February 1933, and it says:
"The radio announced the news that Hitler had become Chancellor, but the Cabinet has been formed in such a way as to give him little free hand. Fortunately, Seldte and Hugenberg are in the Cabinet, and above all, Papen too. I don't like Hitler."
A later extract, from the 11th of March 1933, says:
"I was very depressed when I got home that day for it was obvious, of course, that the Nazis had now seized power and that far beyond the extent which was allowed to them on the parliamentary basis."
May I add this? When the SA Sturm in Munich had liberated national socialist prisoners from a prison, the very next day Frank, the Minister of Justice, sanctioned their release, and I made the following entry on the subject:
"Today I read in the Muenchner Neuste Nachrichten that Frank has ordered that the prisoners are not to be returned because it was unworthy for the Administration of Justice to deprive Adolf Hitler's heroes of their liberty. Finis Justitiae."
Q: May I interrupt you briefly? What did you mean when you said "Finis Justitiae", "end of justice"?
A: When I said "Finis Justitiae", I didn't mean to say that there would be no justice at all. However, I was of the opinion that one could not tear such a hole into the concept of justice without that tear broadening and gradually destroying the entire concept as such.
Q: Was there anything else that you wanted to say about that question, witness?
A: Yes, there are some more short entries which explain my position quite clearly. On the 11th of March, 1933, for example, I wrote:
"For decades one worked oneself to the bone to do one's duty, and this is the end, contempt of Justice. Yesterday I got terribly excited about the whole matter for, after all, this is the collapse of the idea for which one has lived."
On the same day I made another entry, and I wrote down:
"What we need is a renaissance of mentality, all decent mentality has been lost; and what we need at this moment is purity and decency. Those things which we have to witness now are the very opposite."
I ended my entries for that day with the words:
"The attitude of the National Socialists will be revenged, that is certain, but years will go by until the change."
I believe I have answered your question.
Q: According to that quotation which you have just read, on the 11th of March 1933 you wrote that years would go by until a change would occur. Would you tell us, please, what made you prophecy, so to speak, at that time, that National Socialism would collapse one day?
A: Now that fourteen years have gone by I cannot give you any details as to what my thoughts were when I wrote down that sentence, but I believe I may say that at the time from my ideology, I believed in the power of good, and I also believed that humanity should develop upwards and reach a higher level.
And that in itself meant that I was bound to repudiate violence and that I thought it impossible that such violent measures would find room for a long time.
Q. You have given us a general account of your attitude. Perhaps you can now tell us something about individual measures which affected you as a jurist - particularly at the time. What did you think, for example, about the introduction of protective custody?
A. On 16 March 1933 I made an entry in my diary on that subject and I said: "We are in the midst of terror. In the prisons in the Corneliusstrasse, at Neudeck there are 87 persons under protective custody. Naturally, there are only some of the whole number in the Corneliusstrasse. There is Attorney Dr. Hirschberg, among others. He is a well known defense counsel for social democrats. He is said to be quite desperate because he, a worker, is now condemned to sitting in a small cell without doing anything, and he doesn't even know why he is condemned to inactivity. I consider this protective custody a terrible institution. There are no time limits. There are no legal remedies against it, and the people have no communications with the outside world.
THE PRESIDENT: Dr. Barnickel, would you just please tell us what place you were living in when you wrote that? I don't remember. Were you here in Nuremberg then?
THE WITNESS: No, Your Honor, I lived in Munich at the time.
THE PRESIDENT: Thank you.
THE FITNESS: I never changed my point of view. In the comparatively rare case when somebody came to ask me for assistance in a protective custody matter, I tried without exception to help him, although naturally that was very difficult for me. May I point out that during the whole time I was in office I had nothing to do in my official capacity.
BY DR. TIPP:
Q. Witness, just now you have mentioned the number of prisoners under protective custody.
Why was it that you knew about that number? Did you have any political contacts?
A. No. At that time I had no political contacts, nor did I have any such contacts later. But I was investigating judge at the time, and my office was at the prison where these prisoners were kept. Our duties brought about frequent contacts with the prison staff and that was how I heard about the figure.
DR. TIPP: With reference to Dr. Barnickel's attitude to the question of protective custody I would like to offer two documents. The first one is Barnickel document 4, Page 8 of the document book. This is an affidavit by the director of the district court, Dr. Messerer, of the 20th of May, 1947. May I point out that Dr. Barnickel made efforts on behalf of Dr. Messerer when he, because of his attitude towards the well known poet, Wiechert, got into trouble. May I take it for granted that it is known to you that at the time Wiechert was taken into protective custody. I offer this document as Barnickel document Exhibit No. 2.
I further offer from the same document book Page 61, Barnickel document No. 18. This is an affidavit by the physician Dr. Fritz Full, Berlin. It was given on 30 May 1947. The exhibit number is 3. Dr. Full in this document confirms that Dr. Barnickel made efforts on behalf of his son-in-law when he was sent to the concentration camp, although Dr. Barnickel didn't know him. Later on when document book 2 has been translated I shall be able to offer in connection with this matter on Page 121 of document book 2 an affidavit by Attorney Dr. Kurt Stiegler.
THE PRESIDENT: Exhibits 2 and 3 are received.
BY DR. TIPP:
Q. One more question, witness. What was your attitude toward the racial problem which played such a great part in this trial?
A. Naturally I know that there is a racial question from the scientific point of view, but the racial question to me never was a question of political propaganda.
As a judge in civil cases I had made the acquaintance of almost all the attorneys in Munich. Among them there were many Jews. Naturally, among them there was one or the other to whom one didn't feel particularly drawn, but I was on very good terms with most of them. The question whether Jewish attorneys could continue to work during the first few months of 1933 was becoming very topical. On 5 April 1933 I made an entry in my diary on the subject. "Today it said in the newspaper that in Berlin there are about 3,500 attorneys and more than half of them are Jewish. Only 35 of them are to be admitted as lawyers. How many will be admitted here, I wonder? There are a few names which are of no importance. To exclude these Jewish attorneys from one day to the next, means terrible brutality. After all, we let these people obtain a position for many years and now we cannot simply repudiate all responsibility for the past. This is nothing but a violent attack on a small, defenseless people in the midst of peace. I believe that nothing like it has happened in our country for many centuries. The evil is that in the last analysis this is nothing but a manoeuver for competition, and it is quite impossible to raise one's voice against this cultural shame, for one would achieve nothing, and all it means is that one comes to harm ones' self." The entry ends with the words "Such a brutal action as has been adopted in the Jewish question is certainly not designed to raise the general level, but all those things that are being said about race are nothing but just nonsense. Have a look at England. The English are a strong race, and there are many Jews among them and they occupy high positions, and that doesn't do any harm." I believe that has cleared up this question.
DR. TIPP: May I offer on Page 11 of the Document Book Barnickel Document 5. The exhibit number is 4. This is an affidavit by a Herr Baumann from Munich, deposed on the 26th of June 1947. Herr Baumann confirms that Dr. Barnickel, until the outbreak of war, had two Jewish women living in his house, although that was against the will of the government, of the other tenants and against the will of the party.
I offer this document as Barnickel document 4.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q. Now another question, witness. One of the most disputed laws of those days, the enabling law of the 24th of March, - 1943 -- of course, 1933, has played a big role in this trial. Now, what was you personal attitude concerning that law?
A. There are two entries of the 22nd of March in my diary, and the other one is the 2nd of July, 1933. "The draft for an enabling act, was published according to which for the next four years the government alone is the legislator. The Reich President doesn't even have to sign the law. It is simply made out by the Reich Chancellor!" I put an exclamation mark behind that entry. The second entry says: "Last week great things happened. The German nationals have disbanded Hugenberg has resigned. The Staatspartei, the State Party, has disbanded, and the Bavarian People's Party is about to disband. These are the consequences of the enabling act which at the time was passed unanimously by all parties. I always thought it mad, but apparently people didn't know what they were doing." May I add something? Prof. Dr. Jahrreis as an expert on constitutional law said here that from the earlier legislative development via Paragraph 48 of the Weimar Constitution until the time this low was promulgated, all that constituted only a very small step. I myself did not know a great deal about constitutional questions. What was decisive for me as a practical jurist was that from now on the Reich Chancellor alone could sign laws and that the new laws could deviate from the constitution.
I considered that to be a considerable danger. About the legality of the enabling act in itself and about the legality of the laws which were issued on the basis of the enabling act, one could of course, have no doubts.
THE PRESIDENT: In a moment we will take our morning recess. Dr. Barnickel, may I suggest to you that when you begin and end reading from your diary you make it clear, especially at the ending of the reading, so that the record will show when you begin to make your present statements and when you have ended your quotations.
Fifteen minutes' recess.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY DR. TIPP:
Q.- Witness, in one of your entries which you have quoted, you used the expression that it was impossible as an individual to raise one's voice. It was ineffective, and one would only do harm to one's self. In spite of that, didn't you ask yourself whether the individual could have any influence on developments in any way?
A.- Of course, I did that. According to the draft of the Enabling Act, it was possible to anticipate what would happen thereafter. Unfortunately, as I said, I was not trained politically in any way, neither was I familiar with the internal circumstances of the NSDAP. That brought me to the idea that eventually reason would prevail within the Party; outside of the Party, only a vacuum was left. That was probably what actually existed.
The following short entry of the 23 March was based on that, I quote: "It is beyond doubt that also here in Bavaria the intelligentia must not restrain itself. I told Scheffler the other day that the best thing would be if the judges as one block would act."
Q.- May I ask you who Scheffler was?
A.- Scheffler was a judge of Munich whom I knew very well.
Q.- Will you please continue that thought, witness.
A.- I remember very clearly today that at that time I was wavering between extremes as to what I was supposed to do. On one hand, I did not quite agree with the Party; on the other hand, I was of the opinion that at a critical time like that, one could not stand aside if there was a political development which concerned the entire nation. One was not permitted to do so any longer. One must forget that at that time we still had Hindenburg as Reich President. As far as I was concerned, I didn't think that the decision was too urgent. But one always spoke of it that the Party in a very short time would not accept any new members. Toward the end of the month, I was told from Berlin that they were no longer speaking of a Party movement but of a national movement; in other words, there the entire development was no longer viewed as a matter of a Party political nature but as a movement for the renovation of the entire nation.
Also, in my opinion, we needed a movement of that kind. I saw the solution in that and that confirmed my belief that in the course of time the forces of reason would joint within that movement so that eventually there would be a policy of moderation adopted by it.
Q.- If I understood you correctly, witness, you believe therefore that you had to join the Party in order to contribute your modest share toward a reasonable solution.
A.- That is correct.
Q.- Did you draw any consequences from that attitude of yours?
A.- Yes. In the beginning of April 1933, I enlisted as a candidate for membership. I was accepted by fall or winter retroactive to the first May 1933.
Q.- Where did you see the main danger of anticipated developments at that time?
A.- As for the events which led to the seizure of power, those were things I did not know, and in fact I only gained that knowledge by the sentence of the IMT. According to what I observed personally, very soon I saw a great danger in a possible development toward the left. Thus on the 29 May 1933, I made the following entry, I quote:
"Moreover, it becomes increasingly clear, at least that is what I believe, that we are sliding, more and more into Bolschevism. There is more and more equalization. Culture is reduced to a certain primitive level. Criticism and free utterances of opinion are practically no longer permitted. That, in my opinion, are the main characteristics of Bolshevism. The fact that the National principle is underlined does not amount to anything because the Bolsheviks do the same. The main diffe rence is only that in Russia the representatives of the so-called Bourgeois liberal state have been removed by violence or deprived of their rights completely; whereas, here one restricts himself to integrate them to the masses of the people."
Q.- Witness, you probably realize the following. According to the entries in your diary at that time, without doubt you saw many things right. In spite of that, you not only joined the Party but later on also the SA. That seems surprising, and I ask you now to comment on this briefly.
A.- That question is certainly justified. Certainly there were many people at that time who had that against me -- but only those who did not know me. I shall try to explain it with a few sentences. The way in which in the spring of 1933 new candidates for membership in the Party were accepted, and the fact that I was accepted, was not met with friendliness on the part of the Party. If one attended a Party meeting -- and that was checked once one had applied for membership -- very unfriendly remarks - remarks were made almost by every speaker about the new members.
The reasons are very obvious. The impression that it made on me was such that I almost decided to leave the Party again. Then, as I can see again from my diary on the 8 of July 1933, I met an older judge in whom I confided, and he spoke against my leaving the Party, He recommended to join the SA, of which he was a member himself. As he said, there were quite different conditions there and a different atmosphere. I hesitated for more than one reason, but he persuaded me. I followed his advice and applied to the Munich Reserve Sturm, which consisted almost entirely of men of my age. What he had told me about the atmosphere within the SA, I found confirmed with very few exceptions.
Q.- Witness, before we leave the political part, may I ask you the following: did you hold any office or any function within the Party/
A.- I never held any office or had any function. In my capacity as a well-known judge at Munich, once for a short time I was assigned to a legal committee of the Party, but I no longer remember the name of that committee. But that again was neither an office nor a function.
Q.- What was your activity and your leading positions with the SA?
A.- I neither held an office nor had any function with the SA either. From 1933 until 1938, I was promoted to the usual lower ranks, but no function was connected with that. Then there was an intermission in the promotions until 1943. At that time, I was in Berlin. As to the danger from air raids, the SA was considered for emergency actions, in which I could not possibly participate because of my age and my profession I turned to a friend of mine in Munich who had connections with the personnel office, and he saw to it that I was promoted to the position of an inactive Sturmfuehrer with the group staff, which made it possible for me to be free of any duties. After the promotion, I no longer attended any SA meetings, nor did I have any duty as a Sturmfuehrer. I do not even own a uniform of a SA Sturnfuehrer. That promotion occurred in Summer of 1943 retroactive to the 20 of April 1943.
To this question, I should like to add the following. When in 1938, I came to the Reich Prosecution Office in Berlin, Thierack was President of the People's Court. He held a very high rank in the SA. If I had wanted to be promoted within the SA, I could have very simply done that or have that done through him, but I did not want that at all because I was not interested in a promotion, and I never told Thierack that I was a member of the SA.
Q.- In connection with the SA, witness, there is another group of questions which seems to be important, around the so-called Roehm Putsch. In the summer of 1943, there was a great deal of unrest in Germany on account of that. Will you please comment on that?
A. Here again, I can answer by an entry in my diary of the 16 July 1643. I quote:
"There mas a Putsch within the SA. The sad facit for me was:
"1. How incapable were these people who have been removed and who were some of our highest leaders.
"2. How miserable is a system which makes such things possible, and how wrong is it to try to establish a state within a state.
"3. How dangerous is it that Hitler as one individual gave the order for the execution by shooting without any trial, and that in his own case. One cannot help having the impression that there were other reasons for these shootings but the ones admitted. Since when had it ever happened that one individual who had no right of jurisdiction ordered such executions. It is a factor which gives objection to misgivings, for since that speech, no foreign papers are admitted."
The speech which I mentioned was held by Hitler on the 30th of July. I cannot say any more concerning these incidents.
Q. There is only one more statement that has to be explained, witness. You said that it be wrong to want to establish a state within a state. Just what did you refer to in that connection?
A. That statement shows that I did not identify myself with the regime and that I did not identify the regime with the state. And I never did so at later times. The one state which I mentioned is the regime, and the other one is the totality of the people--originally hold together by the idea of a state based on legal principles.