"I now proceed to Schlegelberger's draft law in the question concerning the persons of mixed race, for which the Prosecution submitted Exhibit 401. I need not discuss this draft law from the point of view of penal law, as the plan was never put ante effect nor was there ever anything done to start its execution. However, it seems to be important to me, to go into this matter so as to show Schlegelberger's attitude towards the Jewish problem in itself. Here for the first time we see Schlegelberger being actively concerned with a problem with which to deal his departmental duties gave him no cause at all. He had been informed about the conference of 6 March 1942 dealing with the treatment of half-Jews. According to it the half-Jews were to be treated the same as the Jews, and they were to be evacuated to the East. In opposition to this immensely serious plan Schlegelberger decided to intervene. He approached Hammers. From him, who was considered an expert official of many years standing and who did not have the reputation of an intriguer, he thought he would get assistance. In his letter to Lammers he called the requests of the Party "impossible", which was a way of expressing himself otherwise not usual in official correspondence. His proposal can simply not be explained in any other way than that he endeavored to help a large number of people who were in a desperate situation. If one regards the events objectively and if one judges the tactics necessary and the choice of channels he made, one cannot but reach this one result. I refer to the fact and that seems to explain the situation most clearly - that according to Lammers' statement (English Transcript page 5617 ff) the proposal was caused by a suggestion made from a group of half-Jews. This again is an affair which can only be understood from the general situation of that time; here we know from direct evidence the attitude of the person concerned; we do not have to deduce it from other facts. I think we cannot but really characterize this intervention by Schlegelberger otherwise than that from his feeling for right and wrong and as a decent person he wanted to help where a situation seemed to be desperate.
If this assistance was meant to help the half-Jews, then we can best recognize what his attitude was concerning the Jewish problem. This also concerns the affidavits submitted as Schiegelberger Exhibits 36 and 39. Once in a while small episodes can reveal completely the inner attitude of a person. After the issue of the Nuernberg Laws, which were the turning point for the persecution of the Jews, Schlegelberger went to see his friends and declared to them, in spite of his then official position, that despite the new law their friendship would outlast everything; this declaration is not only an act of humanity but a profession of his attitude to the Jewish question as such. I also refer to Exhibit 78, which has been sent to me without previous solicitation, by the Rosenbaum couple, whom the defendant did not even know; and I may finally make reference to the statement of the Brazilian professor Pontes de Miranda concerning the help given to Jewish emigrants. In his official work his lack of prejudice manifested itself in the Katzenberger case for whom, as also the witness Meissner testified (page 4617, English transcript), Schiegelberger suggested a pardon, and moreover, in the fact that he prevented a Gruenspan show trial, which was intended to expose world Jewry.
Paragraph 13 of the indictment charges Schiegelberger with having assisted in the carrying out of Hitler's NN Decree (Night and Fog Decree). What was the actual situation? Hitler's decree was in fact issued. In virtue of this decree the NN prisoners were brought by the Gestapo across the frontier into the Reich, to "disappear in night and fog" according to Hitler's instructions.
These were the facts with which Schiegelberger was confronted when he heard of the above-mentioned conversation of Lehmann with Freisler. What decision could he have made? One possibility had already become a fact, the disappearance of the prisoners in police custody. The other possibility was to let them have a legal trial.
This was again a situation which repeated itself in various cases.
A measure ordered by Hitler could be fought only by accepting the reason of the measure and by making it clear that the purpose aimed at could be attained by other means. The purpose aimed at was to deter the resistance movement. The mysterious darkness concerning the destination of the prisoners was to serve as means to this end. The end had to be retained; he had a choice only regarding the means. This was again a question which we now know to have been a fatal question for the persons affected. Will the prisoners remain in the custody of the police or will they be transferred to the Administration of Justice? For Schlegelberger it was not a matter for discussion that the latter alternative had to prevail. During his entire official career we see that it was his persistent effort to protect people who had come into conflict with the penal law, from the arbitrary methods of the police. We saw at when we discussed the ordinance concerning criminal jurisdiction over Poles and Jews. We shall see it when we shall deal with the so-called people in protective custody and with the transfers, and we now see it in the case of the NN prisoners. Only one choice was open to him: to create the possibility to transfer the prisoners to the custody of the Administration of Justice. Therefore, he agreed to the NN cases being taken over by the Administration of Justice. I ask you to consider that this was certainly a sacrifice on the part of this administration, for a procedure with so many peculiar features, which necessarily resulted from the demand of secrecy, could not be a very palatable one for the Administration of Justice. This fact too confirms Schlegelberger's motives, as set forth by us.
The procedural regulations show everything to have been thought out down to the minutes details so as to exclude every possibility of the prisoners being handed over.
It has been explained by the defendant on the witness stand that it is out of the question that the court was bound by the motion of the prosecution; the defendant moreover stated that Freisler's letter of 14 October 1942, Exhibit 313, distorts tho facts for special purposes.
The fact that Thierack, after he took office, abolished these guarantees and later on turned the NN prisoners over to the police on the demand of the Wehrmacht, shows the fundamental difference of Schlegelberger's ideas from these of his successor, which created an unbridgeable gulf between those twi men.
The secrecy regulations were indispensable. If it was seriously intended to a void tho execution of Hitler's decree and therefore the retention of the prisoners in police custody and thus to take the edge off tho decree, to use witness Lehmann's expressions, the secrecy of legal proceedings had to be put up with.
The following must probably be alone decisive for our evaluation of the defendant's conduct: Was it possible with other, easier methods than those in fact adopted, to avoid leaving the prisoners in the hands of the police? Could Schlegelberger deny this after careful examination of the situation? Were the procedural regulations, which were elaborated to the last details, only intended to guarantee secrecy? If we answer these questions in the affirmative, we must admit in his favor that he acted as his conscience had to tell him to act in this situation. I also take the liberty to refer to the legal point of view of presumptive consent on the part of the persons concerned, which was discussed in the beginning.
I now turn to the transfers of prisoners to the police, which happened outside the NN Decree; for this we must first define a clear time limit. For the case of the defendant Schlegelberger we have to exclude the transfers of anti-socials, Jews and Poles effected in virtue of the agreement between Thierack and Himmler, of 18 September 1942. The transfer incidents which occurred during Guertner's time and during the time that Schlegelberger was head of the office, are, it is true, not mentioned in the Indictment against Schlegelberger and therefore cannot be subject to the verdict of the Tribunal. In this connection, I refer to the statements on this question of procedure, in the judgment of Military Tribunal I. If I mention them nevertheless, it is because it will become clearly manifest what limited powers the Ministry of Justice had for exercising any influence, and especially how limited the powers of the Minister in charge were, and, furthermore, how tenaciously Schlegelberger exhausted all available possibilities to prevent such despotic acts.
In order to understand this matter fully, one must bear the following in mind: It is well-known that Hitler, as an auto-didact read an almost inconceivable amount of historical works from all parts of the world, and that from these he created an imaginary picture of his own powers; a picture which was in keeping with his hunger for power, and which was often just as false as he was deficient in education and an adequate knowledge of history. I consider it quite possible that he also came across tho English legal institution, according to which tho English Parliament is empowered to increase the severity of verdicts which have already been reached, to pronounce a judgment instead of the court, and even to pronounce the death sentence for an act which was not punishable at all, at the time it was committed. In this connection, I refer to quotations in my supplementary document book, Volume 1. This English legal institution, the bill of attainder, through the co-operation of the Upper and Lower Houses and of the king and through public discussion of the case, barred every kind of despotism.
but he consciously or unconsciously overlooked this point. He was merely interested in the sovereign act itself, and in it he saw the abstract possibility for an absolute ruler to intervene and make the judicial penal system more severe. It certainly made all the more impression upon him, since Prussian history presented him with further proof. The whole world knows that the autocratic Prussian King, Friedrich Wilhelm I, on his own authority, changed the sentence of imprisonment pronounced by a military court against Lieutenant von Katte, the friend of his son, the later Friedrich the Great, to a death sentence.
Only if one known this background, can one understand the stubbornness with which Hitler claimed the right to increase up to the limit of the law, the severity of judgments which had been pronounced by the courts and which did not make use of the full range of penalties under the law. It is only then that one can appreciate the efforts made by the Reich Ministry of Justice and Schlegelberger, while he was in change of the Ministry, to counteract such incidents of violence which he recognized to be illegal.
The Reich Ministry of Justice intervened in these transfer cases, and in all cases it attempted to prevent the giving over of convicted persons to the police, as has been described in detail by Defendant Schlegelberger himself and also by witnesses Joel, Meissner (English Transcript, Page 4617), Lammers, German Transcript, Page 5464 and the following and by Gramm, English Transcript, Page 4717 and the following. I believe that I can dispense with any repetition of this. The Tribunal will have gained a clean picture from the testimony, I shall therefore confine myself merely to emphasizing a few points which will prove Schlegelberger's persistent efforts.
First, it must be said that these were direct orders from Hitler who gave them to the police through administrative channels. In spite of this, and even though Guertner's previous attempts to persua 14 0ct.
-A-BK-22-2-Goldberg (Int. Hahn) de the dictator to change his mind, had failed, Schlegelberger tried everything to effect a change.
According to the testimony of Meissner, Schlegelberger visited him personally after he had found out about the first cases. He asked him to present a petition to Hitler again. Meissner complied with this request. At any rate, these representations were successful in that Hitler, referring to the personnel shortage caused by the war, in the penal institutions of the Ministry of Justice, and to the necessity for the prisoners to perform more intensive work, made it possible to send the condemned men to a concentration camp instead of executing them. He added, however, that in case they attempted to run away or to offer resistance, "short work" would have to be made of them. In this connection it should, be noted, that the announcement to the Reich Ministry of Justice of the order given to the police was to the effect that the person concerned was to be given over to the Gestapo. Testimony of Meissner - Transcript, Page 4619, English text.
Schlegelberger did not deem this sufficient but attempted to lay down a rule that no transfer order given to the police had to be carried out, as long as no report was submitted to Hitler by the Reich Ministry of Justice. As is shown by Prosecution Exhibit 206, Bormann thwarted this attempt. In a letter dated 16 May 1941, Exhibit 63, Schlegelberger asked Hitler to inform him in due time of the verdicts against which he had raised objections. In this way, there would be time to justify the verdicts. At first, this attempt promised to be successful. As Exhibit 64 shows, Scharf who had been convicted was actually saved by the Defendants report. Later, when the Reich Ministry of Justice was no longer informed in time, Schlegelberger embarked upon a different course.
His plan was that Hitler should delegate the right to which he laid claim, to the Reich Ministry of Justice or to the Oberlandesgerichtspraesidenten (Presiding Judges of the District Courts of appeals). The Presiding Judges would then confirm the judgments in Hitler's name, so that Hitler would not have to change them any more (Prosecution Exhibit 75). Bormann thwarted this plan as well.
The political background of this behavior on the part of the Party Chancellery was discussed in detail during the crossexamination of Defendant Klemm (Transcript, Pages 5125-5129, 5133 and 5154/5 of the English text).
Since all attempts on an individual basis to effect the recall of the order which had been given to the police, had failed, there was now actually no other way but to instruct the Authority for the execution of penal sentences to surrender the condemned men to the police, upon demand. What choice did he have? Should he have ordered the jail official to offer armed resistance to the police? Would not such an order - if the jail officials had at all attempted to carry it out - have been a completely useless sacrifice which could never have been justified? Witness Lammers has described the division of power in detail, and left no doubt that the police would have seized the convicted man, with force, if necessary. German Transcript, Page 5466, 5487/8. Hitler himself, considering such a violent opposition to the execution of his order, to be an attack against the sovereignty which he claimed would have avenged it bitterly not only against the person but against the institution, the judicial itself.
Certainly this would have meant the abolition of the judiciary in favor of a police system.
Here only a brief remark concerning the problem of protective custody.
Its application and execution lay exclusively in the hands of the police (Schlegelberger Exhibit 84). The judiciary administration failed in its efforts to insert a complaint system into the regular courts - somewhat after the example of the Prussian Protective Custody Law of 1916 (Schlegelberger Exhibit 82). Representation of persons in protective custody by an attorney could not be achieved either.
Equally without any success was the attempt to persuade the police to accept this by suggesting only attorneys from a selected list (Prosecution Exhibit 604).
The prosecution furthermore accused Schlegelberger of rendering more severe both legislation and the interpretation of law. My reply is as follows: The law of 4 September 1941 (Reichsgesetzblatt I, page 549), which was co-signed by Schlegelberger, and according to which the dangerous habitual criminals and sexual offenders became subject to the death penalty if the protection of the people or the demand for just revenue necessitated it -- this law is directed against everybody disregarding race or nationality. It concerned merely factual circumstances which became significant because of the habitual occurrence or the nature of the crime.
The expansion of the competency of penal law took place in 1940, that is at a time when Schlegelberger was not concerned with the penal law. Other colleagues will express themselves in detail in regard to the legal points of this new law.
If Schlegelberger, as shown by Prosecution Exhibit 72, quoted to the staff of his departments a passage from Hitler's Reichstag speech of 11 December 1941, it was a mere matter of administrative routine since the speech dealt with judicial matters. The detailed conditions are described by Schlegelberger's testimony.
The prosecution of so-called passive defeatism under the heading of high treason started only in 1943, thus after Schlegelberger's release from office.
It is not quite clear why the Prosecution has submitted Schlegelberger's decree concerning looting, dated 16 June 1942 (Prosecution Exhibit 560). Under no circumstances can it be rated as crime against humanity. If it was meant to characterize the defendant, then it must be said that it shows that in initiating the expediting of proceedings he merely took into account the increasing number of air 14 0ct.
-A-BK-22-5-Goldberg (Int. Hahn) raids frequently recurring in the same city day after day.
In these eases which mostly were perfectly straight forward there could be all the less objection to expedited proceedings in view of the simultaneous restriction of the tern "looting" in order to avoid excessive penalties.
The reasons for Schlegelberger's suggestion of provisions for more severe penalties for acts of preparation for treason (Prosecution Exhibit 76) have been explained by him in the witness-box. The law itself was decreed after his departure.
The erasure of the annulment entries in the penal register in cases of treason did not permit a new sentence but merely served for the control by the authorities of former traitors, a control particularly necessary at the time.
With regard, to the question of sterilization I must restrict myself, in accordance with the Tribunal's decision of 2 July 1947, to the question whether the law or its implementary regulations have been misused against any persons or groups of persons from racial, political or religious motives. As show by the hearing of witnesses this is out of the question. Witness for the Prosecution Schmitt who gave an affidavit in this case and who has been sterilized, as a chronic alcoholic (Prosecution Exhibit 505) was, according to his own statement, divorced for dipsomania. Thus, of all Prosecution witnesses there remains only witness Klees. This witness's statement that he had been unjustly sterilized owing to inadequate examination has been completely refuted by the detailed statement by witness Dr. Rosenau. Dr. Rosenau made made his statement on the strength of personal knowledge and the files of the Board of Health. Supported, by wide experiences he testified that the proceedings before the Bugenical Courts and Superior Eugenical Courts "were conducted in a fair manner, and in keeping with legal provisions". If he as a Jewish manager of the institution in which all feeble-minded and sychopathic Jews were accommodated, has arrived at this conclusion, this fact proves particularly clearly, beyond the complete refutation of the Prosecution's assertion concerned, the overlapping of jurisdiction and the basic difference with regard to judicial and police practice.
There the conscientious detailed examination of the politically neutral facts of the case, here the arbitrary political act supported by administrative regulations of the Ministry of the Interior. A cross-section of the general situation at that time, a key to the evaluation of so many happenings discussed in this trial!
As to the euthanasia measures dealt with in paragraphs 15 and 27 of the indictment it must be stated in advance that no proof of any kind has been offered that the Defendant Schlegelberger at any time knew of the application of the euthanasia decree to foreigners. The Defendant, too, emphatically denies this. As to the conduct of the Defendant in this field. I can refer to the detailed explanation he gave on the witness stand. Here, too, we notice his immediate and active intervention against anything he felt to be a wrong. He does not accept the situation he found in existence when he took office, on the contrary, he attempts to change it - in spite of the fact that the chances of exercising any decisive influence were small for a merely acting Minister. The Defendant has stated - in my opinion convincingly -- why he, if we assume that Hitler's decree had no binding force - was unable to interfere with criminal prosecution. He chose the road which he, according to his duty, considered to be the only possible and promising one. Only considerations of expediency could bring a Hitler to change his opinion. In order to arouse such scruples in him, he systematically collected and passed on complaints from church circles to Hitler. This brought result. The carrying-out of the Hitler decree was stopped in August 1941. This is proven by the affidavit Brandt (Schlegelberger Exhibit 121) and the letter of Gauleiter Mayer to Bormann of 17 September 1941 (Schlegelberger Exhibit 122). If the Defendant under cross-examination (English transcript page 4542) was reproached with the fact that also in the years 1941 and 1944 euthanasia killings had been carried out, that merely permits the conclusion that later, after the Defendant had left the service, euthanasia was administered illegally.
The reproach raised against the Defendant in paragraph 16 of the indictment and the opening statement of the prosecution is unjustified that in exercising his right to grant pardon he had given unequal treatment to Germans, foreigners and Jews. The legal foundations of the German clemency system and the clemency procedure of the Reich Ministry of Justice have been repeatedly discussed in detail in the course of this trial. The same is true of competence. I restrict myself to remind you that as far as death sentences were concerned -- the defendant Schlegelberger had, it is true, the power to reject a clemency plea - however, he could only suggest a pardon to Hitler who had reserved for himself the right to make his last decision. This was, at any rate, the legal situation during the entire time when Schlegelberger was in office. The delegation of more extensive powers to Guertner which is evident from the Prosecution Exhibit 625 was given only temporarily for the assumed brief duration of the Polish Campaign and was renewed only at the time of Thierack as it has been frequently discussed in the trial.
The statements of Schlegelberger on the witness stand concerning the management of the right of pardon have been impressively confirmed by other witnesses. As to the preparation of his decisions we have the statements of the witnesses Gramm (English Transcript page 4613/4) and Huppertschwiller (Schlegelberger Exhibit 114).
We hear about the care with which Schlegelberger proceeds before he forms an opinion. Huppertschwiller, in regard to this point emphasizes particularly that it made no differences to Schlegelberger in forming his opinion whether the condemned was a German or a foreigner. It is proved by documentary evidence that Schlegelberger tried to obtain pardon for Poles and Jews as well.
If Schlegelberger considered a pardon to be justifiable (he always took the more lenient point of view) and not to be completely hopeless according to Hitler's practice which with necessity had to be his standard , he conferred with the Minister of State and Chief of the Chancellery of the Reichspraesident Meissner who had to report to Hitler about the suggested pardons. We learn from Meissner that Schlegelberger together with him searched for ways which would have made it possible to get pardons from Hitler even in very dubious cases. According to the result of the evidence Schlegelberger is absolutely right when he says to this point under direct examination that by his manner of working he had forced through a pardon for a large number of cases, which could not have been done if they had been dealt with merely according to office routine, even if all the demands of duty had been fulfilled.
For the assertion that Schlegelberger had "granted a pardon after sentence had been passed to such NS party comrades who had committed serious crimes against inhabitants of the occupied territories" (paragraph 16 of the indictment) no proof has been submitted by the Prosecution.
Exhibit 254 submitted by the Prosecution shows that Schlegelberger opposed successfully Hess' wish for an amnesty for crimes committed in the East (Ost-Amnestie) which was to go beyond the amnesty of 4 October 1939). If Schlegelberger, in this matter, had pointed to the fact that minor property offenses committed during the time of active warfare and soon afterwards -- these were the offenses Hess had pointed to could be prosecuted only when there were particularly important reasons for it, this was completely in accordance with the regulation of Article 153 Paragraph 2 of the German Criminal Procedure.
The prosecution in its indictment wrongly takes offense to the fact that Schlegelberger finally had in mind a well-intentioned examination of the individual case. It overlooks the fact that this was an act of politeness customary in ministerial circles which was not binding at all.
The reprieve of two German police officials mentioned in the indictment (Prosecution Exhibit No. 255) only took place after Schlegelberger left.
May I now summarize the case of the defendant Schlegelberger. I would recall to mind my opining words that in a state ruled by force, as Adolf Hitler's state was, no statement or action can be assessed objectively, but only in conjunction with and under consideration of the actual conditions prevailing at the time. This last examination will in individual cases often be difficult, sometimes impossible. And the defendant himself was faced, in the explanation of the motives, with a very difficult task. Only his written statements which have become public are available. To determine on the basis of memory, after years of the most stirring events, what motives he had, what were the actual facts and what he could foresee at that moment, is an almost impossible task. But how much more difficult it is for anyone else to obtain a clear picture of the situation in the individual case. It is beyond the limits of human perceptibility to judge whether this or that measure could have been avoided or delayed by using perhaps other means.
We are therefore compelled to observe this problem as a whole. In the case of Schlegelberger we have an excellent expedient to assist us in passing correct judgment. When Schlegelberger declares that he remained in office from the purest motives and that every deviation from the traditional rules of a former German judicial system 14 0ct.
-A-BK-23-2-Goldberg (Int. Hahn) generally recognized as exemplary may be interpreted only by taking into consideration the overall conditions, then we can verify the correctness of his defense by that which happened immediately after he relinquished office.
A comparison of Thierack and Schlegelberger will give us an explanation of that which Schlegelberger strove to prevent and during his tenure of office actually did prevent. We shall realize from the unconditional compliance of Thierack with party demands some measure of what it meant if Schlegelberger opposed them so obstinately - particularly if we consider the increased difficulties which faced Schlegelberger as a result of the fact that he was only in charge of the Ministry and in a very weak position with regard to the Party.
If, with regard to Schlegelberger's official activity, one can perceive a characteristic quality in almost every one of his actions, in every phase of his activity, then it is his consistent warding-off of the penetration of Himmler's police into the realm of justice. What do we find, on the other hand, in the case of Thierack? He immediately unites himself with the powers who always advocated a Police State, mainly with Bormann and Himmler. He sacrificed all those things for which the judiciary had been fighting for years. He handed over to the Police those who were in protective custody, i.e. those people who had been sentenced to protective custody by a verdict of the court according to Art. 20a of the Penal Code.
Everything which since 1939 efforts had been made with difficulty to preserve was completely sacrificed. I remind you that Bouhler had in 1939 secured an order by Hitler to the effect that persons in protective custody must be handed to the Police. Guertner knew how to handle the matter in a delaying manner and did not carry out the order. In the case of Schlegelberger also it remained at this stage, although according to the testimony of the witness Hecker (English Transcript, page 2376) in Schlegelberger's time party pressure in this matter had increased.
In the same way, in the field of execution of other punishments, all other so-called a socials, namely, Jews, Gypsies, Russians, Ukrainians and Poles with sentences of more than three years, and Czechs and Germans with sentences of more than eight years were handed over to the Reichsfuehrer-SS for annihilation by overwork (Prosecution Exhibit No. 39).
It went still further. His purge started already with criminal prosecution. He excluded Jews and Gypsies from the right to trial by a court. The duty of instituting court proceedings against them was transferred to the Police and the application of the legal principles of the criminal law regulations concerning Poles and Jews was accordingly withheld from Jews (Prosecution Exhibit No. 143). The same applied to Russians and Poles who were living or staying in the Soviet Union or Poland respectively before the 1 September 1939.
In what still remained of penal justice for the other classes of criminals methods became considerably harsher.
The proceedings before the special courts lost important protective regulations for the defendants. The period between the presentation of the indictment and the date fixed for the main trial could be reduced from one week to 24 hours. (Ordinance of 29.5.1943 ReichsLaw Gazette I, page 243). Instead of the criminal division the special court assumed competency for decisions regarding motions to reopen proceedings in favor of the defendant. (Ordinance of 29. 1.43, Reichs Law Gazette, I, page 76.). The significance of this regulation lies in the fact that top to then almost every special court came under the revision of the criminal division competent also for other offenses. The necessary defense was abolished. (Ordinance of the 13.12.1944).
Passive defeatism, which was hitherto punishable by imprisonment for not more than five years according to the so-called "Law against Malicious Political Acts or Insults against Party or State", could now be punished by the death penalty (Ordinance dated 29.
1.1943, Reichs Law Gazette I, page 76).
With the progress of the war, developments led eventually to the creation of the summary courts (Ordinance of 15.2.1945 Reichs Law Gazette I, page 30).
That Thierack persuaded Himmler to introduce punishment by flogging of which Schlegelberger always disapproved on the grounds that it was uncivilized, seems to me beyond this fact to be particularly symptomatic.
The verdict of the party itself may be seen from the following: the demoralising criticism in the party press suddenly ceased. It was no longer necessary, as Thierack, Bormann and Himmler were all in agreement. (Prosecution Exhibit No. 35). News of orders to the police to take over persons who had allegedly been too lightly sentenced also ceased. Thierack and Himmler had, agreed, it is true, on the 18.9.1942, that they would settle between themselves this matter of "special treatment by the Police" but in the case of differing opinions they would call in Bormann. Thus Thierack had finally transferred to the jurisdiction of the Party the responsibility for amendments of judgments against which Guertner and Schlegelberger had fought.
If one bears in mind this rapid and complete decline of justice under the leadership of Thierack, into which process the great army of conscientious judges and public prosecutors were innocently drawn, one must draw the conclusion that every delay was a victory for the German nation and that this victory also justified the sacrifice which the defendant, from many years' experience in the service of the law, considered necessary.
I would point to the complete change in the personnel policy under Thierack, who surrounded himself in the Ministry and in the most important branch offices with new men, of whom he expected conduct different from that of those of Guertner's time who were bound by tradition.
Schlegelberger as a witness has described this revolution adequately and has also referred to the purging of the judiciary of half-Jews, of persons closely related to Jews and of non-party members. If one considers the significance which the personal views of an official have in the administration of justice and if one imagines that the attitude of German law officials, with relatively few exceptions, was a dam holding back the flood of National Socialism, one will obtain the fairest picture of the significance of the former personnel policy and the present revolution. Far be it from me to wish to infer that now all law officials have changed their opinions, I likewise would not like to identify Thierack's colleagues with him, nor to assert that they all came right up to Thierack's expectations.
It is, however, significant that by means of this reshuffling Thierack's policy made this complete change of system obvious to every justice official and robbed him of the feeling of security based on the knowledge that at the head of the Ministry of Justice was an adherent to the principles of law. In numerous affidavits which have been submitted by me and by other defense counsel - I refer particularly to the affidavit Richter (Mettgenberg Exhibit 43) this feeling repeatedly makes itself evident. Everyone who experienced with anxiety in those days the onslaught of the opposing forces knows what the personality of Schlegelberger at that time meant: namely the existence of justice itself, of a concept which was the only value saved from former times, in spite of all limitations which have become inevitable, brought about by the state of force which made itself keenly felt to us every single day.
I can thus content myself with drawing the final conclusion. All those things which Thierack's new regime had brought, all those things which had been preserved with great effort and were now sacrificed without a struggle, even sacrificed willingly, wore worth fighting for.
The aim of preserving even one of them would have been sufficient inner justification for Schlegelberger to remain in office.
This decision was certainly not easy for him to make. The affidavits Matthias (Schlegelberger Exhibit No. 103), Schwister (Schlegelberger Exhibit No. 41) the statements of Cramm (English transcript page 4723), the affidavit of Krieze (Schlegelberger Exhibit No. 102), the statement of Meissner (English Transcript page 4516) and other exhibits show us that , in spite of spiritual oppression and against the advice of his doctor, Schlegelberger remained at his post from a sense of devotion to duty.
For this must have teen the only motive, why he stayed in office. He was neither moved by personal ambition nor by any desire for recognition. We saw, how his professional career was only determined by the quality of his work and by no other influences.
Schlegelberger's case reveals clearly enough, what problems all those wore confronted with, who were collaborating with the National Socialist State. It is very easy to condemn all those, who in this State remained at their post in a leading position. The State was bad, consequently also those who cooperated with it were bad. Is not this cheap conclusion made obsolete by what we could learn about the efforts of the "old type" officials, who preserved for a long time what the Party tried to overthrow since it assumed power in 1933? They had to feel an inner obligation - to an increasing decree, if they were in a high position -- to act as a brake, while the car was rushing downhill. The State had been conquered by National Socialism. Only the Civil Servants themselves could resist the penetration of Administration with National Socialist ideas.
On the witness stand Schlegelberger revealed to us, why he stayed in office and what were the limits beyond which he would not go without resigning.
When he felt, that the dictator* s arbitrary methods no more limited themselves to restricting the sphere of action left to the Administration of Justice, out that it was now intended to transform the Administration of Justice itself into a tool of his power in its own judicial activity, then he knew, that he had to go. This attitude, which he did not hide from Hitler, separated him also externally from the National Socialist State, when he was discharged from his office.