will further have to be considered that the government authority had slowly devolved upon the person of the Reich President on the basis of the application of the law concerning emergency regulation. Already at that time we see the formal factor of legislation, the Reichstag, only legislatively active to a diminishingly little extent; the decisive laws are being issued through the law concerning emergency regulation of the Reich President. The ministers, therefore, are still only advisers of the Reich President. It is a symptom of this development, that the Papen Cabinet had already purposely been established by Hindenburg as a Presidial Cabinet, that this Cabinet was composed of people in whom Hindenburg confidedn, which the latter had appointed as special ministers (Fachminister). The position of the Reich Chancellor, therefore, was considerably raised in importance, because neither the ministers nor the Reich Chancellor had been appointed as exponents of the parties, and as the result of this confronted the parties more independently, than was the case previously. The Reich Chancellor was the liaison man of the Cabinet with the Reich President. It was this position in particular which gave him a clear superiority over the other ministers.
It is in this situation that Hitler becomes Reich Chancellor. His Cabinet also, in its early stages, is again a Presidial Cabinet, which depends on the confidence of the Reich President and the latter's law concerning emergency regulation. Until the decreeing of the enabling act (Ermachtigungsgesetz) of 24 March 1933, all laws were issued by way of emergency orders (Notverordnung) and therefore were subject to the responsibility of the Reich President.
The Enabling Act (Ermaechtigungsgesetc) formed the decisive factor for further development. The legislative powers were now transferred to the Reich Cabinet. These were not directed to Hitler personally but to the Reich Cabinet. I do not claim that the Reichstag of that time already regarded Hitler as the Reich Cabinet. But doubtless the Reichstag was influenced by Emergency decrees which constituted the government policy for a long time. Therefore this new emergency legislation of the Reichstag intended only to legalize this state for a future emergency. Thus the authorities adjusted themselves to a Reich Cabinet of such inner structure, kind and method of work, as it was formed during the time of the President's Cabinet. Certainly the solo responsibility was not transferred to Hitler which was assumed by the Reich President when the Emergency Decree was proclaimed.
But to a certain extent he filled the gap which had now opened by the elimination of the Reich President. Outwardly this become apparent inasmuch as his (the Reich President's) - right to issue laws was transferred to him. To this was added his right as Chancellor to determine the basic guiding principles of the policy. Both factors together resulted doubtlessly in a considerable strengthening of Hitler's power position in the Cabinet over his Ministers. The seed for his later autocracy had been planted.
In The Cabinet's working method, this was not at first clearly manifest. True, a decision is no longer reached but objections by the Ministers are taken into consideration which lead, in individual cases, to the withdrawal of radical legal drafts or to their medevation. Nevertheless, the Reich Chancellor's right to set the principles of political directives is already mere manifest. Hitler lays claim to this right for himself and points out the responsibility that is entrusted to him alone. More important, however. than this development within the Cabinet are the influences introduced from the outside. The Party sets to work and runs everything that the Government purposely does not take hold of. The boycott against the Jews and the destruction of the trade unions are measures taken by the Party. The ideas of the Party take hold of the masses. The latter carries out what the Party is prone to refer to with the slogan: "Revolution". The witness Gisevius has summarized this development in his book, pages 141 to 143, in these terms: "It is not individuals that rush to National Socialism, no, the manses as masses get into movement. Because nobody wants to lag behind the events, all strive together to precede the revolutionary development by the length of half a nose. It is only from these versatile impulses, from these irrational movements of the soul of the masses that the whole political coordination can be understood which takes place in this early summer of 1933 with a sudden intensity really but still voluntarily and spontaneously anyhow ...... As masses, they create a new volition, force a new movement."
This movement also affected the old political parties. They dissolved themselves voluntarily.
Moreover, they also make the vow to Hitler that their former members will loyally collaborate with the National Socialist State; they would summon their former members to do so. The Bavarian People's Party cleared the way "for every former member of their party to collaborate in the construction of the new Germany under Adolf Hitler's direct leadership." The Catholic Party (Zentrumspartei) by its dissolution enabled its supporters to put their abilities and experience unreservedly at the disposal of the national front under the leadership of the Reich Chancellor for positive collaboration in the sense of the consolidation of our national, social, economic and cultural relations and for the collaboration on the reconstruction of a legal state order." Even the Social Democratic Party partly followed when the Provincial committee of the Social Democratic Party of Wuerttemberg suggested to the holders of mandates "to carry on their activity in a sense which leaves no doubt as to their national conviction nor of their good will to support Germany's new political structure according to the plans of the national revolution." The attitude of the masses, similarly influenced, is reflected in the result of the Reichstag election of 12 November 1933 in which over 90% of the voters voted for the NSDAP. I am aware of the fact that the correctness of these election results are called into doubts. Whatever may have happened in regard to influencing and falsifying the election, one thing cannot have been doubtful for any objective observer of the then prevailing conditions: that the result of such manipulations can hardly have been of such importance that it could by itself have created an overwhelming majority. It cannot be denied that under the then prevailing circumstances the majority of the voters, hoping to bring about a change of the existing difficult situation, put their trust in the party in which they believed they already saw the partial success of its economic measures. If one considers how the concept of the party then had carried the day with the masses and that the idea of the party culminated in the personality of Adolf Hitler, that kind of voting and public opinion was the confirmation of the leadership idea in itself. The vote was a carte blanche for the supreme party leader of the Cabinet, the Reich Chancellor.
By this development Hitler's claim to power was strengthened on the one hand and, on the other hand, most of the Cabinet members did not consider themselves able to prevent such a development. These reflections may also have been influenced by the idea that they could not effectively oppose Hitler's seizure of power. One restricted oneself, therefore, fundamentally to avoid a radical development and, azs far as possible, mitigate the severity resulting from the changes made externally by the State apparatus. Thus we see the legislation clear up a situation, created from without, giving it legally a more moderate orderly form. If, accordingly, one reproaches the members of the Cabinet for modering illegal conditions and at the same time giving them a legal basis, such reproaches are to be directed to a greater extent against the men from the middle-class camp in the Cabinet. They who according to the intentions at the formation of the Reich Cabinet were appointed to restrict the National Socialist influence, and had subsequently not apposed the disastrous development by all means.
They should have warned and opposed the influenced irrational masses and finally should have resigned from office under alarming protest. It is superfluous to examine the question whether the attitude of these men politically right or not, whether they were weak men who believed perhaps that they could thus avoid hopeless resistance. From the criminal consideration of the things the only essential point of view is whether it was descernible at that time that the development was a preparation for what happened later and accused by the Charter. If, with the formation of the Cabinet the outbreak of a real revolution, a civil war was avoided, they were entitled to believe that they have thus made at least partial sacrifices to the general mood in order to avoid a dangerous reaction of the incited masses. Rationally speaking, the hope could still exist that the development would find it in the framework of its legal limitations. Politically, this was doubtless a wrong idea. The radical tendencies of these who later kept pushing everything to extremes were underestimated. It should, however, to be considered that the very Cabinet members who come from the middle-classes, could not rid themselves of the idea that in the practical sense of a responsible leader of the State the limit of the development will be found. development with diminishing success. Its attempts grew the more unsuccessful when the authority of the Reich President, the weight of the bourgeois conservatives and also the position of the Reichswehr creased to form a counter-balance. Hitler understood how to use Hindenburg for his own purpose. The burgeois conservatives did not form a closed united front anymore, large parts divided and went over to the National Socialists. The parties dissolved themselves, and their followers were now robbed of their cohesion. Blomberg became a follower of Hitler. The Ministers under consideration therefore did not have any support from the other side. Toward them Hitler expounded his appointment by the people and his sole responsibility toward the people. An open protest practically proved itself as impossible. The pub lication of the Marburg speech of Papen was prohibited, his departure from the Cabinet as the result of this just served to make the circle of Ministers dissatisfied with the development only still smaller and thereby less influential.
Every Minister who considered the question of his resignation had to count on the fact that his position would be occupied by a new man, who did not hinder, but only furthered this development. A Minister who was really soldily with his Department did not like the idea of transferring his field of work into such now hands. It is clear that these who were confronted by this question did not want to endanger that which they had achieved by hard labor hindering and correcting in their fields of work in the execution of the laws, in the personnel policy and also in other respects, and that they wanted to continue their work in this sense in the future also. final mark under the previous development. The law is a Cabinet Law. Hitler demanded the consolidation of his office with that of the Reich President. According to his declaration this consolidation was not to be the final solution, only the momentary situation was to be considered, that he personally would not recognize a new Head-of-the-State over himself, and, on the other hand, however, he could not give up his office as Reich Chancellor. He pointed out that a decision of the people, which was to be demanded after the death of Hindenburg, would bring the sanctioning of this measure. In this state of affairs the Cabinet did not consider itself able to oppose the demand of Hitler. The results of the public voting were clear from the very beginning. Hitler would have achieved his aim to decree the law under all circumstances, even with the refusal of the Cabinet. The Cabinet Law of 1 August, 1934, therefore practically represents nothing else but a prepared law, which in any case could be achieved and was also achieved through public voting. The legal sanctioning of the dictatorship, therefore, was only a confirmation of the previous relationships of power and a consequence of the overwhelming will of the people which existed at that time. politically but also with regard to state law. The law represents the complete accomplishment of the monocratic principal on the state sector.
Hitler consolidated the right of the Reich President in his person, especially the law emergency regulations (Notvererdnungsrecht) with the rights of the Reich Chancellor, to decide the fundamental lines of policy. As Supreme Commander of the Armed Forces he finally received the strongest factor of power in the state into his hands. its this, therefore, practically every state agency became dependent on his will and had to follow his directions. The Reich Cabinet also is no exception from this. Outwardly this becomes wtill especially apparent through the law concerning the oath of the Reich Ministers of 16 Octber 1934. The new oath for the Ministers corresponds to the general oath of the officials and soldiers, and shows that the position of the Minister has changed to that of a top state official bound to directives. Cabinet and the importance of the Cabinet Sessions also undergo a change. Insofar as foreign political decisions were concerned, Hitler announced his decisions, mostly in one long monologue on the general political situation. Later on he only informed the Cabined of the accomplished facts. He informed the Cabinet of the occupation of the Rhineland after the troops had already entered it. In the case of fundamental domestic, political measures, for example the Nuernberg Laws, the Cabinet as such was not previously consulted. The majority of the Ministers were surprised when the law was suggested in the Reichstag Session of the Nuernberg Party Day. In the drafting of minor laws of administrative importance only the completed draft and the reasons for it were stated. In order to avoid the expression of departmental misgivings in the Cabinet Session, the drafts were previously made "ripe for the Cabinet" in accordance with a directive of Hitler, i.e. the specialist Ministers were giver the opportunity in a preliminary discussion to voice their departmental misgivings to the departmental Minister responsible for the initial draft. Only after these misgivings were allayed did the draft reach the Cabinet Session. Therefore, no allowance was made for a consultation in the Cabinet Session. General, political considerations, therefore, which were affected by these drafts, were subject to the sole decision of Hitler.
If, therefore, a general political question did arise, in which Hitler's point of view was not known, then the departmental discussion was postponed until his directive had been obtained. By this the Cabinet sessions did not only lose every political significance, but also a practical purpose. Hitler therefore convoked the Cabinet only in constantly growing intervals, until finally after a last session in February 1938 which was merely destined to receive a statement by Hitler, no Cabinet sessions whatsoever were hold any more. culation proceedings. The acting minister submitted the drafts of bills to the other members of the Cabinet to enable them to raise objections in their own fields. It stands to reason that these political basic questions and political measures which Hitler decided as he saw fit never were subject to the circulation proceedings. As is shown by the presentation of evidence, most of the ministers were informed of the important political events in no other way than any other person. In most cases they learnt of the facts afterwards by press or radio, unless occasionally something leaked through to them through secret channels prohibited for them, too. These may have been more numerous in the sphere of the minister than elsewhere. These occasional information, however, could not afford a comprehensive and authenticated total picture of the actual situation. Only the few direct confidants of Hitler were really comprehensively and authentically made acquainted with the events. This granting of confidence, however, had no connection with the persons in question being invested with the office of a minister of state. The overwhelming majority of the ministers who did not belong to this closest circle learned for example of the march into Austria, the setting up of a Protectorate and the starting of the individual war measures only after the measures had become effective and had been publicized. the ministers. Even though, as a rule, the drafts were submitted as a rule to all ministers, -- this was not always done as shown by Schacht's evidence -
this did not mean a joint collaboration elaboration of all the ministers. This was only done to enable each minister to examine whether the interests of his administrative department might be affected by the draft. the individual minister thereby was more strictly limited to his particular department. It was his only task to submit the objections of his department and to see to it that this department was not harmed nor its competence infringed. The interests of the department are special interests and the restriction to them excludes general aims and purposes. proceedings had to and were thought to avoid a close cooperation of the ministers as can be concluded from all evidence. and openly becomes also evident. The taking of evidence has shown that his ministers, were not allowed to reach him and that all efforts of the ministers to this end were in vain.
Various ministers attempted to institute Cabinet session again in order to provide thereby opportunities for expressions and information. Hitler refuse this with the remark that he wanted to have nothing more to do with this defeatists' club. He even forbade a personal reunion of the Ministers arranged by Lammers in the form of an evening beer party. held the authoritative conduct of the State in their hands and will fully directed its whole policy towards a contemplated, reprehensible war, then this is contradicted by the fact of the disintegration of the Cabinet as a cohesive whole and the evolving of a single directing head in the person of Hitler. But further proof that there was no functional cohesion between the Ministers can be furnished by other facts. Between Hitler's directives and their execution by the departments of the individual ministers, superior offices were created which, in their turn, had authority to issue directives to each individual Minister. The departmental Minister is therefore further removed from the headquarters of the decisive authority; he is, furthermore, the executive agent of two successive directive headquarters. The "Commission for the Four-Year-Plan", the "Minister-Councillor for National Defense", the "General Plenipotentiary for Labor Assignment" and similar institutions were created by Hitler himself and provided with full legislative powers by him personally. It is even possible for most of these headquarters not on to compel the departmental Minister to issue specific administrative directives and ordinances, but what is more, they could issue these themselves and, disregarding the Ministers, have recourse directly, to the latters' subordinate offices. This dismemberment was obviously brought about by Hitler intentionally. The Cabinet as an agency for the execution of his legislative proved too extensive, too complicated and too obstructive, and the position of the Minister still too independent. Therefore, he delegated legislative power to isolated or minor groups who, as men enjoying his special trust, ensure the prompt execution of his wishes. By the creation of these new subordination positions, he restricts the power of the department. Due to the confusion of the manifold relations of subordination and authority, the difficulty of defining competences and authorities, Hitler's orders are the ultimate issue, the sole reliable directive.
His directives subsequently became indispensable in most cases and the Ministers are referred to then. The picture given by the Prosecution of the efficacy of a closed community assembled in Cabinet sessions is thus considerably altered. An entirely new State system has been put in operation, an absolute single, supreme direction in the person of Hitler, and intermediary level introduced by Hitler and subordinate only to him, in the form of the newly created institutions discussed above, led by men who were not all members of the Reich Government as defined by the Prosecution, and, as executive agencies who in this organizational structure ultimately and naturally became restricted solely to their own field of work. prohibition of absolute secrecy decreed by Hitler has to be considered. No Minister was to know more than was absolutely necessary for him to carry out the task specially assigned to him. Even proceedings in his own department could be kept secret from the Minister. I refer to the affidavit of Harmenin from which it appears that the preparations for the intended war with Russia were delegated to the State Secretary ever the head of the Minister who was ordered to keep it secret from his Minister. It could not be made clearer that Hitler revealed his plans only to these to whom he entrusted their execution, independent of their position, and these whom he considered specially suitable for it. interest, concerning the entire Cabinet, is here shifted to a department and considered as their exclusive task. What in itself should be an affair of the Government is simply labelled an administrative task, which is then dealt with by simple administrative instructions. This discharge is made behind partition walls of the Department over which no other Minister has the right or opportunity to peer. As a special example I refer to the treatment of concentration camps and the later so-called "final settlement of the Jewish question". By virtue of a special mandate issued by Hitler, Himmler handled this question as a pure administrative concern for which his department was competent. Also in this departmental affair the basic prohibition of secrecy was valid against the other Ministers.
This development must be considered as opposed to the prosecution's opinion that the entire cabinet from the very beginning had worked with Hitler in planning the illegal war and its results and had carried on its execution. Under no circumstances could one establish the necessary close and confidential collaboration of a conspiracy being in accordance with the shown development. Hitler's endeavor in every way to curtail and control the Ministers' field of responsibility, his endeavor to replace the total responsibility of the cabinet by a leadership if the individual department, the establishment of super departmental control offices outside of the cabinet, his endeavor finally, to prevent also the personal contact between the ministers, coincides in no way with the thesis of the prosecutions. examine the question if and when the circle of persons, circumscribed by the prosecution, can at all have conceived the decision for the planning and execution of the Charter crimes. assume this to have taken place as early as 30 January 1933, the day the Cabinet was formed. It could logically be assumed that already the purpose of the founding of the Cabinet was criminal. To this question I only need to say little and essentially refer to the statement which I made in defense of the defendant von Papen. I would like to complete the reasons mentioned therein, by adding the statement which Bruening made in 1932 to the Minister Count Schwerin-Krosigk. I refer hereby to my affidavits Nos. 1 and 3. Bruening as the then responsible Chancellor of the Reich then already admitted the impossibility, owing to the continuance of the economic and political state of crisis, to govern permanently almost exclusively with the emergency powers of the Reich President. He declared that the agitation of the NationalSocialists could be usefully fought only by obliging them to take responsibility It is interesting that this responsible-minded statesman, confirmed at such an early date, that which half a year later, after the failure of all efforts to avoid this consequence, because a fact.
the constitutional necessity of forming government and the unhomogeneous composition of this entity must in any case exclude a criminal intention in the formation of the government. In addition I would still like to say, that negotiations with individual members of the Cabinet have only taken place on a very small scale, that a great number of members were taken over in the new Cabinet because of their former membership to the government, only by the desire of Reich President, von Hindenburg. To admit the existence of a criminal act in the foundation of the Cabinet would be opposed to the fact that Hindenburg who constitutionally was responsible for the formation of the Cabinet and as a matter of fact was very active in doing so, is not mentioned in the personal statement which the prosecution has given in Appendices A and B. As moreover deceased members were also mentioned by name and the circle of the Cabinet members was not outlined according to formal constitutional law but by practical view points, I believe I can deduce from this fact that as a result the Prosecution does not consider the foundation of the Reich Cabinet on the 30 of January 1933 to be a criminal act. The Prosecution believes at last in a common planning for the commitment of Crimes according to the Charter, already before the beginning of the Cabinet's activity, and believes to be able to draw an indication of the uniform establishing of the aim at an inpermitted war from the development of the legislative activity of the Cabinet. I will now leave the discussion of this pretended evidence and consider a particularly significant moment for this question. his war Minister of the three Supreme Commanders of the Service end the foreign Minister, whereby he solemnly set forth his future plans. I need not enter in the problems started by the defense counsels of the defendants, whether Hitler developed a true picture of his plans in its full extent. One thing at least one can surely take from his declarations, that he first informed only a very limited Circle of his plans. If he solemnly confesses that he reveals his most secret plans to the personalities present, and that he purposely had omitted to inform the Cabinet as such -- as it was usual in the other countries of such far-reaching decisions, it may be clear, that he had mentioned these things at first to his selected circle, and that he purposely avoided informing the remaining Cabinet members of his plans.
28 Aug M LJG 6-1 Gallagher In his consideration of the matter Hitler developed the necessity of an imminent war. He assorted that they had come to this conclusion in the course of his four years of rule and that this conclusion was the result of the experiences gained during this time; that the assurance of the validity of the nation could not be guaranteed by economic measures. Should we even be skeptical by the truthfulness of this declaration of Hitler, there is one thing certain: The uniform plan of a criminal war by himself and a part of these Cabinet members cannot have existed since 30 January 1933, as stated by the Prosecution, considering that he now on the 5 of November 1937 announces to a number of these Cabinet members that his resolution and with it the actual planning for the war was born in this very hour as the result of the observation of the facts during the four previous years. If Hitler hereby expressly points to the fact, that he excludes the remaining Cabinet members from this communications, it clearly results that he does not consider the Cabinet as such the appropriate circle to receive informations of this kind. it is herewith clearly proved that, at least until this date, no such common Cabinet plan existed, and could only have been created under the leadership of Hitler. plan have been decided on? Cabinet session took place, on 4 February 1938, in which Hitler made known to these present only the personnel changes at that time without making known the reasons for them, let alone, to develop any war plans then. If the Prosecution considers the members of the Cabinet as an associated band with the right to take part at the Cabinet meetings, it must take the stand for the subsequent period that such a bend did not exist any more. A certain substitute for the meetings of the Cabinet existed certainly in the new exclusively employed circulation proceedings. It is however to be considered here that the circulation proceedings 28 Aug M LJG 6-2 Gallagher were probably adoptable by themselves to pursue a previously existing collective purpose by separate acts in the legislation.
It is however unthinkable that such common planning for such a comprehensive crime could be undertaken by this written circulation proceeding. The extended connection must consist in some way of such naturally necessary secret conclusion. In the sphere of a Cabinet Meeting this would be possible. In the sphere of a documentary debate in a circulation proceeding it appears impossible. that as a result of the entire evidence such a plan for the beginning of the forbidden war was never shared with the Cabinet, let alone discussed or even commonly planned. that legislation activity of the Cabinet was to commence thus that they in their entirety had pursued the aim of the war of aggression. The Prosecution believes that with the legislation the aim was to gain for Hitler complete control and to consolidate it and prepare and carry through the war of aggression. totalitarian control nor the individual decrees issued by the Cabinet violate the Charter. It, however, believes it is able to establish a relation between this totalitarian control, or the individual decrees and the crimes of the Charter by following construction: the plan was purposely designed from the first to meet the crimes against the Charter. In order to attain this aim and to avoid an opposition against the planning the totaliarian control of Germany was necessary. For the purpose of establishing it, a number of decrees were issued by the Cabinet. to promote this aim through their terroristic and inhuman character. The prosecution proceeds from the promise that dictatorship had been the necessary presupposition for the later crimes of the Charter and that the establishment of the dictatorship itself had been a part of the plan for the crimes of the Charter, Answer 28 Aug M LJG 6-3 Gallagher ing this view it must be stated that it is impossible to draw conclusions from an effect as to its cause in order to prove by that conclusion that the cause by necessity had to lead to the effect.
This view would be correct only If the establishment of the dictatorship could find its compelling motive in the planning of the crimes. The opinion is wrong if the establishment of the dictatorship could seem necessary for other reasons or even expedient. Such reasons existed. The call for unified power is a natural phenomenon in times of special crises. A unified power is able to take measures fast which are necessary for the elimination of conditions constituting a crisis. Always and everywhere, therefore, there existed a tendency towards unification in such times of crisis. This is probably provided for in the constitutional law of every country. Emergency measures then shift the power from a large body, such as parliament, to a smaller circle. We had this development in Germany already at a time when we could still be regarded as a country with a democratic government. This is proved by the emergency decree law which already at Bruening's time was applied to the largest extent. At an earlier point I have already pointed out that the thought of unification was further promoted through the Fuehrer concept pronounced in the Party. The people believed one could find the deeper cause for the economic crisis in the lack of unified leadership. It is true the German people had received the gift of purest democracy through the Weimar Constitution, but in its whole past it had not been educated to it. Lacking was the gradual, organic development towards free democratic thinking, the education to critical judgment. Therefore, it can be explained psychologically that when the democratic republic was in in great economic difficulties, the cause for it was not seen in the real given conditions, but was sought in the lack of unified leadership. Consequently, the idea of the Fuehrer principle and an exclusive direction of destiny in one hand was popular. It found its echo in the elections which in any case must be taken for a recognition of the principles of the NSDAP, and thereby of the Fuehrer idea. Neither can it 28 Aug M LJG 6-4 Gallagher be doubted that a rigid concentration on and orientation of all spheres towards the direction by a single superior authority had in some respect a favorable effect on the execution of the comprehensive economic measures which undoubtedly were indeed very daring.
THE PRESIDENT: Shall we break off now?
DR. KUBUSCHOK: Very well, sir.
(A recess was taken) DR. KUBUSCHOK: Before the recess I was saying that considerations of expediency could justify the establishment of a dictatorship. I continue. This recognition alone would already furnish the justification necessary within the framework of a consideration based on criminal law, for a co-operation of the cabinet members in the development leading to the dictatorship. In any case, the absolute conclusion made by the Prosecution would be excluded, namely that the aim at an aggressive war follows necessarily from the establishment of dictatorship. from the viewpoint of terroristic and suppressive measures, it (the Prosecution) sees aimed at a dictatorship established and consolidated for the purpose of an aggressive war. In doing so it considers particularly also the anti-Jewish legislation. This too, must be examined here only from the viewpoint off whether its purpose and contents can actually be regarded as aimed at an aggressive war. The Prosecution pointed out that Himmler stated in his Posen speech in 1942 he was happy to see the possibility of an internal danger through the Jews eliminated in this advanced phase of the war. conclusion that now actually all legislative and administrative measures against the Jews taken to a gradually increasing extent, were directed to this and welcomed by Himmler. Here, however, one will have to differentiate between what was imposed by means of legislation upon the Jews in the way of restrictions and what was carried out by Himmler's administration in the way of measures of quartering them in barracks and extermination. Only the latter measures, the removal of Jews from the physical association with the other population, their absolute confinement in Polish ghettos and concentration camps and finally their physical annihilation were what Himmler could consider making the conduct of the war easier On the other hand, although the laws issued by the Reich Cabinet, also the Nurnberg laws passed by the Reichstag, undoubtedly constitute absolute measures of suppression. None of these laws provides for the hermetical separation of the Jew: from any association with the rest of the population. The laws finally lead to an eclusion of the Jews from public positions and the industry to a personal restriction of their freedom which violated even the most elementary rights of the human individual. It can be recognized that their effects were aimed at rendering life for the Jews in Germany difficult in every respect.
Parallel to this runs the generally propagated goal of getting Jews to emigrate. Jews insofar as it was carried out through legislation, did not have an aggressive war at its goal, not even indirectly through the consolidated dictatorship. One cannot set aggressive war as one's goal on the one hand and on the other hand create by legislative measures a situation which necessity drives to emigration the people robbed of the foundation for their existence. Should one want aggressive war, it would be more than folly to expel members from one's own body of people, thereby making them enemies and driving them into foreign countries, into countries which one must consider as the future enemies within the framework of war planning. Therefore, I believe that the entire anti-Jewish legislation can be eliminated as the consideration necessary here is limited to the crimes mentioned in the Charter. In order to complete the above statements I would like to add only that a great part of these laws was not passed as one may think in full agreement of all cabinet members, but the laws clearly show the signs of compromise, too, at which a part of the ministers knew how to moderate the total tendency of the law and to limit its effect, as I have already pointed out during the defense of the defendant von Papen. From the fact that a minister participated in such legislation it does not result that he agreed with the tendency of the law and approved it. In this connection I should like to refer to the statements made during cross-examination by the witness Schlegelberger concerning the letter addressed by the latter to Lammers. Schlegelberger states that some party agency, probably the Race Office of the SS, intended to remove all partly Jewish persons to the East. In this instance the Ministry of Justice had the possibility of stating its point of view on the occasion of a divorce question. His initial standpoint outlined in the letter addressed to Lammers, which merely consisted in a rejection of the contemplated measure remained, without result. Thus, he felt obliged to moderate the measure by some practical proposal. That is the reason for his proposal, which takes up the prevention of raising mixed generations as desired by the Race Office and which contemplates to exempt all these mixed persons from whom no further offspring can be expected. In this connection, he also proposes that a mixed person be exempted from being sent to the last if he agrees to be sterilized.
In considering such a proposal it is difficult to disregard human sentiments, and to approach its judgment with an objectivity required for a trial But, in this instance, one can only come to the conclusion that an attempt was made here, however barbaric, to avoid measures which would have been worse and would surely have to be expected. It is certainly a problem to determine how far somebody may participate in an evil order to prevent a still greater evil. In any case the motives must be considered here too. For the questions to be discussed in this present case, it is decisive that also the Schlegelberger proposal wished to avoid at least the geographic elimination of the mixed persons from the German population. In consideration of the points of view expressed by Himmler in his speech made in Posen, this alone is determining in the frame-work of contemplation of the war of aggression. as far as it lies before June 30, 1934. I refer here to my statements made in the Papen case. is considered by the prosecution as the first obvious law of injustice, by which crimes were subsequently sanctioned. Here also one must first depart from the point that the measures of 30 June 1934 were in no relation with the planning of a war of aggression. What Roehm planned himself and to what extent he stood in relation with any Reichswehr agencies cannot be determined. In any case, the elimination of a man like Roehm and his followers cannot be considered as the elimination of a difficulty in the plans of a war of aggression. If beyond this, other Hitler opponents were killed, who certainly stood in no relation to Roehm, it is without doubt plain murder, but here, too, especially when considering the personalities concerned, one cannot see any connection to a war of aggression.