Q. Then I take it in practice the Courts did not enforce what you have stated would be the valid law of inheritance?
A. I assume that such cases did not coma before the Courts.
Q. Well didn't matters of inheritance in general as to Germans come before the Courts?
A. Yes, yes they did.
Q. I think that is all.
BY DR. ORTH:
Q Witness, the prosecution introduced the following documents into evidence against you: Exhibit 457, document NG-666; Exhibit 451, document NG-636; Exhibit 453, document NG-900. All these documents are concerned with questions which relate to the so-called disputes about descent in the case of Jews or people of mixed descent. Please make first some general comments about these documents.
A The prosecution introduced these documents in connection with Volumes V and VIII; therefore, I must conclude that the prosecution believes that by those documents I ought to be brought in connection with the persecution and sterilization of Pews. Neither is true. The documents contained in Exhibit 457 and Exhibit 453 have nothing to do with matters of hereditary health matters or hereditary health courts. Those documents are concerned with civil litigations, cases which pended before the courts, where the question of biological and legal descent, as such, was concerned. Those cases, therefore, dealt with the question as to whether or not somebody was the child of a certain person.
In regard to the cases which pended before the hereditary health courts, the question concerned was whether or not the particular person -- of whom one already knew that ho was the son or daughter of a certain person -- was biologically healthy from the hereditary point of view.
Both proceedings, therefore, had entirely different aims.
They were entirely different in every way and had nothing to do with each other.
Q Witness, I am now going to show you Exhibit 451. This document contains the program for the Chiefs' conference in Kochem on the 23rd and 24th of August 1944. What does this document show to prove that your statements are correct?
A This exhibit contains, among other things, the suggestions and measures which had come from the sphere of Department VI of the Reich Ministry of Justice and which had become necessary as a result of the development of the war in the sphere of the administration of Justice.
Under Roman one, Arabic one-a, and Arabic three -- I am referring to pages 13 and 15 of the German text -- measures are enumerated which refer to matters of descent. Under Roman seven, page 21 of the document in the German text, those measures are enumerated which relate to the Hereditary Health Law.
Q Please explain briefly to the Tribunal what one understands under German Law by "matters of descent."
A The fact that, from the biological point of view, a certain man has fathered a certain child, is under the German Civil Code, the decisive criterion for the status and the legal position of the child, and therefore also for the rights and claims of such a child. However, as we know, it is frequently difficult to establish the true biological descent of a child, and it was particularly difficult at the time of the promulgation of the Civil Code, pursuant to the achievements of biological science, the German Legislator had established certain legal suppositions concerning the legal descent.
On the basis of those provisions the biological descent and the legal descent not infrequently appeared to be different. As science progressed, in particular in the field of bio-chemistry, hereditary biology, and anthropology, after the Civil Code had come into force, more and more reliable methods of science were discovered in order to prove or at least exclude biological descent of a child from a certain father. As a result, litigations between father and child became more and more frequent concerning the true biological descent, that is to say, concerning the question as to whether the legal father was also, biologically speaking, the child's father.
Under German law, all those cases of litigation are described as matters of descent. A partial complex is formed by those cases where Jews and persons of mixed descent, in the majority already adults, wanted the matter clarified in a court for themselves or their progeny, that contrary to the legal supposition, biologically and consequently also legally, they were not -- or, at any rate, not to the extent that had been assumed -the children of a Jew or a person of mixed descent.
Those are the provisions of German law. Matters were more or loss the same under Austrian law, but I don't think details arc important.
To help you understand the matter better, I think I had better briefly refer to the procedural provisions. Contrary to ordinary civil litigation concerning property, etc., where the basis of a decision is, in fact the evidence produced by the two parties, under German law, in order to establish beyond all doubt the personal duties of the person concerned -- in so-called status cases, to which descent cases belong -- but not the socalled alimony cases (Zahlvaterschaftssachen) -the so-called official maxim has to be applied, that is to say, the court, at its own initiative, has to clarify the facts of the case. Furthermore, in such status cases, to a larger extent than in the ordinary civil cases, following the French model, the prosecutor has to play his part. In descent cases where we are concerned with legitimate children, the prosecutor, under conditions laid down in the law, is entitled to make an indictment if public interest, or the interest of the child, or the interest of the child's heirs warrant that. In this sphere, as elsewhere, the public prosecutor is bound by the instructions of his superiors.
Q Witness, I believe that is sufficient, all the more so since we are going to refer to this matter again by an affidavit.
Please comment now on Exhibit 453.
THE PRESIDENT: Just a moment. Could you toll us in a few words what, if anything, your Department VI had to do with matters pertaining to descent cases such as you have described them?
THE WITNESS: Those descent cases played a great part from the point of view of my department exercising supervision. I shall revert to that matter quite briefly.
THE PRESIDENT: Over whom or over what did you exercise supervision?
THE WITNESS: The Ministry of Justice, because of the treatment to be accorded to such descent cases constantly received complaints, in particular, complaints stating that these proceedings never made any progress. Furthermore, and I shall revert to this too, we received complaints -
THE PRESIDENT: (Interposing) That doesn't answer my question. I am sorry to interrupt you. Your Department exercised supervision in matters pertaining to descent. Over whom did you exercise supervision?
THE WITNESS: We had that supervision over the courts and over the public prosecutors.
THE PRESIDENT: That is all I want to know.
THE WITNESS: May I add -
THE PRESIDENT: (Interposing) You have answered the question. It is time for our recess. Fifteen minutes.
( A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. ORTH:
Q Witness, will you please comment again on Exhibit 453?
A Here I have to say first, briefly , that the descent cases which I have just mentioned, especially the right of the Prosecution to raise charges in descent cases, since the so-called laws concerning Jews were issued, were used as a means for Aryanization, as we called it. In cases, that is to say, where a man who, according to the law was considered to be a Jew was of the opinion that he was not to be considered a Jew, he himself filed a claim for the establishment of the fact that he was not a Jew, that is, that he was not a descendant of a Jew. Or if his right to file that claim or the right of his father to do so no longer existed because the tern to do so had expired, he went to the Public Prosecutor to make the Public Prosecutor file this claim. The latter was the case when a suit was filed in order to challenge the legality of a marriage. Now in cases where these claims were filed in the course of the war, particularly during the last years of the war, considerable difficulties arose. I only want to mention two, but there were more of those. One was the lack of experts in the field of genetics which was caused by the war. The other reason was the thing that had occurred with the courts in Vienna. In other courts it did not occur, as far as I know. There, in Vienna, a particular difficulty arose, owing to the fact that the police, as far as Jewish witnesses for these descent trials were concerned - - in most cases it was a question of so-called witnesses for the investigation or witnesses for the purpose of comparison -- that the police, as I said, for reasons of security had removed these witnesses and now refused to produce them or to release them. That can be seen from the letter of the police of 3 May 1944, which is in this exhibit. Objections against the attitude of the police which were raised by the subdepartment chief Ministerialrat Rexroth in the course of a conference with a referent, were only successful to the extent that the police consented in exceptional cases to produce witnesses if the Reich Minister of Justice expressly demanded that.
Moreover, the police referred to the lack of means of transportation and escort personnel caused by the war. With matters as they stood, the Reich Ministry of Justice could do nothing else but to bring them to the attention of the courts in Vienna through the President of the District Court of Appeals. For the people concerned who desired to carry out by that suit, as I have called it, an Aryanization, the fact that these witnesses were not produced as a rule did not amount to any disadvantage. The persons concerned on their part, either if they had instituted the proceedings themselves in their own interest or if they had requested of the Public Prosecutor to institute proceedings, had themselves presented to the Public Prosecutor evidence for their assertion that they were not descendants of a Jew or a person of mixed Jewish descent. And if the Court could not produce the expert opinions of geneticists which officially had to be produced and for which these witnesses for the purpose of comparison were needed, then the court could do nothing else but on the basis of the evidence which the Jews concerned had submitted, to decide, and that this evidence was in favor of the person filing the claim is obvious. And to that the remarks in Exhibit 453 refer, that one had to put up with it if in this manner the intentions to cover up for the true descent could not be prevented.
Q Witness -
THE PRESIDENT: Let me ask you this: concerning these claimants suspected of being Jews but claiming to be Aryans, how far back did they have to trace their ancestry to prove that they were Aryans?
THE WITNESS: They were not compelled to go far back. It sufficed to prove that either one of the parents was not Jewish, and if that could not be proved, they also could refer to the fact that other ancestors of their were not Jewish. The question as to whether a person was a Jew or was not a Jew was laid down in the meaning of the Nuremberg Laws, these laws and the decrees to carry out these laws.
But the suits themselves were not concerned with that, but subsequently the main thing was whether -
THE PRESIDENT: Did they have to prove that their grandparents were not Jewish?
THE WITNESS: Mr. President, we have to distinguish here
THE PRESIDENT: Just tell me yes or no first, and then you may distinguish. Here is a man who claims he is an Aryan. He wants to prove it. What of his ancestors must he prove were not Jews? Can you answer?
THE WITNESS: Framed in this way, as far as these suits were concerned, I cannot answer the question because as far as these suits were concerned that question was of no importance.
THE PRESIDENT: Was he an Aryan if his grandfather was a Jew?
THE WITNESS: He had two grandfathers and two grandmothers.
THE PRESIDENT: Yes.
THE WETNESS: And there the distinction was made, but according to the Nuremberg Laws, which were only of interest before the administrative authorities and not for these trials, the distinction was made whether he was one-eighth, , one -fourth, or one-half Jew, that is to say, a person of mixed descent of that degree, or whether he was a full Aryan. But I say that that is a question which for carrying out these descent cases was of no importance.
THE PRESIDENT: Will you tell me then, and do it briefly, because I know you can, what did the person have to prove in order to establish in a descent case that he was an Aryan?
THE WETNESS: It was established, Mr. President, that contrary to the legal assumptions, he was not the descendant of that and that father. Nothing else.
THE PRESIDENT: That is, that he was not the descent of his purported father.
THE WITNESS: Of the purported father according to the legal assumption.
THE PRESIDENT: That is if the father was a Jew.
THE WITNESS: If the father was a Jew.
THE PRESIDENT: Then he had to prove he was a bastard. Is that what you mean?
THE WITNESS: Yes. If it was at ell a question of legitimacy. There were such cases of descent also outside of marriage, illegitimate. These descent cases were not restricted to Jews. There were not at all any special regulations for Jews.
BY Dr.ORTH:
Q Witness, will you please refer now to Exhibit 451.
A I mentioned 451 before, briefly. First I would like to refer to Point I/3. - questions pertaining to the sphere of Department 6, and specifically the question of restricting the presentation of evidence by examinations of genetics in matters of descent were referred to.
It is put up for discussion there that such evidence can only be required if it is a question of coordination within the racial community. The reason for that matter was that in the field of expert opinions on eugenics, as I have already mentioned, in the course of the war a bottleneck had arisen. This led to accumulations of cases according to numerous reports by presidents of district courts of appeals. In such cases one had to wait from two to five years before it was possible to get the required expert opinion, and just that was the reason to give concern in cases which deals with Aryanization, because these people were interested in obtaining a decree as soon as possible. The question was discussed already in the conference of Presidents of District Courts of Appeal of February 1944 at Weimar. That can be seen from Exhibit 100, NG-674. And at that tine already we emphasized. the difficulties which had arisen and the necessity to limit the use of these means of evidence. The aim which we had in mind was to see to it that evidence in the form of investigations of eugenics should be reserved for those cases where the parties concerned were urgently interested to receive a decision as soon as possible, and those were particularly the cases of Aryanization. Therefore, we were not at all concerned in this case with persecuting the Jews, but to obtain some favors for these cases, favorable conditions, so that these trials could be carried out as quickly as possible, and as orderly as possible.
THE PRESIDENT: The only favor would be to the advantage of the person who successfully proved that he was not a Jew, wouldn't it?
THE WITNESS: In my opinion the aim of every case, particularly in status cases, is to establish the truth, and for that these means of evidence were needed.
BY DR. ORTH:
Q Witness, will you please refer in conclusion to Exhibit 457?
A I have explained before that the Public Prosecutors as well as the courts when dealing with descent cases were attacked, and that on account of their attitude in favor of the Jews, because in fact most of these cases were decided in favor of the persons filing the claim, and therefore Thierack in the month of February, 1944 - it might have been in February, 1944, or in spring, at any rate, - I could not be sure about the month - ordered that a draft of a decree be made covering the point of view which should be taken into account in dealing with descent matters of Jews and persons of mixed descent.
He ordered that reports be made to him on this matter and to that report the remark in Exhibit 453 refers on Page 4. That generaldecree, as fan as I know, never was issued. The matter was rather shelved because of the difficulties which had arisen due to the turn the war took. After these difficulties had been straightened out Thierack, however, returned to that question again. I denied that the need existed for such a general decree, but I told the Minister that it appeared to me, in order to stave off such attacks against courts and prosecutors, that it would be much better if the Minister would put himself with bis entire authority and responsibility into the matter. That could be done, and it was proper because the Public Prosecutors were the ones who had to file charges and wanted to. In this manner the decree, the circular decree of 28 December 1944 came about which I signed on order of the Minister but which did not achieve any practical importance due to developments. Moreover, this circular decree - I should like to emphasize again only refers to charges to be filed by the Prosecutor, to a part of these charges against the illegitimacy of descent, but not to cases where the persons themselves had filed claims.
Q I shall leave these documents now and want to discuss a different subject with you briefly. To what extent did the Reich Ministry of Justice deal with matters of hereditary health?
A That question has already been answered by Dr. Schlegelberger. The entire group of problems on principle fell within the jurisdiction of the Reich Ministry of the Interior, which signed all the decrees concerned.
The Reich Ministry of Justice was only concerned to the extent as the organization to set up hereditary health courts and the procedure were to be covered. The questions of organization were matters for the Reich Ministry of Justice, and there they were dealt with in Department I, whereas masters of procedure were dealt with in Department 6.
Q During your work as a department chief were you frequently concerned with matters of hereditary health laws?
AAccording to my recollection, only twice. The first time in connection with the so-called "War Measures Decree" of the year 1943 and the second time in connection with the Second War Measures Decree in the year 1944.
Q What were these matters concerned with?
A The lack of personnel caused by the war made it mandatory to spare the courts any not absolutely urgent work. Therefore, in connection with these problems I approached the Reich Minister of the Interior and required that the hereditary health courts be suspended temporarily, because during the war I did not consider these cases to be urgent, and I hoped that it would be possible later on to bring about some changes in the legislation which I desired. The Ministry of the Interior in 1943 decided that these matters should not be restricted any further, that is, one should not go beyond any decrees which had been published before. In 1944, however, it agreed that the carrying out of cases of hereditary matters should be restricted to the most urgent cases. Accordingly a decree was issued by the Reich Ministry of the Interior to the hereditary health courts. I only want to refer briefly to No. VII of Exhibit 451 in this connection. It shows that what I have stated in regard to 1944 is correct.
Q In this connection would you please comment also on Exhibit 452, that is NG-790.
A I believe the document speaks for itself. May I just refer to one point, though. That is the fact that reopening of cases should not be suspended in those cases where the sterilization had not yet been carried out. Quite generally may I state that about the question of suspending the activity of the courts the decision had to be made on the basis of their own digression. These were just general directives. If the sterilization had already been carried out on the basis of a previous decision by the Hereditary Health Court, then it was no longer urgent to reopen the case.
Q During the term of your work as department chief in the Ministry was there ever a case reported to you or did you come to know of any complaints about the fact that the proceedings for sterilization before hereditary health courts were abused for racial or political reasons or purposes?
A No, I only heard about such charges from the study of the indictment.
Q In Document, Exhibit 419, the Witness Suchomel states that before officials of the Ministry of Justice, a lecture was given about euthanasia. Did you happen to know about that lecture and did you attend it?
A Suchomel said himself that the lecture took place in the year 1942. Therefore, I could not know anything about that because at that time I was not yet in the Reich Ministry of Justice.
Q The Prosecution submitted as Document NG-702, Exhibit 481; and as Document EG-783, Exhibit 484, letters which you wrote, or which were addressed to you. First, a purely technical question. Do these two documents belong together?
A Yes. Exhibit 484 contains the answer from attorney Messina the answer to my letter addressed to him, which is contained in 481.
Q From this correspondence, the conclusion could be arrived at that you had something to do with the People's Court. Is that assumption correct?
A No. With the People's Court, as I have already explained, I had nothing to do neither in technical matters nor in personnel matters nor in the organizational matters except for the preparatory work for the intended reform of the administration of justice and the administration of courts after the war, which I have already mentioned.
Q If you had nothing to do with the People's Court, how then did this correspondence with Dr. Messina come about?
A On the occasion of a field trip to the district of the District Court of Appeals, Graz, I had a conversation with the Gauleiter and Reich Governor (Statthalter) Reiner of Corinthia, in his capacity as Supreme Kommissar for the Occupied Region of Trieste. The conversation was concerned with questions of legal remedies. Since that occupied territory adjoining the Alps and of Trieste, neither by law nor administratively was under the jurisdiction of the Reich Ministry of Justice, but the use of legal remedies between the courts of that territory and the German Reich had to be regulated on the basis of principles of international law.
The attorney Messina attended that conference as the man in charge of matters of justice for that occupied region and on that occasion, Reiner and Messina informed me that Corinthia was suffering greatly from attacks by guerrillas coming from the South, and that these raids of guerrillas were carried out mostly by German deserters; but that carrying out of cases was delayed by the People's Court within the jurisdiction of which these cases would come, so that the effect of such trials could not be achieved. They asked that something be done about it. I told the two gentlemen that officially I had nothing to do with that matter but that I would be prepared to forward their complaints to the Minister.
I did that, a few days later when I met the Minister at Kochem. The Minister, in the presence of the Chief Reich Prosecutor before the People's Court, who by the way was already informed about the matter, discussed these problems and told me to ask the attorney Messina to submit the material for the statements which he and the Gauleiter had made to me which they had promised us. Thereupon I wrote the letter, which is in Exhibit 481.
Q After receiving the reply to your letter, that is Exhibit 484, did you take any further steps in that matter?
A I did two things: first I informed Ministerial Director Letz of Department I, who had to handle this matter as a matter of organization; and secondly, as for Drl Messina's answer, Exhibit 484, as soon as I received that, I gave it to the Minister personally. I had nothing else to do with the matter and did not hear anything about it later.
Q Witness, now I should like to discuss with you the questions relating to your membership in the SS. How did you come to the SS?
A Himmler knew me from my hometown Landshut. He was considerably younger than I. I had no personal contact with him, but in a small town, it is quite natural that you know eath other, particularly in the circles of professional men.
In 1936, I believe it was in the fall, Himmler had an inquiry sent to me whether I would agree to have a personal conference with him. I agreed, but for a considerable time I didn't hear anything about the matter, until at the end of the spring of 1937 I was called to Dresden, to Himmler. At that time Himmler told me that he had pushed through his police law now, and in order to set up the police he was looking for expert jurists, and he had also thought about me. He offered me a good position, asked me whether I was ready to enter the police service. I refused, and also gave him the reasons for it. At that time I was a judge with the Reich Supreme Court, but I did not mind telling him that I did not agree with certain practices of the police and the activity of state authorities in connection with the Roehm Putsch, and that I had found that the courts in that case were quite excluded by the executive power, and that I did not agree with it.
With these police practices I meant protective supervision in cramps. Himmler also commented on these objections on my part. He stated that the establishment of concentration camps was not intended to be a permanent institution to do away with political adversaries. He told me that the number of political prisoners had already been reduced from about 15,000 to 3,000 and that every political prisoner, if he had made a declaration of loyalty to the Reich, could have his freedom restituted. He also commented on the questions concerning the Roehm Putsch. I do not want to discuss that in detail here.
Himmler told me that he was glad I expressed open criticism to him and he asked me subsequently to enter his SS. I told him that that wa.s out of the question; for one, because I was very busy in my profession and had no time to do any other service; and then because I was bound by my religious belief; and finally, because I had been a member of the Schlaraffia.
Himmler did not accept these misgivings. He told me, in particular, that "It is a matter of course and I do not expect you to do any service in the SS. You will come to the SS, as I have handled it recently with many cases, because it is my intention to get the best heads into the SS also." He said he could not expect the spiritual elite to do any service in the SS. They joined the SS in an honorary manner, and he had also told me that if I agreed I would be transferred to his personal staff or some higher staff, and that it would be in a rank which was in accordance with my civilian status.
I asked for time to think it over. Then when I returned to Leipzig, I discussed that matter with several people, also with my chief president, who was at that time Dr. Bumbke, the President of the Reich Supreme Court. I did not do that because I had misgivings or objections against the general SS as such - at that time, there were no objections or charges raised against the general SS -- but because I did not want to be bound to a Party organization again. I was generally advised that I should not refuse the invitation by Himmler. The Chief President even encouraged me to accept. He pointed out to me that the general conditions were about to settle; that also foreign countries apparently showed more confidence, and that at home there were reasons to assume that the revolutionary development had come to an end and that evolution was beginning to take place. He also said that he thought the moment had arrived where those people, especially the intelligentsia, who had remained aloof up to that time, should and would have to try within the Party and within its organization to take an influence in the development of matters. That point of view of the Reich Supreme Court President was to a great extent the same as my own. Therefore, I decided to accept Himmler's invitation.
Q If I understood you correctly, what you believed was that you could brush aside your objections - original objections - because Himmler himself was the one who helped you to no so, is that correct?
At No. This question is based on an erroneous assumption. The misgivings -
THE PRESIDENT: We understood your explanation. You said that you thought it was time for the intelligentsia to exercise some influence within the Party, in accordance with the President of the Reich Supreme Court's advice. That was your point, wasn't it?
THE WITNESS: Yes.
BY DR. ORTH:
Q At that time you stated some of your misgivings to Himmler. Did these objections refer to actions of the Ss or the police?
A I said already: actions of the police because I did not know of anything else.
Q And how did your membership in the general SS practically come about?
A First, I joined the staff of the 48th SS Standarte at Leipzig, the so-called Legal Department. That however, was purely a formal matter. I neither did any work or any service for the legal department nor any other part.
Q Did you ever swear an oath of allegiance to the SS?
A No. The honorary leaders ware urged once on the course of a so-called formal oath taken by recruits that they also should swear the oath, tut I did not do it.
Q Did you do any work in the SS later, or any service of any kind?
A No. I believe it was in the course of the year 1938 that I was transferred to the staff of the SS main office in Berlin, while I still had my residence in Leipzig. Before the war I never was at that office nor any other Ss office in Berlin. I did not know anybody there personally so that any personal or official contact was lacking for me.
Q Did you ever take part in any formation or any other meeting of the SS?
A No.