Q And, on the 23rd of November 1934, you celebrated your fortieth year of service in the Ministeries of Justice of Germany or of the Land: is that correct?
A 1934?
Q Yes; that is the record I have. When was it you celebrated the forty years in service?
A The forty years of service we celebrate subsequent to our time -- as Referendar. As soon as a civil servant becomes a Referendar, from then on the forty years begin to count. In 1934, that cannot be quite correct: I was appointed Referendar in 1897, so it must have been in 1937.
Q Now, I believe also that you testified during Minister Guertner's time you spent practically all of your time with -- certainly up to the time of the war, with civil matters in the Ministry; is that correct?
A Yes.
Q And when did Roland Freisler come into the Ministry as an Under-Secretary?
A In 1934 when the Prussian and Reichministry of Justice were merged.
Q And, during that time, I think you testified, that Freisler spent most of his time in connection with the administration of penal justice and you, under Guertner, worked on civil matters?
A No, that is not quite correct. Freisler did deal with penal matters, that is correct; and, I dealt with civil matters, that is correct, too; but Guertner took care of both.
Q Yes. But, under Guertner, your field was civil matters and his was -- and Freisler's was penal?
A Yes.
Q The People's Court was established when, in 1933 or 1934?
A I cannot say that with certainty; the law creating the People's Court dates from 1936, but it had already been established before;
however, I do not recall the year.
Q But, it would be correct to say that during all of this time that the People's Court was in existence, it exercised no civil jurisdiction, did it!
A Yes, that is correct.
Q Do you recall that on or about 20 July 1934, you addressed a letter to the Reichswehrminister and the Reichsluftfahrtminister saying that:
"I have the honor to forward to you for your kind consideration the enclosed of an ordinance of the President of the People's Court, dated 18 July 1934, concerning the composition of Senate of the People's Court.
"The President of the People's Court has informed me that the distribution of members to the various Senate was undertaken in agreement with the gentlemen concerned.
"I would be grateful if you will telephone Ministerial Councillor Dr. Mettgenberg by return should any objection to the regulation exist. If I am not informed of any objections by the 24th of the month...."
That was written on the 20th.
"then I shall assume that the regulations-shall come into force through the President."
Signed for -- signed, "Dr. Schlegelberger."
A No, I cannot recall that letter. May I ask you to show it to me, please.
MR. LA FOLLETTE: Your Honors, please, I would like to have document NG-1029 marked for identification only as Prosecution's exhibit No. 517. May I send it to the Secretary General to be marked for identification only.
Dr. Kubuschok, I will have a German copy in here in just a few minutes. In the meantime if you want to go to the witness and look at the original exhibit, please do so.
THE PRESIDENT: Will you give us the identification of the document again!
MR. LA FOLLETTE: Yes, your Honor, NG 1029, Prosecution's exhibit 517.
DR. KUBUSCHOK: May I make a remark in regard to this question-quite a general remark please. Certainly the Counsel who is conducting the cross examination has the right to show documents to the witness, or to the witness who is the defendant, but I believe that one must have misgivings about the fact that documents which have not been made known before, are submitted as an exhibit, at the same time, but what, in practice makes the time limit, which has to be given in regard to documents, will be made illusory.
Mr. LaFOLLETTE: If Your Honors please, although precedent is not always controlling if it is not reasonable, the practice that I am not introducing has been followed in Military Tribunal No. I.
I point out also that this form of cross-examination has to do, of course, with checking the credibility of the witness and his memory, and sometimes definitely for the purpose of impeachment. Now, the whole benefit of such impeachment by documentation would be lost if any 24 hours' notice is required. I am simply offering the document for identification. It is contemplated, according to all the practice that I have observed and which is followed here, that if the Court considers it later to have been properly identified in otherwise admissible, then on rebuttal the exhibit will then be referred back to and offered in evidence. I don't think that the 24-hour rule is controlling; as a matter of fact, the 24-hour rule would completely defeat the purpose of cross-examination for the purpose of impeachment.
THE PRESIDENT: The Tribunal has no question concerning your right to have the document identified and to use it at this time as a part of your cross-examination. If questions arise as to its admissibility, it is possible that 24 hours should be allowed before final receipt of the exhibit. Is that in accordance with your idea?
Mr. LaFOLLETTE: Exactly; it is in accordance with my idea, Your Honor. And I further, at least for the present, unless the Tribunal desires otherwise, do not contemplate offering the exhibit as evidence during cross-examination but in rebuttal, when I have the right to offer evidence. However, I want it identified, and then the 24 hours' notice, I contemplate, will be given by saying to all defense counsel that exhibite which have been identified by certain numbers will, beginning with the rebuttal, be offered in evidence.
THE PRESIDENT: You may proceed.
Mr. LaFOLLETTE: Thank You.
I have here ten English copies, which should be enough. Here are four for the Tribunal, two for the interpreters, and two -- those are all English -- two for the English court reporters.
Then will you distribute these two to the interpreters, two to the German court reporters, and the balance to the defense counsel.
Does the Secretary-General require a German copy as well as an English copy for his archives?
THE SECRETARY GENERAL: No.
Mr. LaFOLLETTE: Just an English copy? You don't have one yet?
THE SECRETARY GENERAL: I have the one; I will require others for the archives.
Mr. LaFOLLETTE: All right; here is another English copy for the Secretary General.
BY Mr. LaFOLLETTE:
Q.- Does the exhibit contain your signature, Dr. Schlegelberger, or is it signed by you in typing on the document?
A.- Here it is signed only in typing.
Q.- In writing? And it is on the stationery of the Ministry of Justice?
A.- On the photostat? Yes.
Q.- Yes, yes. I mean, the photostat indicates that the letter was written on the stationery of the Ministry?
A.- Yes; yes.
Q.- Would you just examine for a minute, with me, the list of the proposed gentlemen to be lay judges? I find Obergruppenfuehrer State Councillor von Jagow. Do you find that?
A.- Yes.
Q.- And Gruppenfuehrer Mayer-Quade?
A.- Yes.
Q.- And Kreisleiter Worch?
A.- Yes.
Q.- I won't go through the rest, but if you will glance through the exhibit I think we can agree that there are considerable names of SS or SA leaders in that list. Is that right?
A.- Yes.
Q.- Just as a matter of thinking, in connection with the independence of the judiciary, one element of it is that the judge shall be selected as far as possible without regard to any group or any background which would give him a predisposition one way or the other towards any facts that come up before him. Is that a fair statement?
A.- Yes, but may I add something in regard to this document?
Q.- Surely.
A.- This letter from the President of the People's Court is distribution of business; it is a distribution of the judges to the different Senates and not a selection of those persons who are supposed to be active as judges at the People's Court. That selection had already been made when the President of the People's Court sent this letter. Now the question was only to distribute than to the different Senates. This distribution of business was called to the attention of the Minister, and this letter of the 20th of July follows that. And this letter, I would like to say, is an example of the things that I stated yesterday.
It did happen, now and again, that when I was Acting Minister I signed such technical letters even in Freisler's field if, for some technical reason, he did not have the time to sign such a letter himself. The letter is dated during a time when he was on vacation, and that probably explains it.
Q.- Yes. However, the letter was addressed to the then Minister of War and the Minister of the Air Force in existence at that time.
A.- Yes.
Q.- And they must approve these men. That was the reason it was sent to them, was it not?
A.- No; no.
Q.- No?
A.- No. I believe there is an error there, Mr. Prosecutor. That was not the point, but the distribution of business, the distribution of the individual persons to the individual Senates.
Q.- Yes, but you were advising the head of the Army and the head of the Air Force of this distribution; is that correct?
A.- Yes, naturally.
Q.- Yes; thank you.
Now, on the 21st of October, 1941, do you recall receiving a letter-probably quite routine -- from Minister Lammers, which was a document signed by the Fuehrer in respect to the re-appointment of honorary members of the People 's Court, ant it contained a list of the judges who were to be sent? I will hand you a copy of the list in just a moment.
I will hand you document Ng-723, which I ask to be marked for identification as Prosecution Exhibit 518.
Mr. LaFOLLETTE: There are four copies of the German for the interpreters and the reporters, and then here are the English to be distributed as before.
MR. LAFOLLETTE: May it please the Tribunal, if Your Honor please, may I address the Tribunal a minute? I believe if it is agreeable to the Secretary--General, we might perhaps follow the practice in here which I believe is being followed in Tribunal 1; that these exhibits which are marked for identification are not of course in evidence, but they remain in the custody of the Secretary-General until they are called back for the purpose of being introduced. I will send this back to the Secretary General.
That exhibit is written on the stationery of the Reich Minister and Chief of the Reich Chancellery, and addressed to tho Reich Minister of Justice. Is that correct?
A. Yes.
Q. And it contains the signature of Dr. Lammers and states, "Herewith I respectfully forward to you the document signed by the Fuehrer in respect to the reappointment of Honorary members of the People's Court." And I find among the list of lay judges, five SAleaders and three SS-Leaders. Do you find that many there?
A. I will have to count it first, but I will be glad to do so.
Q. Thank you.
A. Anyhow, there are several of them.
Q. And again on this matter of the independence of the judiciary, I think we are agreed that independence also is measured to some extent by the capacity for being objective by the people who constitute members of the court. Is that not correct? Did you hear me?
A. If I may make a statement about that, the People's Court was constituted in such a way that it consisted of professional judges, and lay judges. From the very beginning certain definite political and military organizations had been given the right to make suggestions with the purpose of having these organizations represented in the People's Court. For that reason, if one knows the organization of the People's Court, one cannot be surprised at all, that the members of these organizations are appointed as judges.
Q. And that was true, of course, in 1934, too, was it not?
A. Yes. That is connected with the organization of the People's Court as a whole.
Q. You were, of course, in the Ministry when the Nuernberg Laws, the laws identified as the Nurnberg Laws were passed, were you not?
A. Excuse me, I did not understand your question.
Q. You were, of course, in the Ministry when the laws on race which are generally identified as the Nurnberg Laws, were adopted?
A. Yes.
Q. That was in 1935?
A. 1935, yes.
Q. With reference to the activities in Nuernberg in 1936, you do remember a conversation with President Doebig of the Oberlandesgericht on the manner in which the property was being transferred from Jews in Nurnberg in 1938? That was in Berlin.
A. Of course.
Q. That was in Berlin.
A. There was a discussion in Berlin.
Q. At that time, was one of the defendants in this case, Dr. Rothaug, a judge of tho Special Court down here in Nuernberg?
A. Yes.
Q. Was Streicher editing his paper down here at that time?
A. I suppose so.
Q. I am sure from what you said on direct examination that you did not find it very interesting reading, but you from time to time did see that paper, did you not, Doctor?
A. In the direct examination, I did not speak about Streicher's newspaper at all.
Q. I realize that, but unless the court admonishes me to stop, maybe you will answer my question. Did you see it?
A. Yes.
Q. Yes?
A. I know the "Stuermer" only from looking away. On the streets, on the bulleting boards, I saw it hanging. That was enough for me.
Q. I understand that, but you did know it was published down at Nurnberg?
A. Yes.
Q. And, it was published in 1938, is that right?
A. Yes, certainly, I believe so.
Q. Did you know one of these other defendants, at least his position? Was Defendant Oeschey judge of the Special Court, Nuernberg, in 1938, or do you remember?
A. Oeschey, I saw for the first time here. I do not remember that I ever heard his name before that.
Q. But you did, of course, know of the Defendant Rothaug before 1938? You know that he was here?
A. Yes.
Q. Now I think you testified that after President Doebig reported to you, there was an investigation down here of the forced transfer, and there was disciplinary action taken against the notaries who acknowledged those transfers?
A. When Doebig came to see me, we only discussed that he desired to have an act of legislation or of administration which would relieve the judges of responsibility in this case. As far as I know, there was no disciplinary question at that time at all.
Q. I think you testified that later the Defendant Joel, as a result of action taken within the Ministry either by Dr. Guertner or yourself, did come to Nuernberg and investigated those transfers, is that correct? I thought you said that on direct examination.
A. Yes. Joel was a member of the Goering Commission. Goering was the chief of the Commission which was supposed to investigate the entire Streicher manipulation, and Joel had been appointed to this commission.
Q. Yes. Do you mind telling me and the Tribunal just what was the disciplinary action that was taken against the notaries who handled those transfers at that time in Nuernberg?
A. Well, from my memory, I can tell you the following. Disciplinary investigations were conducted against notaries who had certified these transfers of property by force, these blackmail transfers of property. The then president of the district court was somehow involved in that affair, and then he was transferred to another place.
Q. Yes. Do you remember, I have not quite learned, and maybe you do not remember, what happened to the notaries? Were they discharged? Were they fined or what happened to the notaries who took those transfers?
A. I do not remember that any more today. I do not know.
Q. And I believe you testified in answer to Dr. Kuboschok that you felt forced to tell Dr. Doebig that there was no emergency administrative action that could be taken; that this was a matter which lay within the jurisdiction of the judges of the courts in Nuernberg, and that they would have to take what action was necessary. Am I stating it about right? If not, you tell me.
A. Yes, I replied to Dr. Doebig that if as he told me the transfers of real estate had been achieved by blackmail, then every judge would know that on the basis of such contracts, they were not allowed to register them in the real estate register.
Q. That was in 1938, of course?
A. Yes.
Q. On June 30, 1940, Reichgesetzblatt for 1940, Part 1, page 907; the German law was extended in German judicial procedural to the annexed Eastern territories. Would that be correct? Would you like to see a copy of the law for that date?
A. May I ask you to show it to me?
Q. Surely. I ask that NI-1612, which the witness presently has before him, be identified as Prosecution Exhibit Number 519.
That is, on its face, signed by Dr. Guertner, Reich Minister of Justice, and Frick, Reich Minister of the Interior, dated Berlin, 13 June 1940; is that correct?
A: Yes.
Q: Of course the document speaks for itself. Generally it refers to extending German law into the Incorporated Eastern Territories. Is that correct?
A: Yes, that is to say, it concerns the organization of the courts.
Q: Yes. You knew about that decree, I guess, did you not, Dr. Schlegelberger?
A: I suppose so, yes.
Q: Thank you, My continental geography is not very good. Maybe you can help me. Eupen, E-U-P-E-N-- nor my pronunciation -- Halmedy, M-A-L-M-E-D-Y -- and I won' t try this next one: Moresnet, M-O-R-E-S N-E-T. They are districts in either Belgium or France, are they not?
A: Belgium.
Q: I ask that Document NG-1613 be marked for identification as Prosecution's Exhibit No. 520. Would you give that to Dr. Schlegelber, please?
(The document is offered to Dr. Schlegelberger) That is an order which shows on its face that its signed:
Reich Minister of Justice, By Proxy, Dr. Schlegelberger; and Reich Minister of the Interior, By Proxy, Pfundtner; and it is dated the 29 July 1940. The substance of it is, "By virtue of the decree of the Fuehrer and Reich Chancellor of May 23, 1940, for the implementation of the decree concerning the reunion of the districts of Eupen, Halmedy, and Moresnet with the German Reich--Is that the way you find the document?
A: Yes.
THE PRESIDENT: Were you going to give the Tribunal copies of this document.
UR. LAFOLLETTE: I thought they were distributed.
THE PRESIDENT: We have not received them.
(The document is distributed to the Tribunal)
BY MR. LA FOLLETTE:
Q: That decree went not to the East but into Belgium, is that correct?
A: Yes.
Q: Do you have anything to say about the circumstances under which you signed that, Dr. Schlegelberger, or do you remember?
A: I remember only as the introduction to that decree says, "By virtue of the decree of the Fuehrer and Reich Chancellor for the implementation of the decree concerning the reunion of these former German territories with the Reich": AND THAT WE, by virtue of the directive of policy which the Fuehrer had issued, had to issue this decree.
Q: Yes. Now I believe you testified on direct examination that you, yourself, had no anti-semitic feelings, as such, against the Jews as a race; that also you sought justice rather than to classify people as groups. That, as I gather, was right?
A: Yes, that is correct.
Q: If then you extended the Nurnberg laws by decree into the Eastern territories, that would be a little inconsistent with your own feeling about the matter, would it not?
A: Certainly not.
Q: May I hand you a copy of an Order of the 13 of May 1941 which as I read it has the effect of extending those laws into the Eastern Territories which was signed by you. That is the Prosecution's Document 1615, which we asked to have marked for identification as Exhibit 521, your Honor.
If your Honors please, If the Tribunal will permit me, I have had English copies of this and I thought they were here. I am advised that they are not in here now. I will furnish them. May I proceed and then furnish them to the Tribunal?
Have you examined that exhibit, Doctor?
A: Yes.
Q: Its signed by you as Acting Reich Minister of Justice, and Martin Bormann and Dr. Stuckart, is that correct?
A: Yes. There are two decrees on the same day.
Q: Yes. Section 3 provides for in the Annexed Eastern Territories the Act for the Protection of German Blood and Honor of 15 September 1935. That is what is known as the Nurnberg law, is it not?
A: Yes.
Q: That was applied to the Eastern Territories?
A: In regard to this decree, I would like to say something, if I may.
Q: Surely.
A: These two decrees of 31 May 1941; the first one is an order introducing it; and the second one is the Executive Order of the Law for the Protection of German Blood and Honor. They have to be looked at together. As far as the basic question of the introduction of that law is concerned, the prosecutor has already spoken about my personal feelings. I shall leave them out of consideration for the moment. In regard to the question as to whether the Nurnberg Laws were supposed to be introduced, the following were the decisive legal sources:
First, here too the directives of politics which Hitler had issued; secondly, the political responsibility of the Ministry of the Interior as the central office for questions regardirg the Eastern Territories and the leader of the Party Chancellery.
The Ministry of Justice, in regard to these laws, participated only because the so-called law for the Protection of German Bolld and Honor by which Minister G Guertner was completely surprised at the time contained a penal regulation. If now, in accordance with the political directives, one had to introduce this decree, the penal regulation, of course, had to be introduced too, and from that resulted, of necessity, the signature.
Moreover, from the connection of these two decrees, it is, without doubt, apparent that the decree did not at all refer to Poles, and neither no matter whether they were Jewish or not; but it referred only to German citizens, and that they had to comply with these regulations was obvious.
Q. Thank you. I gathered from your answers on direct examination that you felt that you constantly had a struggle with Nazis of the type of Himmler and Bormann to keep the abusive judicial processes from getting out of hand. Have I stated it about correctly?
A. Yes.
Q. In Prosecution's Exhibit No. 248, which appears in the transcript of this case at page 2,241, there is a statement which says that in contrast to the three crimes which were punishable by death before 1933--- Exhibit 248, Your Honor -- in 1943 or 1944, I think it is, there were not less than forty-six such crimes under the Nazis. Would you say that was approximately a correct statement? ---From your experiences in the Ministry that it went from three crimes to approximately, let us say, to forty punishable by death?
A. This calculation is not quite correct, Mr. Prosecutor.
Q. All right.
A. This figure forty-six is calculated quite correctly if the individual facts are combined as they are enumerated there. But the threats of death penalty for the individual crimes were sub-divided in such a way that, for example, in the case of high treason and in treason, I believe too, quite a number of threats of death penalty can be calculated and then one arrives at a considerable less figure.
Q. Yes.
A. But I believe that is not the decisive thing. The decisive thing is that a wrong picture results, for the following reason: One compares the three threats of the death penalty of the old time with the forty-five or forty-six, let us say, of the new time, and on any unprejudiced reader this must have an effect, as in these new cases, just as in the old ones, they were concerned with the absolute death penalty; but that is not so at all.
But if one regards the matter, there are four groups--cases of absolute death penalty, cases where there is a death penalty or prison term, where there is a choice; cases where there is a death penalty, or, if it is a minor crime a prison sentence; and cases where there is generally a prison term, but in more serious cases a death penalty. If one investigates those matters in that light, if one examines them in that way, one arrives at the result that the three threats of death penalty of the old time are confronted by about twelve in the new time, and among these belong very exceptional cases; as, for example, I may perhaps mention the motorcar trap law, the blackmail kidnapping law, theft from the metal and wool collection; and if one substracts these matters, too, then quite a different picture results in fact.
Q. Yes. Now , the Prosecution --- let me ask you -- I will withdraw that first. The fact remains that there was an increase in the death sentences and an increase in acts for which the death penalty was given during the time that covered your service in the Ministry, both before and after Dr. Guertner's death, from 1933 on; that is correct , isn't it?
A. I would like to say the following about that matter. As far as I remember, but I cannot rely on my memory completely, during the time when I was in charge of the Ministry, only the Law of 1941, in the case of dangerous criminals and sexuals crimes, a new threat of death penalty was pronounced. Otherwise, during my tenure in office there was no increased severity.
Q. In Prosecution Exhibit No. 249 there are official figures given and percentages of the death sentences for each one hundred thousand convictions. These figures indicate that the percentage in 1930 was seven per cent; that in 1934 it rose to twenty--five per cent; and that in 1940, which is the last year that is contained ,--
or rather, I am sorry, these are the figures of the death sentences per one hundred thousand convictions, not percentages; and in 1940 it had risen to one hundred-ten. That was during the period prior to the time that Dr. Guertner had died, but while you were with him; and as I understand you and he were fighting against increased severity of the penalty sentences; is that correct?
A. Yes -- well, that is to say no. Guertner fought in all of these matters, but Mr. Prosecutor, you are probably confusing the struggle with the offices outside the Ministry and the instigation for clemency as a whole. But as far as the administration of Justice is concerned, I did not take any part in these matters.
Q. Now, I believe that you testified that you could not resign, both factually prior to the beginning of the war, and, as a result of a decree or legislative act, after the beginning of the war; is that correct?
A. I expressed it about as follows: That before the war, for factually reasons I could not resign; and for legal reasons it was impossible after the beginning of the war.
Q. I think that is right. Would you mind elaborating a little bit on your statement and tell us what the factual reasons were before the war?
A. Hitler was of the opinion that he alone had to decide who had to fulfill a decisive task in the government offices, and that it was not up to the discretion of the individual civil servant to withdraw from that task. If one had referred to the Reich Civil Service Law, in paragraph 66 of which there was a right to resign, one would certainly not have been listened to.
Q. This was prior to the war -- the period you are talking about now?
A. Yes, that is what I was talking about.
Court No. III, Case No. 3.
Q Did you know or hear of Dr. Kurt Schmidt who was a member of the Reich Cabinet from the 30th of June, 1933, until the beginning of January 1935?
A Yes, of course.
Q I ask you whether or not he did resign in January, 1935?
A Mr. Prosecutor, first I can answer the question affirmative ly, but then I would like to add something.
Q All right, first he did resign? We are in agreement on that? He did resign?
A Pardon?
Q He did resign?
A Schmidt resigned.
Q All right now, go ahead. You want to explain that?
A But now I want to say something.
Q Yes. Yes.
A The question of the resignation of the then Reich Economic Minister, Schmidt, has been discussed with me already repeatedly, for example, before the IMT. Only one thing must be remembered: that is why Schmidt resigned. Mean tongues say that he fell ill because the loss of his large income in free enterprise seemed to him rather unpleasant. I certainly do not want to agree with that, but it is certain that Schmidt had a serious attack of fainting and thereupon stated that he did not feel that he was not strong enough anymore to take care of the affairs of the office. Unfortunately, I felt so well at the time that for myself this method could not have applied.
Q Was there an Eltz von Ruebenach in the Ministry during the time that you were in there prior to the war, in one of the Ministries of the Reich?
A Yes, he was in charge of the Reich Traffic Ministry.
Q Did he resign? And when?
A It is a little more difficult to answer that question because the story is not quite clear whether he resigned because he Court No. III, Case No. 3.wanted to or whether he resigned because he had to.
The conditions were as follows as far as I am informed about them: Hitler awarded the Golden Party Badge to all of the Ministers in a Cabinet meeting. On this occasion Eltz von Ruebenach before he accepted the Golden Party Badge made a reservation regarding the treatment of Catholic citizens. That led to a very violent discussion and a scene, and now one group maintains that Eltz von Ruebenach, who now did not receive the Golden Party Badge, thereupon voluntarily asked for his resignation and was granted this. Others, on the other hand, say that it was officially indicated to him that he had to ask for his resignation immediately.
I can only tell you about these two versions.
Q Yes.
THE PRESIDENT: Mr. LaFollette -
MR. LaFOLLETTE: Yes, Your Honor.
THE PRESIDENT: It is time for our morning recess. We will recess for fifteen minutes.
(A recess was taken.)