DR. HERMANN JAHRREISS, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
( The witness repeated the oath.)
JUDGE BLAIR: You nay be seated.
DR. SCHIBF: May it please the Court, before I address questions to the expert, I would like to explain that I an not conducting this examination as a defense counsel for my own defendants Klemm and Mettgenberg but for all defense counsel, and that Dr. Schubert, after me, will put a few questions as far as it concerns the judges in the dock here.
DIRECT EXAMINATION BY DR. SCHILF:
Q. Professor Jahrreiss, nay I ask you to tell us your name and your profession and your residence.
A. Professor at Cologne University; at present on the staff of eiters of the Record of IMT. Do you also wish me to name my residence, counsel?
Q. Yes.
A. At this tine, in Nurnberg. I was born at Dresden; the date of birth, 19 August 1894.
Q. So that I can afford the court the opportunity to acquaint itself with your particular research field, nay I ask you briefly to describe to us your field of research as Professor of Law.
A. My work since 1923 has dealt with the fields of constitutional law, international law, and the law by the League of Nations, general constitutional law, and philosophy of law.
Q. May I ask you just by way of example to mention your own pub lications-- the publications of a scientific nature.
A. Well, that is rather a lot; but publications which concern this subject here, I could mention: Law and the Calculability of Law, The Foundations of Law and State; another publication on the Relations of the Constitution of the Reich to the League of Nations; then in the textbook which Anschuetz and Thoma edited on German Constitutional Law, my work about the equality of the citizens before the law; and Above all, ay own version of the year 1330 about the German Constitutional System.
Concerning the first problem the German Constitutional Law, that is the subject on which I wish to start. My first question will open the direct examination. Is it correct that Hitler in the order of the so-called Third Reich was the supreme law giver?
A . Yes, that is correct, although that was not so from the very beginning of that era. That only happened in the course of events. But at the latest, if you'd like me to mention a date, that occurred when the offices of Chancellor and Reich President were reunited in him; that is to say, first of August 1934. That is the latest date.
Q. It was like this then: Hitler's authority developed gradually until it reached its final culmination?
A. Yes, that is correct. If I may add this, one must say that the development of Hitler's followed a development which occurred prior to his own era.
Q. Do you mean to by by that that the 30th of January 1933 did not bring about a complete break of the development prior to Hitler?
A. Yes, that is what I would say.
Q. Do you also mean to say by that that the so-called changeover, that is the seizure of power by the NSDAP, was legal?
A. That is a very difficult question. First of all it is difficult because one would have to say in greater detail what events represented the changeover--whether one adheres to the formation of the government on 30 January 1933, or whether one discusses the Enabling Act promulgated on 24 of March 1933, or how far altogether one wants to extend the events of the changeover.
I can only answer conditionally. If one considers only the formation of the government, that is to say the act of entrusting Hitler with the Chancellorship on 30 January 1933, and if by "legal", one moans the purely author formality, in that case it cannot be denied that the operation was carried out legally. That is to say, under Article 53 of the Weimar Constitution, according to which the Reich President forms the Cabinet and Parliament--the Reichstag-that is to say from the point of view of formal right, only afterwards has the opportunity to have a destructive influence on the formation of the cabinet. Under the Weimar Constitution, the Reichstag does not form the cabinet alone or together with another organ, but the President does that. The other organ is immediately elected by the people of the Reich. That is why it says in the Weimr Constitution quite clearly, Article 54, which incorporates the system of Parliament which creates the constitution of the vote of non confidence that is concerning it, and does entrust the President with the formation of the cabinet. Yes, in fact one has to say a little more. In the formation of the government, the appointment of the Reich Chancellor is the solo act of the President; side by side with, let us say , the dismissal, with which the counter signature of the Chancellor is purely formal.
In the development of the Weimar Constitution, after initial waivering, there evolved the principle that the now Chancellor appointed or signed the dismissal of the old Chancellor and his own appoint-men, which is really illogical. I don't think there is any need for mo to explain that any further.
But as the Weimar Constitution in Article 50 provided that every provision made by the president should be countersigned by the Reich Chancellor, or one of the Reich Ministers -- at least one; one was compelled to have even the appointment of the new chancellor countersigned. That means naturally for the new chancellor that he drags himself out of the mire by his own efforts. Counsel, if your question refers to the 30th of January -- formally the procedure was orderly; a great deal more difficult is the question for the Reich law of 24 March, 1933, that famous law, the validity of which was doubted so much; it is a much more difficult if your question refers to that. That law has as its main contents -- I can even say with a little exaggeration -- the elimination of the party system. Three provisions or groups of provisions of the Weimar Constitution are excepted, but for the rest the government could now promolugate laws seven if that meant changing the constitution of the Reich; for the normal life of the people legislators and supreme administrators, that is a basic change of the entire structure of the Weimar Constitution. And I can say frankly if I during the first years of the Weimar Constitution, as an expert of the constitutional law, would have been asked whether the Reichstag, even if there was a majority, can't change the constitution under Article 76 if the Reichstag could make such decisions, could pass a law which, in effect, eliminates the Reichstaf, if I had been asked such a question I would have said there is nothing about that in Article 76 that restricts the passing of such laws; but there is not only legality, there is also legitimacy in every constitution; there are certain basic decisions contained in any constitution which one cannot abondon without the entire losing of his character. But I must say the German science of constitutional law, particularly in the person of the most fanatic champions of democracy, did not take that point of view. Gerhard Anschuetz, who, if it is permitted to say anything like that about a republic, was the crown jurist of the Weimar Republic. His commentary to the Constitution of the German Reich is the authorative commentary.
Gerhard Anschuetz whose last position was that of Professor at Heidelberg, was, I might say, a temple guard of the Weimar Constitution, and if he only thought an attempt had been made to shake the foundations of democracy, perhaps by creating a group of judges who could have reviewed decisions by the Reichstag, he would have been furious. I must say that because only now it becomes understandable what authority Anschuetz' opinion carried, which was concurred in by all German constitutional lawyers that there wore no limits for Article 76, concerning the amendment of the constitution, Anschuetz stated repeatedly that the Reichstag, with the majority that can amend the constitution could abolish the republic , the federal state, democracy, even basic laws. No judge was entitled to doubt the constitutional validity of such a law. If previously I said that concerning that law of 24 March, one might have legal misgivings, I had something different in mind. I believe if I had been the president of the Reich, and if I had the knowledge of the events, I would have refused to issue that law and to promulgate it, for it is the Reich president who has to examine whether the law has come about in a constitutional manner. I am convinced, however, that on no account procedures can be constitutional when the present majority and the majority which passes the resolution was not formed by the Reichstag which was elected but by a Reichstag who had been curtailed in the executive. Much has been said about that, and there is something else that enters into that question, and I have to say that quite openly that has not been discussed before. At that session at which the Reichstag passed that law which changed the constitution, the Reich Chancellor felt that the Reichstag might make difficulties, and he threatened with revolutionary forces, but even that doesn't help and particularly it doesn't help according to Anschuetz. Anschuetz and German experts on constitutional law consistently upheld the view that the assurance of the Reich president, given by his signature, that the law had been passed in an orderly manner excluded all scrutiny.
Therefore, we have to say under objective law there maybe misgivings, serious misgivings about that procedure, but according to what at the time was the guaranteed practice of constitutional law which was upheld by the opinion of the most fanatic upholders of the Weimar Constitution, the signature by the Reich president excluded any scrutiny as to whether the law came about in an orderly manner. I believe that I have now indicated that the question for the socalled legality of the change-over, even purely formal, is very difficult to answer , but for t e rest it seems to me that this is only a verbal argument; a revolution, and that was meant to be a revolution. Hitler even thought it had been the only real revolution. And according to its aim and meaning it ca-not be legal, but in any case if it comes off, that is how it always will be in the world of states. It provides the soil on which the new order, slowly or more quickly, evolves, according to custom, and custom after all is the law.
Q. Professor, we are particularly interested to explain to the Tribunal the constitutional status of the so-called Hitler decrees. May I ask you, now that you have answered the question of legality on the one hand and theories of legitimacy(Legitimitact) on the other hand, would you now from the developments explain the constitutional status of the Hitler decrees within the meaning of my first question as to whether he was supreme legislator of the Reich.
A. I am afraid I shall have to go back a bit for that because that question really concerns the entire question of the so-called constitution of the Third Reich. For many a German, too, it is a mystery as far as Hitler's authority is concerned, but it must be that for all those who are not Germans. Many misunderstandings which I encounter again and again in conversations are due to the fact that certain unavoidable factors which are involved in any ruling, are ascribed to Hitler's regime.
A further difficulty consists in the fact that the peculiar constitutional insecurity in which most of the states in Europe have lived for many years, from the point of view of their constitution, produces phenomena which do not restrict themselves to Hitler's regime, but only appeared there particularly clearly. But above all -- because otherwise I cannot provide you with the background -- I should like to explain that a little further to the Tribunal --
above all, there is considerable ignorance about certain peculiarities of the German situation, in particular concerning the Constitution. I believe I may say without encountering any contradiction that in this courtroom jurists are fighting for clarity among themselves which belonged to various methods of legal thought. Above all, there is between the European continental states and their constitutional and legal thought on the one hand and the Anglo-Saxon legal thought as far as I understand it a great difference which cannot be over estimated. In the continent of Europe in the course of four centuries a development has taken place by which law and morality in legislative thought are separated sharply; and so as the question of morality arises, the lawyer on the continent of Europe says as a Lawyer, "That has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but, after all, that is the historical reality." How far that development goes, I can show to the Tribunal by giving an example which perhaps is the most important, and again that concerns the opinion of Gerhard Anschuetz concerning Article 102 of the Constitution as to whether the courts in Germany concerning the validity of the law passed by the Reichstag are entitled to doubt it for ethical reasons. I quote -- this is in the commentary of the 14th edition, page 476 -- "If it cannot even be conceded that the judge is entitled to examine the law as for its being constitutional or not, so it can be conceded even less that he may refuse obedience to a law which was passed constitutionally because according to his opinion concerning certain standards which again according to his opinion are above the legislator, that is to say, morality, ethics, natural law, they contradict these points or because they cannot stand up to certain evaluations."
I had to read this out verbally. Therefore, it was rather difficult for the interpreter because of the position of the verbs.
The reason for that situation in Germany, which is a situation that applies to the whole of Europe, is this--and I now have to broach a subject, the effect of which did not affect England or the United States. The state in the continent of Europe came into existence from the fragments of the Corpus Christinanus of the Western Hemisphere. The break of the Medieval realm is the soil on which the modern sovereign states grew. These states starting with Italy believe ever more strongly in the idea that they are sufficient to themselves, that they can live by their own efforts, that they are under no obligation to the past or to the future. The state becomes a purpose to itself. That has been emphasized again and again, and that development goes on from Macchiavelli, the great man of Florence, Vas Haudin, the great Frenchman, as far as Hegel, the German. As a result, ethical evaluations may be made by the legislator, Parliament or the Monarch, but the resolution passed by the Monarch or Parliament deprives those who are governed by these laws of all right of objection.
May I draw the attention of the Tribunal to one event that occurred under the Weimar Constitution. During the first years of the Republic it became known among the public that Berlin was thinking of forbidding any re-valorization by law. The judges of the Supreme Reich Court of Leipzig at that time formed their own association, and that association of judges in view of that rumor held a meeting and passed a resolution to the effect that if such a law were to be promulgated, they would refuse to apply it. That happened in 1924, and it was emphasized that such a law would run counter to morality.
There was a storm of indiganation among the Reich Government. The Reich Minister of Justice protested using very sharp expressions, and the Supreme Reich Court did not carry out its threats. However, in 1927 the Supreme Reich Court in a decision published in Volume 118 declared: "The legislator in the autocraty is not bound to any other restrictions but those which he draws for himself in the Constitution or in other laws." By way of illustrating, I should like to add --
THE PRESIDENT: Doctor, we have reached the hours at which we ordinarily take our recess, and the Tribunal will recess now until one-thirty o'clock this afternoon at which time you may continue.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION
THE MARSHAL: All persons in the courtroom will take their seats. The Guards will close the doors.
Military Tribunal No. III is again in session.
THE PRESIDENT: The Secretary General will take note of the absense of Dr. Schlegelberger, one of the defendants, who is absent at his own request, and with the permission of the Tribunal.
You may proceed Dr. Schilf.
DR. SCHILF: Before we continue, I have a request to elicit; two terms, which probably in the morning session were not translated quite clearly. The term which dealt with currency "Aufwertung", is re-valuation, and the second term "Legitimitaet legimitaoy, I would suggest to leave it in the German, "Legitimitaet", and to chose the translation from the German text which the translator considers correct.
BY DR. SCHILF:
May I ask you, Professor, to continue. You have been interrupted by the recess.
A May it please the Tribunal, I did attempt to explain the particular situation, of the development of German Constitutional Law; and first I had stressed that in Germany, such as on the continent in general, legal authority distinguished clearly between moral consideration and legal consideration.
Mow, I ask to be permitted to speak about another point which concerns only Germany, at least to that extent. It is easy to forget that German people for 33 years has never had really normal conditions. If one looks at that from the human point of view, it means that about 50 groups of German people, that is more than two-thirds 50 age-groups of people have never seen normal conditions; that is, all the people who were born after 1914, and those who, before 1914, did not have conscientious experiences. For all these people life -and that was the normal thing for them -- was a continuous change from open to latent crisis. One was always exposed to danger and always with a longing for stable conditions.
The consequence is that for most Germans an order which deserves that name, is something hard to imagine; to the German people order means something transitory; has become to mean something transitory, something unstable, something upon which one cannot depend, and doubtlessly it did not contribute to the stabilization of legal thought.
That, beginning with the time of the Weimar Republic the machinery of legislation was running incredibly fast. I would, indeed, desire for the judgment of the bench to see the maize of decrees and laws published and showered upon the German people since 1919. Most of those were laws or paragraphs of short existence. We had real inflation of legislation, as fan as I know, in history without example at any other period. And, that was not only so during the Weimar era, it became worse indeed during the period of the Third Reich before Hitler came. He turned with strong criticism against that positive manufacturing of laws. In his opinion, the sound sentiment of the people should only find its inclination in laws. But when he was in power that machinery, if possible, then was in higher gear.
I believe that I do not have to discredit it to my own inefficiency but I have to believe that no German jurist can say anything else of himself, but, none of us were in a position to know all the headlines of all the laws and decrees that have been passed. With things as they were, one has to understand that a large portion of the German nation, many jurists amongst them, became tired and apathetic toward authority, and skeptical. And, on the other hand it could not be avoided that many more positive natures revolted, wanted to take action wanted to do something about it, wanted to come to a decision, to a clarification, to a simplification, to find a way to see through all that.
If one maintained that in our area, at least one can say that for Europe, the political disease of phantasism, doctrinism, has broken out, that tolerance becomes more and more rare, that technical questions of law were handed out with elimination of allegance.
Then, one can easily obtain a picture of the chaotic conditions; small wonder that our State, to see to it that laws once decreed have to be carried out by the authorities; that that state demanded particularly emphasis because otherwise not even the minimum of order could be guaranteed which was at all possible. Particularly because the entire situation, the entire atmosphere was so unstable. The essence that order is an order "had to become the last refuge of those actually in power.
And, now, a last part of it. Inflicted against this background all that we find in the Constitution which, on paper, perhaps structurally is the most symmetrical, the most logical democratic Constitution of the world, with a tremendous carefully thought out system of checks and balances, safety valves in order to assure that the individual citizen would be the one to have its full advantage. But that Constitution that was worked through some elaborately, and I say it openly that my determination to study constitutional law, was not based on that Constitution, but this Constitution at the same time was so complicated in its structure, its structural power and in legislative procedure.
With the permission of the Tribunal I shall try to explain that life itself demanded to have these matters simplified - rather less Art but more efficacy. With that I believe, in all brevity, to have said something of that which is absolutely necessary to know if one wants to understand the essence of the Weimar Constitution and its development which, long before Hitler, had led to a situation which does not permit to recognize any longer the situation of 1919.
To come to the situation itself I am indeed fortunate because the concept which is the dissenting factor of the entire European and also the German development of constitutions -- this concept, if I am instructed correctly, is quite the most important in constitutional thought for any American also. It is the question "Who is entitled to promulgate the rules and standards by which the authorities are authorized to intercede into the private sphere of the individual citizen, into his life, his health, his honor, his property" -- that which, in constitutional law, we call the contents of the clause concerning property and freedom and rights. Those standards have to be set by definite individuals. The question is -- who they can be, who they are who are entitled to do that and through what procedure. It has been tried time and again to characterize constitutions in a few words - to characterize their value, their content. There are different ways to do that. There have been times when the most essential thing was as to how a more efficient government could be established. Since the eighteenth century European states struggled for a way to guarantee the liberties of the citizen, and that is the question. In order to be understood correctly and to come quickly to this point, to describe the development before Hitler, I may ask the Tribunal to follow me now in explaining this chart.
On this chart the Tribunal will find a systematic picture of the imperative acts of the State according to their contents; that is, with out consideration of procedure.
Ail imperative acts of the State are either standards, according to their contents, rules, or decisions in individual cases; that is to say, either the State commands as to how certain individuals are to behave in the future if -- and often they didn't know that for sure -- if a case of that particular nature should arise. The criminal legislator, for instance, sets the standards for punishment with the hope that they should never have to be applied. He does not wish that a case should occur. Here, however, we are concerned with the fact that life itself has created a situation among 2, 3 or 4 individuals which the State has to clarify and that is done because otherwise the setting of standards would have no meaning by measure of these standards. These acts of setting standards are sub-divided in two groups which are principally different. The one is authorizations to agencies of the State for interference into the sphere of certain individuals. In German I call it "authorization for interference" -(Eingriffs-ermaechtigungen). I do not know whether the translation got that out correctly but it is clear, isn't it? That is confronted on the other hand by all other standards and it is concerning norms, concerning concessions, and so on. These authorizations for interference -and that brings us to the decisive point -- are subdivided again in two groups. The modern State, and that is not only the case in Germany, knows first of all, the general relation between the citizens and the authority of the State, and apart from that, for certain groups a particularly close relation -- for the civil servants and the soldiers, in order to give you only two examples. The citizen, of course, is interested in that first point. Here we have common criminal law -- civil law -- law of procedure before either Criminal or Civil courts, to name only the most important. These are the standards which one has to know in a State in order to know how much legally guaranteed liberties the individual has. And now in Germany the question of language has developed, which one has to know, in order to prevent misunderstandings.
All these principles arc legal principles, legal norms, but these are concerning the citizen. The laws which he does not like, concerning taxation, military service, and so on, they are called Law in a narrower sense, or statute law in a substantive sense. German constitutional law developed for about 70 and 80 years that distinction between law in the material sense and law in the procedural sense. These two I shall have to explain. Here we have the first -- legal maxims in a material sense. They are norms which determine generally in the normal system of subordination, other authorities for interference. Decisions in individual cases are made either in litigations or in other cases. Those, then, are acts of the State, of jurisdiction in the objective sense. Hay I point out to the Tribunal that in German we also use the word Rechtssprechung (jurisdiction) in a two-fold sense -- sometimes as a function, sometimes as to action of all authorities, called Courts. Now we have Courts, that is, authorities, who are called Courts; they administer the law; they have jurisdiction. But occasionally they also do this -- acts of administration. In this connection the local court judge is also the surrogate court judge; that is, he appoints a guardian -- that is an act of administration. In the German Language now, for these acts, if one wants to specify it, the expression "judgment" has been chosen and "disposition" is what the other acts are called, or regulations, or rulings.
To continue our trend of thought, to clarify conditions, the 3 acts which I have marked with a cross are important. It is clear that the individual citizen, the man in the street, is not basically interested in all that. He usually doesn't know anything about it and he doesn't want to know anything about it. That is something for the jurists.
However, this is important for him. He is terribly afraid of the whole thing, but especially of bad judgments and bad regulations or rulings. Then he demands -- and this brings me to the roots of the French revolution -- he demands of his Constitution that it make provision to assure that bad judgments and bad regulations do not occur, and if so, that a possibility exists to eliminate them. The struggles about constitutions in Europe since the 18th century, beginning in France and extending further and further, have been fought particularly about this question: How can one prevent bad judgments or bad regulations or rulings from coming into effect? Per se, this is a very simple question. One only has to consider how bad judgments or bad regulations or rulings could come about. That is, either the judges or the administrative officials are incapable or corrupt, or both. Against that there is only one remedy, a thorough method of selection, and a killing of the corruption in its beginning.
The second possibility -- and this brings us one step closer-is this. The laws can be bad according to which judges and administrative officials make their decisions. If there is a capable judge, for instance, a person of high integrity, what can he do it the laws are bad? The consequence is that the people, the individual citizen, is finally compelled to worry about these complicated structures called laws.
European development has led to the fact that, concerning the first question -- good judges, not corrupt judges -- a good contribution was made with the establishment of the principle of the independence of judges, that is we say, of those before whom the individual citizen is brought. We called these courts here in Germany the ordinary courts, not to mean that the other courts would be disorderly or would have to be extraordinary, but that is a custom of language which has just been brought about.
However, much more than that is the contribution made by modern constitutions of Europe to the second problem. The people themselves take care of legislation, either the citizens, who have the right of suffrage or referendum or plebiscite, or their representatives.
In the most radical case , only the people make laws. In the beginning it was different, the people just participated in legislation; they were co-participants. Now, for the creation of morals in the state, we have two ways: the old way, which remains the same; and the new way, of the people's law, that is, the participation of the people in the creation of the law, the legislative method.
In German we call a law which was brought about by the legislative party a law in the formal sense, formellen Sinn. And the basic thought for all, which is to be found in all European constitutions, is this. If the Government wants to, let us say, increase taxation, then that means it wants some acts of legislation which authorize the authorities, or the various agencies, to interfere in property. The Government, therefore, wants a law in the material sense; therefore fore it must have a. law in the procedural sense or in the formal sense, through legislation. That is what we call the principle of the necessity of the law, the fact that a law is required. Where this is brought about, we have a division of power. And if it were brought about -- and it has never actually been carried out -- then this is the way it would have to come about. The legislative body would have to make all substantive laws, but it would do nothing but just that; both would not be the case.
Parliaments, time and again, are given the privilege or the right to come to resolutions or decisions which have different content. For example, decisions on budget. These decisions on budget are not acts of legislation in the sense of setting standards. In German constitutional law it is infinitely prohibited to include into the budgets acts of legislation or standards in that sense. The Parliament has a part in the forming of the cabinet. That is one thing. The otherand this is what we need is the following. It may happen that the government is authorized to enact legislation in connection with the Court No. 3 Case No. 3 constitution itself or in later laws passed by the parliament.
In German one calls these Akte der Norm Setzung, acts setting norms or standards by the executive -- that is, the government, -- which have a legal maxim as content. These are called legal decrees; "legal" on account of their content, and "decrees" on account of the method.
This institution, which we find in. every European state, was the starting-off point for the the further development and the paving of the way of the orders by Hitler, because in the Weimar Constitution there is a law for the government to decree laws, the utilization of which led to the fact that since the middle of 1930 the normal legislative body in Germany was really the government. That is the famous provision of Article 48, Section 2. As a rule, legal decrees on the basis of this article are called dictatorial decrees, but also, apart from that, during the Weimar era, much authority was received for the government to issue decrees. In countless laws the Reichstag empowered the government, in order to carry out a law, or in some cases in order to amend a law or repeal a law, to issue legal decrees.
However, not only in the Reich do we find this institution or this instrument of legal decrees, but also in the German States, the German Laender. In the constitution one always finds a law for emergency decrees, Notverordnungs Recht, and the legislatures of the various states frequently authorize the government to issue decrees in regard to substantive law.
A law of the Reichstag of the 13th October 1923, which is called Enabling Law, Ermaechtigungsgesetz, signed by Reich President Ebert, conferred upon the Reich Government the power, among other things , to issue decrees in regard to substantive law, even deviating from the legal principles of the Constitution of the Reich. This law is particularly important. It was published in the first years of the Weimar Constitution under Reich President Ebert, and it cleared the way for a development which the founders of this law to this day probably regret deeply.
May I refer the High Tribunal to the following:
Several months ago, in Munich, a book was published. The History of the Weimar Constitution. The author is Professor Willibald Apelt, now at the University of Munich. used to be together at the University of Leipzig, and I also had the honor to lecture for him in addition to my lectures when he became the Minister of Interior in Saxony; that is, the Police Minister.