He was one of tho most outspoken democrats we had in Germany. This book is just one account with Hitler. It treats altogether of the Weimar constitution, and therefore it is particularly important to note that Apelt considers this law the beginning of all the evil in this development and states explicitly that this law cleared the way to that other Enabling Law of 24 March, 1933.
THE PRESIDENT: Would you give me the date of the law to which you refer again?
THE WITNESS: Yes. The 13th of October 1923. 13 October 1923, in the Reich Gesetzblatt, Reich Legal Gazette of 1923, Volume 1 on page 943. Since the middle of 1930 one did no more work with enabling law decrees, but one used Article 48, Section 2. Earlier already that had been applied. If I am informed correctly then under Ebert alone 136 decrees of that kind were passed, that is to say, until 1935 when Hindenburg became president. At first a little loss use was made of this means. It was reactivated again when the economic crisis of 1929 was nearing Europe. Conditions in Germany deteriorated from week to week, and under Bruening whole bundles of emergency decrees, of dictatorial decrees were passed. In 1932 we had progressed so far in that direction that the Reichstag was practically excluded as a legislative body, and the Reich President, together with the Reich Government, the Reich Cabinet because on the basis of Article 50 they had to work together, was really the normal source of legislation. From then on until Hitler's acts of legislation there is indeed only a short stop, and if Hitler himself would not have set out to give the whole matter a triumphant, dictatorial aspect, if he would have been satisfied with an enabling act like that of 1923, if he had not had laws enacted by the government but decrees, the entire enabling act would not have caused so much rumpus as it did.
Q.- Professor, May I ask you to explain briefly to tho Tribunal who Reich President Ebert was, because we have to assume that the name alone does not give a plain indication,. If this is the case, then I beg to be excused if I said -- what I mean was that Ebert was a Social Democrat -A.- We had two Reich Presidents.
The first, Friedrich Ebert, who came from the Social Democratic party of Germany, not elected by the people but by the National Assembly, and then the second, who was elected by the people.
Q.- And my second and other request is to quote to the Tribunal Article 48, Section 2, of the Weimar Constitution.
A.- Article 46, Section 2. Concerning the so-called dictatorial powers of the President -- and with the permission of the Tribunal I shall formulate these sentences linguistically so that they arc easily translated -- "The Reich President may take those measures which are necessary to reestablish public security and order if in the area of the German Reich public Security and order are considerably disturbed or endangered. If required, he may also intervene with the aid of the armed forces. For that purpose he is authorized temporarily to invalidate in whole or in part the basic laws which are laid down in the articles 114, 115, 117, 118, 123, 124, 153. May I add, these seven basic laws are the so-called liberal principles, basic liberties, the same which we find for instance in the Constitution of the United States, the Bill of Rights.
Q.- Professor, we are now concerned with an attempt to explain the Hitler decree to the Tribunal. After all we have heard from you now tho development which has led to it that the government may enact legislation, that development started already as early as 1923, and according to the information we have from you was again stipulated in 1930 at the time of a different government. I think it will be necessary to explain to the Tribunal that this development led up to the Hitler decree, went through various stages of development, and I may ask you still to describe this to us, because in tho course of this case it has become necessary that this development be shown as clearly as possible.
A.- May I ask if the Tribunal can see this chart, at first this one?
THE PRESIDENT: We see it with difficulty.
THE WITNESS: That is what I was afraid of. I have already said that the Weimar Constitution on paper, that is to say as it was conceived by its authors, was constructed in a very even, very logical manner, along democratic principles. During the Weimar era, according to the Constitution, the principle prevailed that no official, no agency, could come into action unless it was elected by the people, be it directly or indirectly. I have shown this here in a graph. If you will follow me, and. take this black heavy line on the bottom, as representing the voters, that is the men and women in Germany who had the right to vote, suffrage, then you see how this group superimposes the Reich Government above itself by election. And by Reich Government I mean all the members that are on the top, all the individual bodies such as the Reichstag President and cabinet. And this government elected by the people also establishes the official machinery, which also comes above the people, Here you find, for instance, the treasury, a very popular authority which has the honor to be indirectly established by the people.
The Reich consisted of quite a number of various territories: Laender - I only put in two here. Again it is the mass of the voters, that is those who have the right to vote, to elect the members of the Reichstag. But only those who live in the area which is represented by a Landtag - the Landtag appoints a government and that government establishes the various government agencies. We have the same here for the provinces, for the counties, and I should have also put in the various towns. This also the principle graph of communal administration at the same time.
TEE PRESIDENT: Dr. Jahrreis, pardon me a moment. Since your discussion is going into a. printed record which will be read and which should be made as easily understandable as possible, I think at this stage it would be well to let the record show that the Secretary-General is directed to mark the first chart to which you referred as Chart 1 and the chart to which you are now referring as Chart 2 so that the reader of the transcript will know which exhibit or which chart you're talking about. Go ahead, please.
THE WITNESS: May I ask now for help to remove this?
(The chart 2 is removed and another chart is placed on the board.)
THE PRESIDENT: And the chart which is about to be discussed I assume will be marked Chart 3. You may proceed.
THE WITNESS: May I ask the Tribunal whether the judges have a small copy before them?
THE PRESIDENT: Is the one at which I am pointing the next one which you will discuss? That will be Chart 3, Mr. Secretary, and the further one will be Chart 4. (Copies of Charts 3 and 4 are distributed to the Tribunal.)
THE WITNESS: The Tribunal will remember Chart 2 which we had just now. That shows the structure of the German organization. Now, however, I should show the details only for the appointment of the Reich officials and I am afraid now you will come to the conclusion that it was not quite so simple. May I explain. This graph is to show how the German people, that is to say, all the voters for the German Reichstag, appointed and recalled the various officials.
In order to show how democratic the franchise was that the German Reich had, I have shown here at the bottom of the chart the German people, and in the correct relations above it, the total of constituents.
In Germany we had two-thirds of the population as constituents - voters for the Reichstag. These voters, that is the symbol on the bottom, are to be considered at times as a solid block. In other cases, in territorial sub-divisions, as one solid block we find them here. The people of the Reich in its entirety elect the Reichstag and the Reich President. We have, therefore, two supreme bearers of sovereignty directly elected by the people. The Reichstag is elected for four years; the president for seven years. Elections take place at different times. Therefore, it is quite easy to determine from these elections, as they follow each other, how the opinion of the people may change.
The decisive element is, however, that right on the top we have a dualism. I shall come back to that later. These two bodies in a very definite co-relation constitute the Reich Cabinet. The German Reich Cabinet - and that also I have to explain briefly - appears in three different forms: once in the person of the Reich Chancellor. The Reich Chancellor determines policy. Nobody can influence him there. Then we see the Reich Government represented by the individual ministers, and then again as a group. This is the way appointment comes about. The Reich President, according to Article 53 of the Constitution, appoints the Chancellor, the man in whom he has confidence. He furthermore appoints the Reich ministers, but that he can only do upon suggestion or nomination by the Chancellor, so that the actual forming of the Cabinet depends upon an agreement between the President and the Chancellor. That is as far as the Constitution goes. But I said before the lunch recess that according to Article 53 of the Constitution, there follows the famous Article 54, which is called the Article of the Parliamentary Principle. According to the Constitution, the Reich Chancel lor and each individual minister has to ask the Reich President for his release if the Reichstag by explicit decision expresses its non-confidence to this approval of him.
In German constitutional law we have no votes of confidence. As long as the confidence is not definitely withdrawn, we make believe it still exists. I ask to be forgiven here. I do not know what I have explained last is correctly translated - resignation by force - this is the way it happened.
The Reichstag makes a decision. They no longer have any confidence in a person and he has to resign. It is clear, I hope, what I mean. Now, because the Reichstag, according to Article 54, is in a position to request the Chancellor or any minister to resign because the Reich President is forced to release him, it is more practical if the Reich President appoints the Cabinet only after he is reasonably sure that the Reichstag will not say in its first meeting, "We do not agree." That is why for mere practical considerations the Reichstag has a rather strong influence in the forming of the government, that is, the Cabinet.
In Germany we do not have the principle that the ministers have to be members of the Parliament. The Reich President may stand quite outside the Parliament and may also appoint people quite outside the Parliament. But Reichstag and President, not only when the Cabinet is formed, are connected with the government, but also with the Cabinet in its daily work. Here I drew something like a safety pin and draw a countersigning. That is the article which I have mentioned repeatedly, 50, on Rights, which on the basis of the Weimar Constitution were in the hands of the Reich President and on account of this compulsion of obtaining counter-signatures were also rights of the government.
The Cabinet assumed responsibility by countersigning to the Reichstag, and the Reichstag could react rather disagreeably, the cabinet if the Reich president and Reichstag were of different opinions was put before the decision. If the cabinet took the opinion of the Reichstag, then the Reich president either had to give in or change the cabinet; of the cabinet went along with the president, then nothing else was left than to risk the vote of lack of confidence; a vote essential of the Reichtag could come, therefore to a struggle of that kind, and in German practice and legal sides, the cabinet which went with the president against the Reichstag was called a fighting government (Kampfregierung); not the other way around. In the long run it showed that the Reich president when the chancellor wont with him, it was stronger than the Reichstag. That also I may be permitted to describe briefly. If the Reichstag did not agree with the president, was not satisfied with the president's decisions, he could not do anything because the constitution in Article 43 reserved the right for the Reochstag to demand of the people of the Reich the resignation or the dismissal of the president. That in practice never occurred, and for a very simple reason. If the Reichstag would have come to a decision of that kind, and the people would not have gone along, then that president was automatically re-elected for another seven years, and too, the Reichstag was dissolved, and that would mean suicide on the part of the Reichstag, the president. However, he is in much better a position; if he is in agreement with the chancellor, he can dissolve the Reichstag himself. That pertains to the famous red folder. If, therefore, the president and the cabinet neither arc in agreement, and there is a threat of censore on the part of the Reichstag, when the president can turn over to the Reichtchancellor the statement of the indifference, the Reich chancellor, as president present in the session, and when it comes to the last, he just shows that red folder and that settles it. Now, the Tribunal will certainly understand why in discussing Article 48, Section 11, I did not even read Section 111, because there it is expressed that the Reich president of every dictatorial measure has to notify the Reichstag, and if the Reichstag wants it withdrawn, and the demands are met of the president, the president has to repeal his measures.
If he, to be more accurate, if he and the cabinet don't wish to do that, they have the possibility of dissolving the Reichstag, and that brings me back to what I pointed out before. May be one cannot understand why the Reichstag permitted itself to be dispossessed, as far as legislation is concerned. It would have had to be made entirely different to be in a position to oppose due to the fact that the major change could not depend upon them. The Reichstag in every demand of repeal risked its own life. That much for the three units on top, but the Tribunal will see that on the side another box, the Reichsrat, Reich Counsel. This organ was designated as a subsidiary organ and played an important role in the administration of the Reich, as a Reich organ, but one that is appointed by the Leander. For that purpose I have sub-divided the block of voters into the individual laender -- Prussia, Bavaria, Saxony, Wuerttemberg, Baden, etc., The proportions are approximately those of the population of these states, (Laender.) You can see, gentlemen of the Tribunal, that Prussia alone took a much greater part than all the others did together. Now, it is true that each Laender had to send at least one member of the government into the Reichsrat, and beyond 700,000, or what minimum additional 350,000, the laender had the right to appoint a second one, and then after 700,000 a third one. Only Prussia is in a worse condition. First, the smaller ones get the necessary votes. Prussia does not get the full number, and stipulates that Prussia could only have two-fifths of the members vote in the Reichstag; and that at the end of the Weimar area amounted to twenty-six votes for Prussia. That is why I put down twenty-six votes. Prussia forty votes of the other Laender. This disadvantage with regard to Prussia is called the anti-Prussian clause. But in addition to the fact that Prussia only got less than half the voters are split up again in the Prussian provinces. These provinces elect their own governments, provincial governments, and now each province may send one representative to the Reichsrat. In the Prussian government then there were thirteen provinces, independent provinces.
I think that is sufficient without any further details at this moment.
Then, we have the provisional Reich Economic Council. It never became a permanent council, and never played any important role. We can do without it, but here I see that we are not quite correct, -- if I may point out to the judges where it says "R", it should be "G" for government, and where the letter "L" is, it should be "P" for parliament; it is the diet of individual states. I believe the Tribunal will agree with me if I say that this was a very complicated machinery, and a very wellbalanced one. But much worse than that, so much worse that I hardly dare to bother you with it, was the situation with regard to procedure of legislation with which I have to deal now.
THE PRESIDENT: The record will show that you are now turning your attention from Chart No. 3 to the chart which will be marked Chart No. 4; is that not correct?
A Yes.
THE PRESIDENT: And may I ask you one statement for the purpose of the record. Your Chart 3 relates to what period of time? Will you state that so that the record may be clear.
A Chart No. 3 refers, just as Chart No. 4 to the duration of the Weimar Constitution. If you look at this chart, it looks almost like a railroad marshalling yard, for any layman, almost impossible to decipher, but it cannot be any different because the Reich constitution really established a technical mass release in order to provide legislation with security ties, road blocks, and similar matters. May I first explain the picture itself. The Tribunal finds at the top the Reichstag in the center, and here, opposite the bottom the people of the Reich. I don't know whether people of the Reich really would be the best word -- nation would be a better word; at any rate, the constituents of the electorate. The dividing line in the middle separates from each other (a) normal procedure, and (b) a special procedure, which was only started very frequently in a few cases, a few times, but never carried through.
And here where we are confronted with a normal procedure we find indicated by this thick line, the ordinary procedure of legislation; and here the complications.
THE PRESIDENT: The time for our recess has arrived. We will recess for ten minutes.
(A recess was taken)
THE MARSHAL: All persons in the courtroom will take their seats. The Guards will close the doors.
The Tribunal is again in session.
THE PRESIDENT: In has been suggested that Counsel might welcome a statement by the Tribunal that we have no objections to having the far door open in order to secure better ventilation.
I trust Counsel will also forgive my weakness in not knowing the difference between a ten minute and a fifteen minute recess -a slip of the tongue.
You may proceed.
A (Answer continued) And, in the normal procedure of legislation under the Weimar Constitution makes the center of the whole, the Reichstag, which consists of one chamber. The German order of State to as that section which is not under the Weimar Constitution, what most States have, approaching this, not two chambers.
The two chamber system of the majority of States has the objective, of two bodies different composition, to have matters discussed by those two bodies, and, thus to insure that nothing is rushed, and that nothing is decided without sufficient interpretation.
The Weimar Constitution seeks a different way. The Reichstag is alone, but it is under the pressure of having various agencies alone or in cooperation with each other, can appeal from the Reichstag to the electorate. The electorate of the Reich may then be allowed to change the decision of the Reichstag -- that never happened. Therefore, the Reichstag was thus under pressure. On the whole, the procedure was comparatively simple, as a rule. It was as follows:
First of all, a. suggestion for a law is made to the Reichstag, either -- and. that is the normal method, by the Government, here is the Government -- that is, where it suggests the law, but previously it must listen to the Reichsrat. The Reichsrat, up there, (indicating) is asked by the Government, if the Reichsrat is of a different opinion, the Government must tell that the Reichstag. In many cases, the details do not interest us here.
The Reichswirtschaftsrat, the Reich Economy Council has to be asked, too.
In summarizing, normally we have a proposal by the Government, in exceptional cases -- that the constitution does not place any emphasis on the exceptions. We can have a proposal by the Reichstag itself, at least fifteen members must join, and they can then bring in a bill.
Perhaps at this moment I can jump ahead into the Hitler area. When the Hitler Government had received the right to pass laws it no longer needed the Reichstag. If one wanted to use the Reichstag at all as a legislative body, one did so to save face. But, now the Government did not longer make an suggestion as it was in former times the normal procedure the Government was the legislator itself. But that way was chosen, a way, which during the Weimar area played no part.
Under Hitler and. Reichstagssince 1933, consisted only of one party. That is just as simple as one party for the whole; that party represents the Reichstag, introduced a bill with the name of Adolf Hitler and three others. Frick, the head of the party represented in the Reichstag; Goering was very much surprised being the president, and then, the whole game went on as you know it. That abnormal way, therefore, was chosen in order to stage the play. Ag to whether the bill was introduced this way or that way, for the Reichstag, that is only raw material. It could be said we will not do anything. It could say, we will pass it. It could say, we will amend it. If a bill is passed, that is the case, (Indicating) that is says, the bill is accepted or amended, then the Reich President, that is where you find him (indicating) received the law which has been passed by the Reichstag for his signature. Signing a law, that meant as to whether the law was passed in the proper way, and as to whether the text which had been submitted to the president was actually the text which was passed under the law by the Reichstag. It did, in effect, happen that other documents were submitted to him than those passed by the Reichstag, of course, by mistake.
Next the Reich Gazetteblatt, the Reich Law Gazetteblatte had to publish it with a special rapper in the changed form. And, with that happened, then, the President gave the order for promulgation. In Germany we usually call it promulgation, too; so much so good.
But, now, it could happen that the Reichsrat or the Reich President with the consent of the Government or the Government with the consent of the President or some of the members of the Reichstag, itself, were dissatisfied with the law, and, in that case, the constitution provided that those unsatisfied persons or bodies could appeal to the people. That in part, is so complicated, your Honors, that I do not think that we need it for our purpose here. You will find it written down there, but I don't think I need to elaborate on it here.
If such an appeal would have been made to the nation - it never happened, it also got stuck in the beginning - then that had to be fought cut in the time between signature and promulgation. But the constitution had provided for a special procedure, an act of absolute democracy became possible: The people of the Reich, that is to say, at least one-tenth of the whole electorate, - at that time, that was at least four million voters, could join together and demand that a bill which had. to be drafted up to the very last, was to be submitted by the Government to the Reichstag, and, in that case, the Reichstag was not as free toward the draft as in that place (indicating). But it was under pressure of an ultimatum. It was only left with the choice either to accept it as it was or the Government had to ask the nation.
That was attempted a few times but it was never carried out properly.
I should assume that those remarks were sufficient to show to the Tribunal that on the one hand the Weimar Constitution was very democratic and with the intent to protect the people and its rights; but that on the other hand the constitution was so complicated in the structure of the bodies and in the legislative procedure, that one need not wonder if a ever-stronger movement urged for simplification. Furthermore, the constitution in itself had something unclarified, something provisional and that in severe respects and that always happens if a dualism is created; for every dualism of power endeavors at its own dissolution. Your Honors, have you Chart 3 before you? May I ask you to have another look at Chart 3? At the top of the Reich we have the dualism between the Reichstag and the Reichs President, - I call it the big Dualism, at the head of the Reich. We had, furthermore, the small dualism between Reich president and Reich Chancellor; and, I haven't mentioned that yet, there was the old grave German problem of dualism between Reich and Laender; all these various problems of dualism were urging for dissolution and they were in process of dissolution prior to Hitler. Hitler then completed that development. May I explain that in a few remarks?
First of all, the dualism between Reichstag and Reich President was abolished. The Reich President is the victor. Under Hindenburg the formation of the Cabinet more and more came under the power of the Reich President and that of the Reichstag decreased. The end of this development was the 30 January 1933. The Reichstag was no longer asked to do any work. Purely formally, under Article 63, the President appoints the new government. Article 54 was no longer considered a serious threat. The parliamentary system is dead and we have the first demoting of the Reichstag. The second had already started in the meantime, as I have shown. The Reichstag had already resigned more and more as a legislative body; it is only the culmination of the development, what we see in the law of 24 March 1933 and the aftermath, the "new reconstruction law of 30 September 1934"; the division of power is dead.
The Reichstag in its original and foremost function has been dethroned. What was its purpose now? In July 1933 political parties were definitely prohibited. A genuine parliament is no longer possible. Elections... I mean the first Reichstag elected after this July law in November 1933 was the Reichstag of one party only -elected by voters of one party only. The Reichstag had been denaturated; it has been said that it was purely an assembly of acclamation. The great dualism in the Reich ended thereby and on the grave of the Reichstag there are 3 crosses. The small dualism between Reich President and Reich Chancellor ended with the death of Hindenburg and is expressed by law in the law of 1 August 1934, concerning the head of state. The greatest and most serious dualism between Reich and Laender in effect was eliminated before that. Usually one says in the German constitutional science that only the reorganization law of 30 January 1933 had turned the Laender into Reich Provinces but that is certainly not correct. Looking at the facts themselves, that step was already taken by the Reichsstatthalter Gesetz, (Reich Governor Law) of 7 April 1933. When one summarizes all that and looks at those results together, the final phase is this: The entire power of the State in the German Reich is combined in the hand of that one nan who quite arbitrarily can use that power to decide individual cases or to set new norms. It depends only on him, from the practical point of view of power, as to how long he refrained from interfering in the field of judiciary.
I believe I have answered your question.
Q.- Professor, that was the question about the development up to the point when this one man, Hitler, held everything in his hand, - I would say the result of historical development. We are interested in explaining to the Tribunal, if I may say so, the domatical position of the Hitler Decree as a legislator.
Therefore my question concerning your statements up to now concerned the development of constitutional law up to that historical point. But now, the Hitler Decree, has become the legislative act itself. What was the effect of that legislative on the executive and what effect does it have on all forms of the state life after that time?
A.- Perhaps I may begin with the procedure of the Hitler Decrees, that is to say, with the exterior manifestations. I have shown that in German Constitutional Law we had the difference between law, in the formal sense, and ordinance, The one was the act of the legislature the other of the executive. The procedure of legislation after the first acts of the Hitler Government had become a dual one on account of the Enabling Law - we still had more or less for Sundays only - the procedure of legislation through the Reichstag. The normal course of a legislative was the law of the Reich Government, which should not have been called that. We also had from the imperial days, and we kept it up during the days of the President, the decree by the head of state, especially distinguished in the way of ordinance, for instance the Organization Act and we had the Ordinance by the government. Hitler by and by -- but it happened rather quickly -- emancipated himself from those regulations of the laws which were previously valid and concerning the various forms of norms he used them arbitrarily. As to whether a Reichstag Law, as I described it, was brought in by suggestion of the NSDAP with Hitler as the first mover of the motion, was passed by way of acclamation, without debate; or whether the law was decided on by the government - that happened very quickly by way of circulation - or whether Hitler called it "Decree by the Fuehrer Reich Chancellor" -later called "Decree by the Fuehrer" or Ordinance, such as the famous ordinance on the inforcement of 4 year plan -- for the legal value that did not matter at all.
In all cases Hitler decided, and he alone, whether he would take advice or not, whether there was a co-signature or not, for genuine co-signature in the constitutional meaning of course could not exist any more.
There have been many arguments as to what the co-signatures which weren't always affixed meant. People have tried very hard to find a meaning, but the only thing that is really certain is that these co-signatures had no more meaning or the significance as of an proper counter signature. There was nobody on the opposite towards whom one could have assumed any responsibility by counter signing. Therefore, all fixing of norm, signed by Hitler's name alone or together with other names, are merely an acts of will of that man -whether it calls itself a law or something else.
The only difficulty is represented by the so-called secret laws, although I can' quite see where the difficulties are when you look at it properly; that a law before the people whom it concerns is kept secret cannot bind those people is obvious. That is not because of some particular legal system but that is because of the very nature of an order. Nobody can be given an order if he doesn't know of the order and if he is not meant to have knowledge of that order. But one must not forget if Hitler passed a secret law that as an official direction it was binding for those persons to whom it was made known then it was just not a legal norm , but it was an official instruction. As for the citizen, that amounted to the same in effect. If I may use an expression from Germanic law, these various forms by which Hitler announced his will were only different as far as the number of people in his entourage were concerned.
Much more difficult than that question about the form is the question about the contents and the restrictions on those contents to which Hitler was subject as a legislator. Were these according to the valid order any limitations in the matter of the contents for Hitler. Already last year before the International Military Tribunal, I stated clearly that naturally for Hitler too the limitations of ethics did apply. As to how he himself thought about such matters, I don't know. I never met him, and I would not like to rely on hearsay; but that he knew that others believed him bound by a moral restriction, that is quite evident from the fact that again and again be it in preambles to the Law, be it by the rest of the propaganda machinery, he formulated moral justifications.
Whether that was in accordance with his own real ideas, that question may be left open.
But I have already told the Tribunal that these restrictions, as moral restrictions which are no doubt for a great man the most difficult and the most important restrictions, in the conception of the European state legal matters, are no legal restrictions. The absolute state of the continent passed on that conception to its parliamentary successor.
A little while ago I had an occasion to show, by the example of Anschuetz, that that remained so until the latest era, until the time of the extreme democratic era of the Weimar Republic. If one does regret that or *ot that does not matter here. I simply have to describe what actually happened. If now in the European meaning one asks about legal restrictions, and first of all one asks a bout restrictions of the German law, one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.
On the other hand, certainly there were legal restrictions for Hitler under International Law. He, as the head of the State, was the representative of the German Reich with foreign countries. After the development of affairs, he had to represent the German Reich without the restrictions which the Reich President still had. Hitler alone concluded the treaties and terminated them. He alone concluded alliances and could renounce them. He was bound by International Law, Therefore, he could commit acts violating International Law. Therefore he could issue orders violating International Law to the Germans.
Now we are confronted with the most difficult problem: What consequences did the violation of International Law, which was the consequence of a instruction by Hitler, have?
The non-jurists will probably say that the order did not exist. But every jurist knows everywhere in the world that matters for the State, for every State, are not so simple. It is not true that there is even one State in the world which would say, "Every wrong act of State is not an act of State at all", but every Government system had adherent in it in verying form, so to speak, a second order - a kind of elf-purification system - a system concerned with finding out whether faulty acts of State are void or valid or are only partly valid. Every State commits faulty acts -- acts of which everybody knows that they are not in order and knows it at a certain time. Acts which all the same are maintained, merely because during a legal procedure the end has to come one day.
In the Germany of the Weimar, for example, this is what happened. When the Reichstag -- I just showed it by the example of Anschuetz-had passed a bill with a majority of Article 76, with a majority which could change the Constitution, that law, if it had been properly promulgated, was binding for every official agency, even for example if it did not comply with an obligation of the Reich under International Law.
In this commentary -- would you kindly wait a moment -- it's a long time since I looked at it last, but I think I can remember where it is, (Reading) Anschuetz says in his commentary on Article 10, under Figure 7, "International Law too places an obligation on the German judge within the meaning of Article 102 and 4, but only in so far as it is generally recognized; in particular, also recognized by the German Reich and does not contradict the Reich laws. Whether that is the case, that the judge has to examine but he does not have to examine Reich laws, for the fact whether they are or are not in accordance with International Law, and even if they don't pass this examination, he cannot deny their application." That means if the Reichstag, let us say, with a majority that can change the Constitution had passed a law which was contradicting International Law, that law was binding for all German official agencies.