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.
The Reich had to act as a sovereign State under the International law governing offenses against International Law.
I return to Hitler. That applied to the democratic order by a leader, that applied all the more so and everybody knows that who knew about conditions for Hitler's decisions. If Hitler issued an order which was faulty from the legal point of view, that did not give the German official agencies any reason to refuse obedience, for in every State there has to be an authority beyond which there is no appeal.
In the case of Hitler something else, something special applies. He who sees things differently and believes that the German official agencies were not merely entitled but perhaps even under an obligation to examine Hitler's orders as to their legality not from the scientific point of view, but merely with the practical purpose of possibly refusing obedience. This person claims no more, no less than that Germany had no dictatorship at all. Then it would not be comprehensible what was the sense of a. fight of the whole world against that regime. I believe I have now answered your question. I would like to say one more thing, so as to emphasize the gravity of the development. I had the permission to show the Tribunal the structure of the acts of the state. Naturally that structure can also be applied to Hitler's acts, but only one of those acts lost its meaning almost completely under Hitler. If Your Honors will kindly recall chart 1 to your memories, where on the left side we had the norms and then the authorization norms, the norms which authorized interference, I had differentiated between special end general relationship or subordination - pointing to the soldier and the citizen. Those differentiations under Hitler gradually lose meaning. Hitler exerted and overburdened the strength of the German people to such an extent that finally he no longer saw before him citizens and smaller groups of persons under special obligation among them, but for him the Germans, all Germans were always on duty, A private sphere of activity no longer existed for him. With him there is no meaning to differentiate between substantive laws and official instructions. It is all the same to him. The citizen is dead, because all have become officials. That is the final point of a development which, from a complicated state of affairs, was working towards simplicity, and that is the gruesome result.
THE PRESIDENT: Dr. Schilf, would you pardon a question directed to the witness at this time? Dr. Jahrreis
THE WITNESS: Yes?
THE PRESIDENT: If this question interferes with the orderly course of your presentation, I suggest that you ignore it. But you told us in your discussion of procedure your views as to decrees signed by Hitler and one or more ministers. Would you care to specify or to indicate to us a little the view you have with reference to the justification of authority decrees not signed by Hitler, but signed by one or more of the ministers? I think we have seen a good many of those in the record. In other words, decrees executed or signed only by various of the ministers, but not by Hitler. Do you understand what I was -
THE WITNESS: Yes, thank you. I have spoken so far only about orders by Hitler, but in German constitutional law dating back to the days of the monarchy and the Weimar Republic we have not only norms fixed by the Reichstag or the head of the state, but also many norms laid down by the government in the narrower sense by the minister. T he ordinance, Verordnung, of which I spoke in the beginning differentiating it from the legislatures, is normally the ordinance of a minister, and under German constitutional law the following is valid. That was not changed under the Weimar era. That was not changed in the Hitler era. Administrative ordinances, that is to spy, norms which are not legal principles in the narrower meaning, are issued by every minister within the framework of his own department, without any special basis. Other ordinances, that is to say, legal ordinances, can only be issued he can issue them, but he can only issue them if he has been authorized to do so by the constitution or by a legislative act. That was, in fact, what I described at the beginning, And so in the Weimar era we had many ministerial legal ordinances if the law empowered the minister to issue them. If I may add this, the result of that differentiation was this, if the courts had to apply an ordinance by a minister, or to be more precise, when it was doubtful whether it was to be applied, then the court had to examine whether the minister was empowered, was authorized. If the court denied that question, the ordinance did not exist.
May I ask whether this was in answer to your question, Your Honor?
THE PRESIDENT: I was interested especially in the source of authority, of decrees signed by various ministers after Hitler came into power. Would it be accurate to say that such decrees received their validity because of a delegation of power to the minister directly from Hitler?
THE WITNESS: For legal ordinances? Yes, for legal ordinances. Hitler was the legislator. He could issue the ordinances himself but he could delegate. As I said, he could delegate authority.
BY DR. SCHILF:
Q Professor, I should like to follow up your words. In the Hitler state, so to speak, all people were on duty. There were no longer any citizens. You said the citizen was dead. May I ask you, in our legal language we call an order by a phrase which is very concise and which might explain it better to the Tribunal, that the law also in the former meaning was a law that was the same as an order to a servant. May I ask you to tell me whether that general instruction to an official, a civil servant, to a servant was the same as the law which had been solemnly promulgated in the Reichsgesetzblatt, Reich Law Gazette.
A If I have understood your question properly, you want to know whether the obligation was the same?
Q Yes.
A Yes, no doubt. For those who were concerned, those to whom the order was addressed, the order issued by Hitler, whether it was concerned with an individual case or whether that was a. legal norm or whether it was an official instruction, it was binding.
Q Professor, perhaps there is a possibility to look at things in a different light. If I remind you that in July 1933 a law about a plebiscite was promulgated, that law which in July, 1933, according to your description was promulgated by Hitler stated that that the people had some say.
Perhaps there is a. contradiction of terms. May I ask you to tell the Tribunal whether that is only an apparent or a true contradiction?
A It is no contradiction. The law to which you refer is the law of 7 July 1933, the law about the plebiscite. That is a government law, that is to say, decree, on the basis of the enabling act, and it provides that the Reich government can submit to the people for its vote matters which it is planning, and among them, bills. That sounds very democratic. But one must not be misled. First of all, all that depends on the initiative of the government, that is to say, on Hitler. And on the other hand, please note the date. It is the same date as that of the prohibition of the political parties.
From there on, even formally, there are no longer any political parties within the German people; naturally there are sociological groups; they, of course, cannot be avoided, but there are no longer any political parties. The people are rather, if I may exaggerate a little, are a block of uniform acclamation. In truth, that law was never used. In the texts upon constitutional law, you will find, as I have always attacked it, you will find there some plebiscites which Adolf Hitler had ordered, they are alleged to have been ordered under that law, but that isn't true. First of all, there was the plebiscite as to whether the German nation approved Hitler's decision to leave the League of Nations; further, there was a plebiscite as to whether the German nation wanted Anschluss, incorporation of Austria; and thirdly, there was the plebiscite as to whether the German nation a greed that Hitler should become head of the state. In all three cases the measure about which the nation was to give its opinion had already been taken. Documents had been handed over in Geneva to the effect that Germany would leave the League of Nations and the Anscluss with Austria had been made and Hitler had become head of state. Where in the world could any one of these acts have been canceled? And that should have been possible if it was a true plebiscite. It was merely a case of getting acclamation in a solid form of which one could be certain? according to the whole structure of the electorate; it was at that time without any parties. Therefore, I understand your objection, but it doesn't change the picture.
DR. SCHILF: May it please the Court, concerning the examination, I have finished my last question concerning constitutional law, and I would now like to make a suggestion. On account of the exertion to which the Professor has been subjected, the second group of questions which cannot be dealt with either in a few minutes, I would like to have that postponed until tomorrow morning.
I still have to clear up the question as to the relationship of international law and of the individual states. If the Tribunal agrees, we could deal with that question at the beginning of tomorrow morning's session. Otherwise, there will again be a break. I believe in the interest of the material, it would be good to have the break now.
THE PRESIDENT: In the interest of avoiding what we call cruel and inhuman treatment to a witness, I think we should excuse the witness now until tomorrow morning at 9:30. You have had a long day, Doctor. We will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 26 June, 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., defendants sitting at Nurnberg, Germany, on 26 June 1947, 0930 - 1630, the Honorable James T. Brand, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mill you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom except the defendant Engert, who is sick in quarters.
THE PRESIDENT: The proper notation will be made, You may proceed.
DR. SCHILF: May it please the Court, before I continue I should like to say one word about the transcript. In the course of yesterday's statements by Professor Jahrreiss, four charts were shown. Charts 3 and 4 were submitted for the transcript in a smaller edition. I want to tell the Tribunal that Charts 1 and 2 will also be submitted for the transcript in the same smaller edition.
DR. HERMANN JAHRREISS - Resumed DIRECT EXAMINATION - Continued BY DR. SCHILF:Q.- Professor Jahrreiss, may I continue now?
Yesterday you spoke to us about the validity of the so-called Fuehrer Order and the Hitler Decree, and also as to the extent about which it was binding; and you told us all that you personally wish to tell us about it. Now I want to ask you, what in principle was the relation between International Law and the Law of the Individual State, and I would like to ask you whether that relationship was changed under the Hitler State.
A.- Counsel, I suppose I am right in assuming that by that question you refer mainly to Article 4 of the Weimar Constitution?
Q.- Yes, that is my intention.
A.- Among the methods by which human beings are directed in social intercourse, there is as one of several, the Order. That in itself, unsympathetic as it appears to people everywhere as a method, it has the one characteristic that it is unavoidable. Consequently, there is nowhere among human beings a sphere where there is no rule. On the other hand, all mankind in effect today stands in permanent relation of life with one another without, as a whole, being subject to one rule. Both together result in the situation which again and again worries people, which we call the situation referring to International Law. Only groups of mankind, smaller groups or larger groups, arc under a common rule. Therefore, if one life, in spite of being divided into various units of rule, is to be made secure, and that in a proper manner, then there must be norms which hold together in an entity those various units of rules.
Or to express it in a different way, the power of authority of the various units must be brought in line in such a way that a community life is possible. That means, however, the ruling authority of the individual units must be restricted by the whole. The central point of International Law is therefore constituted by those norms which lay down that limitation of the authority of the individual groups. Therefore, I suggested, and I was the first person to demonstrate that in science, that the law of an individual state, that is to say the Constitutional Law, should never be described without also describing the limitations under International Law. If we were to achieve the situation, if I may say so here, whereby everywhere in the world all young jurist from the very beginning would be accustomed to see the constitutional questions of their own country always in connection with those of International Law, then a great deal would have been done to strengthen International Law.
Summarizing, that means the individual state is placed under an obligation by International Law to arrange its own order by legislation in such a manner that the authorities in their decisions work in such a way as is demanded by International Law. In science, that is called the State is under an obligation to organize its law in accordance with International Law. How can that be done?
There are several methods available. The legislator can, from case to case in his own system, amend those provisions which need changing so as to comply with International Law. He does not need to mention International Law at all in doing so. That is the way States proceed again and again. A different method is the one which is called the method of Transformation. That is, the legislator does not trouble to bring into line the law of his country word and paragraph by paragraph with International Law, but he tells his official agencies, "Consider the norm of International Law which in itself only binds me, as if I had cast it into a law."
That method, which in German we also call the Method of Recasting or Remolding, can be applied specifically or generally. That is to say, the legislator, as soon as he has to consider a new treaty under International Law, can remold that treaty or he gives general instructions for the application of the International Law which is valid in the particular case. Both methods have been used among States.
Concerning this method of transformation, a difficult problem arises, In all States which have laws of different rank, as in the German Reich under the Weimar Constitution, -- that is to say laws which have the validity of the constitutional laws or ordinary laws, the legislator has to ask himself whether he intends to apply the re-cast the re-molded law to the highest group or not.