Under the Weimar Constitution, for example, it was undisputed that the re-cast international law paeeared and had merely the grade of an ordinary law. There might even be a state which would place the re-molded international law above constitutional law. What do we need that for? Every official agency in every state finds itself in the situation where it is confronted with several laws of its own state which appear to contradict one another, or in fact do contradict one another, which, however, all claim validity. I need not tell you jurists that since the days of Roman Law everywhere norms have developed concerning the elimination of such conditions; where state laws have varying status, further norms of collision have been constituted. If a state would have a general norm under which international law takes precedence over all domestic law, that would be the greatest safeguard which is possible at all, that the law of the country is handled in accordance with international law. I do not know Whether there is such a state. The German Reich at any rate was not one of those states. I think that with this background I can now answer your question.
The relation between international law and the law of the Reich has been regulated in the Weimar Constitution in Paragraph 4 and 45, Section 111. There have been many arguments about Paragraph 4, at the time when the National Assembly was sitting. After many arguments and after sufficient attention had been paid to Paragraph 45, Section 111, eventually this legal state of affairs evolved. As far as the German Reich by treaty, enters into obligations under international law, in such spheres of life which are subject to the legislative authority of the Reichstag, the president of the Reich may not ratify the treaty for Germany before the Reichstag has agreed by law. That is a transformation of a special nature, and anticipated transformation, for if the treaty is concluded, because the other partners ratify it also, then, at the moment the treaty becomes valid, the special re-molding has already been effected.
For the rest, all other international law, as far as it is generally recognized, but also acknowledged by Germany, is generally speaking re-molded by Article IV. Both forms of re-molding gave international law the status of an ordinary law of the Reich. Yesterday I had opportunity, that was concerning the question as to the moral limits of rule. I then had the opportunity to point out that under the Weimar Constitution the courts were not authorized to examine a law as for its validity under international law, and certainly not the administrative authorities. Under Hitler that attitude was not changed. The general method of transformation of Paragraph 4 was kept on, and the specifical one was needed even less frequently because the approval of the Reichstag was no longer required for the conclusion of treaties. Hitler could conclude every treaty under international law himself. As soon as the treaty had been concluded, as soon as it had come into force, it had already been re-molded, for Hitler's ratification was from the domestic point of view a Fuehrer order.
Q Professor, to supplement your explanations, may I ask you to read out to the Tribunal Paragraph 4 and also Paragraph 45, Section III, so that the passages you mentioned become quite clear.
A Paragraph 4 says: The rules of international law, which are generally recognized, are considered binding components of the German Reich Law. Paragraph 45 says: Alliances and treaties with foreign states which refers to subjects of the Reich legislation require the consent of the Reichstag.
Q Another supplementary question, Professor. You told us that treaties under international law were concluded by Hitler alone. I would like to ask you to explain to us how the question can be solved concerning the person who was subject to Hitler's order if there were contradictions?
A I believe I am understanding your question to mean that among the laws or ordinances which were valid in Germany at the time, there were some which were contradictory to that what Hitler had decreed concerning the treaty-- that is not a particular problem.
I have already pointed out that that problem was merely the problem of collision, and if hitler in contradiction to the treaty he had concluded later on, issued an order in a general way or in a specific case contradicting the former order, the later order, if the contents were the same, was to apply and the old maxim applied -- Lex Posterior Derogat Priorm; that was so concerning the relations of the laws under the Weimar Constitution, and it was the same under Hitler; but I think it will be necessary for me to say a little more on that subject. It can happen, and it does happen again and again, that s state knowingly, in its legislation gets itself involved in a contradiction with international law. The last will of the state is decisive for the official agencies. In that case, the nation until that collision has been eliminated, lives under constitutional law which contradicts international law. The settlement, which is bound to come is brought about by international law by the state being regarded as one which has committed an offense under international law, and entails and holds that responsibility to the provisions of international law, and as quickly as possible that inconsistency has to be removed by later legislation. As to whether further consequences arise, that we need not discuss here. In the case of every state the following applies. For the official agencies which have to apply the law to a certain specific case, there is frequently, if one proceeds logically, several laws --there are after all many situations in life which extend beyond the frontiers from the human point of view or from the material point of view.
One can bear in mind that instead of the State's own law or side by side with the law of that State foreign law can be applied, or it may be a case of church law possibly having to be applied. The question as to the application of international law, therefore, belongs to a wider scope of the great problem which is called the problem of the norm concerning the application of law, or in other words in every legal system there are by the side of the system which regulates the relations between human beings as such a system which instructs the authorities as to which law they are to apply in each case. I do not know of any State nor do I know what law could be possible which does not proceed in this way. The officials have to apply the law of the State which is in force at the time except if the legislator admits or orders another solution. Consequently, the provision of the status of remolded international law is, therefore, only one possibility of the various possibilities of applying international law.
Q Professor Jahrreiss, for the purpose of this trial we are interested in establishing whether an official himself was confronted with the question that international law deviated from the State law. If he himself was confronted with that that situation, I wanted to ask you in what direction did he have the choice, or did he have any choice at all? Was he restricted to one norm according to the general view or to the view of the Reich Constitution as far as it was still in force under the Hitler regime? Was he bound by that?
A First of all, I have to explain the underlying facts of your question. Apparently you are having in mind the case where a law or an individual decision exists which in the view of the official is inconsistent with international law.
Q Is inconsistent with international law, but which unilaterally is the law of his country, and this official now is confronted with the question to what norm is he to adhere?
A I have already said that under the Weimar system which on that point was not changed under the Hitler regime the official had. to apply the remolded international law as an ordinary Reich law, and now he had to solve that problem of collision which you have mentioned, in the same way in which he solved the problem of collision between two ordinary Reich laws which were contradicting each other. In effect if the law under Hitler had been issued and afterwards the Reich assumed a new obligation under international law which was remolded, then that had to be applied and not the former law, and vice versa. Have I answered your question?
Q Yes, but there was one more possibility for the imaginary official. If the law of a country perhaps intentionally deviated from international law, what norm did the official then have to apply?
A I have already said, that in the Weimar are already moral background or the background of international law of a legislative act was removed from the scrutiny of the official and even removed from the scrutiny of the judge and of the Supreme Reich Court. The background of international law could not even be examined by the Staatsgerichtshof, the State Court. The State Court was only allowed to examine whether it was constitutional, but it was not allowed to examine it from the point of view of international law. To express it differently, whether the law had been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.
Q For the purpose of our trial we are particularly interested in the norm of the Hague Convention of Land Warfare. May I ask you to explain to the Tribunal with special reference to that whether the principles of transformation which you have explained apply to the Hague Convention of Land. Warfare as well?
A Counsel, with that question you have approached a particularly difficult problem. You know that the validity of the Hague Convention of Land Warfare also concerning the clause of general participation has very often been doubted, that the Hague Convention of Land Warfare with us was remolded, and that specifically - that cannot be doubted in my view, but most of what is said in the Hague Convention under paragraph 4 of the Constitution should be considered as remolded even if a specific remolding did not occur.
That is connected with the previous history of the Hague Convention of Land Warfare when the parties to the treaty, among them the German Reich, in 1907 signed the "Convention concerning land warfare". For the most part they only laid down in law these points which in any case were already international laws by custom and, therefore, assured. It would not always be easy to say whether a provision of the Hague Convention belongs to that group in part or not or as a whole. Have I answered your question correctly?
Q I would like you to refer to Article 1 of the Hague Convention and to read it to the Tribunal.
A Yes. You mean paragraph 1 of the Convention, or the appendix? Paragraph 1 of the Convention you mean. Very often when one talks of the Hague Convention of Land Warfare, one means the appendix. Paragraph 1 is a particularly concise example for the fact that the States were conscious of the character of international law such as I described it, because it places the States under an obligation to give instructions to their land armies which are in accordance with the enclosed Hague Convention. As to the methods they employ, they are left open to the various States. For example, the German Reich could have done without mentioning the Hague Convention passed a German law as to the behavior of the German Army in Wartime. It was technically just to give the order to pay attention to the Hague Convention in the event of war.
And then the point laid down in the treaty of international law, and which in the proper meaning does not effect the individual human being but only binds the state as a whole in the legislative authority was re-interpreted to mean regulations applying to the conduct of the individual.
Q. Thank you, that answers my question. Professor, now I have a very specific question, and again I would like you to state your opinion to the Tribunal. The prosecution in this case has quoted a German Reich law from the year 1940, and it is called "Ordinance on the Sphere of Application of Penal Law of 6 May 1940", it is printed in the ReichGesetzblatt, the Reichs Law Gazette, I, page 754. The prosecution has described that ordinance as an attempt of Germany to indulge a imperialistic way to extend German law to the entire world; that is to say as a symptom of an imperialistic aspiration to power. I should now like to discuss with you the question whether that ordinance concerning the application of penal law is compatible with international law, and that specifically concerning the following question: As to whether foreigners, concerning offenses committed by them abroad con be made subject to German jurisdiction; that in fact, was said in that ordinance concerning certain offenses, and I would like to know whether that ordinance is in accordance with international law?
A. Well, first of all I would have to see the ordinance.
Q. Well, I have the ordinance here with me.
A. Well, that is a whole group of whole batch of questions. May I first clear up the problem in general, that is to say the question: whether, under international law a state is authorized to prosecute foreigners for acts committed by them abroad. At first glance that appears somehow law in 1927, on the occasion of the Lotus case, to deal with it very extensively.
At that time a French steamer had collided with a Turkish steamer in the Agean. If I remember properly it was off Mytilene. The Turkish steamer had gone down; loss of life and loss of material had occurred. The maneuvering of the French steamer had been carried out under the orders of a Lieutenant, whose name I have forgotten, that Naval lieutenant later on landed in Turkey and was brought before the local Turkish court and under the Turkish penal law was sentenced to a prison term. France at the time sued Turkey before the Court of International Justice in the Hague, and asked the court to establish the fact that Turkey under international law had not boon authorized to sentence that lieutenant. I think that is the problem you have in mind, is it not?
Q. Yes, it is.
A. The verdict of that court where 12 jurists, ordinary judges, and one Turkish judge who had been appointed Ad Hoc wore sitting; that court passed a sentence which is particularly striking because it shows up the whole uncertainty of the legal situation. Of the 12 jurists, six, among them the presiding judge, a Swiss by the name of Huber, gave their opinion in favor of Turkey, that is to say that they accorded the state the right to punish foreigners for acts committed abroad. Six of the judges were against it, among them eminent experts on international law such as Muhr, Loder Reiss, and Altamira. The question which was put to the Tribunal was: is the state free in principle, as to what offenses he will judge before his courts so that only specific prohibitions under international law can restrict that liberty. Or the other way around is under international law the state in principle under restrictions in sentencing deeds committed abroad, so that it needs special permission under international law if ho wishes to punish foreigners for offenses they have committed abroad.
I have not got the verdict before me, but I believe to know this: The tribunal agreed in stating that all states are cautious if they do it at all, in punishing foreigners for offenses committed abroad; but that, on the other hand, many states do make such exceptions. It is very interesting, that apart from the verdict by the tribunal itself, there are six dissentions votes given by those judges who disagreed, that is to say, of the 12 jurists experts in international law, 7 different trains of thought were passed on to the world; and, therefore, I would like you to permit me to give you my, the eight train of thought. The word, "territorial principle", plays an unfortunate part in the whole of this argument. First of all the tribunal agreed, and that cannot be disputed, that the state is a territorial ruling unit; that is to say, all people in its own sphere and only those people arc subject to its sovereignty. Naturally, the state can direct people beyond its own boundries with other means than the normal moans, for example, the state can instruct its own nationals abroad, to do certain things but that is not the normal procedure of order. He has to appeal to the innerself in doing that. And, on the other hand, non-nationals which are in the country are subject to the sovereignty of that state. But, it is an entirely a different question where those facts have occurred, those events which led the state to take action. There can be no doubt that the essence of the state gives no indication that the state should base its decision on deeds of persons which have been committed abroad.
May I remind the Tribunal of a case which is beyond all discussion? In administrative law a state can grant its own nationality to a foreigner if a foreigner applies for naturalization. Without violating international law the state can refuse to grant that application, saying that that person at a former time had committed certain acts abroad. A certain decision is made against a foreigner on account of actions which he has committed previously abroad. In civil law and in administrative law such matters do not present any difficulty. Therefore, it has nothing to do whatsoever with the nature of the state as a territorial unit. It might be in the nature of penal law that the difference arises. It does not have to be so.
If we had reached such a point in the development of mankind, where everyone of us could travel anywhere with the same conscience, that is to say, in such a way that one can live everywhere under the same standards, because the same evaluations would apply and if the states did not segregate themselves from one another, but also in the sphere of penal law would make themselves part of one working community, then our problem would be no problem at all.
But neither applies. Therefore, the penal laws of the various states in principle have - because otherwise it would be nonsense - their sphere of application concerning offenses committed inside a country because inside that country one lives according to the standards of that country. In no legal field as much as in that of penal law do the states differ so much from one another. I will have to say according to the present state of valuation in this world one has to expect that considerable differences apply to the various systems of penal law in the countries. Therefore, it appears natural that the state in its penal legislation restricts itself to the prosecution of those offenses which have been committed inside its own territory.
But, the Hague Court also stated there is hardly one state - in any case, I do not know one - which does not make certain exceptions from the present situation. Those exceptions apply mainly to these countries' own nationals abroad, but many states also prosecute before their own courts certain offenses committed by foreigners abroad.
One of the judges at the tribunal in the Hague at the time - I do not remember his name now - in stating his opinion vented his anger at the state of affairs being such. It is therefore not the case, and the Hague Tribunal did say that in view of Turkey, that international law prohibits the promulgation of penal laws which prosecute offenses committed by foreigners abroad. The problem which now arises is how far one can go and whether, since the verdict of the Hague Tribunal, international law has developed which imposes restrictions. I do not know any provisions of international law which could be invoked here, but I do not want to make this question a simple one.
Yesterday, when I spoke of the Constitution of the Weimar Republic, I mentioned certain basic principles of the legal system which are not laid down in any paragraphs, but which are more general principles which in fact constitute the nature of that system. Yesterday I said that the ruling dogma concerning the Weimar Constitution considered the Reichstag as the constitutional legislative body to replace even the very foundations of the Weimar Constitution and to have them replaced by an absolute monarchy with a police state. I said yesterday I could not understand it. I would not think it correct, but that was the opinion of the day. To a much wider extent than in an individual state these things make themselves felt in international one. If one remembers how the present international law came into existence as the international law of the Christian states of Europe and haw it was gradually extended to the rest of the world, which in the meantime was rather europeanized, one then knows that a certain homogenity is necessary among the members about the basic views of all international law and its communities.
We have lived for such a long time in a world of states, where a large part of the basic views were undisputed in their general application. Therefore, many people did not quite notice that that was necessary. When the league of nations was founded and when discussions were held about the provisions regulating the joining of new members, many of the participants were conscious of that important fact.
The jurists of the entire world later on - within the meaning of my statement - were rather alarmed when a Russian professor Korolin published a textbook on international law which he called "International Law, the Transitory Period". It was explained quite clearly there that the Soviet Union, which represented the world of tomorrow, did not fit into this system of a capitalistic world. For the transitory period, however, one would have to have a modus vivendi. The details are of no interest here, only the fundamental idea. It is possible that a basic change of the constitution in some states may upset the homogenity of the states to such an extent that the international law is endangered.
THE PRESIDENT: Have you finished your sentence, Doctor?
THE WITNESS: Yes.
THE PRESIDENT: The hour for our recess has arrived. We will take a fifteen minute recess at this time.
(Recess taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
THE WITNESS: Hay it please the Tribunal, I have tried to explain that international law cannot exist if the members do not have a certain measure of homogenity in their whole philosophy of life, especially in the theory of the necessity is for the existence of a state. I have stated this before. Now returning to our special case, in the verdict in the Lotus case it was laid down that in regard to acts committed abroad and committed by foreigners, they could be tried by the states in their own courts if these foreign actions were directed against the basis of existence of the state concerned. This rule that in such a case without doubt a state can punish acts committed abroad in peaceful times when homogenity of international law is secured does not create great difficulties, because at such times the individual states all alike view the necessities of existence of a state in the same manner. As Korowin's book demonstrates, this question looks quite different from the point of view of the Soviet Union, but this is only an example. Similarly, the problem exists for every state the basic conceptions of which have been changed from the normal point of view. If such a state applies the rule, it may, under certain circumstances, determine the acts which it will try in its own courts differently, mere broadly or loss broadly. This, in particular, would show that a change has taken place in the structure of the community of states. And this loads our problem into broader problems, namely, to the problem as to how far such changes can extend without having such a member excluded from the community. As long, however, as this member is allowed to remain within the community of states, for that amount of time the state has to have the right to determine what it will do in order to preserve its order of state. I have looked at this ordinance during the recess. I did not look only at the ordinance, but also at the introduction which is contained in the semi-official edition, in the edition Pfundtner-Neubert, and I came across tho sentence "The foreigner abroad can, of course, not be subjected to German law.
In exceptional cases, however, German law has to be able to prosecute the foreigner's deed committed abroad, namely if the foreigner has violated important German interests". That is on principle the recognized sentence. If that is the legislative motive of the decree, it has nothing to do with an imperialistic motive conquering tho world. However, the problem arises whether perhaps the German Reich with the new concept expressed in its legislation about the basis of constitutional law has removed itself so far from the homogenity of the world of states that the much more serious problem of exclusion arises. In the Lotus verdict it is stated repeatedly that in the world of states there is a movement, that the protective principle be extended more and more. This case occurred in 1927. Thus it had nothing to do with the constitutional changes in Germany. According to that it is obvious from the very beginning, that one can argue forever whether one or the other of the regulations which are laid down in Article 4 of this order, and as far as they do not concern other provisions of international law was against international law or not.
THE PRESIDENT: Dr. Jahrreis, for the convenience of readers of the record would you please identify the document to which you have been referring, the ordinance there, in some manner? Thank you.
TIE WITNESS: Yes, Your Honor. The defense counsel gave me Pages 155 to 168 from the collection of the Reich Laws by Pfundtner and Neubert. This is edition 103 of June 1940. Volume II Administration of Law c. Penal Law.
THE PRESIDENT: Thank you.
THE FITNESS: And Mr. President the place I quoted is on Page 157. I don't know whether the defense counsel expects me now to examine every individual regulation.
DR. SCHILF: No, I do not expect that.
THE WITNESS: I can only say from the point of view of international law one or the other point can be disputed. All of it, however, has nothing to do with the question whether even in the case that one or the other regulation should not have been in order from the point of view of international law, the German courts nevertheless had to apply them though.
I already spoke about that very extensively that the Weimar Constitution had made that point quite clear to the effect that the will of the state prevails even if it is contrary to international law, the state as a whole is responsible then under Hitler's point of view.
BY DR. SCHILF:
Q Professor, during the recess I had the opportunity to show you the book of Heinrich Triepel, International Law and State Law. I would like to submit to you Pages 153 and 154 and ask you to read, that part to the Tribunal and to explain whether that is in accordance with your opinion.
A I have in front of me the book of Heinrich Triepel, "International Law and State Law" from 1899. This book -
Q Excuse me, Professor, Is it the first edition? I have just been asked if there are several editions,
A No, there are not several. It is the first edition. This book at the time was a sensational book for the science of international law in the whole world, It was the first book which systematically treated the questions which I am supposed to supply information about here today, And what Heinrich Triepel laid down at that time basically been recognized in the entire science of international law has and only after the first World War a certain lack of security in theory, not in practice, developed because the so-called Vienna theory of law founded by Hans Kelsen, who was my predecessor in Cologne, and who is now teaching in the United States of America, with their so-called "pure theory of law" or "norm logic" conceived the things logistically. This did not affect the practice of international law at all, and thus the sentence is applicable which Triepel formulated on Page 153 of this book: "judges and subjects are under the obligation to apply the law of the state, even if contrary to international law and to follow it."
"It is up to then but up to the Government to take into consideration the differences and the divergencies with International Law which nay arise out of this."
Q. May it please the Tribunal, I have concluded my questions to Professor Jahrreiss.
THE PRESIDENT: Professor Jahrreiss, may I ask you to inform the Tribunal where the act was committed in the Lotus case for which a prosecution was held?
THE WITNESS: It happened in Turkey.
THE PRESIDENT: I mean the act for which a man was tried in Turkey.
THE WITNESS: The act happened on the high seas.
THE PRESIDENT: Outside of territorial waters?
THE WITNESS: Yes, in the Mediterranean and the Aegean; that is to say, outside of territorial waters.
DR. SCHUBERT: May it please the Tribunal, I have a few brief questions which concern the right of the judge to scruntinize the law.
DIRECT EXAMINATION BY DR. SCHUBERT:
Q. Witness, yesterday and today you already told us certain things about the right to scrutinize on the part of a judge; especially you discussed the question as to whether the judge is authorized, in regard to the moral context of law or the contrariness to International Law or the opposite--to scrutinize it. If I understood you correctly, you said that in both cases the judge does not have the right to examine this. Now I would like to know what a judge is allowed to examine in a law and in a given case had to examine, and first I would like you to start with the conditions under the Weimar Constitution.
A. The question of the so-called right of a judge to scrutinize is one of the questions which, during the time of the Weimar Republic, burdened us most severely.
During the time of the Emperor, the question was regulated quite clearly. During the Weimar time, howover, a certain modification in the points of view began to take form; namely, until the end of the Weimar State there was no point of rest reached in regard to the entire question. Individual points, of course, were clear. First I shall describe the conditions as they were before the certainty started. According to those conditions, the judge had to examine the following and only the following. In the case of Reich laws, he had to examine only whether the law had been properly promulgated, nothing else. The question of the constitutionality, he was not allowed to ask. This question had to be clarified by the Reich President. He was not allowed to sign the law before he had not answered the question positively for himself. From my personal knowledge, I can tell the Tribunal that the first Reich President, as well as the second one, Von Hindenburg, repeatedly obtained several legal expert opinions from authoratative sources about the constitutionality before he decided to sign a law.
In the case of laws of the States, that is the individual States in the Reich---we call them Laender--in addition to the regular method of promulgation, the judge had to examine whether the law was in accordance with the Reich law--that is, with Reich laws and Reich decrees. In the case of decrees and ordinances, the judge had to examine, in as far as it was substantive law, whether the authority issuing the regulation had kept within the scope of their legislative authority. There was only one court which was allowed to examine in the case of Reich laws also the constitutionality, in spite of the promulgation by the Reich President which was not the Reich Supreme Court but the State Court for the German Reich. Even this Reich Supreme. Court was not allowed to test the constitutionality. And this is the very point where the uncertainty started.
I already indicated to the Tribunal that this happened when one of the attacks against the sovereignty of the legislature was felt by the radical democrates. In every country, the dangers of democracy lie in different spheres. With us in the Reich during the Weimar era, something which in other countries perhaps seems to be a guarantee of democracy was regarded as an attack against the soverignty of the democratic legislature. The starting point for this was Paragraph 109 of the Weimar Constitution. This Paragraph 109, the Gasic Law Article, is significant for all of German Constitutional Law. I explained conclusively at that time that in the Manual of State Law is the regulation in Section. 1, "All Germans are equal before the law." This sentence, when the Constitution was issued, was understood on the entire European continent ever since the French Revolution--all Frenchmen, all Belgians, all Italians, all Germans are equal before the law, That is to say, the judge and the administrative official are allowed to make only those personal characteristics of the individual criticism as the basis of their decision if the law points them out. Whether a citizen is poor or rich, young or old, has a Greek nose or any other nose--that has to be all the same to the judge, except if the law makes this difference decisive. That is nothing else but the sentence of the validity of jurisdiction and administration of the legality of law.
How during the Weimar era in certain fields of legislation there was a great deal of excitement here. Parts of the population believed that the legislature had made unjust differences and now the courts were supposed to supply the means to correct the legislator. Part of legal science was in favor of this and there were some outspoken democrats among than who said that the courts should be given the authority to examine also Reich laws as to their constitutionality. The majority of the legal scientists were opposed to it.
In 1925, the Reich Supreme Court, since some administrative courts had done so before them, insisted upon this right of examination on the part of the judges, and thus the dam was broken in effect. Now every simple Reich law was threateded to be reviewed by the ordinary courts and especially by the Reich Supreme Court in regard to its constitutionality.
The most fanatical followers of the Weimar Constitution in particular fought against this to the very end a bitter fight. Great practical significance, however, it did not attain. Is that sufficient?
Q. Thank you very much, Professor. In your statements you used two expressions which perhaps could be explained again briefly. You spoke of the regular promulgation and the signing of the law. Would you please explain this to the Court again?
A. Yes. I may add to what I explained yesterday by referring to chart 4. According to the German Reich Constitution, the Weimar Constitution, it was as follows: If the Reichstag had passed the law it was given to the Reich President for signature, for issuance. "Ausfertigung meant he should examine whether the law had been massed in accordance with the constitution, that is if the law had been massed only by simple majority, and the president became convinced that the law interfered with the constitution, thus a special majority under Article 76, paragraph 76 was required. Then, in accordance with his duty he refused to issue it. On the other hand, if he convinced himself that the Reichstag had acted in accordance with the constitution, thou he signed the document, that is, he issued it, and then his signature needed the counter-signature of one or several ministers, who then took over the responsibility before the Reichstag. We differentiate between promulgation and the issuance. Promulgation may occur much later, because in between there may be one of those subsequent procedures which I could only sketch briefly yesterday.
A promulgation was published in the Reichsgesetzblatt, the Reich German Law; it is nothing but the making it public for the people; that is the promulgation.
Q. Professor, if the judge thus had to examine the ordinary promulgation, then he had, if I understood you correctly, to find out that this law had been published in the Reichsgesetzblatt, and that it bore the signature of the Reich president and of at least one minister?