A. Yes.
Q. This right of the judge to review which you have just described to us, for era of the Weimar Republic, did anything basically change in this after 1933?
A. No, because no matter how much the most zealous followers of the Weimar Constitution had been against the material right of review by the judge just as much -- and I don't even need to explain this -as much as the state under Hitler was against this. The only change consisted in the following: That the point under dispute did not exist any longer. I would like to indicate to the Tribunal that in Germany after 1933 there was a great deal of arguments as to whether the Weimar Constitution was still valid or not. This question has been misunderstood very much. That does it mean -- is the constitution valid? The validity, the applicability of the Weimar Constitution was secured by Article 76, if that article did not exist any more, and under Hitler it eliminated, then, the Weimar Constitution, or parts thereof, which were not withdrawn could have only the force of a simple law. We apply the word "constitution" in German in different meanings. Sometimes we mean by constitution the basic order of the state -- whether it is written or unwritten law. England has a constitution, and a very stable constitution. Sometimes, however, we mean by the term constiutional documents or the Constitution of the U.S. of 1787 is; and here again we distinguish between two types. There are two types of constitutional documents; one is a constitution which differs from the rest of the laws only by the title, and through the increased validity given by the public opinion; and, secondly, constitutions which have a special protection of their validity of a legal nature for their regulations by having special requisites attached to the changes or modification of the regulations, or amendments of the regulations, as for example, increased majority of the parliament, or a plebiscite or both possibilities. In that sense there was no longer a constitution during Hitler's time, since the enabling act. For all cases, even in the "reconstruction law", regulations of Paragraph 76 were still observed; however, that was -- if you will pardon me for using the expression -- that was play, because since November, 1933; I described that yesterday, the Reichstag was no longer a parliament so that it was certain from the very beginning that much more difficult obstacles would have to be overcome than this Paragraph 76.
Q. Professor, if I understood you correctly, however, even in the time after 1933 the right and the duty of the judge to examine the ordinary promulgation of the law remained and likewise the right and duty of review of legal delegation of the authority, and so-called provisions and ordinances pertaining to substantive law.
A. Yes.
Q. Professor , I was asked to ask you also whether under German point of view a prosecutor has the right to review a law.
A. Does that mean more extensively than a judge?
Q. At all?
A. No.
Q. Since we have now discussed the right of the judge to examine a law, and with that the attitude of the position of a judge in regard to the law, I would like to hear you say something about the relationship of the judge to the jurisdiction of the highest courts. Precedence is very important in Anglo-American legal life, as is well known. Now, was there in the German legal life also a power of precedence in consequence of a decision of the Supreme Court?
A. That is probably one of the lost interesting questions which could be out to me here at all. From the sociological point of view first, I would like to say the following: No court and no agency or authority existed in Germany without having a collection of highest legal decisions, and without having a smaller or larger numbers of commentaries. We do not have case books in Germany, but we have something similar. Who ever should in Germany, for example, want to apply something from the Reich Penal Code, for example Paragraph 242, that is the theft article, if he should want to apply it in the manner in which he is reading it in the penal code, apply it freely, this person would in many cases simply overlook those things which are definitely law in Germany for decades.
He will have to make the effort to look into one of the big commentaries, possibly one of the Reich Supreme Councilors, and since those compilations go on for pages and pages about the judicature of the courts, in practice what is the validity oF formal decisions known, it is only questionable to what extent this information is legally extended, for, may it please the Court, in Germany the agencies and authorities find a consideration of former decisions not only due to convenience, commentaries can of course save one thinking for one's self, but the decisive matter is quite a different one.
In a state which like all other large, modern, populated and highly technically organized States has to have a large number of laws. It has to be seen to it somehow that there is an equal application of the laws. Law as such never means order, but it may become order if it is applied in a regular manner and practice, and the people must have a desire for this because otherwise it cannot rely on anything.
In Germany in the administration of justice and the jurisdiction of the ordinary courts as well as of the administrative courts -- I am thinking especially of the effects of the jurisdiction of the Prussian chief administrative court or the jurisdiction of the Reich financial court -- I think that I can there see a very highly binding force of the highest judicial decisions; and I now go over to the legal question: were the judges obliged to apply the highest legal decisions? I mean that this question occurs only in cases where the judge would otherwise like to make a different decision. And I would like to put at the top something which has been always overlooked in the discussion of this question even in Germany. We have a very large number of decisions by high courts, by supreme courts which arc binding simply because they have become part of the common law through long uniform practice. There also were many decisions which did not yet have the opportunity to become common law because not many cases occurred which could have been decided in that manner. In those cases thero was not a duty to follow previous decisions, but this does not mean that in such cases the judge, if he is of a different opinion regarding the interpretation of the law, may decide any way he feels like, but the judge must be aware of the fact that every deviation from former Supreme Court decisions means a burden for the citizens who are taking part -- certainly the danger that the trial will last longer, perhaps only for the reason that a judge wants to be in the right. Thus, in the individual case the judge has to consider very carefully whether the opinion of the Supreme Court judges is not also in his opinion at least possible, and then he will have to ask him-
self whether he can assume the responsibility because he is of a different opinion to introduce an element of insecurity into the existing order.
Q Professor, you just mentioned that the observance of the Supreme Court decision was in the interest of the security of the law. Did you or one of your colleagues ever do any research as to what extent tho jurisdiction of the lower courts was different?
A I cannot affirm this in such a general way. Of course, such research may have been done on a broad basis. I heard about very interesting research which my Munich colleague; Professor Exner, had done by his students when we were colleagues in Leipzig. That was in the Weimar era. It is so that our penal law for most criminal facts puts at the disposal of the judge a framework of penalties within which he has to determine the penalty. This is a question which cannot be answered by commentaries and Supreme Court decisions.
At that time I was a criminal judge in Leipzig simultaneously and had in part very unpleasant experiences as to the manner in which the decisions within this scope of penalties were -- on what opinions they were based. I discussed this with Exner from the criminal point of view, and he told me that for years he had studied thousands of German criminal decisions because of this framework of penalty in order to find out whether in this field, in the most difficult field; one may expect some kind of an order which developed through practice; example; and so forth. The result of his research was surprising; and extraordinarily interesting. I don't know whether the details are relevant here.
Q Professor; in this point in regard to the application within this framework of penalties; especially the conditions within the different German territories; can you tell us something briefly about this?
A The research as was conducted at that time took as its starting point the fact that our Reich penal code for certain crimes of a different nature, crimes against property or health; provides the same framework of sentence, for example, simply one day to five years imprisonment, and now they examined how those articles were applied in Germany from north to south and east to west.
The result was, first, that the evaluation which the legislator had applied to these crimes because he regarded them all as alike by the penal courts in the issuance of a sentence was not kept. The criminal courts made differences. One crime was basically treated as more serious and another as basically less serious while the legislator treated them all the same, or the some crime was in one part of Germany basically evaluated more seriously and in another lighter.
THE PRESIDENT: I didn't intend to interrupt you, but since you paused, you are really discussing the bearing of precedent not upon questions of the construction of law but upon questions as to the measure of punishment, are you not?
A Yes.
THE PRESIDENT: And your research relates to the period considerably before '33?
A Yes.
THE PRESIDENT: All right, go ahead.
A This research was all done before 1933, and the result of the research was surprising because so far one had not counted upon it at all in this field that there would be any uniformity. For example, between the city and the country and the treatment of the different ag groups of the defendants, etc., etc., I cannot tell you the details. I would have to have the material here. A number of books were written at the time about this.
DR. SCHUBERT: I have concluded my questions, Your Honor.
THE PRESIDENT: I take it that this concludes the direct examination of this witness, does it?
MR. LAFOLETTE: Your Honor, I would appreciate it if we could adjourn this fifteen minutes earlier rather than to start new just before the noon recess.
THE PRESIDENT: Very well, we will take a recess now until onethirty this afternoon. Oh, just a moment. I constantly think of something new. The British subjects and the American citizens will understand why there will be no court on next Friday, July 4th.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
CROSS EXAMINATION
BY MR. LaFOLLETTE:
Q. Dr. Jahrreiss, just so we may complete the record, will you tell the Tribunal where you were teaching and living from 1933 up until the end of the war?
A. From 1932 until 1937, I taught at the University Greifswald; from 1937 on, University of Cologne. During the first semester of the war, that is in the fall, 1939, the University of Cologne was closed. At that time, I taught at the University of Goettingen. During the last semester of the military part of the war, during the winter 1944-1945, I taught at the University of Insbruck. Ay activity as judge had been concluded since 1927.
Q. Thank you, Doctor. Also I believe that I am correct, and again just for the purpose of the record, that as counsel for the Defendant Jodl before the International Military Tribunal, by agreement of all defense counsel, on July 4, 1946, you argued certain phases of the legal questions in that case, Is that correct?
A. When the indictment against the main defendants had been served and a certain number of defense counsel were already in Nuernberg, it became apparent that certain basic international questions would probably have to be discussed to a large extent. Therefore, I was requested to make myself available in order to advise defense counsel. Since an appearance before the International Military Tribunal constantly was not possible in any other way, but by becoming a defense counsel, my colleague Exner, who was defense counsel for Jodl, asked me to assist him in the defense.
Defense counsel in that trial then suggested to the Tribunal that in place of an opening statement of the entire defense, which according to the procedure prevailing then, had not boon antecipated, I was to give an expert opinion on the question of aggressive warfare not in regard to crimes against international laws, or crimes against humanity. On the 4th of July, I gave an export opinion which was entered on the transcript.
Q. Dr. Jahrreiss, I have presumed you do read English; do you not?
A. I do not speak it, that is to say, I try occasionally, but I can read scientific English. Otherwise, my wife can help me if I am not able.
Q. I have here what I believe is correct, an English copy of the transcript of that testimony or statement of law which was made on that day. May I hand it to you? I believe you will find it possible to identify it as probably correct.
A. Yes. I suppose that is the correct text, but I am not able like the Reichs President to look through that page. But if you give it to me, it must be the correct one.
Q. I find that in the English transcript of the proceedings of the 4th of July, 1946, the mimeographed English transcript, your statement and enunciation of the laws as to the issue which you were then discussing covers from Page 12903 to Page 12950. I believe that we may assume that that is correct. Defense counsel have no objection to that assumption?
Beginning at page 12933 of the English transcript and continuing for roughly 10 to 15 pages of the transcript thereafter, you discussed as I recall it, the obligation under various systems of government, constitutional, monarchy, and monocratic of members of the hierarchy of government to obey superior orders.
I believe you have just been handed a German copy of that testimony. I do not know how the relationship is between the pages. What I have in the English reads in this way and maybe it is page 12935.
"Here we come to the fundamental question in this trial. What position did Hitler's orders occupy in the German constitution? Did they belong to the typos of orders which were set aside by the charter of this court as grounds for the exclusion of punishment?"
In the English, that is fifteen pages before the end, Dr. Jahrreiss, and some 30 pages from the beginning in the English text. It is underlined in the English text and may be in the German. Would it be beneficial if I again read the English and it were translated to you?
A. I found it.
Q. Oh, good. "Here we come to the fundamental question in this trial." Thank you. About a page beyond that, which is on page 12936 of the English, there is a paragraph beginning with this sentence, "All constitutional law, that of modern states as well, knows acts of state which must be respected by the authorities even when they are defective."
Have you found that?
A. Yes. Yes, I did.
A Yes; yes, I have.
Q "Certain acts of laying down rules, certain decisions on individual cases, which have received legal force, are valid even when the person giving the order has exceeded his competence or made a mistake in form."
Then I find, at page 12939, n paragraph beginning: "Now, in a state in which the entire power to make final decisions is concentrated in the hands of a single individual, the orders of this one man are absolutely binding on the members of the hierarchy. This individual is their sovereign, their legibus solitus, as it was first formulated, as far as I can see, by French political science with as much logic as elequence."
Have you found that?
A Yes.
Q. The question that I want to ask you is whether you agree with me. It seems to me that from the quotations which I have read, and also from a complete reading of all the material within your discussion which lies within these two excerpts, there is contained the major promise that in any orderly state, constitutional or otherwise, there is an obligation at some point to obey supreme authority. Is that a fair statement, do you think?
A If I understood your question correctly, it is as follows, namely, whether in every state must be a final authority whose orders arc binding. Is that what you meant?
Q That is right; yes, that is right.
A I can only answer that question in the affirmative.
Q So that the obligation of members of the governmental hierarchy to obey, as an obligation in the abstract, exists in a democratic constitutional state as well as in a monocratic state, which I believe is the apt term you used to describe the Hitler state.
Would you say I am correct in that assumption? Just the bare obligation to obey?
A: Well, first, I did use the expression "monocratic" here; that is, I used the expression which is usually used in political science, because "monarchical" has somewhat several meanings. I meant to say that the final authority in such a state is one single man.
Q: Yes.
A: However, in a state, as to the final authority beyond which one may not go backward, whether there is a single man or a directorate, or a parliament, or the people itself,, that is of no importance for the basic question. That is what I mean to express.
Q: And I think that is what I was trying to express, that the obligation to obey is the same. So that the burden which is put upon member of a hierarchy, without regard to the form of the government, to obey or not to obey, is actually measured not by the obligation to obey --- which remains constant -- but by the severity of the results of disobedience. Is that correct?
A: I am sorry; I did not quite understand your question.
Q: Let me try to make it clear. I think we agreed that time obligation to obey is uniform without regard to the form of the state; the obligation to obey.
A: Just so that we do not misunderstand each other, I said here not that in every state, without any consideration to the different forms of government, the duty to obey, toward any order by the government, is uniformly ordered. However, we are speaking here only about the fact that in every state, regardless of whether, in regard to some orders, there is a right to review, in any case there must be one authority toward which such reviewing is not admissible anymore.
Q: I think we are still in agreement. Now let me see if I can make my next question clearer.
Assuming the correctness of what you have just said, the measure of the burden which a member of the hierarchy of a state faces for the disobedience is proportionate to the severity of the punishment in the various states for disobedience.
A I did not understand what you said.
Q I wonder if -- I don't know how to make it any clearer. I feel that I must be at fault. I have agreed with your last statement that eventually there becomes some authority in any form of state which has the power to impose obedience. Now I want to discuss the situation of any member of a governmental hierarchy, in any of the forms of state which you and I have discussed, to obey that authority. And I ask you if I am not correct when I say that the actual difference in degree of burden placed upon a person in any of the forms of state depends not upon the obligation to obey, which remains constant, but upon the power of the authority to inflict punishment for a failure to obey.
A I am afraid that I still do not understand you question. I am very sorry; pardon me.
Q Perhaps you can tell me how you understand it, or tell me what you. do understand of my question, and maybe that will help.
A Yes. I understand, or I feel that between the duty to obey and the sanction of a penalty which is behind it, you are trying to establish a connection.
Q Yes.
A Is that it?
Q Well, we are getting closer together. I think that we are in agreement that in any form of state there is eventually an obligation to obey the ultimate authority, so that there is always an obligation to obey. Now, what I am asking you is this, that what a person under obligation to obey faces is not any difference in degree of obligation to obey, because that is constant, but the severity, a varying severity of penalty for failure to obey, depending upon the character of the state in which he is operation.
A: Well, of course -
Q: That is right?
A: That is a question of a positive, legal, constitutional state.
Q: Now, Dr. Jahrreiss, having been in Germany -- I think I am correct in assuming -- from the end of the last war, the war which I was in, that ended in 1918, up to the beginning of the most recently ended war, do you feel that you knew what the aims of the National Socialist Party -- the Hitler Party aims -- were for other countries in the event the war had had a successful termination? That is, whether there was to be a subjection or not of the races of other countries?
DR. SCHILF: May it please the Tribunal, I should like to raise objection, far this reason: If we should go into purely historical questions and do not limit ourselves to constitutional questions, then we get into an abyss, or into an endless discussion. During the direct examination, insofar as the time before 1933 was concerned, I asked the witness only constitutional and legal questions. If the expert should now answer as to intentions and aims of the Nazi Party during the time from 1918 until 1933, then I am afraid that there would, be no limit to the questions, because matters were regarded from a subjective point of view. The intention of our entire defense, through the appearance of Professor Dr. Jahrreiss, was to show the development of the constitution, of the law of the state, from the time before 1933 until the end.
MR. LA FOLLETTE: Deos the Tribunal desire of me to make a further statement of my position, or not?
THE PRESIDENT: I will hear the purpose of your question.
MR. LA FOLLETTE: Yes.
THE PRESIDENT: Briefly.
MR. LA FOLLETTE: In the first place I am willing to restrict the question as to the period approximately beginning in 1930 to the end of the war. I think that was implicit. I merely asked the witness if he had lived here prior to that time. In the second place, in addition to the constitutional questions about the German constitution and the effect of the Hitler regime, I believe the witness was asked very definitely as to the effect of extra-territoriality. He discussed the Lotus case. He was asked the effect of whether or not there was a conflict, in his opinion, as to the conflict between international law and these constitutional laws that he discussed. I want to question his opinion on that with specific questions.
THE PRESIDENT: The danger of unduly extended cross-examination is one which need not disturb counsel for the defense, because the Tribunal has discretion to limit cross-examination within reasonable bounds. However, we are of the opinion that counsel should be permitted to ask the question which he has now propounded. The scope, part of which has been highly philosophical, of the direct examination would not permit us to impose very narrow limits to the crossexamination. You may answer.
BY LA FOLLETTE:
Q: May I restate the question, please. I think I can limit it. I merely say that you have lived within Germany from 1918 to 1945.
A: Yes. From 1894 until now.
Q: Do you feel that you know the disclosed aims of the -- I will strike out the word "disclosed." -- the aims of the National Socialist regime towards foreign countries in the treatment of the citizens of foreign countries in the event of a successful termination of the war as that purpose unfolded itself from 1931, we will say, until 1939 in September when war began?
A I don't know whether I understood you correctly. May I repeat your question?
Q Yes, surely.
A You mean whether it is my opinion that the aims of the NSDAP, that is the Nazi Party, as they became apparent since 1930 for the other countries around Germany or foreign peoples would have become dangerous if Germany had won the war.
Q No, I only ask you first, Doctor, do you feel that you know what those aims were. Just, do you feel that you know the aims.
A I do not believe so. First, I would like to say I was not a member of the Party and I also acted in such a way that there was no doubt about it. What I did know about the Party was the public announcements, the public statements that were made, and they were at least in part, not very beautiful, not very nice. But what the real aims would have been in case they could have achieved the, that I did not know. I do not believe that it is the first time in the history of the world that there is a difference between proclamations and real aims to the one side or the other side. I don't know whether I have understood the meaning of your question by answering it this way.
Q Well, I think you have answered it honestly, and I am satisfied with the answer. Now from time to time you have discussed the constitutional conditions within Germany, before 1933 and subsequent to 1933, and of course we discusse the conditions under the Weimar Republic. May I ask you, was there any person comparable to Joseph Goebbels or any propaganda, organization comparable to that which the operated in existence after the establishment of the Weimar Republic until at least the constitutional forms were taken over by the National Socialist party?
AAs far as I knew the task and the position of Goebbel's ministry, as far as I knew then as a scholar from the outside only. Personally I never even saw him, to that entent I can only say that during the Weimar Republic there was no such thing.
Q Thank you. During the days of the Weimar Republic, and I refer to the time after the constitution was established until the period early in 1933 when Hitler and the Nazi Party first obtained ascendency, was there on behalf of the government, the Reich government of Germany a continuous denunciation of the Jew by the political parties who were in control of the Reich government under the Weimar Republic until 1933?
A I understood you to say whether before the seizure of power by Hitler the political parties were enemies of the Jew.
Q These parties which had the majority in the Reichstag and controlled the government.
A No. Until the large or the strong participation of the Nazi Party in the Reichstag, that is, until September 1930 this was not the case, because the national Socialist Party was the only one which in this systermatic manner was an enemy of the Jews. But from September 1930 on when the large landslide toward the Nazi Party occurred and it, too, belonged to the parties who had a large representation, and from then on the picture changed.
Q Yes. Now -- and please understand, Doctor, I ask all questions knowing and accepting in complete good faith your statement that you were not a member of the Party. But naturally, being an extremely intelligent man and living within Germany you did observe things that happened in the political activities of your country. I ask you whether or not in the early days of the Weimar Republic and among the parties which were sustaining it, certainly up until 1930, was there now organized political group or group within a political party comparable to the Sturmabteilung except as that was attached to the National Socialist Party?
A: For me that is probably a question that I cannot answer very exactly. For instance, I do know that there were the Stahlhelm organization, that ther was the Reichsbanner, but since I was in a removed position from all these matters, and moreover I am, if I may say so, a born non-soldier, therefore I cannot say to what extent these organizations can be compared to the SA.
Q: Under Ebert and the Social Democrats and other parties with a declared democratic outlook which supported the Weimar Republic, was there ever a declared purpose of any of those parties or of any of the leaders of those parties t Hininatc opponents, or opposing political parties by wrongful means?
A: I did not hear anything about it.
Q: Doctor, did you ever run across a pamphlet written by Dr. Joseph Goebbels dated Berlin, 1935, entitled "The Nature and Form of National Socialism"? Do you recall any such pamphlet?
A: No.
Q: If the Court please, I would now like to read for my next question to this witness an excerpt from Prosecution Exhibit 415 which was introduced on May 1, 1947, which was Document 2412 PS. That document from which I am reading is admitted in evidence here as part of Pages 12 to 13 only of this pamphlet by Goebbels which I have just mentioned. In this he said: "However we National Socialists never asserted that we represented a democratic point of view. We have declared openly that we use democratic methods only in order to gain the power, and that after assuming the power we would deny to our to adversaries without any consideration the means which were granted us in the times of opposition."
Have you ever heard that statement or a paraphrasing of it in Germany about that time in 1935?
A I can not recall that any more today. At any rate, I do not know that pamphlet. That what is described there as a former statement, even as a statement of the present I may have heard too,- I can not tell you any more today. But I can say if I should have heard heard it, I apparently belonged to those who thought, "He's talking a mouthful." Moreover, and this brings us to the legal question, I stated already yesterday that I personally am of the opinion that a Constitution can not very well be invalidated with the help of one of its own regulations - the regulations contained in the Constitution itself - for that would mean that the Constitution contains a suicide paragraph. But I also said that the prevailing democratic theory during the Weimar era unfortunately, in my opinion, the opposing opinion was that with the help of Article 76 the Weimar Democratic Republic could legally be changed into an absolute monarchy. If this was the case, a party could publicly state that it was aiming at a changing of the Constitution in its fundamental bases. According to this prevailing theory of Anschuetz and the predominant majority of the German legal theories, this was an absolutely legal aim. May I ask whether you have understood me?
Q I have understood you. Now, with regard to the Constitutional statements you have made, and assuming that this was done in a legal way, the implications of the Goebbels statement as to the elimination of those parts of the Constitution which, I think, you described yesterday as being rather comparable to what we call the Bill of Rights in the American Constitution, would be attacked is inherent in the statement which Goebbels made, is it not?
A Certainly.
Q, Wow, Dr. Jahrreiss, are you acquainted with the American, text on International Law by Charles Cheney Hyde?
A It is possible. If you could please show me the book. I have seen so many books in my life time that maybe I can't tell you like this.
Q I will bring it to you in a second. It's described as International Law, chiefly as interpreted and applied by the United States, by Charles Cheney Hyde, Hamilton Fish, Professor of International Law and Diplomacy, Columbia University.
A It's H-Y-D-E; yes, of course.
Q Formerly the solicitor for the Department of State of the United States of America; Associate of the Institute of International Law. This is the 1945,edition by Little, Brown and Company; second revised edition; Volume I. I will still hand it to you.
THE PRESIDENT: I have an additional volume here so that each of you might have one for the moment.
MR. LA FOLLETTE: I think I have got mine marked, so I will give you the judge's which isn't marked. (Witness is given the book).
THE WITNESS: What page?
BY MR. LA FOLLETTE: It will be on page 16. Now I have mine marked not to hide something but to indicate what I am going to read. If you will turn to page 16, there is a paragraph 5 there. Then right below the paragraph 5 number is a grammatical paragraph which begins, "International Law as the local law of each State -" Do you find that paragraph?
A Yes.
Q If I read slowly and we read together, I think we will get the sense of it. I will start again:
"International Law as the local law of each State is necessarily superior to any Administrative Regulation or Statute or Public Act at variance with it. There can be no conflict on an equal plane. The precise relationship of a recognized rule of International Law to a local Statute in contravention thereof is often times obscured by occurrences which take place before the superiority of the form is ultimately established. A local court may be obliged, on account of the nature and limits of the powers conferred upon it, to enforce the Statute, and even a domestic tribunal of last resort may be compelled to affirm such action.