I want to say this right now. The fundamental discussion of this question before this Tribunal is necessary. It should be done at another time since this Tribunal, in view of its jurisdiction, is autonomous, entirely autonomous.
JUDGE BRANDT: Suppose you ask the witness a question. You will have an opportunity to present that problem. Go ahead with the examination.
THE PRESIDENT: Before the next question is propounded, I would like to have one matter cleared up in my mind. This witness stated yesterday the doctrine of nullity pleas was introduced by the Chief Reich Prosecutor of the Reich Supreme Court. I am not sure whether that is any legal way of rendering a decree or whether that is a law or decree or what it is, or who this particular person is. Who is the Reich Prosecutor of the Reich Supreme Court. How much force was given to that decree and how authorative was it? Does the witness follow me?
A. I am sorry, I could not quite follow you.
THE PRESIDENT: What I desire to know is this: Referring to your testimony of yesterday, that this nullity plea decree was introduced by the Chief Reich Prosecutor of the Reich Supreme Court, was that the authority for the nullity pleas law?
MR. LaFOLLETTE: If Your Honor please, I do not think the witness so testified yesterday. The Chief Reich Prosecutor did not decree a law. The witness testified yesterday that the Chief prosecutor of the Reich and other Prosecutors used the nullity decree. The Court's question is not directed toward what the witness said.
THE PRESIDENT: If you will turn to Page 579, you will find exactly what I have stated.
MR. LaFOLLETTE: I am sorry If the people recording the transcript did not record it properly but the witness, at no time testified that the Reich Prosecutor decreed a law.
THE PRESIDENT: He said he introduced it. That is the reasons I an trying to find out if that is a decree or merely an introduction.
MR. LaFOLLETTE: If the word was used Your Honor, it is an improper translation or improper transcript.
He did not introduce anything. It was a decree. He used it. I am only saying that I realize Your Honor has read the record, but the transcript to that extent is inaccurate. The witness did not so testify.
THE PRESIDENT: I am depending upon the transcript. If it is confusing I wish to have you correct it.
MR. LaFOLLETTE: I am sure the witness did not make such a statement. I am equally sure that no attorney acquainted with German law would make such a statement.
THE WITNESS: Your Honor, I must confirm what Mr. LaFollette just said. I have never said that this decree was introduced by Reich Prosecutor. It was a decree introduced in the same manner as all other decrees, but it gave the Oberrichsanwalt the right to use the remedy given by the decree. There must have been a misunderstanding in the writing down of my evidence.
THE PRESIDENT: Can the witness inform me now as to the authority of that decree? It is dated February 21, 1940. It is a very important matter. I would like to have a clear understanding of it.
Has the Prosecutor's office access to that transcript?
MR. LaFOLLETTE: Yes. I have access to it Your Honor, but I do not have time to read it.
THE PRESIDENT: Two or three lines at the bottom of the page is all I care about.
MR. LaFOLLETTE: The transcript of yesterday's testimony is not out. You are referring to the transcript of the day before, which cane out yesterday?
THE PRESIDENT: That is right.
MR. LaFOLLETTE: I will see if I can get my copy. I am in court a good deal, so I do not get much time to read the transcript.
THE PRESIDENT: This can come up at another time. We should not interrupt the proceedings.
MR. LaFOLLETTE: To which section were you referring?
THE PRESIDENT: I was not referring to any section. I was referring to a page of the transcript, and more particularly, to the nullity pleas.
No number was given. It was the decree of February 21, 1940.
THE WITNESS: This decree of the nullification plea has been introduced by Article V, Zustaendigkeitverordnung, 21 February, 1940. The nullity plea is introduced by Article V, of the competence order of 21 February 1940. Reichsgesetzblatt, Part 1, Page 410. By further simplification order of 13 August 1942, Reichsgesetzblatt, Part 1, Page 508, Article 7. changes it to the effect that the reasons for the submission of a nullity plea have been enlarged. That has been done by the provision that not only because of a mistake in the application of the law, makes the decision unjust, but a nullity plea is permissible also in cases where there is considerable doubt against the correctness of the facts which have been laid down in the decision.
THE PRESIDENT: The witness has now answered it to my entire satisfaction. Those figures were not given in the testimony of the day before yesterday.
BY DR. WANDSCHNEIDER:
Q. Mr. President, may I continue with the cross-examination of the witness The meaning of my question was the following: I wanted to ask whether the witness, who is partly familiar from his own experience with English legal concepts, he knows that this concept of analogy is an absolutely legal concept in English law. Would you like to make a statement to this, witness?
A. In English law, which I know -- or at least I know something about it-I was not in London as a criminal lawyer, I know that English law knows the conception of the legislative decision of a judge. Paragraph 2 of the Reich Penal Code, apparently wanted to refer to this concept. I do not want to report again about the real meaning of the happy sentiment of the people, which in the German execution of their legislative act of the judge, is very important, because I have already said everything about this.
Q. Witness, it is obvious that this concept of happy sentiment of the people had a certain definite meaning. I agree with you on that. However, the legal concept of the analogy is a constitutional concept which only by its connection with the concept of happy sentiment of the people -- only by this connection -- did it receive its negative meaning.
A. Yes, but I have to add that in German criminal law, until the advent of the Third Reich, it was so.
Q. A further question. Your legal political concepts, witness, in your presentation of the legal conditions before and after 1933 are based on the concept of the Reichtsstaat, the constitutional state. Now, we have at the present time different concepts of democracy and constitutional, state which are interpreted differently by Soviet Russia than by the Angle-Saxon powers. Could you tell me on which concept of constitutional state you base your judgment of the German legal conditions?
MR. LA FOLETTE: If Your Honor please, I think the question constitutes a direct argument with counsel. I don't believe that it is pertinent to the issue. The comparison that the witness made was between German law applied in 1933 and German law subsequent to 1933. To ask him to make a comparison between systems of law outside of Germany, to me, is to, in the first place, bring in extraneous matters which will lead us far afield, and to an extensive cross-examination well beyond the field covered on direct, and attempt to set up the standard which the witness did not use in his direct testimony.
As I recall in his direct testimony, he testified as to the changes between German law of the Weimar Republic and prior thereto and those that took place afterwards. He made no comparison between German law and Anglo-Saxon law. He made no comparison between German law and the Soviet concept of law. And I believe it is an improper cross-examination to ask this question which requires that he make a contrast which is neither pertinent or relevent, by using standards which he did not use on direct examination. For that reason, I do object to the question.
THE PRESIDENT: Dr. Wandschneider, we think the stand taken by the prosecut ion is sound and therefore we sustain the objection.
DR. WANDSCHNEIDER: I do not. May I briefly state my opinion, Mr. President I only want to give the reasons for my contention; the Tribunal may decide what it thinks is correct, according to its judgment. I only want to say why I am justified in posing these questions, and I would like to ask the Tribunal for a decision. I know that, of course, any questioning of this kind -and I just want to say that this is my last question -- that such a complex of questions involves a danger of the law under discussion. Therefore, I am making every effort to concentrate on the subject of the evidence. However, I consider it absolutely essential to discuss this question because it seems to be of fundamental importance to me.
The defendants are reproached that they had been removed from constitutional thinking and that they had approached the thinking of the totalitarian system -- that they turned toward totalitarian thinking. In other words, the cardinal problem of this trial is the relationship between law and might, and pure force. If, now, it is correct that this basic problem of law: right of law on one side, which is represented by the administration of justice; the might as such on the other hand, which is represented by the direction of the state--the pure government-- if this is the problem, then it is impossible that the defense is denied the right to ask which concept of the constitutional state should be the decisive one.
We know that we in Germany, and also it can be recognized by the Tribunal, had different conceptions of democracy and right and law and constitutional state. The decisive question herein is how the position which the state takes toward the personal liberties of an individual, and these different concepts answer that question differently. For the purpose of judging the motives and the acts of the defendants-- it is of decisive importance to discuss just exactly this borderline on which admittedly they often, in the polarity between might and right, between administration of justice and executive, they found themselves within these limits. In my opinion, it is impossible to do justice to the defendants if the execution of the problems of justice -- of the administration of justice is considered abstractly from the totality of the state-- if they are taken out like by a surgeon, and if it is overlooked entirely in doing so that the are not only legal students but also living human beings-- members of a certain people and of a state-- that they were. For this reason, it seems to me-- that the discussion of this subject which I have opened, the concept of the constitutional state, relationship of right and might to each other and the relationship of the state and right and the liberties and rights of the individual-- they seem to be of importance to me and of significance.
MR. LaFOLLETTE: I feel that the Prosecution is entitled to make a statement again. I need not reiterate my basic reasons about this witness testimony with reference to the contrast with German law. I have no quarrel with the statement of Dr. Wandschneider as he makes it as an argument to this high Tribunal eventually on behalf of his client, but it is not a question within the competence of this witness' testimony, nor is it one which this witness is competent to testify to, because we do then get into the position where even an expert witness is called upon to decide the very issues before the Tribunal, and for that reason I again reiterate that the question is not proper cross-examination. I make this statement so that I will not be put in the position, nor the Tribunal put in the position, that without an explanation appearing, deny to defense counsel a position which he feels should be necessary. I din't think it will be denied on the final argument.
THE PRESIDENT: The ruling of the Tribunal will stand, and in support of that ruling, we put it on the ground that there is no basis for cross-examination of this witness on that point. If Dr. Wandschneider has a point to make, he can introduce it in his own way at the proper time, but it is not proper cross-examination of this witness on a subject which he does not base his judgment.
DR. WANDSCHNEIDER: I am finished.
BY DR. GRUBE: (Attorney for Defendant Lautz)
Q I ask permission to begin my cross-examination. Witness, you have testified that in the Administration of Justice, after 1933, there were fundamental changes. Therefore, I want to ask you did these changes also have their effect in the building up of the prosecution?
A To the extent that in addition to the chief public prosecutors at the Reich Supreme Court, new parallel prosecution, the chief public prosecutor at the Peoples' Court was established.
Q In relationship to, between the different prosecutors on the one hand and the Ministry of Justice on the other hand, were there any changes? Especially is it correct to say that even before 1933 as well as after 1933 the members, that is to say, the public prosecutors, were obliged to follow the statements of the public prosecutor?
A Yes, also before 1933.
Q Did this duty to obey the Justice Minister, on the part of the public prosecutors exist only in regard to special directives, general directives, or also in regard to directives which were given in individual cases?
AAlso in individual cases.
Q Therefore, the Ministry of Justice had the right to give orders to the public prosecutors and the chief public prosecutors also; to give them orders whether they were allowed to make an indictment in an individual case, or not, and which charges they had to make?
A Yes, that was before 1933 and after 1933; yes.
Q The Prosecution has pointed out after 1933 it happened that the judges and public prosecutors were constantly changing so that the judge acted as a judge for sometime, then as public prosecutor, and then again as judge, etc. Witness, was that something that happened only in the Third Reich?
A No, it happened already before, occasionally, but it increased to a considerable extent, especially later, during the war; judges were suddenly sent as public prosecutors to the eastern territories.
Q Witness, do you know that this constant change between judge and prosecutor activities was a topical thing in Southern German Laender already before 1933?
A Yes, I know that too.
Q Do you know that the Reich Minister of Justice, Guertner, who was the Bavarian Minister of Justice, that this Minister of Justice Guertner introduced this change in the administration of justice in the Reich in general?
A This order or prevision about the introduction, I do not know; I know only the fact that it was practiced.
Q Witness, do you know that about 1936 there were efforts in the future to separate the careers of judges and prosecutors?
A No.
Q I now proceed to another point. I again have to refer to your remarks according to which the judges before 1933 applied the principle of any constitutional state, that the judge was autonomous and independent only under the law; witness, especially since you were active in Berlin, I want to ask you the following question: What do you know about the fact that even at the time of the Weimar Republic, that is to say before 1933, the government of the state, in individual cases by way of public prosecutors, informed the courts how they were to treat the matters, or hew the state government thought the matters should be treated; is that known to you?
A In my practice as public prosecutor and as judge, such a case did not happen to me.
Q Do yon know outside of your own practice as public prosecutor and judge, you were active for a short time in Berlin, are those matters which were known to you?
A I don't remember it.
Q What do you know about the fact that during the time of the Weimar Republic, that is before 1933, the prosecution often had to justify their actions to the Minister of Justice, partly because in the view of the Prussian Minister of Justice they did not make sufficiently strong applications, and purely because they did not comply with the commissions they received from the Prussian Minister of Justice; that they did not succeed with these requests in the courts?
A I do not know anything about that. From my own practice I know that in many cases I often asked in many cases for acquittal and that in spite of that, the courts condemned it without any reproaches being made to me by my superiors.
Q However, conversations, on the basis of your residence in Berlin, about that; did you hear anything about that?
A No definite cases; no.
Q Witness, do you know that at the time of the Weimar Republic, that is before 1933, the Ministry of Justice made attempts to influence the judges directly?
A No direct influence.
Q Did the Ministry approach the courts directly?
A No, I do not know of such a case.
Q Do you know anything about the following: That at the time of the Weimar Republic, that is the time between 1925 and 1930, in a trial which the prosecutor said was of particular importance, the acting public prosecutor in the reasons of his application pointed out that above the interest of the judges there were reasons of the state. Did you ever hear anything about this?
A No.
Q But this was general knowledge at the time, wasn't it?
A I was told about it, but I do not know the details about it. I was told that in some trial there was some influence exerted.
Q Who exerted these influences?
A The public authorities; such cases were, however, then criticized; I don't know the details about it, for I did not have anything to do with this trial. I remember that in Bermann-Profess there were some attempts undertaken or that they were supposed to have been undertaken.
Q Thank you. The next point; you discussed the nullity and extraordinary complaints, and in this connection you mentioned the chief Reich public prosecutor. I think there are some matters that have to be clarified here. How many Chief Reich Public Prosecutors were there?
A One.
Q Before 1933?
A Before 1933 there was a chief prosecutor of the Reich Supreme Court, and then, as I said already, the chief Reich Prosecutor to the People's Court; there were two Chief Reich Prosecutors then.
Q What crimes did the Reich Public Prosecutor for the People's Court handle?
A For crimes which the People's Court was competent, that is crimes which previously had been discussed before the Supreme Court, high treason and treason.
THE PRESIDENT: May I state at this time that the Witness in his answer on the direct examination referred to the Chief Reich Prosecutor of the Supreme Reich Court, not to the Chief Reich Prosecutor of any People's Cou*** It does seem to me that any interrogation of the Witness as to what might have been said by some other officer does not inter into the discussion this time. He stated that the nullity plea was introduced by a certain official. Now, asking him whether there were certain officials does not anything to the inquiry.
DR. BRUGE: In the discussion of the construction of the German adminis tration of justice which we received at the beginning of the trial, there is one Chief Reich Public Prosecutor mentioned all the time; that is, the Chief Reich Public Prosecutor, Lautz, and in the treatise it says the **** Reich Public Prosecutor Lautz was also the Chief of all Public Prosecutor and was particularly competent for nullity pleas and extraordinary objection for Special Courts and-so-forth, so that the impression is created as th*** there was only one Chief Reich Public Prosecutor in existence. In this connection I want to point out how limited the competence of the defendant Lautz was on the basis of the statements which were made by the witness Behl, and which has in part already been made by him.
THE PRESIDENT: It appears from the statement of the Defense Counsel representing the defendant Lautz, that this is material to his defense, and we will, therefore, permit further pursuit of inquiry.
DR. GRUBE: Thank you.
THE PRESIDENT: Perhaps the Defense Counsel did not understand. I s*** we will permit the inquiry to be further pursued.
DR. GRUBE: Yes, yes.
BY DR. GRUBE:
Q Witness, you have already enumerated for which crimes the People's Court and the Chief Reich Public Prosecutor at the People's Court, that the defendant Lautz was competent?
A I want to add that, through the constant enlargement of competent finally another list of crimes for the competency of the People's Court made up.
Q Would you please enumerate the list?
AAccording to the Competent Order directive of 1940; the People's Court is competent for high treason, treason, attacks against the Fuehrer Reich Chancellor; serious cases of destruction of armaments; and, endange** ing of the Wehrmacht, of the Armies of friendly States. This is on the bas** of the order for the amendment of the Penal Provisions for the prosecution of definite forces of the German people of 25 November 1939, Reichsgestzb** Reich Law Gazette, part I, page 2319. Then, for not reporting a planned in as far as it concerns the intentions of high treason, treason which co*** under the competence of the People's Court or about the intentions of the serious cases of destruction of armaments; then, crimes according to para**** 5, No. 1, section I, for the order of prosecution of Penal State of 28 February 1933. Further, crimes according to paragraph 1 of the law against sabotage of 1 December 1936, because of public undermining of military mor*** and because of intentional draft evasion. If the Chief Public Prosecutor the People's Court thinks the sentence by this court is -
Q (Interposing) Witness, in all ether crimes this far, the Chief Public Prosecutor or at the Reich Supreme Court was competent this far. crimes for the Special Courts are also in this category are they not?
A Yes.
Q Witness, the Chief Prosecutor at the People's Court was he the superior of all the other Public Prosecutors in the Reich?
A Of other Public Prosecutors, no.
Q Only the superior Public Prosecutor at the People's Court?
A Yes.
Q Therefore, he was not the official superior of the Public Prosecut*** which were active at the Special Courts, was he?
A I can not answer that question.
Q But I can answer it for you, Witness. He was not the superior.
MR. LA FOLLETTE: I object, Your Honor.
THE PRESIDENT: That is an improper statement, Counsel. That statement will be stricken from the record.
It is not proper to express your opinion to the witness in matters which he said he did not know anything about.
Q I now come to the question of the nullity plea. Did the Chief Public Prosecutor at the People's Court have the possibility to make a nullity pl***
A Yes.
Q On the basis of what prevision?
A I have to correct myself. It is an oversight on my part, I mixed it up with special objections, extraordinary objections. The Chief Public Prosecutor at the Reich Supreme Court has to make nullity pleas according to the Competent Order of 24 February 1940, and of the Fuehrer's order of Agree ment of 1942.
Q Do you then agree with me that the defendant Lautz was, as Public Prosecutor at the People's Court, not competent for nullity pleas?
A No.
Q That he had the right to make them for nullity pleas?
A No, he did not have the right.
THE PRESIDENT: As I understand it, the defendant Lautz has not been charged with introducing this decree. It was the Chief Reich Prosecutor the Supreme Reich Court.
DR. GRUBE: Mr. President, the question is not whether, as it is here translated, the Chief Public Prosecutor introduced the nullity plea, as it also says here. The defendant Lautz is charged in the written Indictment having submitted nullity pleas on the basis of this Competent Order which about the nullity plea, and this is the subject of the question which I am directing to the Witness.
THE PRESIDENT: May I inquire what the defendant Lautz' office really was?
DR. GRUBE: The defendant Lautz was the Chief Public Prosecutor at the People's Court, in addition to that there were, as the witness Behl already said, there was also a Chief Public Prosecutor at the Reich Supreme Court who was not identical with the defendant Lautz.
Q Witness, I have a further question. In this connection, did the Public Prosecutor at the People's Court, that is, did he have the possible and the right to object or submit nullity pleas against the judgement of Special Courts?
A No, he did not.
Q I now come to the extraordinary objections. You have already mentioned during your questioning that the extraordinary objections by the laws for the changes and provisions of the general penal procedure of the Weimar penal procedure, and of the Code of Criminal procedure of 6 September 1939, that this extraordinary objection was introduced. Fir** of all a question: Was this extraordinary objection admissible only in those cases in which the sentence seemed to be too mild or could extraordinary objections also be made in favor of a sentenced person?
AAccording to the wording of the provision that was possible be**** it said if serious doubt against the correctness cf the judgement existe**
Q. Witness, who was competent for the submission of an extraordinary objection?
A. The Chief Reich Public Prosecutor of the Reich Supreme Court, and the Chief Public Prosecutor of the Peoples Court.
Q. Was there also a sharp separation of competency or could, for example the Chief Public Prosecutor of the Peoples Court also submit the extraordinary objection against the judgment of other courts?
A. No, each one was within his own competency.
Q. Could the Chief Public Prosecutor therefore submit extraordinary objection in the sentence of a Special Court was supposed to be changed?
A. No, that is expressly stated that the sentence of the Peoples Court, if that is to be changed the objection is to be made by the Chief Prosecutor of the Peoples Court -- the decision of the Special Court. The same applies to sentences of the District Court of Appeals in a criminal proceeding which **** Chief Reich Public Prosecutor of the Peoples Court has made to the Peoples Prosecution of the District Court or the Peoples Court which the Peoples Court has transferred to the District Court of Appeals by the Peoples Court. ******* he could also object to the sentence of an ordinary Court.
Q. This matters were submitted only in those cases in which the competent of the Chief Public Prosecutor was applicable. That was correct. I want you to state it differently. Did you then consider this provision to say that the Chief Prosecutor of the Peoples Court in those cases was competent to make a special objection -- extra-ordinary objection in those cases which per se sere under the competence of the Peoples Court but therefore because they were considered less important had been referred to another Court? Is that correct?
A. You can see the answer from the text which I have just read. It answer the question.
Q. Witness, do you know who had to make the decision whether extraordinary objects had to be made or not.
A. No, I do not know that.
Q. Do you know, since you have studied legal literature -- do you know that in the provisions regarding extra-ordinary objections one had to work with *** example, constitutional arguments?
For instance, do you know this book here? (indicating) "The Standard Works for National Socialism Constitution", which you should know really. With which you should be familiar? Do you know that in an extra-ordinary objection was an interference with a le***** judgment to which only the legislative authority was really entitled?
A. Yes, that was the nature from this objection.
Q. Did you know from this book, for example, or are you familiar with the following sentence: "From the fact that the law allows the raising of special objections in the frame-work of the general jurisprudence to the Chief Reich Public Prosecutor of the Reich Supreme Court and of the Peoples Court which according to their nature are up only for the executive authority of the State buy may he transfer them to him within the framework of the jurisprudence of the Wehrmacht? It is reserved even to the Fuehrer and the Supreme Commander of the Armed Forces. Therefore, it results clearly **** the new measures are to be applied only in exceptional cases which are special politically and they are used only in such cases." Another quotation from this same book on page 419, Art. 2, paragraph 3: "For the submission an extra-ordinary objection if the Chief Public Prosecutor is declared to be competent then the law assumes that this action of the Chief Public Prosecutor can be carried out only on order of the Chief Executive." Witness, do you know -- well, as I remember you have already denied this.
A. What?
Q. Who gave the initiative in the individual case?
A. In the individual case? I do not know who took the initiative but I do not doubt that this institution in particular obeyed the will of the Fuehrer or it was intended to supply a means to the Fuehrer to introduce something in which we call generally "cabinet justice," and so it was the inten tion to introduce this into the admission of justice.
Q Another point, witness, already during your previous testimony you already stated your opinion about the so-called law Van der Lubbe and in general about the laws which were expost factor.
In this connection I would like to ask you the following: Did you know that German legal theory and German legislation already before 1933 were of the opinion that in the question ******* a law was ex post facto -- could be ex post facto -- one had to dis******* by (a) the fact of the case; that is, the permission or prohibition which is given in the criminal law and, (b) the sanction of the penalty; that is, the threat of a penalty in case that this prohibition or permission is fiolated? Did you know that this distinction was made?
A. Yes, I know.
Q. Did you know that the German legal theory and legislation already before 1933 were of the opinion that the measures of punishment should be increased and changed *********** ex post facto and that Art. 116 of the Constitution already mentions it -- that they would be retroactively increased?
A. I do not know that.
Q. Unfortunately I don't have it here. Do you have a Commentary of Ebermaier?
A. Yes.
Q. He has many quotations. Perhaps I shall show there to you this afternoon ****ask you to state your opinion in regard to that. Anyway, one thing is certain, that already before 1932 there were ex post facto laws promulgated. Do you know any such law?
A. Threats of penalty were retroactive? No.
Q. Did you know the law about money?
THE PRESIDENT: One moment, he has again trangressed the admonition of the Tribunal. Counsel has expressly stated what he thinks a certain law is, and it turns out the witness says he doesn't know anything about it. That sort of statement will not be permitted and I think Dr. Grube, who must know as a skilled counsel, that you are exceeding your rights.
DR. GRUBE: Mr. President, I ask to be excused but I believe it was either translated wrong -- I asked the witness whether laws were known to him which had retroactive power and when he denied this I only asked him whether he knew the law about money penalties of 1933.
THE PRESIDENT: The statement of counsel was the law had a retroactive power and not to question the witness whether it had.
Q. I now come to another part; you mentioned the Peoples Court re**** already and in this connection you also stated that the Peoples Court was a Special Court. Is that correct?
A. Yes.
Q. Witness, according to Art. 105 of the Reich Constitution, as you said yourself, it is well-known that certain Special Courts are authorized. Do you know what the Reich Constitution meant by such Special Courts -- Extraordinary Courts?
A I said "courts for a special case."
Q What do you mean by that?
A Expressly for the sentencing of a special, individual case. I would like to say that I did not say that the People's Court was an extraordinary court, an exceptional court.
Q That is just what I want to ask you; that is what I am coming to **** According to your own statement so far, it was not an exceptional court and therefore was in disagreement with Article 105 of the Constitution
A Not with 105.
Q Was it contrary to law in other respects, contrary to the Consti tution?
A I must repeat again what I said yesterday about special, courts general, about Anschuetz, but I would like to spare the Tribunal this repe tition.
Q Witness, is it correct that you stated that the German Special Courts -- among which you include also the People's Court, according to you statement before -- that you considered them contrary to the Constitution because, first, these Special Courts were active not only for special agencies, and second -- I will go into the first point first.
Is it correct that in 1922 there was a Special State Court for the protection of the Republic?
A Yes.
Q Can you tell me for which crimes this State Court was competent?
AAt the moment I cannot enumerate that.
Q Is it correct, witness, that this State Court for the Protecti** the Republic, of the year 1922, was competent for political crimes?
A Yes.
Q Actually, I would have to enumerate to you the entire list of crimes for which it was competent. Perhaps I may show you the list briefly.
(Document shown to witness)
A Yes.
Q Do you think, witness, that this list of competency is larger the list of competency of the People's Court?
A In its external extent, it seems to be larger. I can call it larger.
Q Witness, do you know whether the State Court for the Protection the Republic of 1922 was only created as a temporary institution?
A I do not know that. If I remember correctly, it was created as result of the murder of Walter Rathenau, and as a result of the increasing threats of members of the government of the Weimar Republic by nationalist terrorists. From this it is apparent that if this danger were regarded as finally or mainly overcome, then this State Court would have fulfilled its purpose and it could then be abolished.
Q Do you consider it constitutional, this State Court for the Pro tection of the Republic?
MR. LAFOLLETTE: I would like to have the question made -- at least for me -- more definite. Perhaps it is completely definite, but counsel in referring to the State Court. I do not know whether the witness can answer it intelligently, but it seems to me that the question should be more speci fic to the extent whether this was a State Court created by Reich law, *** whether it was a State Court existing within some state of Germany. If *** is referring to one or the other, I believe he should state it in the question because the effect of the answer of the witness would be much better.
THE WITNESS: The State Court was created by Reich law.
BY DR. GRUBE:
Q Do you know the law? Do you know the name of this law?
A The Law for the Protection of the Republic, yes.
Q Was this a court competent for the entire Reich?
A Yes.
Q I return to the question again: Do you consider the State Court the Protection of the Republic constitutional?