THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: I come to the next document 102, which I shall offer as Exhibit No. Ordinance 7. This is the third ordinance for the execution of the law of 14 July, 1933. In this ordinance I refer to Article AO, page 65 of the document book. This article was discussed by the Defendant Schlegelberger in the witness box. I ask that this document be accepted as Exhibit No. 7.
THE PRESIDENT: The exhibit is received in evidence.
DR. KUBUSCHOK: I come now to the next document 103. This is an excerpt from the book, "The new German Reich Legislation -- Das Neue deutsche Reichsrecht -- entitled, "Law prohibiting carriers of inherited diseases to, reproduce." This book was published by Pfundther-Neubert, and in practice it had a large semi-official character. May I road the first sentence?
"The basis of the decisions of the Hereditary Health Courts and of the Hereditary Health Appellate Court must be carefully and thoroughly established. If the Hereditary Health Court has determined by its investigations that innate feeblemindedness, Schizophrenia, etc., are present, this act alone does not satisfy Article 8 of the law re: compulsory submission of proof; but this submission of proof must contain an explanation of the individual circumstances which lead to these conclusions."
I ask that this document be accepted as Exhibit No. 8
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: I come to the next document, 104; this is an excerpt from the Reich Legal Gazette of 1898. It concerns the law in the matter of voluntary jurisdiction of 17 May 1898. I conclude that document in my document book on account of its article 15; the defendant Schlegdlberger referred to this paragraph while in the witness box when he emphasized the necessity of including article four in the third ordinance for the execution of the law for the prevention of progeny inflicted with hereditary disease. I am offering this document as exhibit No. 9.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: I come now to document 105, that is an amendment of laws prohibiting carriers of hereditary diseases to reproduce, 26 June 1935. I refer to its contents and offer it as exhibit No. 10.
TEE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: I come now to document 106, that is a copy from the Reich Legal Gazette, concerning the fourth executive ordinance to the law of 14 July. Again I refer to its contents and offer it as exhibit No. 11.
TEE PRESIDENT: Received.
DR. KUBUSCHOK: The next document, 107, is another law amending the law prohibiting the carriers of hereditary diseases to reproduce, dated 4 February 1936. I refer to its contents and offer it as exhibit No. 12.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: The next document 108, fifth executive ordinance for the law which I have just mentioned. I am offering this as exhibit 13.
THE PRESIDENT: Received.
DR. KUBUSCHOK: The next document 109, sixth ordinance for the execution of the law of 14 July 1933. I refer to its contents and ask it to be received as exhibit 14.
THE PRESIDENT: It will be received.
DR. KUBUSCHOK: The next document is 110, that again is an excerpt from "Pfundtner-Neubert, "The new German Reich Legislation," and it is part of the chapter dealing with the law prohibiting the carriers of inherited diseases from reproducing. It deals with a circular of the Reich Minister of Justice. I shall read figure 2 of that circular:
"Only the personal appearance of the attorney or counsel or of his representative can be forbidden; written requests of representative provided with regular power of attorney must be taken into consideration."
Of figure 3, I read the last paragraph:
"Should the attorney be rejected then the necessity of an adjournment of the proceedings may arise in order to afford the carrier of an inherited disease the opportunity to appoint a new representative."
I am offering this exhibit as exhibit No. 15.
THE PRESIDENT: Received.
DR. KUBUSCHOK: The next document, 111, again from the "Pfundtner-Neubert" book, the circular decrees of the Reich Minister of Justice. I will read from the beginning.
"Only few regulations exist with regard to the procedure which closely the procedure in matters of inherited diseases. This was considered to be a great advantage of the procedure. But, the liberty which the judge has with regard to the form of the procedure should not lead -- as it is generally recognized -- to the development of a written procedure in matters concerning the congenital soundness (Erbgesundheitssachen). Such e procedure can easily lead to an encroachment of the right of the parties to be heard in accordance with the law. Already in the circular-decree of 9 May 1935, IV b, 3796, I have emphasized how important it is especially in matters concerning the congenital soundness to hear the parties in accordance with the law.
But the proper observation of the principle that each party has to be heard in proceeding before a court is guaranteed only if the parties have an opportunity to state all the facts they consider relevant and to express their opinion with regard to the results of the proceedings of evidence, expert opinions and statements of witness."
I am offering this document as exhibit 16.
THE PRESIDENT: Received.
DR. KUBUSCHOK: I come now to the next document 112, which I also include in my document book because the prosecution has only pointed out that the decree was signed by Schlegelberger. Moreover, I refer to its contents and ask it to be received as exhibit 17.
THE PRESIDENT: Received.
DR. KUBUSCHOK: The next document 113, being an excerpt from "Pfundtner-Neubert"; it deals with the order of the Reich Minister of Justice of 17 March 1936. It refers to the fact that the persons concerned should be instructed as to the legal remedies at their disposal. I refer to its contents and offer it as exhibit 18.
THE PRESIDENT: Received in evidence.
DR. KUBUSCHOK: The next document 114, is an article which appears in the Deutsche Justiz (German Justice) of August 1939. It is a general ordinance of the Reich Ministry of Justice of 2 August 1939. May I read from the beginning:
"When inspecting the files of Hereditary Health Court I observed that in some cases the chief of a university clinic, of a mental institution of a hospital or of a similar institution, who was asked to give his expert opinion, did not examine the person concerned himself and did also not prepare the expert opinion himself but that he asked another physician to perform these tasks. In such cases the chief of the institution would frequently make a note at the bottom of the written opinion which says that he agrees with the statement. How and to what extent he formed his own opinion cannot be seen.
"Such a procedure is inadequate in view of the fact that in proceedings according to the law protecting the congenital soundness such an opinion may he very important for the person concerned. It must rather he demanded that the physician who has been appointed as expert makes the examination himself and. also renders his own opinion, at least as the principal problem is concerned.
If he cannot do so because he is overloaded with work or for other reasons, he has to inform the HereditaryHealth Court of this fact so that another expert is appointed if necessary."
I refer to the entire contents and am offering this document as Exhibit No. 19.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: Now I come to Document Book No. 3. I refer to the first document in this book, Document 54. That is an excerpt from the Reich Legal Gazette, an ordinance to secure the personnel required for duties of special political importance to the State, of 13 February 1939. I submit this document because from it can be seen that the allotment of laborers was within the competency of the labor offices. I refer to paragraph I in particular of that decree. I am offering this document as Exhibit No. 20.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: I come now to the next document 55, another excerpt from the Reich Legal Gazette. It is an ordinance concerning the conflict of changing place of work of 1 September 1939. I refer to article 11 of this document, on page 5 of the document book, and there I refer to paragraph 11 and will read it:
"Anybody who infringes on or attempts to evade the provisions of this decree, or who terminate his employment before the working contract (apprenticeship contract) has been dissolved legally, will be punished by imprisonment and fine or by one of these on request of the Director of the Employment Office."
I submit this document and refer to this provision because it can be seen from it that the courts were not competent already because somebody left his place of work. Their competency started when the labor office had filed a motion. The Defendant Schlegelberger has referred to this in the witness box. He pointed out in the cases where the labor office had not piled an application, the Courts had no opportunity to start criminal proceedings, and that they had no possibility to interfere with the custom of the police to take the workers in police custody. I am offering this document as Exhibit 21.
THE PRESIDENT: It is received in evidence.
DR. KUBUSCHOK: I come to the next document which is 56. This is an excerpt from the Reich Legal Gazette. It contains the Fourth executive Ordinance concerning the decree governing restrictions in changes of employment. I refer to Article I. That deal with the same question which I have just discussed. It can be seen from that provision that apart from the labor office, also the Reich Trustee for Labor was entitled to demand punishment. I an offering this document as Exhibit 22 in evidence.
THE PRESIDENT: It is received in evidence.
DR. KUBUSCHOK: The next document is 57, the decree concerning the treatment of foreigners. I refer to the contents of this document and offer it as Exhibit 23.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: The next document, 53, is an excerpt for the Reich Legal Gazette concerning the decree of the Fuehrer and Reich Chancellor concerning organization and administration of the Eastern Territories, of 8 October 1939. I refer to Article III, second paragraph, which I shall read.
'All departments of the administration are subordinate to the Reich Governor.'
I an submitting this document because the Defendant Schlegelberger has refereed to it. The Reich Governor had the task of the administration of the state. That is contrary to the opinion of the Prosecution that the Reich Governor's office was not an office of the party. I refer to the contents of this decree and offer it as Exhibit Number 24.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: The next document is 59. It is an excerpt from the Reich Legal Gazette, concerning the decree of the Fuehrer and Reich Chancellor on the administration of the occupied Polish territories, 12 October 1939. I refer particularly to Article III, from which it can be seen that the administration of the Governor General in Poland was entirely separated from the domestic administration of Germany.
Article III reads:
'The Governor General is under my immediate control. All branches of administration rill be assigned to the Governor General.'
Referring to the further contents of this decree, I an offering it in evidence s Exhibit Number 25.
THE PRESIDENT: It is received.
DR. KUBUSCHOK: I come now to Document Number 60, an excerpt from the Reich Legal Gazette concerning the decree on the introduction of German criminal law in the incorporated Eastern territories of 6 June 1940.
There, various articles were mentioned by the Defendant Schlegelberger in the witness box, among others, Article 8, Paragraph 1; Article 11, and Article 12. As for this paragraph, I point out that in this d**** of 6 June 1940, for arson, absolute death penalty had been provided. Whereas, as stated by the Defendant Schlegelberger in the decree concerning Poles and Jews, that offense could be punished by a prison term.
Moreover, I refer to Article 15. Here, again, the mandatory death penalty is provided for the possession of fire arms. With reference to that provision, the Defendant Schlegelberger has pointed out that proceedings for unauthorized possession of fire arms were very frequent in Poland and probably amounted to the majority of criminal cases. Here, also, we notice that in the decree of 6 June 1940, the application of death penalty is mandatory, whereas, according to the decree concerning Poles and Jews, a prison term could be pronounced as punishment. I am offering this document in evidence as Exhibit 26.
THE PRESIDENT: It is received.
DR. KUBOSCHOK: The next document is Document 61, an excerpt from the periodical "German Justice." The article by Friesler, as Schlegelberger mentioned in detail, concerned the new German criminal lows concerning Poles. An account of the personality of Freisler and on account of the importance of that periodical, "German Justice," that article should be considered semi-official. Prom that article, I should like to read the last paragraph of the first page.
"If the administration of criminal justice for Poles devotes exactly the same care to the investigation of tho facts of a case, as does the administration of criminal justice for Germans, viz. avoiding everything which even very remotely might resemble a judgment on suspicion if, besides, it judges the established facts just as conscientiously according to the law applicable to Poles, as it judges the established facts in the cass of Germans according to the general German penal law, and if finally it endeavours to render the right judgment in the award of punishment within the compass of the penal law applicable for Poles, as within the compass of the penalties pursuant to the general German penal law for Germans, the criminal jurisdiction for Poles is just, regardless of the different evaluation of actions of Germans and Poles, which might be necessary in many cases."
I continue to read on Page 25 of tho Document Book, the paragraph under III.
" III "Law of procedure against Poles"
d) "Preliminary Proceedings.
"By the general principle of every German administration of criminal jurisdiction, viz. that it must serve to establish actual facts and their true judgment -- a principle which is adhered to without exception and unalterably, the freedom of judgment in the arrangement of the preliminary proceeding finds its unchangeable limits (the same has to be said with regard to the trial). From this it follows as a matter of course that the Public Prosecutor in the preliminary proceedings will have to examine all evidence, extenuating as well as aggravating and investigate it."
On Page 26, I read the second paragraph.
"If again and again the liberty of decision in determining the procedure as well as tho main trial is stressed time and again, on the other hand it must nevertheless be emphasized that the establishment of the true facts of the case is the purport, and the rendering of a just verdict the aim of every criminal proceeding against Poles.
Therefore nothing may be disregarded which may serve to establish the truth and to arrive at a just verdict. For this it is essential that the accused is heard, that -- as long as he does not use this possibility granted him for "Fonsterreden" (harangues meant for the public) -- he can defend himself in connection with the accusation, that he may offer evidence of any kind, that he can express himself with regard to the findings of the evidence heard and that he may have the last word. In cases where difficulties arise from difference of language it is of course essential that the possibility of understanding is secured, if necessary with the help of an interpreter. The judge and all the officials of the administration of justice always and without exception will speak German with the exception of the interpreter. Likewise all evidence, as far as it is not declared, with certainty as being unsuitable right away, must be fully investigated.
"The giving of the opportunity to the Public Prosecutor and the Judge to use their own discretion in the arrangement of proceedings was possible only because it may be assumed that no German Public Prosecutor and no German Judge in any proceeding conducted by him will ignore these principles."
THE PRESIDENT: Dr. Kubuschok, the hour for cur afternoon adjournment has arrived.
MR. LA FOLLETTE: May I address the Tribunal for gust a minute?
THE PRESIDENT: Yes, and before you do so, a hasty conference with my associates has led me to say that we desire to congratulate Dr. Kubuschok on the efficiency with which he has presented his documents, and we hope that his example will receive the approval of his co-workers by following the same procedure.
MR. LA FOLLETTE: If Your Honor please, it is probably a little late for me to take advantage of Dr. Kubuschok, but I also want to say that I let the proceedings go ahead today with reference to book V, although that one had not reached me. Dr. Kubuschok had made an honest effort to get me the books, and I don't complain. Likewise with reference to the witness. However, as we go along, in the interest of progress, I hope, with the assistance of the defense center, that we will begin to work out a completely satisfactory arrangement. We had four document books, but we did. not have tho fifth, and I have had to rely upon Dr. Kubuschok's personal statement to me as to the witnesses who would come, which I considered to be sufficient, and not a formal notice.
I want to make progress and will not object wherever it is possible, but perhaps if we can get a little more orderly notice to me-and that notice should come to room 242, where tho clerk of this Justice Team is; and when it is delivered there, we will consider it as binding on us.
DR. KUBUSCHOK: The fifth document book has already been translated and finished, and I assume that in the meantime it may have been submitted also to the gentlemen of the prosecution.
MR. LA FOLLETTE: Yes, we received one late.
THE PRESIDENT: I have here three copies of the questions which tho Court desired to have put to the medical experts. I think one will do for the prosecution, and if the defense desire the other two copies they may have them.
There being nothing further, we will adjourn until tomorrow morning at 9:30.
( At 1635 hours, 1 July 1947, a recess was taken until 2 July 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 2 July 1947, 0930-1630, The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session, God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will ascertain if the defendants are all present.
THE MARSHAL: Lay it please Your Honors, all the defendants are present in the courtroom with the exception of the defendants Engert and Klemm, who are absent.
THE PRESIDENT: The defendant Engert has been excused on account of illness; the defendant Klemm has been excused for this day upon request of his counsel. The proper notation will be made.
Dr. KUBUSCHOK: With the permission of the Tribunal, I call the witness Otto Meissner to the witness box.
(Otto D. MEISSNER, a witness, took the stand and testified as follows:)
JUDGE HARDING: Hold up your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION
BY Dr. KUBUSCHOK:
Q.- Witness, please state your full name, your last name and first name.
A.- Otto Daniel Lebrecht Eduard Meissner.
Q.- Please describe what state office you held until 1945.
A.- From 1920 until 1945 I held the office of the Under Secretary and Chief of the Presidential Chancellery. In 1937 or 1938 I received the title of Minister of State, simultaneously with the rank and the income of a Minister of the Reich.
Q.- Witness, can you tell me what attitude Hitler had toward the Administration of Justice?
A.- Hitler's attitude to the Administration of Justice was an unfriendly one and a negative one from the very beginning. Hitler, in accordance with his entire character, held the moral, religious, and. philosophical imponderables of the life of the state in very low esseem. In the same way he also had a very low opinion of las, as one of the bases of the state. He was less a representative of the idea of the constitutional state than a representative of the idea of power or of the police state. This opinion of his was expressed not only in public speeches, but also in private conversations.
His attitude in regard to those who administered the law, the jurists, was the same. He always made derogatory remarks about them which inferred that they were removed from practical life. He said that that was not their personal fault, but of their education and the fault of their profession. He said they were deprived of every initiative, due to their profession and the fact of being tied to the wording of the laws. How often made comparisons, for example, as to how a business man has to adjust himself to the daily state of business and has to change his entire attitude and his decisions; a farmer who tills his fields has to change his arrangements according to the weather, and so forth. All this initiative and this adjustment to practical life does not exist in the case of a jurist. He was too closely tied to the wording of the laws, which often had not anticipated all possibilities; and thus it happened that frequently the sentences were neither in accordance with practical life nor with the requirements of the state.
He often justified a strong use of lay judges with the idea of the sound legal sentiment of the people, with vague thoughts of old natural law. He said that later on the entire constitution of the courts and the legislation of the Administration of Justice had to be basically changed.
This attitude of Hitler's about the Administration of Justice was expressed most clearly in public in a speech which he made an 26 April, 1942, in the Reichstag. In this speech, starting from one or several individual cases, he seriously, and in an insulting manner, attached the judges and the Administration of Justice. This speech was not a spontaneous expression of his own temperament. It was a prepared speech, which was read, and it was delivered in a very temperamental manner; it excited a groat deal of concern and evoked a great deal of publicity. I myself was present in the Reichstag when this speech was delivered. It contained the sentence that he had been given the right by the German people, as highest Gerichtsherr -- that is, the highest legal authority of the German people -- to hold office and therefore ho had decided to dismiss judges who did not meet his requirements. He used an expression which meant not only to pension them, but to chase them away.
Afterwards there was a great deal of excitement about this speech, not only in the cricles of jurists, but in circles of civil servants.
The then Under -Secretary Schlegelberger, who was then Acting Reich Minister of Justice, soon told me about his excitement and his disapproval of the speech concerning offense against the Administration of Justice and those who administered it. In so doing, as I dearly remember, he also expressed the intention that he wanted to resign in answer to this attack.
Q. Witness, what was Schlegelberger's attitude in his office as acting Minister of Justice?
A. Schlegelberger's attitude as an acting minister from the very beginning suffered because he had only boon put in charge of taking care of the business of the Ministry of Justice. That is, it was for an indefinite period, and every day he could be relieved of his position by a now minister. Therefore his position, even though in the interior duo to his knowledge of the material and his personality he was given a great deal of respect by the jurists, to the outside ho was rather weak. Especially toward the Party, he had no real position as Guertner, for instance, had had it. Also toward the Fuehrer by far he did not have the same position which Guertner had had. Guertner from the very beginning, that is, from 30 January 1933, and had already before, had been in the cabinet. Thus for Hitler he was one of the founding members of this coalition government. Already before when ho had been Bavarian Minister of Justice in Bavaria he had established contact with Hitler. - For Hitler ho was only a solution out of embarrassment. As far as I know, only once or only twice could he appear before Hitler. Several times he asked me to be able to see Hitler -on important questions. Hitler never allowed him to come to him. Hitler was most of the time in his headquarters, whore ho was very busy. Therefore he referred such requests to see him to the chief of the Reich Chancellery, Lammers.
Q. Did Schlegelberger within the administration of justice also have to count on opponents?
A. HE probably had the strongest opponent in his own house, and that is Undersecretary Freisler, who was put in by the Party. He was a fanatical National Socialist, that is Freisler, and had been given the duty by the Party and also carried the concept of this duty within himself to subordinate the administration of justice to the National Socialist political leadership, to put it more into the chains of National Socialism.
He also experienced constant difficulties on the part of the Gauleiter. I know, because part of these matters went via me, that in many cases Party members complained about sentences, that is, not only sentences in penal cases but also in civilian case, divorce trials, via the Party Chancellery or the so-called private chancellery of Hitler's and connected this with charges against the administration of justice or the particular court. These complaints then came to Schlegelberger. It was now left up to him to say something about it and to justify the court that had been attacked or the sentence that was being complained about. He always had trouble, and frequently complained to me how his life was made difficult by the Party. Ho frequently talked about it, that he would like to leave his position but the only thought that made him stay in office was that then the office would get into the claws of Freisler or another wild man, a one-sided, party man. Therefore he thought ho would remain, and I enforced him in this idea.
Q. What was Bormann's attitude toward the Ministry of Justice? What were his opportunities to influence it?
A. Bormann had just as negative an attitude, and in the form in which he expressed this, it was still more brutal. Bormann was an unscrupulous man of force. He himself, in regard to the complaints against the administration of justice and the Ministry of Justice, listened to them and followed them up. It was probably an open secret that in the elimination of Schlegelberger and replacing him by a 100% strict National Socialist, he was striving for this.
At that time in conversations the following persons were named, either Frank who at that time was Governor in Poland, or Thierack, who at that time was president of the People's Court. Schlegelberger's term as acting Minister in the Ministry of Justice lasted longer than all of us had expected. I don't know why. However, I do remember that during the winter 1941-1942 or in the spring of 1942 the President of the Senate, Engert, once paid a call on me and told me that the fooling against Schlegelberger was very strong in the Party. He was being charged with being too much of a jurist, and too much a man who was in favor of the law, and too little a supporter of the National Socialist state, that he was rather distant, probably, from the idea of National Socialism, and it was high time that ho should be replaced by a National Socialist who would then load the administration of justice in accordance with the ideas of National Socialism. Thierack would be such a man, and ho suggested that I in my capacity as chief of the Presidential Chancellery should make such a proposal to Hitler. I answered him that formally I was not competent for this matter. Formerly, I had, to be sure, dealt with personnel matters of the Ministers, and the question of changes in the appointments within the Ministeries, but since the death of Reich President von Hindenburg, this task and this competence had boon evolved upon the chief of the Reich Chancellery Lammers. Therefore I did not even have the right to take up such a suggestion. Furthermore I could also not agree with him that Schlegelberger's position as ho says was untenable because in the administration of justice and in wide circles of the people Schlegelberger had a groat deal of respect.
He was considered a man of right and justice. He had a great deal of technical knowledge of the law and many years of experience. Engert thereupon told me, well, then, he would like to talk to Lammers. Perhaps he also said, but I don't remember that for sure, that he would talk to Bormann also. In any case later on there was some talk about it that Thierack had entered in close contact with Bormann and had visited him several times.
Q. Witness, what sentences during the tern of office as acting minister of Schlegelberger were submitted to Hitler for clemency?