In this capacity I gained the positive impression that the Schlegelberger family were cultured and highly intelligent, who did not evidence in the slightest any of the usual outgrowths of a Nazi big-wig. In every respect, their manner of living was simple and retiring.
"Dr. Schlegelberger must have been aware of the fact that I was half Jewish, even before my first consultation. In spite of this fact he availed himself of my services, a practice which even non-party members in leading positions quite often hesitated to follow in these years. I know also that Dr. Schlegelberger had Jewish school friends whom he helped during the days of oppression; also, that Frau Schlegelberger had been operated on by a Jewish physician. I am convinced that Dr. Schlegelberger would never, of his own volition, have undertaken any actions against Jews or half-Jews if he had not been forced to do so by the political authorities. On the contrary, based upon acquaintanceship of almost ten years with him, I am of the opinion that he exerted every effort to alleviate the grievous fate of those persecuted for racial and political reasons. The political situation existing in Germany at that time did not permit a clear decision on behalf of those persecuted for racial reasons. The pressure of the Party authorities increased from year to year; had he adopted an uncompromising stand for the Jews, Dr. Schlegelberger not only would have seriously jeopardized his own position but in all probability would have advocated an even more radical solution.
"I soon became aware that Dr. Schlegelberger was in no way a typical National Socialist, and that he was retaining his position simply to check, so far as possible, the impending decadence with regard to law. In consideration of the state of his health, I continually advised him in 1941 to retire. However, his answer to me was always that he could not follow my advice for his leaving would be synonymous with the end of justice.
"It was also significant that even during the period of the greatest successes of the German armies Dr. Schlegelberger said to me, 'the hybrid is not growing into a monstrosity.'" I refer to the rest of the contents and ask you to receive the document in evidence as Exhibit 36.
JUDGE BRAND: The Exhibit is received in evidence.
DR. KUBUSCHOK: The next document is an affidavit of the former Reich Minister of Justice, Dr. Eugen Schiffer. Dr. Schiffer is Jewish and was Reich Minister of Justice during the time of the Weimar Republic. The affidavit deals with the fact that Dr. Schlegelberger offered him support and help. I would also like to point out that today in the Russian Zone Dr. Schiffer holds, so to say, the position of the Minister of Justice, I refer to the contents and ask you to accept it in evidence as Exhibit 37.
JUDGE BRAND: Exhibit 37 is received in evidence.
DR. KUBUSCHOK: The next document, No. 73, is an affidavit of the married couple Rosenbaum. The husband is a half-Jew. His wife is Greek. The affidavit was sent to me by the married couple Rosenbaum without my soliciting it. The contents shows that Schlegelberger very energetically stood up for the interests of the couple Rosenbaum in a political trial. In the appendix are inclosed the letters which I received from the couple Rosenbaum in order to clarify their case. I ask you to accept the document in evidence as Exhibit 38.
JUDGE BRAND: The Exhibit is received in evidence.
DR. KUBUSCHOK: The next document, No. 74, is an affidavit of Frau Maria Koffka. I read starting with the second paragraph:
"I have known Under Secretary Schlegelberger since approximately 1919, since I was then librarian at the Reich Ministry of Justice. In the year 1932 I married Hans Koffka who was Ministerialrat at the Reich Ministry of Justice and who has since died. Beginning with the year 1935 he had considerable professional difficulties because the Office for Racial Policies, (Rassenamt), had ascertained that he had a Jewish grandfather.
Only thanks to Herr Schlegelberger's understanding consideration was it possible for my husband to stay in office in spite of his parentage. Herr Schlegelberger opposed again and again Herr Freisler's demands for my husband's release from his position. In the Ministry he continually emphasized his very friendly attitude toward my husband and also was a frequent visitor at our house; by no means did he visit all Ministerialraete in the same way.
"Also in the year 1942 when my husband acquired a serious pulmonary disease and the restitution of his ability to work could not be expected, Herr Schlegelberger kept him in office and saw to it that he would continue to receive his full salary. He also visited my husband in a most friendly manner during his illness. Herr Schlegelberger was fully aware of the fact that my husband was very much opposed to the Nazis and that he emphasized this at every opportunity. I know from many discussions held at our house that a great part of the gentlemen who were members of the old Ministry of Justice were against Hitler, but thought that it was their duty to remain in office in order to counter-balance Freisler. I also remember that it was said that most of the gentlemen had joined the Party because Himmler had reproached Guertner that the attitude of the Reich Ministry of Justice was reactionary and wanted under this pretext to gain greater influence over the Reich Ministry of Justice. Schlegelberger wanted to prevent this by all means."
I request that this affidavit be accepted in evidence as Exhibit No. 39.
JUDGE BRAND: The Exhibit is received.
DR. KUBUSCHOK: The next document, No. 75, is an affidavit by Kammergerichtsrat Dr. Alexander Cohn. I read the second paragraph....
MR. WOLLEYHAN: May it please the Court, the statement to which Dr. Kubuschok has just referred on page 87 of the Document Book-
I object to as being inadmissible, on the ground that it says, in its face, it is a statement in lieu of oath. That being so, it must conform to Rule 21 of the Uniform Rules of Procedure. Under subparagraph 5 of Rule 21 we find that any preamble in a statement in lieu of oath must contain, among other things, first, a warning to the deposee that what he states is subject to his own punishment if it is not true, and secondly, that he realizes that what he states is to be submitted before this Military Tribunal, in Nurnberg. Now, neither of those two material requirements are complied with in this statement. On that ground I object to the document being admitted.
DR. KUBUSCHOK: The affidavit was taken down by a Notary. The taking of affidavits by a Notary is subject to special regulations. The Notary has to point out to the affiant by virtue of his office, what the meaning of an affidavit is, and that a person who gives an untruthful affidavit renders himself liable for punishment. That is the official duty of the Notary, and if the Notary has taken down the affidavit this proves that this formality has been fulfilled, even if it does not state so expressly in the affidavit.
JUDGE BRAND: Have you a copy of our Rules there?
MR. WOLLEYHAN: I have, your Honor.
JUDGE BRAND: May I see them?
Court No. III, Case No. 3.
MR. WOOLEYHAN: Sub-paragraph 5.
DR. KUBUSCHOK: May I also point out that in the introductory formula of the affidavit reads in cognizance of the meaning of an affidavit; that includes the knowledge of rendering oneself liable for punishment if one gives a false affidavit. The mistake perhaps was made here because the notary public--and the affiant is a Kammergerichtsrat, that is a judge of the Supreme Court of Berlin, and he naturally knows the meaning of making a false affidavit.
THE PRESIDENT: Apparently, however, he did not know the wording of the rule of this Tribunal, and it is apparent, on the fact, that the statement in lieu of oath does not comply with the requirements of the rule of the Tribunal to which reference has been made. In its present form, therefore, the offer is rejected.
DR. KUBUSCHOK: Document No. 76 is an affidavit by Dr. Adalbert Keil. I read the third paragraph on the second page of the affidavit: "From this conversation I obtained a deep impression of the extraordinary difficulties a man like Dr. Schlegelberger, with an incorruptible sense of justice, faced through a government whose measures were not in accordance with his conception of law and justice. After this conversation, I discussed with Dr. Walter Ballas, Attorney at Law at Essen, the individual case of Dr. Cohn, discussed in its course and Dr. Schlegelberger's endeavor to help him too."
I ask you to accept this document in evidence as Exhibit 40.
THE PRESIDENT: The exhibit is received in evidence.
MR. WOOLEYHAN: One moment, Your Honor. I am sorry, Your Honor, I did not have a chance to examine it.
THE PRESIDENT: We will withhold our ruling; we understood there was no objection.
MR. WOOLEYHAN: My analyst confirmed from the original German document that there is no indication on the original exhibit that the deposee had any idea that this was to appear as evidence before this Court. If it is a statement in lieu of oath, I make the same objection Court No. III, Case No. 3.now that I made to the preceding offer.
We regard that as being a fundamental and necessary part of these documents because authentication is difficult enough in any event. And also, Your Honor, there is no warning that there are penalties for not speaking the truth.
THE PRESIDENT: It appears on a very hasty inspection that it does not purport to be a statement in lieu of oath, and is not in the form required; and it also appears on hasty inspection that it was not sworn to as an affidavit.
DR. KUBUSCHOK: Yes, it is an affidavit. The affiant declared I depose the following in lieu of oath. That is about the sixth line from the beginning of the second paragraph after his address it says: and he declared -- I depose and declare what follows in lieu of oath.
THE PRESIDENT: The same objection applies, Dr. Kubuschok. It doesn't comply with our rules. Furthermore, for the future, of course, counsel realize that any witness could write out a statement and say I declare this an oath, but that wouldn't make it an affidavit. The jurat, the certificate of the notary public that this was sworn to is the authentic evidence of the existence of an affidavit.
DR. KUBUSCHOK: Your Honor, according to German law there is no oath before a notary. The notary is not allowed to administer an oath. He can only take an affidavit and certify it; and swearing in by a notary does not exist under German law.
MR. WOOLEYHAN: That being the case, Your Honor, I object now, although it is a bit late, to every affidavit offered in this book. If the notary is not capable of administering an oath, ergo, there cannot be statements under oath; and, therefore, it must be completed in the proper form of a statement in lieu of oath, which they are not in their present form.
DR. KUBUSCHOK: Your Honor, it is impossible in effect to have every affidavit taken under oath before an Allied authority. Before a German authority we cannot have an oath of that kind administered. There are no such regulations, and, therefore, in all Tribunals, up to Court No. III, Case No. 3.now, an affidavit has been accepted in the form in which the German penal law imposes a penalty if it is a false affidavit.
I emphasize that the most solemn form of an affidavit under German law is the deposition of an affidavit before a notary. If the objection of the Prosecution would be sustained, then certainly the majority of the preparations of the Defense, not only my own, but also the other Defense Counsel, would be completely nullified. It is impossible always to go and visit the individual witnesses and to certify the affidavit as a Defense Counsel because we don't have sufficient time.
MR. WOOLEYHAN: Your Honors, I am not concerned with the expediency of the defense. I am concerned with the authenticity of these documents. The situation under German law which Dr. Kubuschok has broached to you, that is the inability of notaries to administer oaths, is the very situation to take care of which Rule 21 was promulgated. That provides an easy method to authenticate under German law, and I object on the ground that it has not been complied with.
DR. KUBUSCHOK: I believe that we are talking about two different things. The difficulty apparently lies in the fact that American law apparently knows only the oath as such, but in German law the affidavit as such is admitted and also is protected by penalties if it is false.
THE PRESIDENT: The belated objection on the part of the Prosecution to other affidavits which have already been received is overruled. The Exhibits have been received and at the time of their receipt no question was raised.
MR. WOOLEYHAN: Was Document No. 76 offered?
DR. KUBUSCHOK: Yes, 76 has been offered.
MR. WOOLEYHAN: My objection to that was timely, I believe, Your Honor.
THE PRESIDENT: That objection was timely; that is correct.
MR. WOOLEYHAN: Then, if I may ask for a repetition, what was Court No. III, Case No. 3.the ruling on that?
What was the Court's ruling on Document No. 76?
THE PRESIDENT: There has been no ruling. The ruling on Schlegelberger Document No. 76, which has been offered as Exhibit 40, will be postponed for further consideration and the examination of the rules of this Tribunal.
DR. KUBUSCHOK: I shall now read from Document Book 1.
THE PRESIDENT: You may proceed.
DR. KUBUSCHOK: I refer to Document No. 1, an affidavit of the former President of the District Court of Appeals, Wilhelm Schwister. The certificate is at the end of this affidavit, on page 4. May I read from the beginning:
"I met the subsequent Under Secretary SCHLEGELBERGER in the twenties, then a Vertragender Rat (or Ministerial Director) in the Reich Ministry of Justice as far as I know, when I was employed as Ministerial Councillor from 1920 on and later from 1927 on as President of the Prussian Judges' Examination Board in the Prussian Ministry of Justice. At that time I always regarded him as a staunch supporter of the idea of first-rate, impartial and politically independent Judiciary as well as an excellent scholar of law. In both respects he enjoyed the great esteem of the judges of the old, strictly professional and independent school. I am convinced that, in his heart, he continued to cling also during his later activities to this ideal of a just, scientifically trained and independent Judiciary on a high moral level and that he furthered it to the best of his ability. Thus, he apparently gained the special confidence of the similarly minded Reich Minister GUERTNER whose main support he was acknowledged to be. SCHLEGELBERGER's real adversary was, in my view, the notorious Under Secretary FREISLER whom I have always considered to be the evil spirit in the National Socialist Judiciary. In contrast to him SCHLEGELBERGER has never, to my knowledge stood out in a party-political manner."
DR. KUBOSCHOK: I skip the next paragraph and read the second paragraph on the next page:
"Meanwhile, after the reform of the Reich judicial system, the latter, as Under Secretary, had also taken over, along with Freisler, the administrative personnel matters of a part of the Prussian District including Duesseldorg. Schlegelberger immediately showed that he thoroughly disapproved of the abuses especially of the violent methods of Nazism and particularly welcomed the reports aimed at preserving judicial independence. I gained the impression that he was, in his heart, not a Nazi at least not an active one. He himself, and in the name of Guertner, even expressed his appreciation of my attitude toward these abuses. He, as well as Guertner approved and supported my actions especially against shady elements in the Nazi movement. In this respect Schlegelberger differed entirely from Freisler who secretly aided such elements. In other respects, toox, the strongest rivalry obviously existed between the two Under Secretaries at that time. This antagonism revealed itself especially when approximately in 1936, in a report lasting several hours, I prevailed upon Guertner, in the face of strong opposition by Freisler, to carry out several disciplinary measures concerning instigating or abetting party political acts of violence. This I could not have achieved without the vigorous support of Schlegelberger who strongly opposed Freisler.
"Later on, also, after Guertner's death I had the impression that Schlegelberger certainly often had a difficult time with the unrestrained and politically more influential Freisler concerning for instance the preservation of judicial independence."
I skip the next paragraph and continue.
"On the whole, Under Secretary Dr. Schlegelberger has, I am convinced, done all in his power to oppose the abuses in the administration of justice in the face of the development which National Socialism, growing ever more violent, had assumed through the years. I have estimated him Court No. III, Case III as being an honorable man of independence in contrast to the evil spirit of Freisler.
Also during his management of affairs, at least in my district, and except for comparatively few instances, the courts preserved their independence and adhered to a professional, fair administration of justice, untainted and uninfluenced by political considerations. Had he left his position earlier he would have then made room for the unrestrained rule of Freisler, Frank or Thierack, which would have been well nigh inevitable. It would also then have been impossible for me to hold my position in view of my ceaseless struggles against the abuses, as the party agencies again and again and again kept me in the face of great difficulties. This, and indeed the whole situation, was changed fundamentally when Thierack replaced Schlegelberger."
I submit this document as exhibit No. 41.
Mr. WOOLEYHAN: May it please the Court, from what appears in the English document book, this statement just read by Dr. Kuboschok, constitutes a statement, which the person writing it, declares under oath was true, and apparently he administered the oath to himself because there is no indication otherwise. The signature, Dr. Kuboschok declares was written in his presence, and witnessed by him, but there is nothing whatsoever, on the face of the document, that this is a sworn statement as to the contents there offered or even a declaration in lieu of it. Furthermore, Dr. Kuboschok, as shown here, is not competent to certify anything other than what he has done, namely, the signature. If Dr. Kuboschok is a notary, that does not appear. If he is not, my objection is strengthened. And, if he was a notary he was obviously operating outside of hie realm. For these reasons, I object to the admissibility of this statement.
DR. KUBOSCHOK: I must say that the objections of the representative of the Prosecution begins to become un-understandable to me. It is obvious that I cannot administer an oath; even if I were a notary, I would not be allowed to administer an oath because a notary, too, cannot administer an oath.
But, in my presence an affidavit can be made. The affidavit is perfected by the signature of the affiant. I certified the signature. In the rules it is laid down that the defense Counsel and their assistants are allowed to certify in the case of affidavits. This can only have the meaning that the affidavits which are taken in that manner are valid. I would like to repeat that a carrying through of the trial, and the submission of regular evidence material would be impossible if every witness who gives an affidavit would have to swear to it before an official Allied agency.
The IMT, as well, as far as I know all of the other tribunals, and I believe Tribunal No. III did so, too, took these circumstances into consideration, and have considered the taking of an affidavit before a defense counsel as admissible.
Mr. WOOLEYHAN: If Your Honors, one more word, if I may. It is pretty obvious, at least to the Prosecution, that this is not an affidavit. The Defense, themselves, state that they are not able to give oaths, and Dr. Kuboschok is not a notary, and even if he were, he could not administer an oath. The affiant cannot administer an oath to himself, and therefore it is obvious the statement is a statement in lieu of an oath, in accordance with the German way of doing things. That being the case, it dows not conform to the rules of the Military Tribunals as set out in Rule 21. And, I object to it on that ground.
Dr. KUBOSCHOK: If the rule thus speaks about affidavits at all, such an affidavit must be admissible because otherwise the rule would have to read: Only sworn statements of witnesses are valid and can be submitted as evidence." In the case of affidavits, there is no oath according to German law. There is only the written affidavit which is also under penalty if it is false.
THE PRESIDENT: The various exhibits which are offered and which raise this common question may be marked for identification as an exhibit and put into the custody of the Secretary General, as an exhibit offered and marked for identification, and we will rule on all of them after a conference of the Court.
I do call attention of Counsel to the fact that this Tribunal is not here administering German law, but is administering German law, but is administering the law as has been laid down, translated into German, and communicated to the Defense Counsel. That is not intended to indicate what our ruling will be, but the fact remains just as I have stated it. This exhibit will be marked for identification, exhibit 41. It may be presented to the Secretary General and we will reserve our ruling upon it. This same procedure will be followed as to any other exhibits of similar nature which may be offered this afternoon.
Dr. KUBOSCHOK: I now come to the next document, document No. 2, an affidavit by Dr. Johannes Krohn. Dr. Krohn was the trustee for the entire confiscated enemy property. In addition to the general testimony by Dr. Schlegelberger, the affidavit tells in detail how Schlegelberger, in regard to Krohn's efforts, to provide protection for enemy property support, supported this. I refer to the contents of this affidavit and offer it as exhibit 42. It is an affidavit by a notary which has the desired statement.
MR. WOOLEYHAN: Your Honors, may I point out that this present exhibit is in the proper form, as required by Rule 21 of the Rules, and demonstrates the type of statement which the Prosecution does regard as authentic; as far as I have been able to ascertain it does conform to the rules.
THE PRESIDENT: There being no objections, document No.2 is received in evidence as exhibit 42. Are those numbers correct?
Dr. KUBOSCHOK: No. 42, yes. However, I have to contradict the gentleman of the Prosecution. In his opinion this document cannot be in accordance with the rules that he represented because it is not sworn before the notary, because the notary is not allowed to administer an oath.
Also it is only an affidavit on the, -- however its contains the desired statement.
THE PRESIDENT: May I please point out here that the time for argument is before the court rules upon the matter. The objections were withdrawn the exhibit is received, and you may pass on to the next question.
Dr. KUBOSCHOK: The next document is No. 3 an affidavit by Heinrich Ebersberg. At the end of October 1938, Ebersberg was the second personal Referent to Schlegelberger. This official position can, perhaps be described by the special term adjutant. I read, beginning with the second paragraph:
"I entered the Reich Ministry of Justice at the end of October 1938 as second personal adviser (Referent) to Under Secretary Dr. SCHLEGELBERGER. I held this position until Under Secretary Dr. SCHLEGELBERGER's resignation in August 1942. My work consisted mainly of submitting the incoming mail, which was forwarded to us by the Main Office (Hauptburo) of submitting the documents of the departments, insofar as they had to be signed by Under Secretary Dr. SCHLEGELBERGER, and of the usual anteroom duties (for example, reception of visitors). Through this activity of mine, I was in constant, very close contact with Under Secretary Dr. SCHLEGELBERGER.
"I received my first impression of Dr. SCHLEGELBERGER's personality in connection with the events of 9 November 1938. He very strongly condemned the outrages against Jews and Jewish property, which had apparently been staged by the highest authorities. He also emphatically stated this view to Dr. GUERTNER, Reich Minister of Justice.
"Later, I found this attitude of SCHLEGELBERGER's confirmed again and again toward the Jewish question as well as toward other political matters. His entire activity was inspired by the endeavor to preserve justice and the concept of justice. This endeavor involved him in constant conflicts with political and party authorities, which used their powers for the attainment of their political ends, without any consideration whatsoever for right and lawfulness.
SCHLEGELBERGER endeavored to counteract the lapsing of the dictator state into absolute tyranny, by his attempt to preserve justice as the only factor of law and order, which had remained. The difficulty of this task of his follows from the nature of the dictator state and the actual power at its disposal.
The following necessary tactics in this struggle resulted from this:
"In order to counteract orders and aims of the dictator and his organizations, it was not enough to express factual doubts and to refer to the law. With reference being made to alleged political requirements of state, such objections would have been described as unworthy of consideration, and would have gone unheard, SCHLEGELBERGER therefore could count on attaining his goal, i.e., the enforcement of the legal point of view, only if he operated with the ideas of his opponents. Thus, he first of all had to try to shake the factual foundation of the planned measures, and then, if necessary, resort to political considerations of expediency, so as to wreck the measures of the opponents. At most one had to reconcile oneself to a partial solution, in order to avoid the carrying out of the entire original measures.
"I could constantly recognize these tactics in the course of my official duties; it appeared not only in the case of such important questions, as for instance the transport of part-Jews to the East, but could also be observed in the matters of daily business routine, where differences with political authorities arose.
"These determinations, made in the course of my official duties, were supplemented during personal confidential talks. Herr SCHLEGELBERGER always pointed out that he was often inwardly tempted to resign and leave his office to a successor. In this connection, he said that he was fully aware that his resignation would mean a complete change and therewith the end of German justice."
I request you to receive this document as Exhibit No. 43.
THE PRESIDENT: There being no objection, the exhibit is received.
DR. KUBUSCHOK: The next document, No. 4, is an excerpt from the Constitution of the German Reich of 11 August 1919. The excerpt is in regard to Article 56, which has been discussed extensively by the expert.
According to this Article, the Reich Chancellor determines the directives of policy and assumes the responsibility for that toward the Reichstag.
I offer this document as Exhibit 44.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: The next document, No. 5, contains excerpts from the commentary on the Constitution by Professor Gerhard Anschuetz.
I may remind the Court that the expert Jahrreiss dealt with this commentator and his opinions extensively. May I read the last paragraph on the first page of this document?
"The constitution may be amended by means of legislation. Such amendments constitute all legal provisions which change in any way or manner the text of the constitution by amending, repealing and supplementing stipulations; furthermore, all tacit amendments of the Constitution discussed in No. 2; finally such laws which, without intention to amend, solely intend to represent legally sanctioned interpretations -- all that without differentiation in the content and political range. By means of the legislation regulated by paragraph 76, amendments of the Constitution of all kinds may -always with the reservation that a plebiscite as permitted by the Constitution -- be effected; not only those that are less important and subject to technical or political considerations, but also the important ones, including those that refer to the legal structure of the Reich as a whole (Federal State), to the distribution of competence as to Reich and Laender, to the state and governmental form of the Reich and Laender (republic, democracy, referendum, parliamentarism, and other matters of principle. The power to amend the Constitution given the constituent factors by paragraph 76 is -- with the reservation of the initiative and plebiscite -- objectively unlimited.
"Paragraph 78 corresponding to paragraph 76 of the old Reich Constitution has always been interpreted in this and no other way (compare M-A). The view represented here corresponds, therefore, to an old and firm legal tradition; there is all the less reason and justification to abandon it since the will of the legislator to hold on to it is clearly indicated."
I offer this document as Exhibit 45.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: Document No. 6 contains further excerpts from the same commentary by Anschuetz. These remarks deal with the right of the judge to review. I will limit myself to reading the paragraph numbered 4 on the second page of this document:
"If already it cannot be granted that the judge may be authorized to examine the law as to its constitutionality, then he can still loss be permitted to disobey a law which had been passed constitutionally, because it is, in his opinion, contrary to certain rules which -again in his opinion -- are above the legislator (for instance: custom, morality, loyalty and faith, 'natural law'), or does not satisfy certain high principles (such as justice, fairness, reason)."
The next page of that document deals with the Special Courts. Starting with number 3, I shall read paragraph "a", after the concept of Ausnahmegerichte Exceptional Tribunals, has been discussed the commentary continues:
"It differs from the 'court for special cases' (law concerning judicial legislation, GVG, article 13, 14), or, as it is colloquially called, the 'Special Court'. Special Courts are permitted, according to paragraph 103, as well as paragraph 103......."
Then it goes into detail as to why Special Courts differ from exceptional courts, Ausnahmegerichte. I quote:
"The difference between these Special Courts and special tribunals is that the latter, unlike the Special Courts, do not convene under a generally valid (abstract) provision for all litigations of one and the same category characterized by the litigation, the position of the persons disputing, etc.
, but under a specific ordinance for a certain individual case."
I offer this document as Exhibit No. 46.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: The next document, No. 7, is an excerpt from a treatise by Professor Dr. Walter Jellinek about the Weimar Constitution. He deals with how, in practice, the Weimar Constitution did not function well. On the second page of this document the author of this document describes the personality of Professor Jellinek.
I refer you to the contents of this document and ask that it be accepted as Exhibit No. 47.
THE PRESIDENT: Document No. 7 is received as Exhibit 47.
DR. KUBUSCHOK: The next document No. 8, contains the Enabling Act -- which was discussed here frequently -- of 24 March 1933. The contents speak for themselves. I refer to it and offer the copy as Exhibit 48.
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: The next document, No. 9, contains excerpts from the book of Professor Gustav Radbruch about "The Basic Elements of the Philosophy of Law" Grundzuege der Rechtsphilosophie. I refer to the contents and offer the document as Exhibit 49.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: Your Honors, I am not too clear on this, but I am just thinking back now to the day on which we discussed how excerpts from books and treatises could be authenticated. As I remember, the Prosecution requested that we be informed in any convenient manner where a copy of each of these books referred to might be read by us. That can be handled in any expeditious stipulation, as far as I am concerned, but we would like, either now or at some future date, notice from the defense as to where we may see a copy of each of these books.
DR. KUBUSCHOK: Yes; I shall make up for this. I beg your pardon for not having done it so far. I shall inform the prosecution as to where I got this book. On the whole, they are books which are available here at the library. At the moment I cannot tell you where the book by Radbruch is, but I shall inform the prosecution about that.
THE PRESIDENT: Very well.
DR. KUBUSCHOK: The next document, No. 10 -
THE PRESIDENT: Did we rule on 49?
DR. KUBUSCHOK: Yes, 49.
THE PRESIDENT: No. 49 is received.
DR. KUBUSCHOK: Yes.
The next document, as are other documents, is a copy from a large work "New Constitutional Law", published by Under-Secretary in the Ministry of the Interior, Dr. Wilhelm Stuckart, and two other gentlemen. Since, during the course of the general defense, I took over the subject "Development of Constitutional Law", I also took these documents into my document book.
The purpose of introducing these documents is to show to the Tribunal certain facts of the situation. The political evaluation, which is also contained therein, is not always in accordance with the opinion of my client and with my own opinion.
Court No. III, Case No. 3.
I refer to this document and to its contents and ask you to accept it as Exhibit No. 50.
THE PRESIDENT: The exhibit is received.
DR. KUBOSCHOK: The next document is an excerpt from the book "Documents of German Politics, Vol. 1." It deals with the dissolution of the different German parties in Germany. I offer this document as Exhibit 51 and refer to its contents.
THE PRESIDENT: It is received.
DR. KUBOSCHOK: These "Documents of German Politics" are in the house here. The Prosecution can get them.
THE PRESIDENT: Dr. Kuboschok, merely for your convenience and for no other purpose I thought it might be well to make clear that it is unnecessary for you in each instance to say that you refer to the contents which you haven't read. Whenever you offer an exhibit and it is received, the entire exhibit is before us and will be deemed to have been referred to by you.
DR. KUBOSCHOK: Thank you very much. The next document, No. 12, is the law regarding the head of the German Reich. That is the law on the basis of which Hitler took over the office of the Reich President. The regulation is in Article 1. I offer the document as Exhibit 52.
THE PRESIDENT: It is received.
DR. KUBOSCHOK: The next document, 13, is an excerpt again from the work "Documents of German Politics" Volume 2, a statistical compilation of the official results of the plebiscite of 19 August 1934. I offer it as Exhibit 53.
THE PRESIDENT: The exhibit is received.
DR. KUBOSCHOK: Document 14 from the work "The Structure of the German Reich in a Systematic Presentation, New Constitutional Law II. It treats about the position of Hitler as Legislator. I offer this document as Exhibit 54.
THE PRESIDENT: The Exhibit is received.