It would according to Ebermaier's personality be absolutely impossible. I would also like to answer the question regarding the Ordinary Court, I would like to add a remark in connection with the statements made by the Defense Counsel. First, I looked for this discription, of course, in the law which introduces the People's Court; there, the description Ordinary Court cannot be found, but later on this expression was expressly introduced as a result of the fact which I have already often mentioned in the course of my examination here, namely, that the Nationalist Socialist liked to use a concept if it meant either the very opposite. I remind you of my statement regarding the involuntary liberties or if the National Socialist wanted to cover up something, which in actuality was different. In Accordance with this, I maintained my opinion, that the People's Court actually was a Special Court bound to the Party principles and acted as such and the Reich Supreme Court in its tasks of the authority of the first instance, the court of the first instance, the Reich court was depossessed. It is an expression which Anschuetz used.
Q. Witness, I thank you for the statement. However, my question referred only to the creation of the People's Court, and that serious doubts of population expression against the Reich Supreme Courts as a court of the ***** ***tance, *****ed, and that you will admit.
A. Yes, I admit that.
Q. Witness, may I put another question to you in this correction which has to be clarified. If I understood you correctly you wanted to state, by making the statement, only that two professional judges are only two, and that three lay judges are three, that is to say, one more; or perhaps you were of the opinion that in the People's Court the three lay judges could out vote the professional judges.
A. The People's Court decided from various judges. The decision from this fact resulted in the majority, and it consisted of number 5.
Q. Witness, may I help you. Do you remember from your activities as a judge that, regarding the question of crime and penalty there were other majorities used?
A. Two-thirds majority.
Q Do you believe that in the People's Court that was not done in the same way?
A. Yes.
Q. Witness, you stated the fact that German judges had to wear an insignia on their robes. You described this as a despicable act and the most despicable one for you.
A. Yes.
Q. This insignia which the judges had to wear, you described it as a Party insignia.
A. I have --
Q. (Interposing) Just a moment, may I continue?
A. Yes.
Q. Only so that the Tribunal may not be in error . I would like you to state your opinion on this.
A We are concerned with the so-called sovereignty insig nia , and when I characterised it, I said only that the Party symbol, the Swastika was the most essential part of it and that this was the sign of subjectivity of Party membership in a racial hatred. I did not say that the whole insignia, the so-called sovereignty was a Party insignia.
Q. Thank you for the explanation. Do you know a regulation according to which the judges were forbidden to wear their real Party insignia on their robes?
A. Yes, that is true.
Q. Thank you.
A. Again the tendency to cover up the reality As shown here for the Swastika was clear enough on the sovereignty insignia.
Q Witness, in another connection you answered to the question of the prosecutor as follows: "An objective basis for tho concept of the sound sentiment of the people was not known to me."
A Yes.
Q May I ask you whether this "not known to me" means the same--is equivalent to there not being any possibility and no attempt being made tho German jurisdiction and legal science?
A Yes, there was a tendency.
Q In order to clarify the objective concept and I meant to clarify it in an ethical basis, I would like perhaps to expand this question in order to help you by saying that do you know the most important German Commentary to the Penal Code? Did you have access to that or did the times of 1945 deprive you also of the possibility as it did many of us, to look into them?
A The important Commentary from the National Socialists time I did not see.
Q But you remember that there were attempts?
A. Yes, I do.
Q Witness, often during direct as well as cross examination there was mention made of the principle "Nullum crimen sine logo", no crime with law. However, I believe that one thing was not clarified yet. Therefore, I ask you what in this connection what did it mean for the German Legal Science and Legal Theory of practice? Tho words "lex or le e" mean?
AA legal loader described that.
Q That is an expressly promulgated law published in tho German Law Gazette, Reichsgesetzblatt?
A Yes.
Q There was thus no penalty according to common law which could be given in accordance with common law as, for example, in England?
A No.
Q There was also no possibility to punish a German because at earlier times perhaps a Court according to a law which was in effect at that time or according to the common law in effect at that time had punished the person?
A No.
Q There was also no possibility to punish a German according to the Hague Convention regarding land-warfare?
MR. LA FOLLETTE: I beg your pardon. I want to object because I don't believe it was in the province of direct examination. Will someone please read the question?
(Official Reporter reads last two questions and the answer)
MR. LA FOLLETTE: I object to that, your Honor. It wasn't brought out on direct examination. There's no question of it being in the law involved in this case before the Tribunal.
THE INTERPRETER: Would you please repeat your remark, Mr. La Follette?
MR. LA FOLLETTE: I am sorry. I said I object for the reason that it is a question entirely beyond the substance of direct examination and also is directed to the substantive law under which the Tribunal is sitting and which is an attempt to ask the witness -- requires the witness to answer a an expert on one of the questions of law which is the basis of this Tribunal's jurisdiction and under which it acts. In addition, I again reiterate that such matters were covered in direct examination.
DR. DOETZER: May it please the Tribunal, the Hague Convention regarding land-warfare is part of these laws which before 1933 were published in the Reichsgesetsblatt, the Reich Legal Gazette. The witness was called as an export in this connection. In the direct examination and in the cross examination the principle of nullum crimen sine loge was discussed. Now, I would like to request the Tribunal to grant me permission to ask the witness whether a German judge of pre-war times -- by this I mean the time before the First World War, could sentence a German in accordance with the Hague Convention regarding land-warfare.
THE PRESIDENT: The objection will be sustained. Provided the ruling did not go through the wires I therefore repeat; the objection will be sustained.
DR. DOETZER: Witness, you repeatedly pointed out that National Socialism undermined German justice, the German administration of justice. May I ask you in this connection whether you are of the opinion that the German administration of justice co--operated in this endeavor with the pleasure and affirmatively or whether the German administration of justice in order not to castrate itself in despondency and courageously fought against National Socialist efforts?
MR. LA FOLLETTE: I have to object to the question, your Honor. It was an objection, your Honor. I don't know whether it reached tho Tribunal.
THE PRESIDENT: Tho objection will be sustained.
DR. DOETZER: I have finished my cross examination.
DR. BRIEGER: Dr. Brieger for the defendant Cuhorst. Before I speak on my behalf perhaps I may take the liberty on commission and on the request of my colleague Marx, who is not present, to speak for his client Engert, to address a question on his behalf to the witness. I beg you to excuse me. Mr. Marx is here.
In order not to take up the time of the High Tribunal more than is necessary, I shall not ask the witness questions a out his personal character and development, with one exception.
BY DR. BRIEGER:
Q. Mr. President, if I understood, correctly, I gathered from your curri culum vitae that you studied in Berlin. Due to your vital interest in criminal law, I would assume that the famous German teacher of criminal law, Franz von Liszt, was your teacher.
A. Yes.
Q. Therefore, Mr. President, I may ask you the question as to whether you know that at the time you were studying, Franz von Liszt, in a most energetic manner and as an advanced fighter, represented the point of view that in penal measures professional and habitual criminals should receive special treatment, that is, that they should receive more severe penalties.
A. That is correct. That does not apply here, however, in regard to the death sentence, which finally, by the legislation of the Third Reich, was used as a penalty for the extermination of Germans.
Franz von Liszt, who was a great humanitarian and a representative of humanitarian behavior in the 19th and 20th century, would have blushed with shame at these statements about more severe treatment of ha habitual criminals; he would have blushed if that had been distorted in this manner.
Personally, as I know it -
Q. Witness, do you remember that Franz von Liszt, to other with Dr. Aschner, who was the president of to be district court in Berlin in 1910 published a book which is entitled. "Form of the Reich Criminal Code."?
A. Yes.
Q. Do you remember, perhaps, that in the same book one of the most important contributions of the co-publisher Mr. Aschner was in this treatment a penalties, and Aschner took the attitude energetically that the death penalty should be maintained?
A. Yes, the oath penalty was under discussion just in these years.
Also, Kahl was originally one of the people in favor of the death penalty, but in the course of his development, when he was an old man, he changed and became an opponent of the death penalty. How the development with Aschner was cannot tell you.
Q. In view of the personality of Franz von Liszt, would you not assume that it was not to be discussed with him?
A. The objectivity of Liszt in other matters, later to be discussed, answers this question.
Q. Witness, my colleagues have already discussed the third emergency decree several times. Therefore, I shall endeavor not to repeat these matters which were discussed by them. I shall regard the matters under other points of view since, in my opinion, they should not be separated from their politic content; that is, the emergency decrees cannot be separated.
One of my colleagues has already pointed out to you that this third emergency decree was signed by Josef Wirth. Witness, do you remember or do you know that after the murder of Rathenau, Josef Wirth, as German Reich Chancellor in the German Reichsta , held the Calo*y for Walther Rathenau who had been murdered stealthily? Do you remember in your capacity as representative of the Berliner Ta*eblatt, that from that moment on Josef Wirth was regarded as a fighter against reaction?
A. Yes, one of the prominent fighters.
INTERPRETER: Your Honor, would you please ask the defense counsel and the witness not to speak at the same time?
THE PRESIDENT: Defense Counsel, you should leave a little pause between the questions and the answers, so that the translator can properly translate matters, because she cannot translate when two people are talking *******. Please be a little careful.
DR. BRIEGER: May it please Your Honor, I shall take care of that.
BY DR. BRIEGER:
Q. Unfortunately, my colleague Dr. Schilf does not have the text of law with him today, but if I now point out that in this third emergency decree Josef Wirth makes his appearance as the Reich Minister of the Interior, I may therefore, first of all, ask you:
what tasks does the Reich Minister of the Interior have in Germany, as far as they are relevant here? To facilitate this, is it one of the most important tasks of the Reich Minister of the Interior to protect the inner security of the Reich, especially by means of the police?
A. Yes.
Q. If I bring out all this in connection with the fact that Josef Wirth was one of the early fighters against reaction, would you then assume, witness, that this emergency decree was a security measure against the reactionists, that is, against the Nazis?
A. Yes.
Q. Thank you.
Mr. President, may I ask you to explain to the Tribunal why, if the designation "emergency decree" is above the law, it is not called "law number so and so"?
** Because we are concerned with a decree on the basis of Article 48 of the Reich Constitution. This article 48 reads as follows:
"If, in the German Reich, public safety and order has been disturbed considerable or endangered, the Reich President may, for the restitution of ***lic safety and order, take the necessary measures, especially with the aid of the armed forces. He may intervene, and for this purpose he may temperarily take the measures mentioned in Article 114, 115, 117, 118, 124 and 153. The civil rights which have been laid down in these articles may then, or may partly be abrogated."
Q. In order to formulate it briefly, Mr. President, did the Government of Bruenin at that time have its basis in the confidence of the parliament or in the confidence of the Reich President?
A. In the confidence of the Reich President.
Q Thank you, Mr. President.
A. However, without the Reichstag -- that is, the parliament -- having any objection to the decree promulgated in accordance with Article 48.
Q. Mr. President, may I assume that the Spruchkammer, the Denazification proceedings against von Papen -- may I assume that you read about that?
A. In so far as it is possible, with the inadequate reports in the newspapers so far, yes.
Q Mr. President, do you know that in this denazification proceeding it was discussed in detail, the clique around the Reich President? I only have remind you of the person of his son, Undersecretary Meissner, etc.
A. Yes.
Q With this preface may I now ask you, do you assume that the Govern ment Bruening, this law regarding special courts was not any more ****** action? That is, in other words, that the special courts were not establish at that time for the reason that the government of Bruening was already to weak to take any action against the personality of the Reich President an those in his confidence - to take any effective action against them.
A. This possibility I can neither affirm nor deny. I only point out that the third emergency decree about five months or a half year before was promulgated half a year before the second presidential election, and far as I remember, Bruening at that time still had the confidence of the second Reich I resident -- at least to a considerable extent. I don't want to talk about 100% because that is a circumstance about which I can not make a positive statement.
A. LA FOLLETTE: Your Honor, I do not want to preclude counsel, part cularly because I have a very high regard for counsel. I assume that he a purpose which will follow a very -- knowing him, I think he has a part which will follow a very devious course and end up with a very devastating question. But if it should not, we are a little far off the course. And while I don't like to ask the cross examiner to state fully his purpose, believe that counsel should make some statement as to the ultimate relevant of this line of questioning.
THE PRESIDENT: Shall we assume that he expects to pursue that further There is no question pending at this time.
MR. LA FOLLETTE: It is so hard to get here and jump around and state objections. I simply wanted to ask the Court possibly to inquire of count if there is a relevant purposes in this examination.
THE PRESIDENT: Well, it may be well enough for defense counsel to st*** whether he expects to pursue this inquiry further and if so, for what purpose
DR. BRIEGER: Mr. President, I may assure you that just today -- that the high Tribunal as well as the witness are tired out today on the third day of the examination, and therefore I am very anxious not to put any unnecessary questions to the witness. Therefore, contrary to most co-defense counsel, I have avoided asking any questions whatsoever, with the exception of this particular one regarding his personal career. But the high Tribunal will under stand the purpose of my questioning, which I shall make known to the Tribunal in time - that is, in the effort to be fair intended, already during my cross examination, that with this aim in mind I really want to keep it back for the moment.
MR. LA FOLLETTE: Of course, Your Honor, I do not want to preclude counsel and I simply withdraw any possible objection.
THE PRESIDENT: May I say on behalf of the Tribunal that, speaking for myself, and I trust I speak for my colleagues, we are not too weary to listen to this if it is pertinent. We will, pay very patient attention to anything which we think is pertinent, and weariness is no part of our problem.
BY DR. BRIEGER:
Q Mr. President, I here have in front of me the Reich Law Gazette 1920, volume of the year 1920, volume 1, page 985, entitled "Order of the Reich President" on the basis of Article 48, Paragraph 2 of the Reich constitution concerning the restitution of public safety and order, - regarding the measure necessary for this restitution. This law bears the signature, with the date 19 May 1920, of Reich President Ebert, Reich Chancellor Mueller, and Reich Minister of the Interior Koch. Mr. President, may I ask you to tell the ** Tribunal which party or which parties these three personalities belonged to to signed this law? May I ask you, to which party did Reich President Ebert belong to?
A Social Democratic Party.
Q Reich Chancellor Mueller?
A Social Democratic party.
Q Reich Minister of the Interior Koch?
AAlso the Social Democratic Party. They all belonged to the Social Democratic Party.
Q Witness, may I acquaint you -- excuse me if some numbers don't mean anything to you right now. I shall explain it to you later. Paragraph 8 says the extraordinary courts are competent - first, witness, may I ask you I assume that you have the Reich Criminal Code at hand. May I ask you to write down these figures fer the moment, because later on I must absolutely ******* the opportunity to read over the regulations of the laws. Paragraph * says the extraordinary courts are competent, first of all, for those crimes mentioned in Article I, Article 6,7,20,27 of the Criminal Code. I ask you, did you fellow along with me?
A No.
Q I shall repeat again. In Part I, Section 1, 6,7,20,27. The Crime and delicts mentioned in these sections. Secondly, for the crimes and delicts against paragraph 211 until 215 of the Reich Code of Criminal Procedure. Third, against the crimes and delicts against the law against the criminal use of explosives and endangering the public. Fourth , for crimes against the order of the 10th of April 1920 about the delivery of weapons. If the action took place after the promulgation of the order of 13 January 1920 for the restoration of public safety and order, the measures necessary for this can be continued. Still another paragraph.
A I take the liberty to make the suggestion to the President to give the witness the opportunity, if the President agrees to it, to read over these parts of the Criminal Code in the Criminal Code itself, and that *** I ask him to give me then the explanation whether these courts were institution for crimes of minor importance, of medium importance, or of considerable importance, for capital crimes.
THE PRESIDENT: We will first inquire of the witness whether he is sufficiently familiar with those sections to answer the question without taking -
THE WITNESS: I could do it, Your Honor. I only need in place of the figures to read the headings and then I know what it is all about. Then I can answer.
BY DR. BRIEGER:
Q Would you please, Mr. President, familiarize the Tribunal with those Paragraph headings?
A Part 2, Section 1 -
THE PRESIDENT: It is not necessary. I think the Tribunal is familiar with those sections just as the witness is.
A. Of course, we are concerned with considerable crimes and capital crimes.
Q. Her with, I am finished with this particular law, Mr. Presidents Mr. President, on the first day you stated, also, that as a human being, I may also say as a jurist, you felt obligated to read Hitler's "Mein Ka
A. Yes.
Q. Thank you.
THE PRESIDENT: Mr. Defense Counsel, the time has arrived for our usual recess. I will take a fifteen minute recess before pursuing the question further.
DR. BRIEGER: Yes, Your Honor.
(A short recess was taken)
THE MARSHAL: Persons in the courtroom will please find their seats. The Tribunal is again session.
CROSS EXAMINATION - Continued BY DR. BRIEGER:
Q. Witness, you again affirmed to us that you have read Hitler's book "Mein Kampf" (My Strugle). Do you remember that Adolf Hitler, concerning his time in prison at the Fortress of Landsberg after the Putsch before the Feldherrnhalle, that he was sentenced by a Bavarian Special Court?
A. I should like to use the opportunity, concerning these two questions, to talk about the decree of 1920 of Reich President Ebert, and I should like to revert to the background of that decree. At that time, Nationalist quarters made organized the Kapp Putsch which caused unrest as it was being beaten down. This unrest was caused in Central Germany. The measures were justified by the Reich Constitution, Article 48, and they were controlled by Parliament These measures later were rescinded. The extraordinary calls, "which in virtue of that decree, were introduced, did not exist until the end of the Reimar Republic. That is evident from the act that when renewed unrest threatened in 1931, again this emergency measure, was taken. It is a different matter if, after the accession to power of National Socialism, for that constitutional control, which was excluded, by the Enabling Act, now special courts were established with which, as the development followed, there was no thought of having them only for emergency periods, but a permanent institution as a means for putting into effect Nazi dictatorship, and which did not continue to exist. Professional judges of the people's court were appoint for life. This was what I wanted to add to the question conc*** the 19** ***********ch defense counsel addressed to me because it was necessary to understand this decree, comparing it with the special courts of National Socialism.
Q. Mr. President, if I understood, you properly, you reward the Kapp Putsch as a nationalist action.
A. As a nationalist action.
THE PRESIDENT: Counsel an witness are both talking at once again, and we cannot have a translation of two voices at the same time.
BY DR. BRIEGER:
Q. To clarify this beyond all doubt, may I ask you another question, although you may consider it superflous? Was Kapp at any time a member of the Nazi Party?
A. No. In 1920, the Nazi Party only existed in hidin ,in the form from which Hitler then developed it for his own purpose and prepared it for his own purpose.
Q. Would you be inclined to say that Kapp and the great industrialists and the a rarian circles with whom he was closely connected -- Would you say that he was closer to these than to Hitler and his people?
A. He belonged to the so-called reaction of the right, to which Hitler and his movement did not want to count themselves.
Q. Would you say that the leader of the right reaction of that time was Hugenber and his people or Hitler and his people?
A. That results from at my answer that Hitler did not count himself among the party of the Reich.
Q. Mr. President, I wish to quote some provisions of the law, the Decree for the Establishment of People's Courts, printed in the Ministry of Justice periodical for Bavaria in 1918, page 229. The book is here in our library and accordingly is accessible to the Tribunal at any tine without difficulty. This law is signed by a number of persons. I will read out the names and perhaps you, Mr. President, will be good enough with every names, as far as it is possible, to tell me to what party the gentleman concerned belonged. I don't know what they called themselves at the time, judges or deputies of the people. The law is signed with the date, 19 November 1918 in Munich, the Government of the People's State, Bavaria. The first name is Kurt Eisner, Mr. President, to what party did Kurt Eisner belong ?
A. Independent Socialist Party.
Q. E. Auer?
A. S.P.D.
Q. H. von Frauendorfer?
A. I believe, also the S.P.D.
Q. Hoffmann?
A. S.P.D.
Q. Dr. Jaffe?
A. I believe, the Independent Socialist Party.
Q. Rosshaupter?
A. S.P.D.
Q. E. Rimm?
A. I don't know.
Q. If you think it over for a moment, perhaps you will remember because his name appears particularly important to me, as he signed the executory orders.
A. I do not know to what party he belonged.
Q. Unterleitner?
A. No.
Q. Now, I will read some of the provisions and I should like to ask you to compare them with the provisions of the Nazi period concerning people's courts and special courts, and accordingly, I should like to leave it to youto your personal opinion--whether you would like to give us your view concerning every article or whether you would like to do so at the and when you have finished reading them. Don't tell definitely now. I would not consider it impolite if you wish to interrupt me every now and then.
"Decree on the Establishment of People's Courts." I may say at the start that I do not want to claims much time of the Tribunal by reading the whole decree. I do not want to do that. I only want to read some important extracts.
"Article 1. Military persons, permitting murder, manslaughter, sexual crimes, robbery, plunder, theft or arson, if they are found in the act, will, in those districts of the people's state where there are people's courts, be sentenced by these courts.
"Article 2. The general provisions of the penal code are valid for the sentences. Murder, manslaughter, sexual crimes, robbery, plunder and arson will be punished with the full gravity of the law.
"These people's court decides regarding the appointment of two professional judges and three lay judges."
I will desist from quoting the remainder of these paragraphs and I now will read the following proclamation on the people's court of the Ministry of Justice.
It says: article 2, the procedure before the Peoples Court is summary, not bound by formalities of ordinary penal procedure and has for its purpose the quickest judgment of the defendant. Article 13 -- against the decision of the Peoples Court and the chairman there is no legal remedy. Article 19 -- on the application of the prosecutor (Article 17, Section 1) the president of the Peoples Court is immediately without decision concerning the opening of the trial before the Peoples' Court, and fixes the time for the trial to be held as soon as possible; no time limit will be adherred to. The place for the trial can by the president be chosen in an additionally one where the Peoples' Court actually has its seat. Article 28, the sentence of the Peoples' Court must be executed immediately; legal remedy does not exist. The reopening of the trial is out of the question; pleas for clemancy will not achieve putting off such execution of sentence. Article 29 -- death sentences may only be carried out when the counsel of ministers has examined it and has approved of the execution. The prosecutor, therefore, must immediately forward the sentence, with the files, to the Ministry of Justice and must give his own views on the execution of tho sentence.
MR. LaFOLLETTE: If your Honors please, I believe I must object to this question on two grounds.
JUDGE BRAND: There has been no question propounded as yet.
MR. LaFOLLE'TTE: He has been reading this as part of his question. And counsel was kind enough to permit me to intervene. If the objection is sustained, I would love to hear this historical document. However, I object for the reason the document from law which he has been reading, as I understand it, is a law of the State of Bavaria, and for the further reason, I am not a sure it is common law from which to make a comparison, and which was not included in the subject matter covered on direct examination; and also for the further reason that this is a law of 19 November 1918, just ten days after the end of the first World War, and I submit that this court takes judicial notice of tho fact that no orderly conditions of any kind existed anywhere in Germany at that time. And for that reason any provisions of this law are not under any circumstances comparable German legislation existing before 1933, and is not a fair comparison for the witness upon an act of this kind; it is not pertinent and not proper cross examination.