Chapter XLI: Part VI: Final Regulations (4)

REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 11 MAY 1942, NOTING ROTHENBERGER’S INTENTION TO INTENSIFY “THE INTERNAL DIRECTION AND STEERING OF THE ADMINISTRATION OF JUSTICE,” AND ENCLOSING COPIES OF ROTHENBERGER’S INSTRUCTIONS TO JUDGES IN HIS DISTRICT

The President of the Hanseatic Court of Appeal
3130 E--1a/4

Hamburg 36, 11 May 1942

Personal!
Registered

To: State Secretary Dr. Schlegelberger Reich Ministry of Justice

Subject: Report on the situation

Reference: Your ordinance of 9 December 1935--Ia 11012 3 enclosures

I

In April of this year I made a trip through various provinces [Gaue]--Dresden, Prague, Vienna, Graz--to inform myself to conditions in central Germany and Austria.

II

The Fuehrer’s speech of 26 April 1942 did not surprise me very much. It confirmed to me the regrettable fact that the Fuehrer has no confidence in the German administration of justice and in the German judges. A radical National Socialist reform of the legal system which I have suggested for years in verbal and written reports[261] has therefore become even more urgent.

The effect of the Fuehrer’s speech on the judges in my district was absolutely crushing. It is impossible to gauge the effect on the German judges of the proclamation regarding the removal of judges and the way in which this was made known to the world in the form of an enabling act[262] passed by the Reichstag with frantic applause. I therefore considered it my first duty to counteract this effect by taking the following measures:

1. On Tuesday, 28 April, I had a preliminary discussion with my presidents to hear how my staff felt about the matter.

2. On Wednesday, 29 April, I discussed the present situation in detail with the Gauleiter and asked him to address, together with me, all judges of my district.

3. We did this on Friday, 1 May. I spoke for approximately three-quarters of an hour, next the Gauleiter spoke for about 20 minutes. Neither of us glossed over the seriousness of the situation; we openly faced the Hamburg judges whose jurisdiction did not cause the present crisis, and we stressed the necessity for a fundamental reform. We pointed out that two dangers had to be forestalled:

_a._ further loss of authority of the judge’s verdict,

_b._ a feeling of doubt on the part of the judges or of
anxiety with regard to their family’s livelihood.

I have, therefore assumed responsibility for each verdict which the judges discuss with me before passing it.

4. On Wednesday, 6 May, the Gauleiter upon my request addressed all political and economic leaders of Hamburg on the subject of the present crisis. I considered this necessary so as not to alarm the population and prevent attacks against the judges.

5. On the same day I made arrangements with all senior police officers (the Higher SS and Police Leaders, heads of the criminal police, of the Secret State Police, and of the SD) to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence).

6. I made similar arrangements with all representatives of the Hamburg Press. The press was to refer to me before subjecting a verdict to any form of criticism.

I cannot agree with the objection to these measures on the grounds that with other Gauleiter such procedure would not have been possible. In 1933, the Gauleiter was anything but favorably disposed toward the judges. I am of the opinion that every political minded National Socialist leader can be convinced of the necessity of an orderly legal system, provided the system is National Socialist in character. Not even the continued changes of political leaders in Hamburg, especially among senior police officers, which have occurred since 1933, ever disturbed our smooth cooperation.

III

In view of the present situation I am intensifying the internal direction and steering of the administration of justice which I have considered to be my main task since 1933. For that purpose, I have issued the instructions which are set out in enclosures 1, 2 and 3.

IV

The meeting of the chief presidents in the Reich Ministry of Justice on 5 May this year did not satisfy me. It was my impression that most of the chief presidents were very much depressed. I do not believe that their inner confidence was restored in the course of the meeting.

V

I suggest that the chief presidents should be confidentially informed of judgments passed in the Reich which have caused special criticism in the Reich Ministry of Justice, so that the judges may get some idea of the Fuehrer’s will regarding the various spheres of the administration of justice.

[Signed] ROTHENBERGER

Enclosure 1

Hamburg, 6 May 1942

The President of the Hanseatic Court of Appeal

To: All Judges in the District of the Hanseatic Court of Appeal

As I already stated at the plenary meeting of the judges on 1 May 1942, I am prepared to advise every judge who in doubtful cases might desire to approach me personally. I shall in such cases ask the judges to arrange for an appointment with my staff and to bring along the respective files for report.

[Typed] [Signed] ROTHENBERGER, DR

Enclosure 2

The President of the Hanseatic Court of Appeal

Hamburg, 7 May 1942

To:
The President of the Hamburg District Court
The President of the Bremen District Court
The President of the Hamburg Local Court

In view of the present situation I issue the following instructions in agreement with the attorney general:

I

A meeting of the presidents will be held at my office every week at which the presidents of the district courts of Hamburg and Bremen and of the Hamburg local court as well as my expert adviser will be present. The attorney general and the Chief Public Prosecutors with the district courts of Hamburg and Bremen have promised to attend whenever the cases under discussion are of special interest to them.

On the basis of brief written notes containing the titles, file numbers, and a few key words of the matter to be discussed the presidents in the course of this meeting will report on the important decisions which were passed in penal and civil cases during the preceding week as well as on the essential penal and civil cases to be tried in the following week.

The attorney general as well as the Chief Public Prosecutors will also bring up for discussion important preliminary investigations, submitted to the attorney general during the preceding week.

Outside of these regular meetings the presidents will immediately report to me matters of special importance and urgency.

II

For the purpose of procuring the material I request the presidents to have the criminal and civil divisions and chambers submit brief reports to them every week in the form of a review and a summing up of important pending penal and civil cases, which, if necessary, will have to be supplemented by verbal reports.

III

Apart from the weekly presidents’ meeting, a special meeting with the presidents of the Special Courts in Hamburg will be held in my office every week at a date personally arranged by me in each case in which the attorney general and the chief public prosecutor of the Hamburg district court will also take part. With this meeting I shall connect a conference with the head of the public relations department for legal matters in Hamburg.

As stated under I, the chief prosecutor of the Hamburg district court will report on essential preliminary investigations on Special Court cases, which have been brought before the prosecuting authority during the preceding week.

The presidents of the Special Courts will report in the same way on essential decisions passed by the Special Courts during the preceding week as well as on important cases to be tried before the Special Court in the following week.

In case of urgent Special Court proceedings the presidents of the Special Courts have to report immediately and independently of these regular meetings.

The cases of the Bremen Special Court will also be discussed at the presidents’ conference.

IV

I consider as essential in the sense of these instructions all cases which are of special importance, among them primarily--

_a._ Penal cases in which the death penalty or a long term of hard labor is to be expected.

_b._ Penal cases which are of primary significance for the protection of the population.

_c._ Penal cases due to the war, especially cases of offenses against the war economy, illegal slaughtering and similar penal cases, as well as cases against prisoners of war and against public enemies, and cases concerning crimes committed under the cover of the black-out.

_d._ Penal cases against Poles, Jews, and other foreigners.

_e._ Penal cases of special importance concerning crimes committed by, or against minors.

_f._ Crimes due to tragic unfortunate circumstances.

_g._ Penal cases in which a decision on the kind and degree of punishment is especially difficult or in which uniform handling is especially urgent.

_h._ Penal and civil cases in which persons are involved who are State or Party officials, or dignitaries, or who hold other eminent positions in public life.

_i._ Penal and civil cases in which it is clearly the intention of the parties to call in agencies not connected with the judicial authorities.

_k._ Penal and civil cases in which there seems to arise a conflict between the established law and the necessity of an economically and socially, reasonable solution.

_l._ Penal and civil cases concerning the interests of State and Party, or political and economic problems, as well as problems of foreign policy and ecclesiastical problems, or the effects of the war (for instance bomb damage, matters concerning urgent payment of church rates in kind, etc.).

_m._ Penal and civil cases in which legal problems of a general nature arise which require uniform handling by the courts.

[Stamped] [Signed] ROTHENBERGER, DR

Enclosure 3

The President of the Hanseatic Court of Appeal

Hamburg, 7 May 1942

To the Presidents of the Civil Senates and of the Criminal Senate

The Fuehrer’s speech and the Reichstag resolution of 26 April 1942 make it necessary to do everything possible in the organizational field in order to secure jurisdiction of the kind the Fuehrer expects, especially in wartime. As announced in my speech of 1 May, I therefore intend to inform myself as extensively as possible prior to the trials of cases which are of political significance, or which involve the possibility of a certain contradiction between formal law and the public sentiment or National Socialist ideology in order to discuss matters if necessary with the presidents in question. Incidentally, I expect the presidents more than ever before to confidently submit to me for discussion matters involving the afore-mentioned problems. To obtain information as far as the civil senates and the criminal senate of the Hanseatic court of appeal are concerned, I have requested the president of the senate, Dr. Struve, at present my permanent deputy, to assist me by holding conferences with the presidents of the senates at regular intervals at which the presidents will furnish a review of the cases which will come up in the near future. Generally the report can be brief. But it must furnish sufficient details in cases which require special attention according to the Fuehrer’s speech, in order to enable my deputy to decide whether my intervention is necessary or expedient. In this connection the facts of the case and the decisive legal points of view will have to be discussed. I expect that these arrangements which are only destined to serve jurisdiction and to strengthen the position of the judges will meet with general approval, and I hope that my deputy will be fully supported by you. I shall of course continue to be at your disposal for personal discussions.

[Typed] [Signed] ROTHENBERGER

The President of the Hanseatic Court of Appeal
3150 E--1a/4

Hamburg 36, 1 June 1942

Registered

To: State Secretary Dr. Schlegelberger Reich Ministry of Justice Berlin

Your Ordinance of 9 December 1935--Ia 11012.

Following up my report of 11 May 1942 on the situation, I beg to inform that I have, in the meantime, taken the same steps in Bremen which I had taken in Hamburg as a consequence to the Fuehrer’s speech. The authorities at Bremen (the Lord Mayor, the Kreisleiter, the President of the Police, the head of the Secret State Police, and the head of the SD district) have made the same arrangements with me as did the respective Hamburg authorities.

[Signed] ROTHENBERGER

c. Testimony of Defendant Rothenberger Concerning His
Memorandum on Judicial Reform

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[263]

_DIRECT EXAMINATION_

* * * * * * *

DR. WANDSCHNEIDER (counsel for the defendant Rothenberger): Dr. Rothenberger, would you please first make some general statement about your memorandum?

PRESIDING JUDGE BRAND: The exhibit number, please.

DR. WANDSCHNEIDER: We are concerned with Document NG-075, Prosecution Exhibit 27,[264] in document book 1-B, page 1. I have submitted a list to the Court on which the documents I shall mention are listed. Please begin with your statement.

DEFENDANT ROTHENBERGER: The memorandum is a brief summary of what I had worked out during the previous years in Hamburg. The reason for my writing such a memorandum at all, I believe, I already indicated yesterday. I had pointed out that the development in the Reich until 1942, when this memorandum was written, gave cause for growing dangers and misgivings for every jurist.[265] Furthermore, I had pointed out how the administration of justice was pushed more and more into a defensive position by the Party and the SS and how the jurists, as well as all Germans, either acquiesced in this condition and this development or even went along with it, and how the administration of justice was more and more in retreat battles. I did not want to and could not go along with this line of action. And I did not want the administration of justice again and again to be confronted with _faits accomplis_. The Party and the SS concerned themselves with ideas for reforms of the administration of justice and it was my opinion that the only office which was competent for this and an expert organization in the field was the administration of justice itself. And the starting point for the attempt to change the course of this development were my experiences which I had gathered in Hamburg and in England.

My conviction grew stronger and stronger to the effect that that question of the position of the judge in a state was significant not only for the administration of justice itself, but that it was a basic problem of political life in every state. Germany had always gone from one extreme to the other in politics, and now we were experiencing, during the year 1933 and the subsequent years, the extreme of a power state. And one of the causes for this was, in my conviction, that in Germany we were lacking a point of rest, an authority which due to tradition and out of its independence was in a position to influence the development critically. This impression in particular was very vivid to me from my experiences in England. Therefore, my belief that the idea of the so-called Judge-King in Germany too, if there was any chance at all, would exert an influence on the development. This memorandum represents a final warning to Hitler in order to hold him back from this development which had begun. If today I put the question to myself, whether I believed that I could convince Hitler at all from my knowledge that I have today I, of course, have to answer no to that question. According to my knowledge at that time I hoped for it and I believe that the fact alone that I undertook such an attempt at all is the best proof for this; and my belief of the time will be understood on the basis of the experiences which I had gathered in Hamburg where it had been possible by trying to swim against the current and to exert influence upon leading political personalities, that one could succeed there.

The aim of my memorandum was, in the final analysis, the same as has to be the aim of every state, namely, the rebuilding of an autonomous law which is independent of the form of government and without temporal limitation. In countries which have a tradition this may not be a problem at all, but in Germany this question had for decades been the problem, and already since 1905 leading jurists in Germany had occupied themselves with this problem again and again.

If I had described this idea in my memorandum in very dry and bare words then this memorandum as hundreds of others would immediately have been thrown into the wastepaper basket and I would have been described as a fool. Therefore, I had first to describe the means which could create the prerequisites for such a final condition and, therefore, I described the proximate aims which I wanted to reach first. I emphasized them first. In order to clarify to the Tribunal that the position of a judge in Germany is a completely different one than in England, and I believe also than in the United States, I have to go into the historical development of the profession of the German judge in a few words. I can do this more briefly since this historical development is indicated briefly in this memorandum; furthermore, because in a lengthy article which I wrote at that time, which will be submitted as an exhibit by my defense counsel, I went into this historical development in detail.

I therefore want to say here merely by a slogan that once due to the acceptance of the Roman law in Germany in the 16th Century which took place only on the continent of Europe and not in England, and furthermore caused by the development of the Prussian state where the administration of justice, as I already emphasized yesterday, was only a stepchild; that due to these two circumstances the judges’ profession played only a very modest and mediocre role. In Germany we had about 19,000 judges who belonged to the General Civil Service and who in no way differed as far as their income, or their position, or their reputation was concerned from an absolutely average civil servant.

The essential factor in this development was that the practical course of the education of a judge in Germany to this very day brought about that only persons who were merely average lawyers decided to take up the judge’s profession.

If I may be permitted to do so, I would like to mention briefly how one becomes a judge in Germany. At the age of approximately 25, one becomes assessor; at this time one decides whether one wants to become a judge. If one does decide to become a judge, one remains for a number of years and at that time it was about 5 to 8 years--a so-called assistant judge, Hilfsrichter.

This means that one exercises the functions of a judge, to be sure, but one can be discharged any day. And then in the course of years one finally achieves being appointed a judge. It happened only very rarely that a person who had been sitting as an assistant judge for a number of years was not appointed judge.

Then when one finally became a judge one received an income of about 300 marks. A fairly good skilled worker in Germany earned twice as much. Therefore, one had to lead a very modest life. One was treated as a civil servant to the extent that every year a so-called qualification or efficiency report had to be written about every judge. In other words, a report had to be made as to the qualifications of the judge. The superior of the judge had to go to the court session in order, as we expressed it, to examine the judge; that is, to examine whether the judge was able or not.

Then, the judge waited for his next promotion which played a very decisive role for him and for his family in view of his small income. There was a scale of promotions from the local court to the district court, to the district court of appeal, and finally, to the Reich Supreme Court.

This briefly described course of training thus demonstrates that the judge in a quiet existence of a civil servant was employed only as a judge all the time, and this gave cause to the leading German jurists since 1906 to do something about it. The first precursor of this idea was a certain Adickes. These jurists tried to suggest a basic alteration of this course.

Adickes was followed by an Under Secretary Muegel, and he in turn during the Weimar Republic was followed by the then Reich Minister of Justice Dr. Schiffer who today is again Minister of Justice in the Russian zone of occupation. All were of the same opinion that his position of the judge had to be changed fundamentally and that this would be possible only by a very severe reduction of the number of judges.

If the prosecution is charging me I believe even in the indictment itself with the fact that I in very clear words desired to change this condition, or suggested changing this condition, by saying that not the salve of the drug store but the knife of the surgeon, was needed then I am in good company in so saying to the extent that my predecessor for these plans was Reich Minister of Justice Dr. Schiffer who by the way is fully Jewish. He expressed the following thoughts about this problem at the time, and I quote:

“The wound should not be covered up and smeared over, it
must be cut, pressed out, and scraped out. The reform in the
administration of justice which we need is not an enlargement or
a reconstruction but a thorough reduction.”

These plans which were discussed in Germany for 50 years, and the execution of which failed every time, I now made my own. As can be seen from the memorandum, I was confronted, above all, with the problem as to what means could be used at all to bring about this reduction in the number of judges without reducing the quality of jurisdiction. The means which I suggested were also very closely allied to those means which had been suggested for 50 years. These means were as follows: First, the concept of the justice of the peace. I believe that I do not have to go into the details of this position because, first of all, I assume that the Tribunal is very familiar with this institution of a justice of the peace; and secondly, because I said something about it in the memorandum itself; and thirdly, because I discussed it in a lengthy article which will be submitted.

The second method which I suggested, and which I also discussed in a lengthy article, which will be submitted as an exhibit is the idea of the administrator of justice [Rechtspfleger]. This is an idea which conforms with the investigations I made in England about the master, the registrar, and the clerk.[266] The aim here is clear too, namely, that the judge should act during the trial exclusively as a judge and must be relieved of the burden of all technical preparations and of the tasks which are not truly the tasks of a judge.

The third method which I suggested was a change in the structure of the German courts as a whole. Details about this too are not only in my memorandum, but in articles which will be submitted in evidence here. My aim was to introduce, in the place of the super organization of the German courts, a nonbureaucratic, simple, and clear structure of organization of the courts. In this organization of the courts the idea was decisive for me that every judge in Germany should have the same rank, but not as it had been up to now where the judge had to wait for and was dependent upon a promotion so that his activity, even subconsciously, was guided by his aim of being promoted. I wanted to do away with all titles. In my opinion, every judge deserves only the title “judge.” I was of the opinion that through these changes, the inner independence of the judge would be strengthened. The decisive factor for this inner strengthening of the judge was my suggestion to take the judges out of the general group of civil servants.

In my memorandum I attempted to explain to Hitler the basic difference between a regular civil servant and a judge.

This, of course, would have meant that the judge, from the point of view of his income, his position, and especially his reputation, would occupy an overwhelming position in Germany. I expressed this as follows and underlined it. The position of the German judge must, ideally and materially, be organized in such a way that it will appeal to the best of the future lawyers. And with this question namely the pure civil servant career of a judge, up to this time, is connected another request I made, that only a person should be appointed judge who before that had worked in another profession and had there gained experience, be it in economics, be it in another sector of the state, or above all, as an attorney. I was of the opinion that only a person of advanced age and older than was usual in Germany--I said that the minimum age should be 35--should become a judge, because a man who is very young and who has not, outside of a quiet life as a civil servant, been forced to fight and to gather experience, is not able to judge about the fate of people which is entrusted to him in the courtroom in a just and humane manner. And the last point of these suggestions for reform is the training of judges already at the university. I started with the assumption that the legal questions are very essential for the pronouncing of a sentence, but that the decisive question in every trial is the finding of the facts and the evaluation of the persons, be it the witnesses, the plaintiff, or the defendants. The training that was given at the German universities was in former times exclusively concerned with legal problems. At the university the students listened as an audience to a professor who read out his lectures on legal theory; that to be sure is necessary, but it had to be supplemented by a practical point of view. This recognition I had gained from my long experience as a tutor in Hamburg, and therefore my detailed suggestions which are mentioned in the memorandum which I later carried in Berlin. And perhaps I may be permitted later to go into them in detail.

* * * * * * *

Q. I now go into the individual cases. First I put the question to you. On page 6 [section III] of your memorandum you said (_NG-075, Pros. Ex. 27_)[267]: “Occasionally the opinion is represented that an authoritarian state cannot bear a strong judiciary.” Whom did you mean? Who represented that point of view occasionally?

A. That is very clear that the Party and the SS represented that point of view.

Q. You meant thus your opponents in your daily life?

A. Yes.

Q. In your legal practice?

A. Yes, because I knew that these two organizations, the Party and the SS, in the course of the years exerted a very strong influence on Hitler. It was therefore decisive for me first to deal with the question as an immediate aim from the point of view to gain an influence on Hitler as a judge in order to exclude all influences of the Party and the SS. And out of that knowledge I made the requirement that between Hitler and the German judiciary there should be no intermediary; that, in other words, nobody should be allowed to influence the judge, be it a political leader, be it Bormann, be it Himmler, or any other organizations which so far had exercised a strong influence on the judge. And the second concrete requirement which I made, and which is contained in my memorandum is that the entire administration of the criminal law [Strafrechtspflege] should not be split up but its entire extent remain with the administration of justice. In connection with that are some formulations which I made in my memorandum which state that the political leaders and the official of the Gestapo cannot be judges at the same time. A corruption and hunger for power cannot be prevented in any better way than by a strong personality of a judge. And if I raised such requirements and then thought about how I could explain these thoughts to a man like Hitler, as I saw him at the time, how can I dare undertake such a step at all, the result of such an attempt was exclusively dependent upon the tactics or the methods which I employed. And therefore, in formulating my memorandum, my ideas, I made certain concessions but I always added the aim itself immediately afterward. I would like to cite two cases particularly which the indictment put into the record in that connection. First, the following sentence:

“All clamor about lawlessness, despotism, injustice, et cetera, is at present nothing but a lack of insight into the political situation.” And then I continue: “The question is solely: Is a strong judiciary incompatible with the National Socialist authoritarian state [Fuehrerstaat] _per se_, that is, permanently or only temporarily?” And another sentence with which I am being charged is the following: “Political situations require constant measures of opportuneness, and every stubborn resistance to it--‘on principle’ or ‘fundamental deliberation’--is senseless.” And I continue: “But one must be constantly aware of the danger that the very ‘convenient’ putting aside of a regulated administration of justice conceals the _tendency of habit_”--and that last phrase is underlined--“What can I do to put at the disposal of the Fuehrer a justice and judges in which he may have confidence?”

Now for me the basic problem existed--how is it possible to make these ideas of a judiciary at all compatible with the ideas of an authoritarian state, because the authoritarian state as such was a fact for me. I could not overthrow it; and to that extent, of course, there is a difference in regard to the position of the judge which I aimed at in Germany from the position of a judge in England. For me it was a fact that Hitler was the man who in Germany combined all power in his own person, but in order to make the dangers inherent in this concentration of power clear to Hitler, I emphasized two factors in particular in this memorandum.

First for one, a historical element. By referring to the Roman Empire, to the British Empire, and to other empires, I pointed out to him on the basis of history that: “Nothing brings about the self-destruction of a state more than the absence of law and a weak judiciary.” The second element with which I hoped to convince Hitler was a more nationalist element. I attempted to explain to him the picture which every human being makes himself of the position of a judge. I used the expression, “The original judge and arch judge,” and I told him that the essential characteristics of this arch judge consist of three conditions.

First, that it is a distorted picture if this judge has to ask another person what kind of a decision he should make. The independence of the judge and his freedom in issuing instruction was the most essential feature of a judge in contrast to a civil servant. The second element which I wanted to include in this picture in which I told him that he has to imagine a court on a market place was that a human being can really only imagine that there was just one judge. As soon as one has several judges in one case, one asks, “Well, who gives me a better justice?” I said that the symbol for the fact that there is only one law and one justice would be blurred. By saying so, of course, I meant that there should be as few judges as possible. The third element which I added to this picture was, and I quote: “The judge has a strong inner authority. He is the interpreter of the law who from the point of humaneness, wisdom, and experience must be superior to all other servants of the State.” The fact that Hitler, himself, was the highest legal reviewing authority in Germany was of course from my conception of the dignity and independence of the judiciary, a danger. The question exists anyhow as to whether this idea of the absolute independence of the judge is compatible with the concept of an authoritarian state.

After I was discharged, and after I had gathered the experience in Berlin during the 15 months that I was there, I absolutely denied that question. I said that those two concepts are not compatible with each other. At the time when I made this attempt, I believed that they were compatible, and that the separation of power which is necessary in every state for the purpose of controlling the people, in practice would be achieved by my program of having all influences on the judiciary eliminated.

* * * * * * *

Q. Dr. Rothenberger, would you now please tell the court how your appointment to the post of State Secretary in 1942 came about? In this connection I would refer to [1964-PS, Prosecution] Exhibit 65. That is the authority dated 20 August 1942.

A. On 4 August 1942 the Reich Minister and Chief of the Reich Chancellery, Lammers, suddenly asked me to come to Berlin for the purpose of a conference. Lammers told me the Fuehrer had read my memorandum. He had liked that memorandum, and he would like to have the plans of that memorandum carried into effect. I asked Lammers specifically as to whether Hitler had given him any further reasons. He told me what had impressed Hitler was the question of the position of the judge. His opinion of the judge of the civil servant type was very low, and he thought that civil servants and judges were strangers to practical life.

In reply to my question, Lammers said to me, “Hitler is convinced that these plans must be carried out.” I then said to Lammers that I thought during the war it was altogether impossible to put into effect my plans and I would ask to be allowed to wait with carrying out my plans until the end of the war, all the more so as I myself had not yet finished my preparatory work in Hamburg. Lammers replied that Hitler counted on an early conclusion of the war, and the preparation for carrying out the reform would need some time after all, and I was to utilize that time.

* * * * * * *

_CROSS-EXAMINATION_

* * * * * * *

MR. KING: Dr. Rothenberger, I would like to come back to Prosecution Exhibit 27, which is Document NG-075. This is your memorandum to Hitler, or rather your memorandum which eventually reached Hitler, and to which you attribute your appointment to the position of State Secretary. The purpose of examining certain phrases from this memorandum is to enable me better to understand what your new program for the independence of the judiciary was. I am sure you know that memorandum much better than I do. I want to read to you several paragraphs from it. You say in one place: “Law must serve the political leadership.” Then you say in another place on page 8 of the document, “He who is striving toward a new world order cannot move in the limitation of an orderly Ministry of Justice. To accomplish such a far-reaching revolution in domestic and foreign policy it is only possible if on one hand all outmoded institutions, concepts, and habits have been done away with, if need be in a brutal manner.” Then you say still further on, “The Fuehrer is the supreme judge, theoretically the authority to pass judgment is only his.” Then you say still further on: “A judge who is in a direct relation of fealty to the Fuehrer must judge like the Fuehrer.” All of these phrases which I read appear in that memorandum and based on them, I want to ask you this and perhaps several other questions. You have repeatedly said that the purpose of your program was to establish an independence of the judiciary. However, the essence of your program, as it seems clear to me from reading your memorandum, is that the Fuehrer is the supreme judge. As you say here, theoretically the authority to pass judgment is only his. A judge in a position of direct relation of fealty to the Fuehrer must judge like the Fuehrer. Now my question to you, Dr. Rothenberger, is simply this: When you speak of the independence of the German judiciary, how do you reconcile that with these statements that the Fuehrer is the supreme judge, and that only he can actually judge, and that all judges must reflect his thinking?

DEFENDANT ROTHENBERGER: During my direct examination I have already tried to explain the thoughts which made me write this memorandum. It is extraordinarily difficult to do so briefly, especially to state one’s attitude only in regard to two or three sentences which are taken out of their context. Therefore, I am of the opinion that the memorandum as such should speak for itself, and that I leave it up to the Tribunal to form its judgment about the actual thoughts contained in the memorandum. And if in spite of that I may answer that question only very briefly in a concrete manner, I have to say the following: In 1942 the authoritarian state as such was a fact in Germany. That is to say, Hitler was also the highest judicial authority, and if any chance or possibility still existed to remove all the damage which had occurred during the course of years and all the burdens with which the administration of justice was loaded by the Party and by the SS--or, as we used to say at the time, on the part of the thousand little Hitlers who every day jeopardized the independence of the individual judge--under those conditions the only possibility to bring about any amelioration at all was Hitler himself. That it was impossible to convince Hitler I, and later on, everybody realized. But at the time I believed that it was possible to convince him, and I had to seize that possibility as a last chance. And if it would have been possible to convince him, then in effect the independence of the courts would have been reestablished again. For in that case this direct relationship between Hitler and the judiciary which I asked for would have been established and all other influences which burdened every judge every day would have been eliminated.

Q. Dr. Rothenberger, may I interrupt you at this point? I think that you are entirely too modest about the success of your program. If you meant what you said in your memorandum, and I assume that you did mean what you said, then isn’t it true that your program was a complete success, since the final result was that the Fuehrer became the supreme judge? Isn’t that true?

A. The fact that after only 15 months I again left my office is probably the best proof of the fact that my program was a complete failure.

Q. Dr. Rothenberger, do you distinguish between the success of your program and your own failure to get along with people in the ministry? Isn’t it possible that those two factors are separable?

A. No. A second reason also speaks for the assumption that it was a complete failure--and that is the intervention of outside offices with the activity of the judges which I wanted to prevent; this did not stop at all after this memorandum was submitted, but rather became worse. The independence of the court and the lifting of the judiciary from the civil service, which I was striving for, did not become effective at all. I request the Tribunal to tell me whether I should go into more detail in regard to this problem, which of course is a fundamental problem, or whether I should not say any more about it now.

PRESIDING JUDGE BRAND: We will not interfere at this time.

MR. KING: Dr. Rothenberger, I am frankly puzzled by seemingly contradictory statements in your memorandum. Let’s go over it once more. You say, on the one hand, that you want an independent judiciary. You say, on the other, that the Fuehrer is the supreme judge, and all judges must act like the Fuehrer. Now, unless you meant that all judges must act in accordance with the wishes of the Fuehrer, your memorandum means absolutely nothing and is pure double-talk. If that isn’t what you meant--if you didn’t mean that the Fuehrer’s decisions should be the final decisions--just what do you mean by all that talk of the Fuehrer being the supreme judge?

DEFENDANT ROTHENBERGER: I said in my memorandum that theoretically the Fuehrer is the highest judge in Germany; I also expressed that the individual judge in his decision must be independent even in his relationship to the Fuehrer. What I attempted to achieve first was to eliminate all other influences on the judge and therefore to establish this direct connection between the Fuehrer and the judge. Therefore, my suggestion in order to say it clearly to put in place of the influence of Bormann or Himmler, the so-called “Judge of the Fuehrer,” who would influence the Fuehrer in the capacity of a judge, and would therefore not only try to direct the development in Germany into quite different channels in a legal respect but in every respect.

Q. Let me put this question to you. If, under your program, as you envisaged it in 1942, a judge came to a decision, and that decision was known not to be in accordance with the Fuehrer’s views, in your view whose opinion should have prevailed, as you intended it to work out?

A. The decision of the judge.

Q. Then what do you mean when you say the judge must judge like the Fuehrer?

A. The Fuehrer does not have the right to touch a decision made by a judge.

Q. Dr. Rothenberger, we know that that wasn’t so in practice, don’t we? We have seen instances where it didn’t work out that way, haven’t we?

A. Unfortunately, after I wrote this memorandum, especially here in this trial, and also when I was in Berlin already, I found out that the Fuehrer acted in a different way. The purpose of this memorandum, however, was merely the following: to convince the Fuehrer that the men who had influenced him so far and in that direction were wrong. My knowledge from Hamburg was not sufficient in order to know already at that time that the Fuehrer himself could not be convinced. But that is not only my own tragedy, but the tragedy of the entire German people.

Q. Did you ever consider the possibility that the Fuehrer in reading your memorandum read it literally and decided that when you said “The Fuehrer should be the supreme judge,” that you meant what you said? Did you ever consider that possibility?

A. Yes, I considered that possibility.

Q. Do you have any feeling that in practice it didn’t work out that way? In fact, the evidence adduced here at this trial tends to prove, don’t you believe, that by the end of the war the Fuehrer really became the supreme judge and interfered with all judicial decisions?

A. I saw that later, and if I had known that before, I would not have undertaken this daring attempt, because there was no hope for it from the very beginning. But at the time, I thought that as a jurist I was under an obligation to make this final attempt, because I just could not accept the conditions which existed.

Q. You knew what the Party platform was, did you not? You knew what Hitler had said in Mein Kampf, did you not?

A. About that problem, he did not say anything in a negative way in his Party platform and not in Mein Kampf either.

Q. Well, as a reasonable man, Dr. Rothenberger, you knew what his attitudes were on all of these questions, and if your program embodied having him become the supreme judge, you knew fairly well how he would judge on all these questions from your prior knowledge, did you not?

A. No. I can only emphasize again and again that as long as I saw the possibility of influencing him, I considered it my duty to make this attempt; otherwise I would have been a fool.

Q. No one denies that you did influence him, Dr. Rothenberger; the implication is that you did, and that you were completely successful.

A. I did not have any success. That is just it. Hitler could not be convinced.

Q. He became the supreme judge, did he not?

A. In effect, he interfered with the administration of justice, as we know now.

Q. All of the judges in Germany were in a position of fealty to the Fuehrer, were they not?

A. No fealty, no.

Q. What do you understand by “fealty”?

A. Dependence upon him.

Q. And you don’t think judges in Germany at the end of the war were dependent on Hitler?

A. I just wanted to prevent this fealty.

Q. You wanted to prevent it?

A. Yes.

Q. That is not what you said in your memorandum. You said in your memorandum, “A judge who is in direct relation of fealty to the Fuehrer must judge like the Fuehrer.” That doesn’t sound like you were trying to prevent it. That sounds like you were trying to induce it.

A. You do not distinguish between the dependence and fealty on the one hand, and an obvious natural relationship of trust and confidence which every German and therefore every judge too should have in the Fuehrer.

* * * * * * *

JUDGE HARDING: Dr. Rothenberger, with reference to the time you submitted your memorandum to Albrecht,[268] when did this speech of Hitler declaring himself the supreme law lord of Germany occur? What is the relationship between the time you submitted your memorandum and his speech?

DEFENDANT ROTHENBERGER: The Hitler speech was delivered on 26 April [1942].[269] When my memorandum reached Hitler’s hands, I cannot say.

Q. When did you submit it to Albrecht?

A. I can gather that only from the date which is below the memorandum and that is 31 March; in other words, I probably gave the memorandum to Albrecht during the month of April without knowing exactly when it was and also without knowing when Albrecht succeeded in putting it in Hitler’s hands. I don’t know that.

Q. It was submitted to Albrecht before you knew anything about this speech of 26 April?

A. Yes, that is certain.

* * * * * * *

3. FURTHER DEVELOPMENTS PRINCIPALLY WHILE THIERACK WAS REICH MINISTER OF JUSTICE (AUGUST 1942–1945)

a. “Special Treatment.” Further relations with officials of the
Nazi Party, the Gestapo, the SD, and the SS

TRANSLATION OF DOCUMENT NG-059 PROSECUTION EXHIBIT 38

FILE NOTE CONCERNING A CONFERENCE OF 18 SEPTEMBER 1942 AT HIMMLER’S FIELD HEADQUARTERS BETWEEN HIMMLER, REICH MINISTER OF JUSTICE THIERACK, AND DEFENDANT ROTHENBERGER

RK 13227 B 21 Sept 1942

Field Headquarters, 19 September 1942

Subject: Judicial reform

1. Remark--On 18 September 1942 following an invitation by the Reich Leader SS, Dr. Thierack, Reich Minister of Justice, and Dr. Rothenberger, State Secretary, met at the Reich Leader’s field command post. They had a discussion, lasting 5½ hours, with the Reich Leader, in which also participated on the side of the Reich Leader, SS Gruppenfuehrer Streckenbach (Security Police) and SS Obersturmbannfuehrer Bender (SS judge with the Reich Leader SS and Chief of the German Police). The results of the discussion, about which State Secretary Dr. Rothenberger expressed greatest satisfaction, are to be summarized in minutes.[270]

[Notation in ink] Afterward the Reich Minister of Justice and the Reich Leader SS had a private conversation.[271]

2. Obediently submitted to the Reich Minister.

[Initial] L [Lammers] September, 22
[Initial] F [Ficker]

3. For the files.
Justice 24

TRANSLATION OF DOCUMENT 654-PS
PROSECUTION EXHIBIT 39

MEMORANDUM OF THE REICH MINISTER OF JUSTICE ON A CONFERENCE WITH HIMMLER, 18 SEPTEMBER 1942, CONCERNING “SPECIAL TREATMENT AT THE HANDS OF THE POLICE” WHERE “JUDICIAL SENTENCES ARE NOT SEVERE ENOUGH”, THE WORKING OF “ASOCIAL ELEMENTS” TO DEATH, AND OTHER MATTERS

Discussion with Reich Leader SS Himmler on 18 September 1942 at his field headquarters in the presence of Under Secretary Dr. Rothenberger, SS Major General Streckenbach, and SS Lieutenant Colonel Bender.

1. Correction [Handwritten insertion: “Lammers informed”] by special treatment at the hands of the police [durch polizeiliche Sonderbehandlung] in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS and myself:

_a._ On principle, the Fuehrer’s time is no longer to be burdened with these matters.

_b._ The Reich Minister of Justice will decide whether and when special treatment [polizeiliche Sonderbehandlung] at the hands of the police is to be applied.

_c._ The Reich Leader SS will send the reports which he hitherto sent to Reichsleiter Bormann, to the Reich Minister of Justice.

_d._ If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.

_e._ If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.

_f._ In cases where the Fuehrer’s decision on a mild sentence is sought through other channels (such as by a letter from a Gauleiter) Reichsleiter Bormann will forward the report to the Reich Minister of Justice. The case will then be decided as described above by the Reich Leader SS and the Reich Minister of Justice.

2. Delivery of asocial elements [asozialer Elemente] while serving penal sentences to the Reich Leader SS to be worked to death [zur Vernichtung durch Arbeit]. Persons under security detention, Jews, gypsies, Russians, and Ukrainians; Poles with more than 3-year sentences; and Czechs and Germans with more than 8-year sentences, will be turned over without exception, according to the decision of the Reich Minister of Justice. First of all, the worst asocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann.[272]

3. Administration of justice by the people--This is to be carried out step by step as soon as possible, first of all in the villages and the small towns of up to about 20,000 inhabitants. It is difficult to carry it out in large towns. I shall rouse the Party particularly to cooperate in this scheme by an article in the “Hoheitstraeger.” It is evident that jurisdiction must not be permitted to lie in the hands of the Party.

4. Decrees concerning the police and the administration of justice will in future be published after having been coordinated, for example, in cases where unmarried mothers attempting to procure abortion are not prosecuted.

5. The Reich Leader SS agrees that the cancellation of sentence, even for members of the police, will remain with the Reich Minister of Justice as laid down in article 8 of the law relating to the cancellation of sentence.

6. The Reich Leader SS has given full consent to the ruling I have planned on corporal punishment ordered by the Fuehrer.

7. I refer to the law concerning asocial elements and give notification of the claims of the administration of justice, e.g., in the classification of juveniles as asocial elements and their direction.

It likewise seems to me that the actual circumstances which serve to classify a person as asocial are not laid down in the law with sufficient clarity. The Reich Leader SS is awaiting our opinion and will desist from submission of the law until then.

[Handwritten] One thing is clear--the reduction of the age of
discretion has been tentatively submitted to, and approved by
the competent agencies.

8. The Reich Leader SS has agreed to a clause for the Juvenile Court Law, whereby the age of discretion can be reduced to 12 years and the age of limited discretion can be extended to over 18 years.

9. SS Lieutenant Colonel Bender, on the staff of the Reich Leader SS, is appointed by the Reich Leader SS as liaison officer for matters which apparently necessitate direct liaison with the Reich Leader SS. He can be contacted at any time by teleprinter at the field headquarters of the Reich Leader SS, and will also come to Berlin once every month to report to me. SS Captain Wanniger is appointed liaison officer for other matters; he is stationed at the Reich Security Main Office.

[Handwritten] Kuemmerlein[273]