A.In practice, of course, a legal norm is a legal norm whether it is established by law, Fuehrer decree, or Fuehrer ordinance. It is still a legal norm. Only the outward form differed and since in a dictatorship the Reichstag no longer constituted a genuine legislative body, this difference, of course, was very much blurred so that actually to all intents and purposes in the end the Fuehrer was the only legislator and that situation developed so the cabinet didn't so much decide at a cabinet meeting as later the cabinet was simply heard, and the decisive agency was the Fuehrer because as later he could issue anything as a law. If he didn't want a Reichstag law and if he didn't want a Reich Government law, he could choose the form of a Fuehrer ordinance or the form of a Fuehrer decree. So in the last instance the only legislator was the Fuehrer and the cabinet afterwards as it developed in the course of time only had an advisory function. It was just listened to but de jure, there was a right to object on the part of the official members of the cabinet.
Q.Well, I was not talking about what actually happened after the Fuehrer - Hitler took power, but I was asking what the theoretical difference was under the Weimar Constitution between a Reichstag law, a Reich Government law, or a presidential decree. Was there a distinction between the decree? Was it limited to particular kinds of things, particular classes or particular --
A.There was a difference inasmuch as the Reichstag under the Weimar Republic was the supreme legilator. The Reich Government could only issue ordinances if the Reigstag empowered it to do so by law. At that time there were no Reich Government laws at all. However, the position of the head of state as compared with the Reichstag was quite different, that is, at that time President v n Hindenburg. He had, by the constitution, the right himself to issue decrees. He had the right to issue organizational decrees and under article 48 of the Reich Constitution, he had the right to issue emergency decrees and that was independent of any special legal authorization by the Reichstag and he was entitled to do that under the Constitution, and these powers passed to the Fuehrer when he took over the office of Reich President as well, and if I am not mistaken you, You Honor, were asking just now whether there was any factual limitation.
The right to issue organizational ordinances was factually limited to matters of organization as the title indicates. On the other hand the powers under article 48 to issue emergency ordinances, these powers of the Reich President, were not limited in any way except as by the terms of aritcle 48, namely, that the situation makes such emergency ordinances necessary.
Q.Well, even under an emergency decree, was there any power in the Reichstag to consider the matter and to set it aside, or to pass a law which, in effect, modified or repealed it; or did those emergency decrees have any constitutional limitation as to the time during which they could remain effective?
A.Under the Weimar Constitution, the Reichstag could demand the recission of such emergency ordinances promulgated by the president, but in practice the Reichstag could never exercise this right because it was a political struggle for power between the president and the Reichstag and in his position the president simply could not afford to have the Reichstag conceling one of his ordinances. As has already been described in this case, the Reich Chancellor, in the Reichstag, always had the red folder in his hand containing the order for the dissolution of the Reichstag. So, to all intents and purposes, the rights of the Reichstag to demand the recission of an ordinance of the president was only on paper, because the deputies feared that the Reichstag might be dissolved. Usually they did not much care for new elections and so the emergency ordinances issued by the Reich President would remain in force and some of them would remain applicable for years; some of them remained valid even after 1933. BY DR. SEIDL:
Q.Dr. Lammers, let us now come back to the promulgation of government laws by the circulative procedure which you described. What were your functions when objections were made to such drafts?
A.Within the period set for objections, but even after this period had expired, it was at times my function to try to find an adjustment between differences of opinion in the various departments. However, I did that only, in the first place, if it was made absolutely necessary to keep proceedings moving; in the second place, if the Fuehrer wanted it for some special reason; and in the third place if some minister, who attached importance to it, asked me to do so. The Reich Chancellery, because it had no departmental interest, was regarded more or less as a neutral agency, suitable to attempt such adjustments.
For the rest, however, and this was the usual procedure, the ministers themselves would debate these points among themselves. My influence and my cooperation upon the drafts of laws was limited to the legal formulation to the formulation of the desire of the legislator which was to be expressed, and, to a very considerable degree, to considering the principles of organization and certain formalities; for instance, the introductory formula of the law, the date when it was to take effect, the question as to the extent certain ministers were to be empowered to issue supplementary ordinances; and then I had to consult with the ministers whom I thought might be interested but who might not be participating. As far as the actual contents of the laws went, the tendencies and aims, I had no influence, I had no right to do so, and I did not want to do so, because that was a matter for the (federfuehrend) minister, for which he was responsible, and for the other ministers who might be participating. I lacked the authority to interfere in these departmental matters. I could only so something in this respect if I had special orders from the Fuehrer to undertake something, and this would occasionally occur when the Fuehrer had wishes concerning the form of any laws.
Q.Did you have the opportunity or the right to decide personally about the objection made by any minister?
A.I certainly did not have this right. Only the Fuehrer had it.
Q.Witness, lot us turn now to the next group of legislative acts, which you have already mentioned. That is, the Fuehrer Ordinances and the Fuehrer decrees. What was your activity in these cases?
A.I cooperated in this type of legislation, too, and I think it is enough if I say that, in general, it was in a similar way as I have already described in the case of government laws.
Q.Thank you, that is enough for the time being, anyway. I think I might take it easier for you if I ask you about the details of the Fuehrer Decrees and Fuehrer Ordinances only when later we come to the question of your cosignature of laws, Fuehrer Ordinances, and Fuehrer Decrees.
A.Yes.
Q.I will come back to the ordinances of the cabinet concerning Reich Defense later. In that connection, I have only one short question. Is there any difference between your cooperation in the case of Cabinet Ordinances and the activity you have described in connection with laws and Fuehrer Ordinances?
A.There are no essential differences.
Q.In the course of the proceedings, Professor Peters has already told us about legal ordinances of the various departmental ministers. In the case of these legal ordinances of departmental ministers, did you participate in any way, or did you have any influence upon the issuing and contents of them?
A.Neither one nor the other, although this does not exclude the possibility that occasionally such ordinances by ministers might reach me and be examined or criticized by me, because, naturally, I often had to examine the question whether the minister was authorized at all, on his own authority, to issue such an ordinance.
Q.Did you, yourself, issue any such legal ordinances?
A.No. As a matter of principle, only minister with portfolio issued them, which I was not. There is only one single exception which I remember where, on the basis of a special assignment from the Fuehrer, I signed a legal ordinance; one of the reasons for that was that a competent minister with portfolio did not exist at all. I think I will have an opportunity to discuss this case when you, counsel, ask me about the document in question.
Q.As we are just talking about legal ordinances, and since this concept will return frequently, it might be a good idea if you would tell the Tribunal what is meant by a legal ordinance under German Constitutional Law; but please be as brief as possible.
AA legal ordinance is best regarded in comparison with the administrative ordinance. The most important differences lie in three points. The first is that the legal ordinance contains substantive regulations which directly affect the life of the citizen, his rights, and his duties. These are legal norms which normally and customarily are regulated by law but which in this case, by way of exception, are issued in the form of an ordinance; for instance, matters concerning taxation, regulations concerning penal law, and so on. On the other hand, the administrative ordinance deals only with such matters as official instructions to the authorities which effect the citizen indirectly, at the most, if at all; for instance, if, concerning a law regarding taxation, the authorities are instructed what questionnaires they are to employ in carrying out the provisions of the law. That is the difference in content between the legal ordinance and the administrative ordinance.
The second, and more important point, is that the legal ordinance always has to have a legal foundation. There had to be a special authority, either in the form of a law, or in the form of a Fuehrer Decree, or as a result of a Fuehrer ordinance. In the case of an administrative ordinance, that is not necessary. The authority to issue an administrative ordinance is one which, in the Third Reich, as under the Weimar Constitution, lay freely within the hands of the minister with portfolio, on the basis of the Constitution, and he needed no special authority.
And, finally, there is a third important difference between the legal and administrative ordinance; namely, a legal ordinance has to be promulgated, and on the other hand, an administrative ordinance does not have to be made public. If it is a question of legal norms, which are to be binding for the citizen, as, for instance, provisions under penal low, in that case, naturally it has to be node public because, according to general legal practice, you can't punish any one if he is not acquainted with the facts constituting a punishable act and the punishment imposed, if he did not know what is punishable and what the punishment is.
That is why a legal ordinance has to be promulgated. The administrative ordinance, being an instruction to the authority, can be published, but under German Constitutional Low that is not compulsory. And all this, to all intents and purposes, was exactly the same before 1933 as it was under the Third Reich. Naturally, there are borderline cases, where it is doubtful whether something is a legal or administrative ordinance, and Frequently the differences were not so clear cut and ordinances were made which, as far as contents went, were actually both; that is why, in so many laws and decrees, you find the words "such and such a minister is authorized to issue the legal and administrative ordinance required to put this law into effect." In the case of administrative ordinances this authorization would not hove been needed at all. I think these are the basic differences between these two types of ordinances.
QFinally, you mentioned the executive ordinances and the implementation ordinances. Under German Constitutional Law what did these represent and what did you have to do with them?
AThe name Executive Ordinance already indicates that they served to execute a law or other type of decree and in content they can be legal ordinances or in content they can be administrative ordinances. As a matter of principle, it was the affair of the minister of the department to issue these executive ordinances, so that I had no opportunity to issue such ordinances myself.
As a rule, the Reich Chancellery played no part at all; on the other hand, there were exceptions, but they were rare. These were the cases where it was prescribed that if on executive ordinance was to be issued the minister in question had to obtain the approval of the Chief of the Reich Chancellery. There were two reasons for that. The first was so that I could see to it that the other ministers were called in, because, for instance, one minister might have the habit of issuing such ordinances without considering the others at all; and, finally, my approval, my agreement, was put in also, so that there was an opportunity to obtain a decision from the Fuehrer. That is why, before approval was given, I had, as a matter of principle, to consult the Fuehrer and ask whether he approved the ordinance or not. Then in the second place, there were cases where I, myself, was authorized to issue executive ordinances. That happened only in very exceptional cases, when there was no competent minister available, as, for instance, in the case of the occupied territories; to issue executive ordinances was, after all, not the business of the Fuehrer, as Head of state. However, I had to consult him before, because this authorization to issue executive ordinances, for the reasons I have given, was not given to me without limitation. It always says "in accordance with the Fuehrer's instructions," "in accordance with the Fuehrer's directives." In addition, as for the significance of these powers I had, I must say that it was only a matter of organizational executive ordinances but not material legislation. In practice, the cases where I independently issued an executive ordinance can be counted on the fingers of one hand. I hope I will have an opportunity to come back to this in the case of the various documents.
QNow that you have given us a survey of legislation, let us turn to the sphere of administration.
What was your work in the sphere of administration?
AIn the sphere of administration my official duties included certain matters of coordination of the Reich Ministries and the Reich offices in the sphere of the organization of administration. This occupied me very frequently. I emphasize particularly the word "organization" and also the words "certain matters." In the course of a number of interrogations by the Prosecution, I defined my work in the sphere of administration and my former officials, where they have appeared as witnesses, have defined it in the same way and I must stick to this definition today, in spite of the contradictory views held by the Prosecution, and which wants to turn me into the actual chancellor because of my use of the word coordination, and they built up their theory on that word. That is why I would like briefly to explain what I mean by coordination and what I also understood by it then. Coordination is work which may cover both big and little things. It consists in seeing to it that certain matters and states of affairs are adjusted where there are conflicting views, and regulated in a sensible manner which satisfies all those concerned. You can coordinate on a large and on a small scale. I can coordinate two legal drafts if I select from each what I consider to be good and include them in a new draft. You can coordinate in large scale politics, in conferences of the kind that are being held now. Every statesman can coordinate in political directions, and so on. However, for my coordination work, I could only, to a certain extent, adjust the administrative organization of certain high Reich Agencies to it in with each other. I did not, as the Prosecution maintains, have coordination as a whole, or, as they say, coordination of the administration, as such, that is, of the administration in its factual tasks and in its political relations.
There is no question of that in my work. Only in quite definite instances did I coordinate certain matters in the organization of the Reich Government. That was especially necessary when any new measures were ordered on which I, myself, actually had no influence - if a new agency was established by the Supreme Reich authority, for instance, and if it was necessary to adjust it to fit in with the others. I repeat, only in certain matters did I coordinate. I certainly did not have any detailed coordination. It was only in certain organizational matters, in the Supreme Agencies.
QDr. Lammers, you mentioned that you had to undertake certain limitations in matters or organizational competency. In this sphere at least could you take independent decisions?
AWell, these limitations of competency represented my main work. In the Reich especially, to give you an example, it would take place if some Reich commissar were assigned a function which up to now had been exercized by some Ministry. In that case, of course, it was necessary to adjust this reorganization. It was just the same in the occupied territories. It was necessary to limit competencies between the Reich commissar who was in charge of the civil administration and the Wehrmacht on the other hand, or the Reichsfuehrer-SS and Chief of the German Police had its rights; or I had to find limitations between the Reich Plenipotentiary and the Four Year Plan, and similar things. But here again -- and I think this was your question -- I worked only within the framework of the instructions and directives given me by the Fuehrer. If I was unable to get the competent Ministers or other officials involved to agree, then I could not decide. Then I had to got a decision from the Fuehrer, even if it concerned quite subordinate matters. I hope that later I Will have an opportunity on the basis of a typical example to go into this question in more detail.
QIn the course of proceedings reference has been made to your cooperation in personnel matters, that is the appointment of officials, promotion of officials, and so on. Of what kind was your participation here?
AOriginally the Reich Cabinet was called in in the case of an appointment of certain officials. That was, as far as I remember, appointments from the Ministerial Councilor up. That was all laid down in the business order of the Reich government. This procedure was very clumsy and usually the other Cabinet Ministers were not interested in it, and so it was replaced by a simplified procedure.
This was as follows. The Reich Minister who wanted to appoint an official required for the proposal of appointment before submitting it to the Fuehrer the consent of two other Ministers. First of all the Minister of the Interior and secondly the Reich Minister of Finance. These were the two competent Ministers for officials. In addition, the application was submitted to the Chief of the Reich Chancellery and the Head of the Party Chancellery for information. The head of the Party Chancellery had the right to object. I, on the other hand, was not consulted at all in the procedure. I had no right to object, but I had to safeguard the Fuehrer's right to object, and so I exercized the right to object only dependent on the Fuehrer. It did not play any considerable part except when it concerned the appointment of certain very high officials, but then this procedure wasn't used at all because if a Minister was appointed or a State Secretary and other high officials of like rank, the Fuehrer alone decided on it. The simplified procedure didn't exist. Insofar as differences of opinion arose in this procedure, I always had an opportunity to refer to the decision of the Fuehrer, and in such cases I often managed to obtain in my opinion very favorable decision by the Fuehrer. As a result of this procedure, of course, I got involved in a lot of conflicts of opinion with the Head of the Party Chancellery, Bormann, as a result of which I earned his enmity. My participation was slightly more extensive in official matters where exceptional promotions were given on the basis of the provisions which were issued later in wartime to simplify matters. And I think we will come back to that later in connection with the various documents.
Q.For the sake of completeness, there is another question I would like to ask you in this connection.
Did the Reich Chancellery have its own budget and who administered it?
AYes, the Reich Chancellery had a budget, and this budget was administered by me according to the regulations of the Reich budget order.
QOf what kind were the funds available under this budget?
AThese were the funds available to any agency which it requires to fulfill its duties, funds to pay salaries, to obtain office requirements. I can't give you any details from memory, but I don't imagine that they are very interesting anyway.
QDid this budget include funds which were to be at the free disposal of the Fuehrer, and if so, who administered them?
ASuch funds were available, and here the question is in the first place of a so-called fund for general purposes. That was a so-called fund at the disposal of the Reich Chancellor. These funds were not subject to the control of the German Reich auditing court. Even before 1933 they were not subject to such control. For their administration I alone was responsible to the Fuehrer. I had to act in accordance with his instructions. I didn't have the right to decide anything at all according to my own judgment. The use of these funds was exclusively reserved to the free decision of the Fuehrer, and I had to make whatever payments he ordered. To refuse would have been an enfringement of duty. Naturally, I had certain opportunity to give vent to misgivings. Expenditures for compensation for Ministers were paid from this fund as well as bonuses which were frequently very high but which the Fuehrer wanted that way. Furthermore, from this fund we also paid donations to research institutes, scientific institutes, associations, to artists of all kinds, the building of schools was supported, building of hospitals, and emergency donations were approved in case of floods, fires, accidents, and so on; but it was all within the free jurisdiction of the Fuehrer.
QWhat was the significance of the special budget attached to the budget of the Reich Chancellery?
AThere were a number of special budgets. They were referred to such agencies which were not indeed subordinate to the Reich Chancellery, but which for reasons of budget law were attached to it. For instance, the inspector general of roads, inspector general for the expansion of the Reich capital Berlin, and so on. These agencies administered their funds on their own responsibility to the auditing court of the German Reich. They were just listed on the budget of the Reich Chancellery because the agencies concerned were directly subordinate to the Fuehrer himself, and we didn't want to have a special budget for them.
QIn addition to this budget of the Reich Chancellery, there were also special funds, weren't there? Could you briefly tell us what these were?
AYes. First of all there was a cultural fund, and then a so-called gratitude donation fund. The latter was an institute of the public law.
QYou mentioned the cultural fund as the first. Can you explain that a little?
AIt was filled from funds obtained through the post offices by the sale of the Fuehrer postage stamps for collectors' purposes, and the Minister for Postal Administration would pass on those incoming funds to the Fuehrer, and I would put them into a bank account. I always regarded these funds as being Reich funds, and so did the Fuehrer, and they were used to purchase works of art, paintings, sculpture, and similar articles, that is, they were paid from this fund; purchase negotiations and dispositions, and so on, didn't concern me at all.
I only paid.
QAnd finally you mentioned the gratitude donation fund. How did this fund arise, what was its purpose, and who was entitled to dispose of it?
AAs the name implies, it arose out of donations which reached the Fuehrer in small and largo amounts, from all sides, and also from inheritances; and the Fuehrer would have been entitled to regard this as his private funds, but he didn't want to, and so I founded this gratitude donation fund as an institute of public law. A decree concerning it is in the Reich Legal Gazette, and the Fuehrer had the right to dispose of these funds, and so did I. There were two departments at first in the main. First, the so-called assistance fund, paying subsidies in small amounts and sometimes bigger amounts. Assistance was given everywhere where it was possible to remove an emergency, and the second department served the same purpose where a so-called actors' aid was founded for old actors who could no longer earn their living, and then there was a department for welfare purposes, and there were schools, hospitals which could be assisted too; and there was also a department whore pictures were purchased for museums which were to be founded. I think the details are of no great interest here.
DR. SEIDL:Your Honor, that concludes the questions referring to this part of Dr. Lammers' work, and I would now come to a new chapter.
PRESIDING JUDGE POWERS:In that case, it is a good place to break off for our noon recess, and we will be in recess until 1:30.
JUDGE MAGUIRE:Dr. Seidl, if you are going to refer either to Prosecution document books or Defense document books this afternoon, could you give the Tribunal the page and the numbers of these so we can have them here in the Courtroom.
Thank you.
(The Tribunal recessed until 1330 hours, 7 September, 1948.)
AFTERNOON SESSION (The hearing resumed at 1345 hours, 7 September 1948)
THE MARSHAL:Military Tribunal IV is again in session.
THE PRESIDENT:Mr. Marshal, are the defendants in court?
THE MARSHAL:May it please Your Honors, all the defendants are present in the courtroom with the exception of Bohle, Steengracht, Pleiger, Krosigk, Veesenmayer, Ritter, Woermann, Kehrl, Darre, and Keppler, who were excused by the Tribunal; and Stuckart, Schellenberg, Erdmannsdorf, and Rasche are in the hospital.
THE PRESIDENT:Very well.
At this afternoon's sessions Judge Maguire will preside.
PRESIDING JUDGE MAGUIRE:You may proceed, Dr. Seidl.
DR. SEIDL:Mr. President, before resuming by examination of the Defendant Dr. Lammers I would respectfully like to submit a question to the Tribune. This morning the Prosecution gave me a copy of the motion which was filed by the Prosecution with the Tribunal and which concerns the Prosecution's objections to Defense documents introduced during the post week. I gathered from this brief that in the main those arguments are the same as were previously raised by the Prosecution at the time when the documents were actually introduced and to which I replied in my capacity as defense counsel, acting for the Defendant Dr. Lammers. I would now like to respectfully ask Your Honors to tell me whether the defense counsel are requested, to reply to the statements submitted by the Prosecution, or whether it will be sufficient for us just to refer to the introduction of cur Defense documents before the Commissioner.
PRESIDING JUDGE MAGUIRE:Let me ask the Prosecution a question: Mr. Lewis, are there any objections other than those which you gave before the Tribunal?
MR. LEWIS:No objections.
PRESIDING JUDGE MAGUIRE:Then, Dr. Seidl, the reply which you have made before the Commissioner is sufficient. The list was requested because it saves the time of the Tri bunal in going through the transcript, to pick out each objection, and so to be sure that we won't miss any of the replies.
We will read the transcripts so for as the defense counsel's reply is concerned.
DR. SEIDL:Thank you very much, Mr. President:
DIRECT-EXAMINATION - Continued WITNESS HEINRICH LAMMERS - Resumed BY DR. SEIDL:
QHerr Dr. Lammers, I would now like to pass over to a set of problems which is essential for the evaluation of your position as Chief of the Reich Chancellery. The Prosecution charges that you, as chief of the Reich Chancellery, currently reported to Hitler on the political situation and on the status of legislative and administrative work. They contend that it was your duty to consult and report to him constantly. How, what are the actual facts of the case?
AThe so-called state councillor books and similar literature -- say pocket manuals destined for the use of administrative officials etc. -- the passing on of the literature, for a long time, was one of the main duties of the Reichschancellery, and it was designated as being approximately what the defense counsel has just said. I have available here before me a statement of this nature, and I would like to be permitted to quote this very brief sentence. What it roads, for example, -
PRESIDING JUDGE MAGUIRE:Just a moment.
DR. LAMMERS:Wait just a minute, Dr. Lammers.
PRESIDING JUDGE MAGUIRE:Is that in your Defense document books?
DR. SEIDL:Your Honor, it isn't; it's not contained in our Defense document books.
PRESIDING JUDGE MAGUIRE:Very well, then;you may proceed. BY DR. SEIDL:
AAnd I quote, "The Chief of the Reich Chancellery informs the Fuehrer concerning current problems involving overall policy, and he prepares the respective decisions to be made."
Now, whoever is only slightly familiar with political circumstances and conditions under constitutional law, as they prevailed in the Hitler Era, will know that it was absolutely out of the question for Hitler to have permitted me to inform him--and I emphasize the word "inform"--concerning over-all polity. In literature on constitutional law the Reichchancellor is hardly mentioned at all; and inasmuch as this is mentioned in the type of literature under consideration, Professor Jahrreiss refers to this in his expert opinion, and he emphasizes it in there. Now, of course, you're going to say. "Why don't I demand that such remarks be deleted?" In part, it wasn't possible to do that. This was to be found in all kinds of books of this type, and I wasn't able to chase after each one of these sources; and I will be very frank in admitting that I didn't consider it necessary to do so either. I was even of the opinion that this right possibly be quite a useful thing, both with reference to the general public as well as with reference to the initiated circles, if they found indications in this typical literature as to what actually ought to have been the case, in order thus to suggest to these people that the read to the Fuehrer be taken through my person as a channel, and this would have given me a chance to approach the Fuehrer first, and, on the other hand, I would also have the chance to have the Party agencies, particularly the Party Chancellery, eliminated.