The Adolf Hitler Trial before the People's Court in Munich Judgment/Justification of the Verdict
- 1 JUSTIFICATION OF THE VERDICT
- 1.1 The Directorate
- 1.2 The Final Step
- 1.3 The 8th of November
- 1.4 Guilt or Innocence
- 1.5 The Factual Evidence
- 1.6 The Legal Evaluation
- 1.7 Kahr, Lossow, and Seisser
- 1.8 Change of the Constitution by Force
- 1.9 The Unsuccessful Coup d'Etat
- 1.10 The Claim of Self-Defense
- 1.11 General Ludendorff
- 1.12 The Other Defendants
JUSTIFICATION OF THE VERDICT
In September of 1923, the Deutsche Kampfbund had been formed. It was made up of Storm Troops of the National Socialist Workers' Party, the Bund Oberland, and the Reichsflagge. Soon thereafter, the Reichsflagge left the Bund again and the Reichskriegsflagge was formed. It was made up of the South Bavarian members of the Reichsflagge and it became a member of the Kampfbund.
The purpose and goals of the Kampfbund were set forth in a proclamation issued on September 2nd, 1923, at the Deutscher Tag held in Nürnberg. Those purposes and goals constitute the essence of a philosophy which is in total opposition to Marxism. Its program is: (1) the abolition of the Weimar Constitution and of the parliamentary system which represents the Constitution; (2) the eradication of pacifism; and (3) the abolition of the institutions which were established as a consequence of the 1918 Revolution -- specifically, the governments acting in the spirit of this Revolution. The Nürnberg proclamation expressly stated that freedom could only be regained by the people themselves, without any assistance from anyone; but that the German State, which was created in Weimar, could not be the guarantor of this German liberation movement.
This goal was defined in more detail to the Storm Troops in their newsletter No. 2 of October, 1923, which was read to the Court during the trial. According to this October 23, 1923 newsletter, Hitler explained the political situation existing on that date as follows:
Contrary to the narrow-minded policy of the forces behind the Bavarian dictatorship, a policy whose only interest was the Bavarian defense, the Kampfbund could only have one goal: to open the German question from Bavaria at the 11th hour; to can up a German liberation army under a German government in Munich; to carry out the fight all over Germany until the blackwhite-red swastika flag was hoisted on the Reichstag building in Berlin as a sign of the liberation of Great Germany.
Hitler and Kriebel were the leaders of the Kampfbund. Hitler was also head of the National Socialist Workers' Party, a function in which he was assisted by his co-defendant Brückner. Co-defendant Weber was the leader of Oberland, and co-defendant Röhm was the leader of the Reichskriegsflagge.
Co-defendants Ludendorff, Pöhner, and Frick -- although not members of the groups that constituted the Kampfbund -had close ties to the Bund.
On September 26, 1923, after passive resistance on the Ruhr had ceased, the Regierungspräsident of Upper Bavaria, His Excellency Dr. von Kahr, was appointed Generalstaatskommissar by the Bavarian Cabinet, according to Article 48 of the Reich Constitution and Article 64 of the Bavarian Constitution. He was given executive authority.
Kahr also considered his main task to be the fight against Marxism and the creation of a nonpartisan directorate which would have a Right-wing direction and would be free of the vacillating influences of Parliament.
Initially, the Kampfbund remained reserved, while the other Patriotic Verbände immediately joined Kahr. For some time, numerous negotiations were taking place, generally between, on the one hand, Witnesses Lossow and Seisser, as close associates of Kahr and as representatives of the official instruments of power -- i.e. the Reichswehr and the Landespolizei; and, on the other hand, representatives of the Kampfbund. Still, no complete agreement was reached.
The defendants, however, have maintained that they were convinced a basic agreement had been reached with Kahr, Lossow, and Seisser. They derived their conclusion from these negotiations, as well as from certain actions taken by the Generalstaatskommissariat, talks with Lossow and Seisser, and meetings they had with each other in which the subject was discussed and which served to inform those co-defendants -- except for Ludendorff, Wagner, and Pernet who had not attended the negotiations. The defendants doubted, however, that Kahr, Lossow, and Seisser could muster up the resoluteness necessary to carry out their common plans.
Defendants Hitler, Dr. Weber, Kriebel, and Pöhner have maintained that the common goal was, briefly, the solution of the German question according to the Kampfbund's program mentioned above. That is, a national dictatorship for the Reich would be proclaimed from Bavaria, where they would proceed on to Berlin -- the seat of destructive international Marxism -- by using physical force. This was to be accomplished with the help of the Reichswehr and the Landespolizei, both of which they believed would be on the side of the Kampfbund.
It is unnecessary to go into details of the negotiations, since they were thoroughly discussed during the trial. One point, however, must be stressed: Kahr, Lossow, and Seisser have absolutely denied that they ever made statements which could have led the defendants to believe that they thought the institution of a dictatorship in Bavaria was either possible or useful. Rather, Kahr, Lossow, and Seisser have maintained that they always stressed the fact that they considered it essential that a national directorate be formed in Berlin, with the assistance of prominent people of the Reich from the North. They also have maintained that the defendants had no reason at all to have interpreted the measures referred to as preparations for a march to Berlin. They -- Kahr, Lossow, and Seisser -- said they did not envisage a military action to institute a directorate; they only wanted to create order in the place of parliamentary confusion, with the help of the economic power groups such as industry and agriculture, and the instruments of state power such as the Reichswehr and the Landespolizei. Thus, the goal they were striving for was not the elimination of the highest constitutional institutions of the Reich, but rather the formation of a directorate with the assistance of these institutions, and in accordance with the regulations contained in Article 48 of the Reich Constitution. Naturally, as is contained in any remedy mentioned in Article 48 of the Reich Constitution, this directorate was to have been only a temporary measure. After order had been restored, it would be replaced by a regular Reich authority.
It appears that there were some persons outside the Kampfbund, attending the negotiations with Kahr, Lossow, and Seisser, who received the same impression as did the defendants concerning the march to Berlin. So did others who had the opportunity of getting a closer look at the measures previously mentioned. Particularly Professor Bauer, whom the defendants assumed to be in constant communication with Kahr, had to admit in his testimony that his public speeches could have been misinterpreted as propaganda for the march to Berlin.
The Final Step
Since Hitler was convinced that Kahr, Lossow, and Seisser would not have made the final decision to act despite their will to do so, he decided on November 6th, in a meeting at which none of the co-defendants were present, that he would give the three gentlemen the opportunity of taking the final step and of starting the national revolution. He said that one of his reasons for having done so was the fact that, since November 4th, 1923, when Seisser had returned from his trip to Berlin, he--Hitler-had been worried that the three might now be changing their direction. That is, he was afraid that, as Lossow had once indicated during an earlier meeting, Bavaria might secede, or a directorate might be established under Minoux-Gayl-Seeckt, with a Jewish Minister of Finance who would have the absurd idea of changing the national railroad into a privately owned corporation.
Hitler's decision was further encouraged by a meeting held at the Generalstaatskommissariat on November 6th, 1923, about which he had been told by his friends. From the information he had received, he formed the impression that the execution of their common plan would at least be delayed. In order to ward off the catastrophe that a secession, as well as a Minoux-GaylSeeckt directorate would bring about, Hitler thought he had to make certain that the original plan to march to Berlin was carried out. In his opinion, November 8th seemed the appropriate date since two big rallies had been scheduled for that evening, one at the Bürgerbräukeller and the other at the Löwenbräu- keller.
Kahr, Lossow, and Seisser were supposed to appear at the first rally, and Kahr was supposed to speak about Marxism. They had invited, first of all, representatives of Munich business and industry, as well as the members of the patriotic organizations, including the Kampfbund.
The meeting at the Löwenbräukeller was a social gathering of the Reichskriegsflagge; those invited were the other Verbände of the Kampfbund and members of the Reichswehr with their families.
On November 7th, Hitler discussed his ideas with Dr. Weber and Kriebel. On the morning of November 8th, he took Pöhner into his confidence. Everyone agreed with Hitler. They planned to call in a sizeable armed detachment from members of the Kampfbund. When the latter appeared at the meeting in the Bürgerbräukeller, Kahr, Lossow, and Seisser were supposed to be asked to go into another room where they would be told that now was the time for action. It was hoped that the three men would no longer resist and would participate in the election of a national dictatorship. They believed that this would inevitably bring the Reichswehr and the Landespolizei to their side.
The 8th of November
On November 8th, at noon, co-defendant Pernet, a stepson of Ludendorff and a member of the NSDAP, had asked co-defendant First Lieutenant Wagner--who had been stationed at the Infantry School here since September of 1923--to attend a meeting in the Kampfbund office at 39 Schellingstrasse. Pernet had received orders to do so from NSDAP Chief Executive A. Scheubner Richter. The Court was assured by Pernet that he had no knowledge of the action which was planned for that evening. At the office, Wagner met with former First Lieutenant Rossbach. Rossbach informed him that on that evening, at the Bürgerbräukeller, the Hitler-Ludendorff-Kahr-Pöhner-Lossow national government would be proclaimed and that Bavarian Reichswehr and Landespolizei were behind this government. Simultaneously, the Völkische revolution would begin in the whole Reich; outside Bavaria, the Reichswehr was partly supporting the movement: It would not offer resistance and would not shoot at Ludendorff. The old government was to be arrested.
Rossbach said that the Infantry School would be assigned to serve as Ludendorff's personal Storm Troopers. The recruits were to assemble at 8:30 p.m. in company formation and were to march under Rossbach's command, to be at Ludendorff's disposal. For the time being, the resident officers were not to become involved. Ludendorff himself would give them their assignments the following day. All these arrangements, Rossbach said, had been agreed upon by the Kampfbund leaders and the leaders of the new government. When Wagner asked Captain Göring, the latter is said to have confirmed Rossbach's instructions.
All the witnesses questioned during the trial almost unanimously confirmed that the Bürgerbräukeller events which occurred in public had been accurately described in the indictment, except for the first speech Hitler gave before the assembly. An the witnesses who had actually gone to the meeting and were later questioned in Court have stated that the November 9th Münchner Neuesten Nachrichten report describing the Bürgerbräukeller events was accurate. According to this report, Hitler at first only said: "The national republic is proclaimed!" According to the report in the Augsburger A bendzeitung on November 9th--which contained more details on this point--Hitler also added: "The hall is surrounded; please keep calm. I will ask Herrn Kahr, Lossow, and Seisser. In ten minutes, everything will be settled. We hope that all national groups recognize the seriousness of this hour."
At any rate, at that time, Hitler did not say--and this is not unimportant--that the Bavarian government and the Reichsregierung had been removed and a national government had been formed. Rather, somewhat later Captain Göring announced something to that effect from the podium.
In addition, we may refer to the indictment concerning this point. It should be mentioned that during the examination of the witnesses, it appeared that the audience had received varying impressions as to whether or not Kahr, Lossow, and Seisser were sincere in the statements they made in the hall. For reasons still to be discussed, this fact is, however, insignificant for the justification of the verdict. We therefore refrain from giving a critical evaluation of the testimony relating to this point.
According to the original plan, Kahr, Lossow, and Seisser were to be asked, without attracting attention, to go to the next room before the meeting began. Hitler stated, however, that this was impossible because the hall was so crowded when the three men arrived that they could not have possibly asked them to leave without attracting attention.
The selected unit had assembled as they had been ordered to do. It does not matter whether the hall was immediately taken over by 600 men, as Hitler announced in the hall, or whether initially there were only 12 armed men present and that the majority arrived later--a point which was recently made.
However, the testimony given by Herrn Kahr, Lossow, and Seisser concerning what happened in the adjoining room is in sharp contrast to the testimony given by Hitler, Ludendorff, Pöhner, and Weber. This is true not only for the manner and the success of the efforts of the latter group who tried to win the cooperation of the former; it is particularly true for the behavior of Kahr, Lossow, and Seisser, when they returned to the room after having declared their consent in the hall.
Guilt or Innocence
Since, however, the Kahr, Lossow, and Seisser case is not on trial here, these details do not need to be discussed. The question to be decided is whether the defendants are guilty or innocent. Thus it is of no importance whether the three men wholeheartedly agreed or only pretended, as they have claimed. For the same reason, it is unnecessary to discuss in detail the behavior of and the measures taken by the three men during the course of the night and on the following day until the action collapsed. We shall refer to this point only when a proper understanding of the events requires it.
It should be noted that when Kahr, Lossow, and Seisser had been led out of the hall, Hitler sent a telephone message to Ludendorff asking him to wait for the car which would take him to the Bürgerbräukeller. Soon thereafter, Hitler ordered Scheubner-Richter and Pernet to drive over to get Ludendorff. This is why Ludendorff arrived for the discussion in the adjoining room. It is of no importance whether he came before Pöhner was in the room, or whether Pöhner arrived before him. During the ride to the Bürgerbräukeller, Scheubner-Richter briefed Ludendorff on the events that had taken place at the Bürgerbräukeller before he left for Ludwigshöhe.
Soon after Kahr, Lossow, and Seisser had entered the adjoining room, Kriebel ordered that Frick, who was at Police Headquarters, and those attending the Löwenbräukeller meeting be notified. This order was carried out by telephone and by messengers.
When news reached the Löwenbräukeller, there was tremendous rejoicing. On orders from Röhm and Brückner, the people left the hall and assembled in the Stiglmaierplatz to march to the Bürgerbräukeller. On their way there, when they had reached Briennerstrasse, a bicyclist gave Röhm an order from Kriebel telling him to march on to the Wehrkreiskommando with the Reichskriegsflagge troops. Upon their arrival there, they were ordered to form an honor guard for Lossow, the new Reichswehr Minister. Röhm was told that Lossow would be arriving at the Wehrkreiskommando very soon. Röhm obeyed the order. He was joined by some Oberland units. All in all there were 250 to 300 men. Brückner took most of his men and marched to the Bürgerbrüukeller.
During the afternoon, Wagner had informed some of his comrades of his discussion with Rossbach. In the evening, the School assembled in the courtyard. Wagner divided them into four companies. Under Rossbach's command--who, meanwhile, had arrived and had appointed Wagner his aide--they also marched off to the Bürgerbräukeller where they were greeted by Ludendorff.
We can generally refer to the indictment with respect to the subsequent events. Needless to say, the Court cannot draw the same conclusions without further deliberation. Specifically, the indictment alleges that the operation was continued even though they knew that Kahr, Lossow, and Seisser were determined to repress the Putsch with all the legal state power instrumentalities at their disposal. This allegation must be examined at a later point.
The Factual Evidence
Concerning the facts pertaining to those actions the prosecution has presented as evidence of high treason, the Court considers the following to have been proven:
Hitler, Kriebel, and Weber were the originators of the plan. Pöhner agreed with the plan and willingly accepted the role that was intended for him. Thus, on the assumption that a criminal offense was committed, Hitler, Kriebel, Weber, and Pöhner are to be considered perpetrators according to Article 47 of the Criminal Code. This is true even though, due to the different duties assigned to them, each of them probably did not know or approve of every single step taken by the other.
The goal of the uprising was the elimination of the Reichsregierung, including the Parliament in its present state, because in the eyes of the defendants it was completely bewitched by Marxism. They intended to form a national government that would represent the völkische interests as defined by the defendants. The elimination of the Bavarian government, and the appointment of Kahr and Pöhner as the holders of Bavarian power, was only a means to an end--it was to enable them to fight the Reichsregierung effectively from Bavaria.
The national army was to serve as the instrument for the new Reichsregierung, to act effectively against the former government and against that part of the population which, in the eyes of the defendants, was supporting the old government and did not have a völkische attitude. (Hitler once said that these people had no right to determine the fate of Germany.) The order to establish the new army was issued immediately, and on the night of November 8th to 9th, the first steps were taken by setting up recruiting offices.
On November 8-9, 1923, in order to attain their goal, Hitler, Kriebel, Weber, and Pöhner called on the other co-defendants and gave them their assignments. With their approval, Hitler deposed the Reichsregierung and the Bavarian government, and immediately created the new government by appointing its most important members. Hitler, Weber, and Pöhner tried to persuade Kahr, Lossow, and Seisser to cooperate. Hitler, Kriebel, Weber, and Pöhner mutually agreed that those persons who they feared might interfere with their plans--the ministers and police officials--were to be arrested or searched. There were to be people stationed at the entrance to the hall who would be ordered to ask for identification papers of anyone leaving the hall. Orders were given to arrest the People's Representatives.
Furthermore, military preparations were made to fight any possible resistance. The Court believes such preparations to have been: (1) the appeal to all members of the Kampfbund in Munich and to part of them outside Munich; (2) the occupation of the Bürgerbräukeller, of the Isar bridges, and the Isar slope; but also (3) the occupation of the Wehrkreiskommando and the occupation of the Generalstaatskommissariat attempted by the Infantry School. The four men also tried to take over Police Headquarters and to bring the Reichswehr, the Landespolizei, and the general population over to their side by issuing public proclamations.
At this point, it remains undecided whether the unfortunate propaganda march should be included in the list of measures designed to ensure the realization of their goal.
Apparently, Hitler alone ordered the confiscation of 1,460 trillion paper marks which were also meant to support the operation. However, this measure was in line with the intentions of all four of them--namely, to advance their mutual work by any means possible. Thus, according to the guidelines set down before, all four men are to be held responsible. The devastation of the Münchener Post and the taking of hostages, on the other hand, are not attributed to the defendants since they did not know about these incidents until after it was too late to prevent them. Specifically, Hitler's testimony that he ordered the hostages to be held back at the Bürgerbräukeller, for their own safety, would appear to be true since they would otherwise have been killed by the crowds.
Ludendorff's attitude towards the operation will be dealt with later in this exposition.
The Court does not think it has been proven that the five remaining defendants--Röhm, Brückner, Wagner, Pernet, and Frick--had been informed of the decisions made by Hitler, Kriebel, Weber, and Pöhner between November 6th and November 8th. However, it is obvious that at least Brückner, Röhm, and Frick were familiar with the general views and objectives of the Kampfbund. During the evening of November 8th, all three were thoroughly briefed concerning the events at the Bürgerbräukeller. It is the opinion of this Court that they knew full well that the solution of the German problem by force had begun at the Bürgerbräukeller when the Völkische dictatorship was established.
Brückner and Röhm simply carried out Kriebel's orders. They assembled their troops and sent them to wherever they were ordered to go, of course hoping to do their share in attaining the goal which was known to them.
Frick's case calls for a more detailed explanation. Although it has been previously stated that his prior knowledge of the plans was not proven, there are a number of factors which contradict such an assumption. To be sure, the prosecution has not furnished any evidence in support of its allegation that Frick had known for some time that he was being considered for the Office of Police President should the Völkische uprising begin; but on the evening of November 8th at the Bürgerbräukeller, his co-defendants twice suggested that he be appointed Police President, adding that he would be arriving at the Bürgerbräukeller around 8:40 p.m. and would take control of the police.
Furthermore, he cannot have been notified of the events at the Bürgerbräukeller by the police; this could only have been done by the Kampfbund. A police officer would definitely have identified himself as a subordinate to Frick as the chief. That is, Frick was informed in accordance with Kriebel's order mentioned above. However, it is more than conspicuous that Frick was at his office when he received the news. The informer could hardly have expected to find him there at 9:00 p.m., several hours after the offices had closed, unless this had been previously arranged. Frick's explanation that he just happened to be in his office, by coincidence, is rather hard to believe, particularly when one remembers that he had left his apartment at 7:30 p.m., having told his wife he was going to the Bürgerbräukeller, but that instead he went to his office.
Finally, the note found on Kriebel is extremely suspicious. It reads: "Frick 26880 reporting Hofmann, Police Headquarters, first information to Frick: successfully delivered." Obviously the words, "successfully delivered," are code words which, by the way, were also used to inform a confidant of Kriebel at the Löwenbräukeller of the action. All these points leave us with serious doubts about the allegation that Frick was uninformed. They do not, however, sufficiently prove that Frick knew about the forthcoming events before 8:30 p.m.
In addition, the Court sees no reason for accusing Frick of dereliction of duty, as was charged in the indictment. He could quite possibly have assumed that the Landespolizei and the protective forces had automatically been alerted, so to speak, by the official on duty and the police officer on duty. This also holds true for the notification of the Reichswehr and of Oberregierungsrat Tenner, as the appointed deputy of the Police President, who had been arrested at the Bürgerbräukeller. In fact, these measures were actually taken.
Therefore, the only measures to be considered are those which positively supported the action.
There is evidence that Frick did not accept the position of Police President, or even refer to himself as Police President. However, as long as he was the senior police official present, he was entitled and obligated, as the police representative, to act as Police President. Whether he also was permitted to use the offices of the Police President is of secondary importance. No conclusions can be drawn from the fact that he stayed in these rooms, particularly since he apparently only followed Pöhner there. Frick's assertion that he could act as Police President because he believed Kahr had appointed him to that office is erroneous. He could only have gotten this idea from the information he had received from Pöhner. However, Pöhner had told him that Kahr had taken part in an unconstitutional act--the fact that it was unconstitutional will be explained later--when Kahr was declared representative of the monarchy and no longer held the office of Generalstaatskommissar. Therefore, Kahr could have only appointed Frick Police President in his capacity as the new unconstitutional ruler. Kahr did not have the authority to appoint a Police President when he was a Generalstaatskommissar. The executive authority which he had been given in accordance with the Constitution authorized him to give orders to officials, but not to appoint or dismiss officials unless they were employees of the Generalstaatskommissariat itself. The ministries retained the right to appoint and dismiss personnel, and they alone were authorized to exercise this right.
Nevertheless, the following two measures were definitely not part of the rights and duties of a constitutional Police President: First of all, the briefing of the press representatives concerning the events that had taken place, and concerning the new course. Judging from the reports which appeared in all the newspapers on November 9th and which came as a direct result of these briefings, the press reports were directed against the existing Constitution. It is true that Pöhner was the main speaker at the press conference, but Frick also participated in it. He specifically asked Dr. Egenter of the Bayerischer Kurier to use more restraint in his articles when discussing the völkische cause and to stop attacking the Völkischer Beobachter. He also suggested that they bury their differences and join forces.
Furthermore, at Pöhner's suggestion, Pöhner and Frick still went to see Kahr on the evening of November 8th. They asked him to inform the Regierungspräsidenten and to give them the necessary instructions. That action was also unconstitutional.
We have no precise information about the discussion between Frick and Pöhner relating to the establishment of summary courts, or concerning the discussions between Frick and his co-defendant Dr. Weber, with regard to the food supply for those Oberland members who were expected to come in from the outside. Therefore, the Court did not take these matters under advisement. This is also true of the so-called "important police announcement" scheduled for the morning of November 9th. After all, it is quite possible that this may have been completely within Frick's area of responsibility as the senior police official then on duty.
As is true in the case of Röhm and Brückner, any other charges which could or should be made against Frick are the less important measures he took in support of the new regime.
In view of the fact that Pernet was a member of the NSDAP, we must assume that he was also aware of the views and objectives of the Kampfbund. Except for his rather brief absence while he went to meet his stepfather and while he looked in vain for Lieutenant Commander Ehrhardt, Pernet was another eyewitness to what took place at the Bürgerbräukeller. Apart from the two points mentioned above, Pernet took part in other action as well. He was among those who checked the identification papers of the persons leaving the hall--a measure designed to prevent any possible opposition to the uprising. He also distributed the confiscated 1,460 trillion marks to the Kampfbund troops as their pay.
The prosecution is right in claiming that this activity constituted abetment of the uprising.
Like all Infantry cadets, Wagner has a völkische attitude. He occasionally listened to Hitler's speeches; he was once invited by Ludendorff when the topic of discussion was the Völkische Movement. However, it is not known and cannot be assumed that he knew any details of the concrete objectives of the Kampfbund before his talk with Rossbach and Göring on November 8th at noon.
His activity--rounding up the Infantry School men and forming them into four companies--has already been mentioned. In addition, as Rossbach's aide, he participated in the attempt to take over the Generalstaatskommissariat, and in the midnight marches of the Infantry School. He also took part in the propaganda march at noon on November 9th when the Infantry School marched at the end.
The Legal Evaluation
The following remarks should serve as an introduction to the legal evaluation:
On the basis of the state of emergency law, which will be discussed later, the legislative and administrative branches may, under certain conditions, act against the existing laws, or even against the Constitution. The Judicial Branch, on the other hand, is never permitted to violate the law. It is the function of the judiciary to uphold the law ( Meyer, Lehrbuch des deutschen Strafrechts, 4th ed., p. 23). It is a matter-of-course that sympathies or antipathies towards the accused or towards the offense can be of no consideration whatsoever. It is also true that even political considerations, or those based on constitutional principles, can be of no concern when the verdict would be damaging to the State. Fiat justitia pereat mundus.
The following conclusions have been reached:
The purpose of the operation was the elimination of the highest authorities of the Reich and of Bavaria, as well as the appointment of a Landesverweser in Bavaria and the institution of the "national government" in the Reich. This does not have to be substantiated any further; it was clearly and publicly announced by Hitler at the Bürgerbräukeller.
The action cannot be construed as a so-called usurpation. That is, it cannot be considered the replacement of ministers or persons with ministerial powers--the Generalstaatskommissar-- by other persons with the same authority. Rather, the action was a change of the Constitution. Unlike the dismissed persons, the new persons would not have been responsible to the Reichstag or to the Bavarian Landtag (Article 4 of the Bavarian Constitution, Article 54 of the Reich Constitution); rather, they would have had dictatorial powers and thus have been independent of the Reichstag and the Landtag, both of which would have bee completely eliminated.
The Putsch was to have the most tremendous effect on internal politics. A government was to be broken that had unlawfully governed Germany to death for five years and had permitted the surrender of German territory. The internationalist, Marxist, defeatist, pacifist, democratically minded regime was to be replaced by a völkische government. This was to be the most important revolution in German history since the founding of the New Brandenburg state. All our actions were to bring about this revolution.
These are the words Hitler himself used on the 18th day of the trial immediately before the hearing of witnesses was concluded. And on November 20, 1923, Weber wrote as a postscript to his oral testimony to the prosecution:
The whole patriotic movement of Bavaria is directed towards a change of the Weimar Constitution by force because it is antiparliamentarian, anti-centralist. Both in their speeches and in their written statements, its leaders have never concealed the fact that their objective, as well as that of their Verbände, was the elimination of the present Reich Constitution--as of any parliamentary constitutionby force. In its place, they wanted to institute a genuinely German form of government. This fact has always been stressed frankly and publicly.
Therefore, the action of the accused basically differs from the alleged objective of Kahr, Lossow, and Seisser, as was explained earlier. The latter wanted to institute a Reich dictatorship on the constitutional basis of Article 48 of the Reich Constitution.
Conditions in Bavaria, too, were also to be changed in an unconstitutional way.
For example, the proclamation of Kahr as the Landesverweser was not merely a change of title. As a Generalstaatskommissar, Kahr was as responsible to the Landtag as are the ministers who had appointed him. Nemo plus juris in alium transferre potest, quam ipse habet.
The Court does not ascribe to the accused the fact that Kahr undertook or pretended to undertake a far greater change of the Constitution by making himself the regent of the monarchy--that is, by trying to replace the republic with a monarchy. This was not the intention of the defendants.
Therefore, if the defendants are maintaining that on the night of November 8th-9th, nobody was thinking of changing the Weimar Constitution, and that they were going to think about it at some future time, then they have misunderstood the concept of a change of the Constitution; they have confused "change" with the complete elimination of the Constitution.
Objectively, according to Article 81(2) of the Criminal Code, the facts of the case have already been established. If the holder of the state authority is attacked by force and he, or any of his appointed officials, are deprived of their unencumbered right to govern, then it is of no importance whether this was done for a longer or a shorter period of time. (Supreme Court ruling in Criminal Affairs, Vol. 56, p. 263.)
The defense attorneys further argued that on November 8th-9th, Bavaria had no constitution de jure, only a constitution de facto. The latter, however, was personified by Kahr, and the defendants did not oppose Kahr, but were--or thought they were--on his side. Thus, the attorneys said, whatever the defendants did was not a violation or a change of the Constitution; it was a legal act.
Article 81 of the Criminal Code
The Court cannot enter into theoretical discussions. The right to govern does not depend on the legal accession to power, but rather on the actual exercise of power. In the same spirit, Article 81 of the Criminal Code protects the existing Constitution. Hence it is immaterial if the Reich Constitution was introduced in Bavaria legally or if it was imposed; for it cannot be seriously Questioned that the Reich Constitution had validity in Bavaria ever since its institution; nor can its legality be disputed. It is not the work of the revolutionaries of 1918, as the defendants have claimed, but the result of a plebiscite of the kind demanded by Hitler. The National People's Assembly had been elected in Bavaria and in the Reich by the entire population, who had been given extensive voting rights in the decrees of November 12 and 30, 1918.
Articles 48 and 64
The opinion of the defense that the Bavarian Cabinet or the Generalstaatskommissar had invalidated the Reich Constitution as well as the Bavarian Constitution on September 26, 1923, or during the period between September 26 and November 8-9, 1923, is also untenable. Under the Constitution, the establishment of the Generalstaatskommissariat was based on the state of emergency law. This law, as was stated earlier, permits the government, in certain instances, to perform its function without regard to the existing laws or to the Constitution ( Meyer, op. cit., p. 23). The state emergency law has been expressly recognized in Article 48 of the Reich Constitution and in Article 64 of the Bavarian Constitution. Under the conditions stipulated in these articles, this law authorizes the Generalstaatskommissar to decree the invalidation of laws, even of so-called basic rights. The government has to decide after due consideration whether conditions warrant the enactment of the state emergency law and which steps are to be taken. It is not the Court's duty to examine here whether the Bavarian government has the same latitude towards federal law. In any case, Article 48 of the Reich Constitution grants extensive powers also to the government of a state.
It would be a fundamental error for the defense to assume that with the declaration of a Reich state of emergency came the suspension of the Bavarian state of emergency; and that therefore all measures taken by the Generalstaatskommissariat were henceforth unlawful or even unconstitutional. Article 48 of the Reich Constitution authorizes both the Reichspräsident and the state governments to institute emergency measures. If both authorities apply this stipulation, then the state government, just as does the Reichspräsident, exercises federal power. It does not create a state statute; it creates a federal statute. Therefore, the principle of Article 13 of the Reich Constitution, "federal right supercedes the right of the state," is inapplicable. In cases such as this, both states of emergency co-exist, of course so long as they are not in conflict.
It is definitely incorrect to assume that the full state authority in Bavaria was transferred to Kahr before November 8th. All Bavarian ministries continued to perform their functions. The authority of the Reich was still in force. Whether he could have dismissed the ministries or prevented the Landtag from meeting, thus evading the authority of the Reich, is an idle question. For no one can predict what resistance one may meet if one should seize the authority of the Reich and of the state; particularly, whether the Bavarian Reichswehr and Landespolizei would go along and whether federal orders could be executed by force (Article 48, paragraph 1 of the Reich Constitution).
In any case, Kahr could not have done what he intended to do without breaking the Constitution.
Furthermore, it is untrue that Kahr assumed all, or almost all rights which are reserved to the Reich--the ones mentioned are the authority to administer justice, finance, the armed forces, and transportation. We may assume that the few measures he took were, in his opinion, still within the framework of the state emergency law previously mentioned; they are covered by this law, as we explained earlier. But even if Kahr had, in some cases, knowingly gone beyond the limits set by law, he committed single violations of the Constitution but he did not eliminate the Constitution.
These explanations also disprove another defense argument. Namely, the assertion that the action of the defendants was legal because it was initiated by Herr Kahr. Changes of the Constitution are legal only if they have been agreed upon in a constitutional manner--that is, under the law. In the Reich, this can be done only by the Reichstag, and in Bavaria only by the Landtag, or if necessary, through a plebiscite according to Article 10 of the Bavarian Constitution. They cannot be decided upon by one minister, by the Cabinet, or by a person with ministerial powers. Federal law has placed the authority of the Reich above the authority of the individual states by coining the phrase: "Federal right supercedes the right of the state." It also provides for the execution of federal orders by force against opposing states. Incidentally, both provisions were not created in 1918; they are part of both the Bismarck and the Weimar Constitutions. Yet these principles cannot simply be reversed. Even if Kahr had been vested with the authority of the State of Bavaria--as he was not--one would not need to say or to prove with legal deductions that the federal law does not and cannot possibly allow the authority of the Bavarian State to dismiss the representatives of the authority of the Reich and to replace them with new men.
Kahr, Lossow, and Seisser
Of much greater interest to the general public than the guilt or innocence of the defendants is the following question: Did Kahr, Lossow, and Seisser actually go along? Or, as the question is phrased by the public, was the statement made by the three gentlemen at the Bürgerbräukeller meant seriously? And did the three reverse their positions and break their promise to the defendants at a later point? Although the answer to this question would be a desideratum for the sake of the public, the Court must refrain from discussing the question at full length. First of all, it would have no influence on the Court's decision. Secondly, in the course of the trial the defendants have formally brought charges for high treason against Kahr, Lossow, and Seisser--that is, the Court cannot prejudge a question which must be decided by the prosecution and possibly by the appropriate courts of appeal.
In concluding this subject, it should be stressed, however, that the defendants have no right to say that they went along with Kahr; all they can possibly say is that they returned. There is no doubt that on the evening of November 8th, they were the ones who took the initiative--not Kahr, Lossow, and Seisser.
Change of the Constitution by Force
The question now arises whether it was the objective of the action to change the Constitution by force. The concept of "force," according to Olshausen, op. cit., Vol. I, p. 379, also includes threats if they imply the use of physical force:
It must be the purpose of the action to change the Constitution of the State by the use of physical force at the decisive moment.
From this point of view, the use of physical force was definitely intended.
It is our mission to begin the march to the sinful Babel of Berlin by employing the entire force of this state, as well as the forces summoned from all German regions.
These are Hitler's words on the rostrum of the Bürgerbräukeller.
During the trial, Pöhner stated that naturally the advance to Berlin would be undertaken with military force. Someone else said that Bavarian fists would bring order to Berlin. It was obvious that the existing government, which was supported by a great number of people, and above all, as the defendants assert, by the Marxists--i.e. by one of the largest political parties in the country--would not surrender without a fight. There was no reason to hope, as some of the defendants did, that the march would be nonviolent because all the people would join with them. The defendants actually expected resistance and were determined to break it. This is evident not only from the above-mentioned speeches of Hitler and the written statement by Weber of November 20, 1923, which was repeated earlier, but also is confirmed by Kriebel who said in his testimony of January 13, 1924:
The impression I received from Hitler's statement was that Hitler and Lossow fully agreed on the necessity to begin the march. Its purpose was the overthrow of the Stresemann government, which Bavaria did not recognize as the national government, and the institution of a national directorate in Berlin. After I had been informed, I had not the slightest doubt that neither Kahr nor Lossow nor Seisser were slaying away from a coup d'etat--i.e. from high treason. The only point on which there was disagreement was the setting of a date.
Since, as the defendants maintain, they had the same goal as Kahr, Lossow, and Seisser, their action, too, was to be an act of violence.
The Unsuccessful Coup d'Etat
It is irrelevant for the legal facts of a case of high treason whether force was actually used. This element, however, is present in the arrest of the ministers and police officials, as well as in the fact that there was resistance against the Reichswehr and the Landespolizei--for example, the occupation of the Isar bridges, the Isar slope, and the Wehrkreiskommando.
The only question that remains to be examined is whether the defendants intended this action to be the start of the planned march. The proclaimed overthrow and the new formation of governments at the Bürgerbräukeller was at least a beginning. As far as the Bavarian government is concerned, the arrest of 50 percent of all ministers was already an important step towards accomplishing the goal. During the trial, some defendants asserted that the coup was a success; therefore, they maintained, they had not committed an offense under the legal principle that only an unsuccessful coup is punishable, while a successful one is not. Actually, however, the defendants were still a long way from having authority over the Reich or over the State of Bavaria.
In this context, we would like to refer to a remark by Pöhner which he made at the press conference at Police Headquarters on the night of November 8th-9th, 1923. He said that this was only the beginning of a development; one would have to wait and see what would happen. Pöhner did not know whether things would develop as smoothly in Prussia. He said there might be serious conflicts. That was true. The assertion that the coup d'etat was a success is wrong; so is the opinion that a successful act of high treason is not a punishable crime. It is, however, correct to say that a coup d'etat was no longer in the state of preparation; rather, the action was an attempted coup d'etat. Its success depended less on the will of the defendants than on the resistance of the opposing forces. Even if weeks or months had passed before the march to Berlin could have begun, the first step had already been taken. There was no turning back; the execution of the plan had begun.
That is an unbiased reading of Article 81(2) and 82 of the Criminal Code; the facts of the case are there.
The defendants assert that the act was legal--or at least that they believed it was legal--because Kahr was one of them; or, in any case, that they were unaware of having violated the law. Subjectively speaking, the Court believes that they thought, until shortly before November 8th, that Kahr, Lossow, and Seisser also intended to march to Berlin. This does not apply to Pernet and Wagner inasmuch as these men were not involved in this matter until November 8th. Nor does it apply to Ludendorff, who had a special position which will be discussed later. It is also possible that the defendants were hoping to bring the three men over to their side by taking the initiative. Finally, in the Court's opinion, there is no doubt that after the events on the rostrum and in the adjoining room of the Bürgerbräukeller, the defendants were convinced that the three would now cooperate, for better or worse. In fact, Kahr, Lossow, and Seisser deliberately wanted to delude them. The defendants probably never intended to act against the serious intentions of Kahr, Lossow, and Seisser.
Objectively speaking, as we stated above, all of this is irrelevant--even the question of the point in time when they became aware of the fact that Kahr, Lossow, and Seisser were against them. Here, too, the Court assumes that the matter was unclear to them even after Leupold had informed them. It was, after all, possible that Lossow had not revealed his true views, but had taken the position his subordinates expected of him.
At least Hitler, however, did not conclude that this action was legal. This became clear on the first day of the trial when he was describing the events that took place in the adjoining room. He said the following:
I told Kahr, Lossow, and Seisser: 'There is no way back! You, too, will be defeated if the action fails.' I anticipated that they would go to prison with us if the plan should go wrong.
The question of whether the other defendants--except for Ludendorff whose case was special--saw matters just as clearly will not be decided. It is immaterial for the subjective facts of the case whether the defendants knew that their action was illegal. We refer to the decisions by the Supreme Court in criminal affairs, Vol. 49, pp. 414-418; Vol. 48, pp. 325-327; Vol. 51, pp. 9-12. The only conclusive factor is whether the facts that constitute the crime of high treason according to Articles 81 and 82 of the Criminal Code were brought about by design. In view of the educational background of the defendants, they could not possibly have assumed that Kahr was an absolute sovereign in Bavaria--perhaps in the style of Louix XIV who coined the phrase: "L'etat c'est moi," or of his imitators. Therefore, they could not have believed that anything they did with Kahr, or Kahr did with them, was legal. This was clearly expressed by Pöhner during the trial when he said that Kahr was not the state.
Furthermore, even the defendants did not believe that Kahr's actual sphere of power extended beyond the boundaries of Bavaria. Now, if Kahr was prepared, as they had thought, to extend Bavarian influence beyond the boundaries of Bavaria and to replace the Berlin government by a national government formed in Bavaria, he was definitely overstepping the limits of the authority to which, in the eyes of the defendants, he had already laid claim for himself in Bavaria before November 8th. Those defendants who knew about the purpose of the November 8th-9th action-- Weber, Kriebel, Pöhner, Brückner, Röhm, Pernet, and Frick-must have known this.
According to the above definitions, Hitler, Weber, Kriebel, and Pöhner committed the crime, while Brückner, Frick, Röhm, and Pernet abetted the crime. They are being convicted under Articles 81, 82, 47, and 49 of the Criminal Code.
The Claim of Self-Defense
There is likewise no basis for the claim of self-defense. Defense Attorney Dr. Gademann tried to argue for self-defense since, he said, the national government was causing--at least by negligence--the destruction of the German people. Herr Schramm thinks that this was a case of national self-defense because the defendants wanted to prevent the ruin of the nation.
Therefore, the assult must have been committed by the Reichsregierung, while the victims must have been either the nation or the German people. It is true that during the course of the trial the defendants listed a number of governmental measures which could have brought the German people to the brink of ruin. For instance, the disastrous Ruhr policy, the surrender of German territory in Silesia, and the mismanagement with regard to the currency question. However, all of these points, if they can be construed as criminal acts, were part of history on November the 8th; thus, that is self-defense against past offenses.
It seems that the defendants wanted only to claim self-defense against an inefficient administration of national affairs. It is possible that the claim of self-defense against unlawful negligence is justifiable. However, we can speak of unlawful negligence only if a legal standard prescribes a certain behavior. But the administration of government is strictly a matter of political and statesmanlike judiciousness; it is not a matter of legal prescriptions. Therefore, an illegal attack by the government against anyone is out of the question. There is no basis for actual self-defense, not even for presumed self-defense; if the government had allegedly committed the crime of negligence, the defendants should have acted in presumed self-defense by having forced the Reichsregierung to take those measures which they thought were necessary.
However, what they did do was completely different. The defendants dismissed the government. That is, they wanted to prevent the government from acting. The formation of a new government can even less be construed as an act of self-defense. For after the deposal of the previous government, there was practically no one who could have made the required attack without violating Article 53 of the Criminal Code, against which the presumed act of self-defense--i.e. the formation of a national government-was directed.
An emergency situation cannot be used as a reason for the action of the defendants. According to Article 54 of the Criminal Code, the only legal concept of an emergency situation which can be applied here is the right of the person in an emergency situation to resist a danger which threatens his life or that of a member of his family--i.e. not that of the nation or of a countryman.
Wagner claims he became involved in the affair because he was deceived by Lossow. If this means that he thought Lossow was in charge of the operation, it has no bearing on the subjective facts of the case. For Wagner could not possibly have assumed that Lossow had the right to stage a coup d'etat either in Bavaria or in the Reich. He knew, however, from the clear information he had received from Rossbach and Göring in the afternoon of November 8th that a coup d'etat was planned. Nor can he justify his action by saying that he thought the Constitution no longer existed since Bavaria had gone into open opposition against the Reich, while the Reich was not taking any action against Bavaria. He may only have thought that the Reich Constitution no longer had any validity in Bavaria. He had no reason at all to assume that the Bavarian Constitution had been invalidated for Bavaria, and the Reich Constitution in the other parts of the Reich--particularly in Berlin. Rossbach told him that the old government was to be put under arrest and a new government under HitlerLudendorff-Kahr-Pöhner-Lossow was to be proclaimed. Wagner must have known that this new government would be völkische-that is, it would be free of constitutional restraints, and particularly of parliamentary supervision. This means that he may either have assumed that the Bavarian government would be transformed, in which case however the Bavarian Constitution would be changed; or he thought that a Reichsregierung would be instituted, in which case the measure would also include the nonBavarian parts of the Reich, because a Reichsregierung for Bavaria alone would have made no sense. The non-Bavarian parts of Germany, however, recognize the Reich Constitution. For them, the institution of a national government would mean a change of the Reich Constitution. In the Court's opinion, Wagner must have been aware of these points. Therefore, he too is guilty of abetment of the crime of high treason, as discussed earlier. Wagner did not specifically claim self-defense or an emergency situation. Had he done so, the points raised before would also apply to him.
Several times during the trial, it was argued that the defendants had only obeyed orders when they acted. It should be pointed out, however, that obeying a military order does not exonerate a defendant in this case because political upheavals are not covered by Article 48 of the Code of Military Justice. Wagner, however, did not receive a military order from a superior. Even if he assumed that the order to the Infantry School to march and to be at Ludendorff's disposal had come from Lossow, he knew that the Infantry School was not under the command of Lossow or of the 7th Division. Rather, it was under the command of General Tieschowitz and the Reichswehrministerium. On the other hand, Wagner knew that Tieschowitz did not approve of the march of the cadets since military personnel were involved who were not part of the 7th Division. Wagner belonged, however, to a nonBavarian contingent. It was self-evident to him that he could not accept orders from Ludendorff or Rossbach.
Finally, it should be mentioned that the Court's decision to charge Frick, Brückner, Röhm, and Wagner with abetment of high treason -- not to charge them with high treason -- is contrary to the indictment. This decision does concur, however, with the sentences proposed by the prosecution in its final motion.
Ludendorff's defense is a special case. It is true that he, like the other defendants, has declared that he wanted to go along with Kahr, Lossow, and Seisser. What he meant to say, however, is almost the opposite of what the other defendants meant. As was mentioned earlier, they intended to bring Kahr, Lossow, and Seisser over to their side and to accomplish with them the objective of the Kampfbund -- i.e. elimination of the Reichsregierung by force.
Ludendorff has asserted that even on November 8th-9th, he only wanted to work with Kahr, Lossow, and Seisser on the idea of establishing a national dictatorship. This idea has been explained by the three men during the trial and has been previously outlined. It is a fact that the idea of creating a national dictatorship was discussed in detail by Kahr, Lossow, and Seisser in the months of October and November of 1923. It was to be formed, to be sure, not entirely without the use of force, but still not in an unconstitutional way; in fact, they intended to base it on Article 48 of the Reich Constitution. As has been documented, they could provide a number of witnesses who would testify to this. The few defendants who attended these discussions -- actually only Hitler, Weber, and Kriebel -- seemingly did not pay special attention to this idea; at least, they did not adopt it. Ludendorff, however, discussed this plan in his frequent talks with Lossow. He even invented the expression, "perfect solution," for it. He promised to support the idea; he also made efforts to win important people in the North over to the idea. At the meeting with Kahr, Lossow, and Seisser on the afternoon of November 8th, he even offered to send a messenger to Berlin to bring suitable men back to Bavaria.
Therefore, the Court is convinced that Ludendorff spoke the truth when he maintained that, while he was being taken to the Bürgerbräukeller on the evening of November 8th, he thought of nothing else but of the fact that Kahr's national dictatorship had finally taken concrete form. During his trip to the Bürgerbräukeller, he could not have heard anything to the contrary from Scheubner-Richter and from his stepson, Pernet. They themselves hardly knew anything, since they had left to pick up Ludendorff before the action started. Therefore, he did not know that the question -- a national government according to Hitler's plans, or a directorate according to Kahr's plans -- had already been resolved when he entered the adjoining room. By deposing the Reichspräsident and the Reichsregierung, it had been resolved along the lines laid down by Hitler. For this reason, Ludendorff did not necessarily have to suspect that the statements by Kahr, Lossow, and Seisser to cooperate referred to Hitler's plan; it was just as possible that the gentlemen had needed a push to realize their own plan. When Ludendorff arrived, Hitler had already given his speech in the adjoining room, in which he demanded that Kahr become Landesverweser, Lossow, Minister of the Reichswehr, and Seisser, Minister of Police. Kahr's decision to accept the office of Landesverweser in Ludendorff's presence was a purely Bavarian affair with which Ludendorff was not concerned and did not want to be concerned. Finally, Ludendorff's acceptance of the office of head of the national army was not a violation of the Constitution. According to Article 6, the formation of a military constitution is reserved to the Reich Constitution. There are, however, no further stipulations.
Ludendorff's suspicions naturally could have been aroused by the speeches in the hall. They were not merely noncommittal announcements of the names of candidates for a national government; rather, the speakers proclaimed the unconstitutional national government. However, there are a number of eyewitnesses who have testified that Ludendorff was so moved by the events on the rostrum that he hardly noticed what was going on around him.
During the following night and on the next day, he remained, for the most part, passive. At least he did not take or support any unconstitutional actions. The purpose of his talk about military matters with Lossow was to be informed of the steps that had already been taken. Incidentally, these measures did not follow Hitler's course of action. There was no evidence introduced during the trial to substantiate the charge contained in the indictment that Ludendorff had given orders to the Infantry School and to co-defendant Röhm. As to his participation in the so-called propaganda march, Ludendorff convincingly explained that he did not intend to save Hitler's operation at the last moment.
Therefore, Ludendorff's position is actually different from not only that of his co-defendants, but also from Kahr's, Lossow's, and Seisser's position. As he himself said, the phrase he used at the Bürgerbräukeller -- i.e. that he was acting in his own right -- actually meant nothing else than a refusal to follow Hitler. Most of the co-defendants knew nothing of Kahr's plan to set up a directorate. Those few who did know about it rejected it. Nor did Kahr, Lossow, and Seisser intend to carry out their plan. Rather, they went along, or pretended to go along, with Hitler's ideas.
Ludendorff therefore did not commit high treason, nor did he abet it. His activity does not constitute a criminal offense at all. Although Kahr's intention to exert pressure on the Reichspräsident in order to force him to establish a directorate constitutes a crime of coercion of an official, not even the first step was taken to realize Kahr's plan.
For the foregoing reasons, Ludendorff is acquitted.
The Other Defendants
As to the sentences for the other defendants, the Court refers to the points in favor of the defendants made in the closing arguments, particularly those made by the prosecution. The Court has also become convinced that the motives of the defendants were genuinely patriotic, noble, and selfless. All the defendants who were keenly aware of the situation -- and the others were led by the co-defendants whom they considered and trusted as their leaders in the Völkische Movement -- believed most conscientiously that they had to act in order to save the Fatherland. They thought they were complying with the earlier intentions of the leading Bavarian men. This does not justify their plans, but it does provide the key to understanding their actions.
For months, even for years, it had been their aim to compensate for the high treason of 1918 by committing an act of liberation. As the prosecution indicated, their openly stated objectives were not resisted with the necessary resolute actions. Thus, matters developed to such a point that an action had to be taken because the aroused spirits could not longer be contained. Hitler stressed this repeatedly. The Court therefore cannot assume that the attack at the Bürgerbräukeller was a conscious breach of promise on the part of the defendants. In this point, the Court also concurs with the prosecution.
The Court must refrain from commenting on the question of whether a successful operation would really have constituted the liberating act the defendants took it to be. The answer to this question must be based on a certain political attitude and therefore cannot be generally acceptable. In any case, the defendants believed the operation to have a sufficiently strong military basis because of the cooperation of the Reichswehr and the Landespolizei. They anticipated the rise of the movement in the other areas of the Reich as soon as things in Berlin had begun to move. They also expected the non-Bavarian Patriotic Verbände and the nonBavarian Reichswehr to join the operation. The trial did not provide any evidence that arrangements to that effect had been made with the non-Bavarian Verbände.
The visible consequences of the action are regrettable: a number of patriotic men died or were wounded. The Court abstains from expressing its opinion on the question of whether the disaster could have been prevented if Generalstaatskommissar von Kahr had agreed to talk to Hitler when the latter asked for a meeting on November 7th; or if Kahr, after his speech at the Bürgerbräukeller, had had a confidential talk with Hitler, as had been suggested by Kommerzienrat Zentz; or if Herrn Kahr, Lossow, and Seisser had answered Hitler's request for cooperation with a definite "No"; or if on the night of November 9th, when the defendants tried repeatedly to clarify the situation, they had only been a little more obliging.
However, these mitigating circumstances are offset by serious and aggravating factors. If the operation had been continued, there would have been the danger of a civil war. It would have gravely disturbed the economic life of the whole nation and would probably have led to complications in foreign policy.
After careful deliberation, the Court has decided to grant extenuating circumstances to the defendants. The minimum sentence of five-years' imprisonment -- the term prescribed by a rather severe law -- is sufficient punishment for their crime. The acts of the abettors were relatively unimportant, so that the shortest possible term of one year and three months' imprisonment seems adequate.
In addition to imprisonment, appropriate penalties of 200two hundred -- or 100 -- one hundred -- gold marks, respectively, had to be imposed, under Article 9, paragraph 1, of the law for the protection of the republic of July 21, 1921.
The imprisonment prior to the trial has been taken into consideration in accordance with Article 60 of the Criminal Code.
There was no reason to impose punishment under Article 81, paragraph II, of the Criminal Code.
Hitler is German-Austrian. He considers himself to be a German. He is a man who thinks and feels as a German. He fought in the German army for four and one-half years. He received high honors for outstanding courage in action. He was wounded and his health has suffered in other ways. He was released from the army into the care of Bezirkskommando Mfinchen I. For these reasons, it is the Court's opinion that it is both meaningless and without purpose to apply the provision of Article 9, paragraph II, of the law for the protection of the republic.
The question of expenses was decided according to Article 496 and subsequent articles of the Code of Criminal Procedure.
Because of the above-mentioned extenuating circumstances for the defendants, the Court has recommended a grant of probation, the specific conditions of which were announced in the verdict.
Since the probationary periods for Brückner, Röhm, and Frick are in force as of now, the arrest orders against these men have been revoked.