Forty-First Day:
Wednesday, 23rd January, 1946
[Page 96] [Page 97]
DR. KUBUSCHOK (Counsel for defendant von Papen): I object to
the reading of the affidavit of Schroder. I know that in
individual cases the Tribunal has permitted the reading of
affidavits. This occurred under Article 19 of the Charter,
which is based on the proposition that the trial should be
conducted as speedily as possible, and that for this reason
the rules of ordinary court procedure should be modified to
some extent. Of decisive importance, therefore, is the
speediness of the trial. But in our case the reading of the
affidavit cannot be approved for that reason.
Our case is quite analogous to the case that was decided on
14 December with regard to Schuschnigg's affidavit. Schroder
is in the vicinity. Schroder was apparently brought to the
neighbourhood of Nuremberg for the purposes of this trial.
The affidavit was taken down on 5 December. He could be
brought here at any time. The reading of the affidavit would
result in my having to refer not only to him but also to
several other witnesses. Schroder describes a series of
facts in his affidavit, which in their entirety are not
needed for the finding of a decision. However, once
introduced into the trial, they must also be discussed by
the defence in the pursuance of its duty.
The affidavit discusses internal political matters, using
improper terms. For this reason misunderstandings would
enter into the trial which could be obviated by the hearing
of a witness. I believe, therefore, that the oral testimony
of a witness is the only way in which Schroder's testimony
should be submitted to the Tribunal, since otherwise a large
number of witnesses will have to be called with the reading
of Schroder's affidavit and his personal interrogation.
THE PRESIDENT: Have you finished?
DR. KUBUSCHOK: Yes.
THE PRESIDENT: Do you wish to make any observation?
MAJOR BARRINGTON: Yes, I do, my Lord.
The Tribunal has been asked to exclude this affidavit using
as a precedent the decision on von Schuschnigg's affidavit.
I think I am correct in saying that von Schuschnigg's
affidavit was excluded as an exception to the general rule
on affidavits, which the Tribunal laid down earlier the same
day, when Mr. Messersmith's affidavit was accepted. Perhaps
your Lordship will allow me to read from the transcript the
Tribunal's decision on the affidavit of Messersmith.
THE PRESIDENT: Mr. Messersmith was in Mexico, was he not?
MAJOR BARRINGTON: That is so, my Lord, yes.
[Page 98]
MAJOR BARRINGTON: In that regard, yes, but what I was going
to say was this, my Lord: In ruling on Messersmiths
affidavit your Lordship said:
Now in the afternoon of that day, when Schuschnigg's
affidavit came up
THE PRESIDENT: Which day was this?
MAJOR BARRINGTON: This was 28 November, my Lord. It is on
Page 214 Pt. 1 of the transcript, the Messersmith affidavit,
and Page 234 Pt. 1 is the Schuschnigg affidavit.
Now, when the objection was taken to the Schuschnigg
affidavit, the objection was put in these words:
"Today when the resolution was announced in respect of the
use to be made of the written affidavit of Mr. Messersmith,
the Court was of the opinion that in a case of very great
importance possibly it would take a different view of the
matter"; and then defence counsel went on to say:
"As it is a case of such an important witness, the principle
of direct evidence must be adhered to."
THE PRESIDENT: Have you a reference to a subsequent occasion
on which we heard Mr. Justice Jackson upon this subject,
when Mr. Justice Jackson submitted to us that on the strict
interpretation of Article 19 we were bound to admit any
evidence which we deemed to have probative value."
MAJOR BARRINGTON: My Lord, I have not that reference.
THE PRESIDENT: Why do you not call this witness?
MAJOR BARRINGTON: I say, quite frankly, - and I was coming
to that - this witness is in a position of being an alleged
co-conspirator, and I make no secret of the fact that for
obvious reasons the prosecution would not desire to call him
as a witness, and I put this affidavit forward as an
admission by a co-conspirator. I admit that it is not an
admission made in pursuance of the conspiracy, but I submit
that, as the Tribunal is not bound by technical rules of
evidence, this affidavit may be accepted in evidence as an
admission by a co-conspirator; and, as I said before, there
will be no objection to administering interrogatories on the
subject matter of this affidavit, and indeed, the witness
would be available to be called as a defence witness if
required.
That is all I have to say on that, my Lord.
THE PRESIDENT: There would be no objection to bringing the
witness here for the purpose of cross-examination upon the
affidavit?
MAJOR BARRINGTON: I do not think there could be any
objection if it were confined to the subject matter of the
affidavit. I would not like ...
THE PRESIDENT: How could you object, for instance, to the
defendant himself applying to call the witness?
MAJOR BARRINGTON: As I said, I do not think there could be
any objection to that, my Lord.
THE PRESIDENT: The result would be the same, would it not?
If the witness were called for the purpose of cross-
examination, then he could be asked other questions which
were not arising out of the matter in the affidavit. If the
defendant can call him as his own witness, there can be no
objection to the cross-examination going outside the matter
of the affidavit.
[Page 99]
THE PRESIDENT: You mean you would ask him questions in re-
examination, but they would not take the form of cross-
examination?
MAJOR BARRINGTON: That is what I mean, my Lord.
THE PRESIDENT: You mean that you would prefer that he should
be called for the defendants rather than be cross-examined
outside the subject matter of the affidavit?
MAJOR BARRINGTON: Yes.
THE PRESIDENT: Is there anything you wish to add or not?
MAJOR BARRINGTON: There is nothing I wish to add.
THE PRESIDENT: It is time for us to adjourn. We will
consider the matter.
(A recess was taken)
DR. HORN (Counsel for defendant Ribbentrop): In the place of
Dr. von Rohrscheidt, defence counsel for Hess, I would like
to make the following declaration.
Dr. von Rohrscheidt has been the victim of an accident. He
has broken his ankle. The defendant Hess has asked me to
notify the Tribunal that from now on until the end of the
trial, he desires to make use of his right under the Charter
to defend himself. The reason that he wants to do that for
the whole length of the trial is to be found in the fact
that due to his absence his counsel will not be informed of
the proceedings of the Court.
THE PRESIDENT: The Tribunal will consider the oral
application which has just been made to it on behalf of the
defendant Hess.
As to the objection to the affidavit of von Schroder which
was made this morning by counsel for the defendant von
Papen, the Tribunal does not propose to lay down any general
rule about the admission of affidavit evidence. But in the
particular circumstances of this case, the Tribunal will
admit the affidavit in question, but will direct that if the
affidavit is put in evidence, the man who made the
affidavit, von Schroder, must be presented, brought here
immediately for cross-examination by the defendant's
counsel. When I say immediately I mean as soon as possible.
MAJOR BARRINGTON: My Lord, I will not introduce this
affidavit.
THE PRESIDENT: Yes, Major Barrington.
MAJOR BARRINGTON: My Lord, before coming on to that
affidavit, I last read from the biography a passage about
the meeting at von Schroder's house, and I ask the Tribunal
to deduce from that extract from the biography that it was
at that meeting that a discussion took place between von
Papen and Hitler, which led up to the Hitler Government in
which von Papen served as Vice Chancellor. So that now at
that point the defendant von Papen was completely committed
to joining the Nazi Party, and with his eyes open and on his
own initiative, he had helped materially to bring them into
power.
The second allegation against the defendant von Papen is
that he participated in the consolidation of Nazi control
over Germany.
In the first critical year and a half of the Nazi
consolidation von Papen, as Vice Chancellor, was second only
to Hitler in the Cabinet which carried out the Nazi
programme.
The process of consolidating the Nazi control of Germany by
legislation has been fully dealt with earlier in this trial.
The high position of von Papen must have associated him
closely with such legislation. In July 1934, Hitler
expressly thanked him for all that he had done for the co-
ordination of the Government of the National Revolution.
That will appear in Document
[Page 100]
Two important decrees may be mentioned specially, as
actually bearing the signature of von Papen. First, the
decree relating to the formation of special courts, dated
the 21st of March 1933, for the trial of all cases involving
political matters. The Tribunal has already taken judicial
notice of this decree. (see Part 1, p. 233).
This decree was the first step in the Nazification of the
German judiciary. In all political cases it abolished
fundamental rights, including the right of appeal, which had
previously characterised the administration of German
criminal justice.
On the same date, the 21 March 1933, von Papen personally
signed the amnesty decree liberating all persons who had
committed murder or any other crime between 30 January and
21 March 1933 in the National Revolution of the German
people. That document is 2059-PS, and is on Page 30 of the
English document book. I read Section 1.
THE PRESIDENT: I do not think you need read the decrees if
you will summarise them.
MAJOR BARRINGTON: If your Lordship pleases, I will ask you
to take judicial notice of that decree.
THE PRESIDENT: Yes.
MAJOR BARRINGTON: As a member of the Reich Cabinet, von
Papen was, in my submission, responsible for the legislation
carried through even when the decrees did not actually bear
his signature. But I shall mention as examples two
categories of legislation in particular, in order to show by
reference to his own previous and contemporaneous statements
that they were not matters of which he could say that, as a
respectable politician, he took no interest in them.
First, the civil service. As a public servant himself, von
Papen must have had a hard but apparently successful
struggle with his conscience when associating himself with
the sweeping series of decrees for attaining Nazi control of
the Civil Service. This has been dealt with in the afternoon
session of 22 November. In this connection I refer the
Tribunal to Document 351-PS, which is on Page 1 of the
document book. It is Exhibit USA 389, and it is the minutes
of Hitler's first cabinet meeting on 30 January 1933. I read
from the last paragraph of the minutes, on Page 5 of the
document book in the middle of the paragraph:
Secondly, the decrees for the integration of the Federal
States with the Reich. These again have been dealt with
earlier in the trial. The substantial effect of these
decrees was to abolish the States and to put an end to
federalism, and any possible retarding influence which it
might have upon the centralisation of power in the Reich
Cabinet. The importance of this step, as well as the role
played by Papen, is reflected in the exchange of letters
between Hindenberg, von Papen - in his capacity as
Reichskommissar for Prussia - and Hitler, in connection with
the recall of the Reichskommissar and the appointment of
Goering to the post of Prime Minister of Prussia. I refer to
Document 3357-PS,
[Page 101]
In tendering his resignation on 7 April 1933, von Papen
wrote to Hitler, and I read from the document:
On the eve of the day when the new law on the
institution of Reich governors was adopted, Herr von
Papen considered this aim as having been attained; and
he requested me to undertake the appointment of the
Prussian Prime Minister, when at the same time he would
offer his full-time services in the Reich Government.
Herr von Papen, in accepting the post of Kommissar for
the Government of Prussia, in these difficult times
since 30 January, has rendered a very meritorious
service to the realisation of the idea of co-ordinating
the policy in the Reich and the States. His
collaboration in the Reich Cabinet, for which he now
offers all his strength, is infinitely valuable; my
relationship to him is such a heartily friendly one,
that I sincerely rejoice at the great help I shall thus
receive." [
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(Part 5 of 9)
[MAJOR J. HARCOURT BARRINGTON continues]
"The meeting with Hitler, which took place in the
beginning of January
The meetings at Ribbentrop's house, at which Papen was also
present, have been mentioned by Sir David Maxwell Fyfe
(Document D-472) which was Exhibit GB 130. I now wish to
introduce into evidence an affidavit by von Schroder, but I
understand that Doctor Kubuschok wishes to raise an
objection to this. Perhaps before Doctor Kubuschok raises
his objection it might help if I said, quite openly, that
Schroder is now in custody, and according to my information
he is at Frankfurt; so that physically he undoubtedly could
be called. Perhaps I might also say at this moment that
there would be no objection, from the prosecution's point of
view, to interrogatories being administered to von Schroder
on the subject matter of the affidavit.
"In view of those provisions" - that is Article 19 of
the Charter - "the Tribunal holds that affidavits can be
presented, and that in the present case it is a proper
course. The question of the probative value of the
affidavit as compared with the witness who has been
cross-examined would, of course, be considered by the
Tribunal, and if at a later stage the Tribunal thinks
the presence of a witness is of extreme importance, the
matter can be reconsidered."
And your Lordship added: "If the defence wish to put
interrogatories to the witness, they will be at liberty to
do so."
"The Deputy of the Reich Chancellor and the
Reichskommissar for the State of Prussia suggested that
the Reich Chancellor, in an interview, should state at
the earliest opportunity that the rumours about the
danger of inflation and the rumours about the danger to
the rights of civil servants are untrue."
Even if this was not meant to suggest to Hitler the giving
of a fraudulent assurance, at the best it emphasises the
indifference with which von Papen later saw the civil
servants betrayed.
"With the draft of the law for the co-ordination of the
States with the Reich, passed today by the Reich
Chancellor, legislative work has begun which will be of
historical significance for the political development of
the German State. The step taken by the Reich Government,
which I headed at the time, is now crowned by this new
interlocking of the Reich. You, Herr Reich Chancellor,
will now, as once Bismarck was, be able to co-ordinate in
all points the policy of the greatest of German States
with that of the Reich. Now that the new law enables you
to appoint a Prussian Prime Minister, I ask you to inform
the Reich President that I return to his hands my post of
Reichskommissar for Prussia."
I would like to read also the letter which Hitler wrote to
Hindenburg in transmitting this resignation. Hitler wrote:
"Vice-Chancellor von Papen has sent a letter to me which
I enclose for your information. Herr von Papen had
already informed me, within the last few days, that he
agreed with Minister Goering to resign on his own
volition, as soon as the unified conduct of the
governmental affairs in the Reich and in Prussia were
assured by the new law on the co-ordination of policy in
the Reich and the States.