[Page 333]

SIR DAVID MAXWELL FYFE: My Lord, concerning the position with regard to this affidavit, Major Barrington tells me that he did not have it when he presented the individual case against von Papen. I am using it now. If the Tribunal thinks there is sufficient divergence between what the witness states and the affidavit to justify it, I have not the slightest objection to Dr. Kubuschok making application for Meissner to be cross-examined.

THE PRESIDENT: What do you say about the allegation of Dr. Kubuschok that the prosecution said they were not going to use the affidavit?

[Page 334]

THE PRESIDENT: What is the date of it?

SIR DAVID MAXWELL FYFE: The 28th of November. We gave a copy to Dr. Kubuschok.

DR. KUBUSCHOK: Yes.

Mr. President, may I explain? The British prosecution did not make a binding statement that they would not submit the affidavit and not call the witness. I always said that if an affidavit were to be used, I would call the witness. I asked the prosecution repeatedly, "Are you going to call the witness or not?" They said, "No." "Then," I said, "I am not interested in it. We will drop this whole subject, and I will not call the witness."

THE PRESIDENT: The affidavit seems to have been made a long time ago.

SIR DAVID MAXWELL FYFE: Yes, my Lord.

THE PRESIDENT: Actually, it was almost as soon as the Tribunal began. I think that perhaps you ought to use the facts and not use the affidavit.

SIR DAVID MAXWELL FYFE: My Lord, I am perfectly prepared to do whatever the Tribunal wants. If with regard to any question Dr. Kubuschok wants Meissner for cross-examination, as far as I am concerned, he can have him. I mean, I am in a slightly different position from that with respect to von Schroder. As far as fairness is concerned, I want your Lordship to understand that certainly none of my staff thought for a moment that the defence understood we were not going to use it, because we always intended to use it. We gave a copy of this affidavit to the defence so that there would be ample notice of this affidavit.

DR. KUBUSCHOK: Yes, that was done, and I gratefully acknowledged it.

SIR DAVID MAXWELL FYFE: My Lord, I am really anxious not to occupy too much of the Tribunal's time. I would rather go on and put the facts in and save any discussion about it.

THE PRESIDENT; Very well, do that.

BY SIR DAVID MAXWELL FYFE:

Q. I think you said, defendant, you had two meetings with President von Hindenburg and then, I think, after 18th January you had meetings with Hitler, and after 22nd January, you had meetings with the defendant Goering, as he said in his evidence, is that not so?

[Franz von Papen] A. No, I did not meet Hitler from 4th January until 22nd January.

Q. We will call it about four days, as according to the records of the Nazi Party you began negotiations on the 18th, but we will not quarrel about a day or two. The crucial meeting was the meeting which was arranged with Oskar von Hindenburg at the defendant von Ribbentrop's house, was it not?

A. It was a preliminary talk; it was at any rate the first contact with the National Socialists, with Hitler, and with Goering.

Q. And Oskar von Hindenburg had private conversations with Hitler which lasted for about an hour, at that meeting in von Ribbentrop's house; is that not so?

A. That is possible. I do not recall it any more.

Q. And thereafter, it was decided that Hitler would be Chancellor in the new government and that he would bring into the government the defendant Frick as Minister of the Interior and the defendant Goering as Minister without portfolio?

A. No; on the 22nd, we did not reach any agreement as to this; rather we limited ourselves to -

Q. I said thereafter that had been agreed between you, had it not?

[Page 335]

Q. Now, are you telling the Tribunal that what you did at this time was to bring Hitler into power simply because he was head of the biggest party in the Reichstag; or because you thought he was the most suitable man to be Chancellor of Germany at that date; which was your motive?

A. My motive, Mr. Prosecutor, was very simple. In the situation existing after 23rd January, there were only two possibilities, either to violate the Constitution, which would result in civil war, or to form a government headed by Hitler. I believe I explained that in great detail to the Tribunal.

Q. You had been Chancellor of Germany yourself; you had had contacts with Hitler. What I really want to know, defendant, is did you think that Hitler, taking into consideration his aims, intentions and personality, was a good man for Germany to have as Chancellor? It is a perfectly simple question. I want a straight answer. Did you think it was a good thing to have Hitler, as you knew him then, as Chancellor of Germany?

A. To that I can say only that the coalition which I formed on behalf of the Reich President was a forced solution. There was no question as to whether it was good or bad. We had to accept it.

Q. Well now, just let us see. I think you said that you were not certain that Hitler would eliminate opposition after he came into power. How long did it take you, after Hitler had become Chancellor, to find out that his desire was to eliminate all opposition?

A. I realised that finally when I made the last attempt in my Marburg speech to make him adhere to the joint programme, and when this attempt failed

Q. That was eighteen months later, on 17th June, 1934. Are you telling the Tribunal that it took you seventeen months to realize that Hitler wanted to eliminate the opposition?

A. No, I told the Tribunal -

Q. Just let me remind you of one or two things. Do you remember Herr Ernst Heilmann who had been the leader of the social democrats in the Prussian Diet?

A. Yes.

Q. He was, I think, for ten years a member of the Prussian Diet with you. He went into a concentration camp at once and was treated with the most terrible cruelty, was he not?

A. I learned of that later, here, for the first time. I did not know it at that time.

Q. Are you telling the Tribunal that you did not know in 1933 that Ernst Heilmann went into a concentration camp?

A. I only knew that a number of political opponents, communists and socialists, had been sent to concentration camps by the Gestapo. That I knew.

Q. Now, answer my question. Here was the leader of the social democrats in the Prussian Diet, a man who sat in parliament with you for ten years. Do you say that you did not know that he had been sent to a concentration camp?

A. I do not recall, no. I believe I learned of it only here.

Q. Well, now, let me give you a famous name, Karl von Ossietzky, the winner of the Nobel Peace Prize, the author and journalist. Did you not know that he had gone into a concentration camp?

A. I remember Herr Ossietzky only as the publisher of a periodical; otherwise I know nothing about him.

Q. You did not know that he was the 1936 winner of the Nobel Peace Prize, did you?

A. I could not possibly have known that in 1933.

[Page 336]

A. No.

Q. I thought I might have connected his name with you. Let me take somebody else. Take Dr. Ernst Eckstein who had been a Reichstag Deputy, who was a well-known lawyer from Breslau. Did you not know that he was put in a concentration camp?

A. No, I did not know Dr. Eckstein, unfortunately.

Q. Or Dr. Joachim, the social democrat lawyer from Berlin. Did you know he was put in a concentration camp?

A. No, nor did I know him.

Q. Well now, apart from individuals, did you not know that within a few months of Hitler becoming Chancellor, hundreds, if not thousands, of social democrats and communists were sent to concentration camps?

A. Thousands?

Q. Well, let us say hundreds, if you like. That is the figure defendant Goering agreed to, so let us take, as the inside figure, hundreds of social democrats and communists. Minister Severing put it at fifteen hundred of each; did you not know that?

A. I recall very exactly that the defendant Goering came to the cabinet one day after he had had the headquarters of the Communist Party, the Liebknecht house, taken over by the police. He told the cabinet that he had found a great number of documents which showed to what extent the communists and other elements were trying to disturb public order and overthrow the new government.

Q. Now, will you answer my questions? Did you not know that hundreds of social democrats and communists had been put in concentration camps?

A. No, I did not know there were hundreds. I knew that individual leaders had been thrown into concentration camps.

Q. Now, you mentioned, in giving your evidence to the Tribunal, that the Amnesty Decree of 21st March was only the sort of thing that had happened before. It was definitely a one-sided amnesty, was it not? It was an amnesty to those who had fought in the national revolution, that is, an amnesty for nazis. It was not an amnesty for communists or social democrats or anyone who had been on the other side, was it?

A. Quite true, yes. It was not an amnesty for the people who had worked against the formation of the government.

Q. Now, you knew these things. Well, in your speech at Essen, let us just look at it again, your own account of what you had done. It is Page 54 of Document Book II. You just told me that it was true what you said in that speech - this was in November - that you had tried to support with all your strength the work of the National Socialist Party and its leader and, if you will notice, you say later on that you were "selected by a gracious fate to put the hand of our Chancellor and Fuehrer into the hand of our beloved Field Marshal." By November 1933 you must have had a very good idea about the way that Hitler, your Chancellor and Fuehrer, was dealing with those who were politically opposed to him. Why were you - you told us your point of view - why were you saying how proud you were to have supported with all your strength the work of the National Socialist Party unless you agreed with it?

A. Hitler's and the Party's acts in violation of the coalition policy we opposed to the best of our power within the cabinet. Certainly, we knew of these violations. I personally, in many speeches which have not been submitted to the Tribunal, referred to these violations, but, as long as this coalition pact was in existence, I felt bound to strive to get our views accepted, and only for this reason did I therefore assure Hitler of my loyalty so that he, on his part, would be loyal to me and my supporters.

[Page 337]

"Let us in this hour say to the Fuehrer and the new Germany that we believe in him and his work."

A. I will tell you that very precisely. You know that in July of that year I concluded the Concordat and that I received Hitler's assurance that he would make religious peace the basis of his policy. The more conservative elements could be brought to back the government, so much the better it would be for the fulfilment of my programme.

Q. If that is your answer, we will pass to another point. I think you said today, or you said a few moments ago, that you began to realize what sort of team you were running with when you made the Marburg speech on the 17th June. Now, please do not think I am being offensive -

THE PRESIDENT: The Russian translation is coming through on the same line as the French. We will adjourn now.

(A recess was taken.)

DR. VON LUDINGHAUSEN (Counsel for the defendant von Neurath): Mr. President, may I request of the Tribunal that tomorrow and the day after tomorrow my client, Herr von Neurath, be absent from the session so that he may prepare and complete his own defence?

THE PRESIDENT: Certainly.

BY SIR DAVID MAXWELL FYFE:

Q. Defendant, you have told the Tribunal a considerable amount about your Marburg speech. Was one of your associates a gentleman called Jung?

A. Yes, that is quite correct.

Q. And - believe me, I do not mean it in any offensive way - Herr Jung had helped you considerably with the composition of the Marburg speech, had he not?

A. Herr Jung quite frequently drafted notes for speeches of mine, and the same applies to the Marburg speech.

Q. Yes. He was shot after the 30th of June, was he not?

A. Yes.

Q. He was a man for whom you had not only great affection, but for whose political views - I think you would call him a progressive conservative - you had great respect and agreement, is that not so?

A. Perfectly right, yes.

Q. You have told us about Herr von Bose. He was shot. Herr von Tschirschky was arrested by two different lots of people, was he not, after this occasion?

A. Yes.

Q. Was Herr von Savigny arrested?

A. I cannot remember. I do not think so.

Q. Well, in all -it does not matter about the names - there were two members of your staff who were shot, and three were arrested, were they not?

A. One member of my staff was shot, and two were arrested. Herr Jung was not a member of my staff.

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