Chapter XXVIII

, Paragraph 6: “God has ordained it in such a manner that certain activities produce general happiness, preserve society, and even reward the doer. Man has discovered this, and has established it as a practical rule. With that rule are connected certain rewards and punishments either by God Himself (reward and punishment of infinite size and duration in the Beyond) or by mortals (legal penalties, social approval or condemnation, loss of honor); good and evil which are not the natural effect and results of the actions themselves. Then men look to those rules or laws, be they divine or made by the State, and the laws of usage or of private opinion, and measure their actions by them. They judge the moral value of their actions according to whether they conform with the rules or not. Moral good or evil therefore amounts only to conforming or not conforming our action with a law which by the will and power of the legislator determines for us what is good and evil.”[sm type ends]

[sm type begins]Therefore good and evil has been and still is today what the authorities want or do not want. Christianity for centuries has been preaching not only to Germans but to all nations of the world: “Let every man be subject to the authority above him.” And the authorities do not move beyond conscience and morality so long as the expansion of national egotism is not opposed by clear laws and commandments and irrefutable legal convictions.[sm type ends]

[sm type begins]The highest good, _summum bonum_, in international morals of nations has not yet been mandatorily codified. There does not exist any authoritative idea for the community of nations. Instead of discussions on individual ethics and individual criminality, the Prosecution should have submitted its accepted principles and criteria as international common law, which was not done.[sm type ends]

[sm type begins]Therefore, with regard to the standpoint of the prosecuting authorities as to the personal responsibility of acting statesmen, I feel impelled to look upon this as a totally new philosophy and one which is very dangerous in its consequences.[sm type ends]

[sm type begins]Apart from the misdeeds of the individual, which do not satisfy even the minimum of moral conceptions, the ethical conceptions of National Socialism and the actions resulting from them, insofar as they are an expression of National Socialist ethics, cannot be subjected to the judgment of a human forum, since they are an event of world history. And the fate and guilt of the Defendant Rosenberg likewise cannot be judged conclusively within the framework of this Trial. As to the question of deciding the criminal guilt of the defendant, that is the hard task of the High Tribunal; but his potential historical guilt cannot and will not be judged by the Tribunal. Rosenberg, like all persons of historical importance, has acted according to his character and spirit, thereby perhaps becoming guilty in the eyes of history. The more freedom of action a given personality has in his will, the clearer the importance of conditions and the one-sidedness of all human activities becomes, and out of an insignificant guilt there grows, particularly in historical personalities, an enormous power which decides the fate of many, and which remains a gloomy foreboding for whoever lets it loose.[sm type ends]

[sm type begins]Goethe once said: “The doer never has a conscience; no one feels his conscience but the observer.” But this maxim can never mean that a person must not move and act to the best of his knowledge and conscience, and particularly for his country’s sake. And we all know that in reality nobody is capable of attaining the good he is striving for. Just as his knowledge, so will his actions always be incomplete: Any action we accomplish as free beings is an infringement on the operating forces of the universe, which we are never able to assess.[sm type ends]

Rosenberg was caught up in the destiny of his nation in a period of severe foreign political oppression and internal dissension. He struggled for cultural purity, social justice, and national dignity, and rejected vehemently all elements which did not admit these high values or consciously attacked them in an irreverent manner. With respect to foreign policy he stood for an agreement between the four central powers of the European continent, in full realization of the grave consequences of a lost war. He acted in all loyalty and respect toward a personality who appeared to give political shape and increasing power to his ideals. After the political victory at home, Rosenberg proposed that the polemics and other aspects of the period of struggle be subdued. He stood for a chivalrous solution of the existing Jewish problem, for spiritual and cultural instruction of the Party on a high plane and, contrary to the statements of the Prosecution, he opposed any form of religious persecution. He can hardly be reproached for emphasizing a definite religious-philosophical conviction of his own.

The practical application of many of his views was practiced to an increasing degree by authoritative agencies of the Party, although later they were disregarded, especially after the outbreak of the war. Finally, as has been discovered now, they were often turned into the opposite of what Rosenberg fought for.

Until 17 July 1941 Rosenberg was excluded from participation in any national legislation. Considered from the point of view of personal responsibility, all his speeches and writings up to that time come within the scope of unofficial journalistic activity which every politician and writer must admittedly be free to engage in—a freedom which the Tribunal has fundamentally acknowledged with regard to all utterances by the statesmen of other countries during the unofficial period of their career. It seems to be all the more significant that Rosenberg as a private citizen did not call for war or for the commission of any inhuman or violent acts.

As Minister for the East he advocated a generous solution in accordance with the understandable national and cultural aspirations of the eastern European peoples. He fought for this concept as long as there were any prospects for its realization. Ultimately realizing that Hitler refused to be persuaded, he requested his dismissal. The fact that Rosenberg could not prevent many outrages from happening in the East cannot be charged against him in the criminal sense. Neither the Armed Forces nor the Police nor the Allocation of Labor were subject to his authority. Whenever injustices or excesses came to his knowledge, he did everything he could to counteract them.

For almost a whole year, Rosenberg endeavored to keep labor recruiting on a voluntary basis. Later, when several age groups were drafted, he protested against every abuse by executive agencies and always demanded redress. Quite apart from the legitimate requirements of the occupation power, his labor legislation for the Eastern Territories was necessary for the establishment of order and the repression of arbitrary measures as well as of dangerous idleness, increasing sabotage, and the growing number of murders. There was a war on and it was a war area, not a postarmistice period, much less one following final capitulation.

So far as he was informed of things and commanded any influence, Rosenberg fought for his convictions. The fact that adverse powers became stronger than he was cannot be brought up as a charge against him. One cannot punish offenses, and at the same time punish those who revolted against them. In view of the terrible extermination orders which have now been disclosed, it is certainly possible to raise the point whether Rosenberg could not have exerted much stronger opposition. To expect this would, however, suppose an earlier knowledge of things which he only learned about after the collapse. Should he be charged with any carelessness it must not be forgotten that he felt it to be his duty to serve the Reich engaged in the struggle for its existence, and that terrible injuries were also inflicted upon the German nation, injuries which Rosenberg was equally unable to recognize as war necessities.

His official tasks, as for example the duties of the Einsatzstab in the West and East, were carried out by Rosenberg without compromising his personal integrity. The requisitioning of artistic and cultural objects he always carried out provisionally, subject to final decisions by the supreme authority and, as far as was at all possible, with proper identification of the proprietor. Moreover, in the use of unclaimed furniture for the benefit of air-raid victims in Germany, provision was made for the subsequent indemnification of the owners based upon a precise inventory.

In considering his entire personality we see that Rosenberg followed with faith and devotion an ideal of social justice combined with national dignity. He fought for it openly and honorably, went to prison, and risked his life for it. He did not step in only when National Socialism afforded the opportunity to begin a career, but at a time when it was dangerous and asked only for sacrifice. In his speeches after 1933 he took his stand in favor of deeper spiritual formation, a new cultural education, personality values, and respect for every form of honest work. He accepted the gloomy days of that time as unfortunate but inevitable accompanying phenomena of a revolution otherwise acclaimed as having passed without bloodshed, without having in fact learned of the secret details. He fully believed that good forces and ideas would prevail over these other human imperfections. During the war he was at the service of the Reich in accordance with his duty.

For 25 years, throughout the revolution and the events of the war, he maintained his personal integrity and untainted character. He had to witness with deep sorrow that a great idea, in the hands of those possessed with the lust for power, was gradually abused, and in 1944, at Party meetings, he protested against this abuse of power entrusted to its holders. During this Trial he had to his dismay and horror to look upon the evidence of the degeneration of his life’s ideal; but he knows that his aspirations and the aspirations of many millions of other Germans have been honorable and decent. Today he still adheres to his honorable, honest, and humanly irreproachable conduct and, full of sorrow for the wounds inflicted upon all nations and for the downfall of the Reich, he awaits the sentence of a just Tribunal.

[_The Tribunal adjourned until 11 July 1946 at 1000 hours._]

ONE HUNDRED AND SEVENTY-SIXTH DAY Thursday, 11 July 1946

_Morning Session_

THE PRESIDENT: The Tribunal will adjourn this afternoon at four o’clock to sit in closed session.

Dr. Seidl, will you present the case of the Defendant Frank?

DR. ALFRED SEIDL (Counsel for Defendant Frank): Mr. President, My Lords. The Defendant Dr. Hans Frank is accused in the Indictment of having utilized his posts in Party and State, his personal influence, and his relation with the Führer, for the purpose of supporting the seizure of power by the National Socialists and the consolidation of their control over Germany. He is also accused of having approved, led, and taken part in the War Crimes mentioned in Count Three of the Indictment, as well as in the Crimes against Humanity mentioned in Count Four, particularly in the war crimes and crimes against humanity committed in the course of the administration of occupied territories.

As I have already explained in the case of the Defendant Hess, the Indictment fails to adduce any facts in substantiation of these accusations. It is similar in the case of the Defendant Frank; here again the Indictment contains no statement of factual details to substantiate the accusations. Like all the other defendants, the Defendant Frank is accused of having taken part in a common plan which is alleged to have had as its object the planning and waging of wars of aggression and the commission in the course of these wars of crimes which infringe upon the laws and customs of war.

The evidence has shown that the Defendant Frank joined the National Socialist Party in the year 1928. Both before and after the assumption of power by the National Socialists he was concerned almost exclusively with legal questions. The Reich Law Department was under his control as Reichsleiter of the Party until the year 1942. After Adolf Hitler’s appointment as Chancellor, Frank became the Bavarian Minister of Justice. In the same year he was appointed Reich commissioner for the co-ordination of legal institutions. This task consisted in the main of transferring to the Reich Ministry of Justice the functions of the administrative legal departments of the component states of the Reich. That was completed by the year 1934. When the affairs of the Bavarian Ministry of Justice had been transferred to the Reich, the office of the Defendant Frank as Bavarian Minister of Justice came to an end. In December 1934 he was appointed Reich Minister without Portfolio. In addition he became, from 1934 onward, President of the Academy for German Law, which he himself had founded, and President of the International Chamber of Law. Finally, he was the Leader of the National Socialist Lawyers Association.

This list of the various posts held by the Defendant Frank in Party and State would alone be sufficient to show that his work was almost exclusively concerned with legal matters. His tasks were in the main confined to the execution of Point 19 of the Party Program, which demanded a German common law. And in actual fact almost all speeches and publications by the Defendant Frank, both before and after the assumption of power by the National Socialists, dealt with legal questions in the widest sense of the term.

In the course of his examination in the witness box, the Defendant Frank testified that he had done everything he could to bring Adolf Hitler to power and to carry out the ideas and the program of the National Socialist Party. But whatever the defendant undertook in this respect was done openly.

The aims of the National Socialists before they assumed power can be expressed in a few words: Liberation of the German people from the shackles of the Versailles Treaty; elimination of the mass unemployment which had arisen in consequence of that treaty and the unreasonable reparations policy of Germany’s former enemies; counteraction against the symptoms of degeneracy—political, economic, social, and moral—connected with that unemployment; and finally, the restoration of the sovereignty of the Reich in all spheres.

The Prosecution was unable to produce any evidence to show that the revision of the Versailles Treaty was, if necessary, to be carried out by violent means and by war. The political, military, and economic situation in which Germany found herself before the assumption of power—a situation in which it could only be a question of eliminating the terrible consequences of the economic collapse and of enabling seven million unemployed again to play their part in the economic process—could not but make any serious thought of a war of aggression appear futile.

Moreover, the evidence brought forth nothing to show the existence of the common plan as stated in Count One of the Indictment, as far as one understands thereby a definite and concrete plan among a narrow uniform circle of persons. The evidence, in particular the testimony given by the witness Dr. Lammers and the defendant himself in the witness box, has shown on the contrary that Frank did not belong to the circle of Hitler’s closer collaborators. The Prosecution was unable to present to the Tribunal a single document dealing with important political or military decisions with which the Defendant Frank was connected. In particular, the Defendant Frank was not present at any of the conferences with Hitler which the Prosecution considers especially important in proving the alleged common plan, the minutes of which conferences the Prosecution has submitted as Exhibits, Numbers USA-25 to 34.

The only statute which is important in this connection is the Law on the Reintroduction of General Conscription of 16 March 1935. The facts have already been explained, and will be further enlarged upon, which led to the promulgation of that law and why it cannot be looked upon as an infringement of the Versailles Treaty. The Defendant Frank signed that law in his capacity as Reich Minister, as did all the other members of the Reich Government. That law, which had as its object the restoration—at least in the military sphere—of the sovereignty of the German Reich, did no harm to any other nation. Nor did the content of that law, or the circumstances which led to its enactment, admit the conclusion that it was part of a common plan with the object of launching a war of aggression.

The German people had been obliged to realize, during the preceding 17 years, that the voice of a nation without military power, and in particular a nation in Germany’s geographical and military situation, cannot make itself heard in the concert of nations if it has not at its disposal adequate instruments of power. The Government of the Reich faced the consequences of this realization after equality of rights had been promised the German people over and over again for 14 years and that promise had not been kept, and in particular after it had become clear in the years 1933 and 1934 that the Disarmament Conference would not be capable of fulfilling its appointed functions. For the rest, I refer to the proclamation of the Reich Government to the German people, which was issued in connection with the publication of that law.

Further, the work of the Defendant Frank, even after the assumption of power and up to the beginning of the war, was confined almost exclusively to the execution of tasks connected with the leadership of the Academy for German Law and the National Socialist Lawyers Association. The objects of the Academy for German Law are apparent from the law concerning its establishment of 11 July 1933. It was intended to encourage the reform of German legal procedure and, in close and constant co-operation with the appropriate legislative authorities, to put the National Socialist program into practice in the whole sphere of law. The academy was under the supervision of the Reich Minister of Justice and the Reich Minister of the Interior. The function of the academy was to prepare drafts of statutes; legislation itself was exclusively restricted to the Reich ministries for the various departments.

One of the tasks of the academy was to exercise the functions of the legal committees of the former Reichstag. In actual fact the work of the academy was done almost exclusively in its numerous committees, which had been established by the defendant. Acceptance into the academy was not dependent on membership in the Party. Most of the members of the academy were legal scholars and eminent legal practitioners who were not Party members. Moreover, it is well known that the Academy for German Law kept up close relations with similar establishments abroad and that numerous foreign scholars gave lectures in the academy. These facts entirely exclude the assumption that the academy could have played any important part in the common plan alleged by the Prosecution. The same is true of the position of the Defendant Frank as leader of the National Socialist Lawyers Association.

Adolf Hitler’s attitude toward the conception of a State founded on law, insofar as any doubt could still have been entertained about it, has become perfectly clear through the evidence presented at this Trial. Hitler was a revolutionary and a man of violence. He looked on law as an impeding and disturbing factor in the realization of his plans in the realm of power politics. Incidentally, he left no doubt about this attitude of his and discussed the subject of the State founded on law in a number of speeches. He was always very reserved in his dealings with lawyers, and for this reason alone it was impossible from the outset that any close association could have developed between him and the Defendant Frank. The Defendant Frank considered it his life’s work to see the conception of the State founded on law realized in the National Socialist Reich and, above all, to safeguard the independence of the judiciary.

The Defendant Frank proclaimed these principles as late as 1939, before the outbreak of war, in a great speech he made before 25,000 lawyers at the final meeting of the Congress of German Law at Leipzig. Among other things he declared on that occasion:

“First, no one should be sentenced who has not had an opportunity of defending himself.

“Second, no one shall be deprived of his property, provided that he uses it unobjectionably from the point of view of the community, except by judicial sentence. Legal properties in this sense include honor, freedom, life, and earnings.

“Third, an accused person, no matter under what procedure, must be enabled to procure someone to defend him who is capable of making legal statements on his behalf; and he must have an impartial hearing according to law. If these principles are applied to their full extent, then the Germanic ideal of law will be fulfilled.”

These principles constitute a definite repudiation of all methods employed in a police-ruled State and imply, moreover, the definite rejection of the system of concentration camps. The Defendant Frank had actually spoken against the establishment of concentration camps before the date indicated. The evidence has shown that in the year 1933, in his capacity as Bavarian Minister of Justice, he was opposed to the concentration camp at Dachau, that he urged the application of the so-called legality principle, that is, the prosecution of all offenses by the State, even in these camps, and that, over and above this, he demanded the dissolution of the concentration camp at Dachau. That this last point is a fact is shown by the evidence given by the witness Dr. Stepp, who was questioned elsewhere.

The Prosecution also appears to see in the sentence, “Right is what benefits the people,” an indication of the participation of the Defendant Frank in the alleged common plan. Such a conclusion could only be drawn in complete misapprehension of the idea which the Defendant Frank wished to express by means of this sentence. This was merely a challenge to the exaggeratedly individualistic legal idea. In the same way as by the phrase, “The common good before one’s own,” the sentence quoted is intended to express the demand for a legal system which, to a greater extent than in previous years, should take account of common law and socialist tendencies. It is in reality nothing more than a different way of saying: _Salus publica suprema lex_.

These material differences alone would have been sufficient to make it unthinkable that the Defendant Frank could have belonged to the inner circle of Hitler’s collaborators. The differences of outlook in regard to the functions of law were bound to become more pronounced in the course of the war. It could therefore cause no surprise that after the death of the former Reich Minister of Justice, Dr. Gürtner, it was not the Defendant Frank who was appointed his successor, but the President of the Peoples’ Court, Dr. Thierack.

Summing up, it may be said that there is no factual foundation for the assumption that the Defendant Frank participated in a common plan, a common plan which had as its object the waging of an aggressive war and in connection therewith the commission of crimes against the rules of war. Before I turn to the points of accusation brought against the Defendant Frank within the framework of his career as Governor General, I will refer shortly to his responsibility under penal law as a member of the organizations accused of criminality.

So far as Frank’s responsibility as member of the Reich Government is under investigation, I can here in the main refer to the statements which I shall later make in the case of the Defendant Hess. The only difference lies in the fact that whereas Hess, too, was only Reich Minister without Portfolio, he had—as the Führer’s Deputy under the Führer’s decree of 27 July 1934—a considerable influence on the preparation of laws. That, however, was not the case with the Defendant Frank. Frank had hardly any influence at all on the legislation of the Reich. That is why he was cosignatory of so extraordinarily few Reich laws. With the exception of the law of 16 March 1935, by which general conscription was reintroduced, his name is to be found under none of the laws which the Prosecution has presented to the Tribunal as relevant to the proof of the criminal nature of the Reich Government as an organization.

The Defendant Frank, in his capacity as Reichsleiter and Leader of the Reich Law Department, was also a member of the Leadership Corps of the National Socialist German Workers’ Party. An investigation of this point of accusation seems all the less called for since in this respect no act can be attributed to the Defendant Frank which fulfills the requirements of any penal law. For the rest, here too I can refer to my statements in the case of the Defendant Hess.

In Appendix A to the Indictment it is alleged that the Defendant Frank was a general of the SS. The evidence has shown that Frank at no time belonged to the SS and that he did not even have the honorary rank of a general of the SS. On the other hand, he was an Obergruppenführer in the SA. With respect to the application made by the Prosecution to declare that organization as criminal, too, the same may be said as in the case of the application to declare the Leadership Corps criminal. The Charter and the Prosecution here again depart from the principle which hitherto has been considered an indispensable component of any modern criminal law practice, namely, that no punishment is admissible unless guilt has been established in every individual case.

I now pass to the points of accusation in connection with the career of the Defendant Frank as Governor General. When the Polish Government had left the country after Poland’s military collapse, the German occupying forces were faced with the task of building up an administration without the help of any parliamentary, representation or any representatives of the former Polish State. The difficulties arising out of this situation were bound to be all the greater because, in spite of the comparatively short time that the war had lasted, the war damage, especially to the communications system, was not inconsiderable. Above all, however, the establishment of an orderly administration was rendered more difficult by the fact that the homogeneous economic area of the former Polish State was divided into three parts. Of the 388,000 square kilometers which made up the territory of the former Polish State, about 200,000 were taken over by the Soviet Union and 97,000 formed the Government General, while the rest was incorporated in the German Reich. A change came on 1 August 1941. On that date Galicia was annexed to the Government General as a new district, whereby the territory of the Government General was increased to an area of approximately 150,000 square kilometers with about 18 million inhabitants. This frontier delimitation made it all the more difficult for the administration, as the agricultural excess production all went to the Soviet Union, while on the other, hand important industrial cities such as Lodz, and above all the coal fields of Dombrowa, fell to the Reich.

Directly after the military collapse of Poland, a military government was set up to cover the four military districts of East Prussia, Posen, Lodz, and Kraków, Commander Von Rundstedt being placed at the head of that government. The Defendant Frank became Supreme Chief of Administration (Oberverwaltungschef). The military government ended on 26 October 1939 with the coming into force of the decree of the Führer and Reich Chancellor concerning the administration of the occupied Polish territories under the date of 12 October 1939. Under this decree the Defendant Frank was appointed Governor General for the occupied Polish territories which were not incorporated in the Reich and which shortly afterward became known as the Government General.

As the time at my disposal is short, I will not go into detail on the question as to whether the administration of the territories of the former Polish State, jointly designated as the Government General, should have conformed to the principle of _occupatio bellica_ (occupation of enemy territory), or whether it should not rather be assumed that the principles of debellatio (complete subjection and incorporation in a foreign state) were applicable in that case.

I come now to the question of the powers vested in the Defendant Frank by virtue of his office of Governor General. According to Article 3 of the Führer’s decree of 12 October 1939 the Governor General was directly subordinate to the Führer. The same provision placed all branches of the administration in the hands of the Governor General. In actual fact, however, the Governor General had by no means such wide powers as it would seem at first sight. The Führer’s decree itself provided in Article 5 that the Ministerial Council for the Defense of the Reich could also make laws for the territory of the Government General.

The Delegate for the Four Year Plan had the same power. Article 6 provided that, moreover, all supreme Reich authorities could issue decrees necessary for planning within the German living space and economic area and that these would be effective also for the Government General.

Apart from this limitation of the authority of the Governor General as provided in the Führer decree of 12 October 1939, other powers were conferred at a later date which no less impaired the principle of uniform administration. That is particularly true of the position of the Plenipotentiary General for the Allocation of Labor. I refer at this point to the appropriate documents presented by the Prosecution and the Defense, in particular to the Führer’s decree of 21 March 1942, in which it is expressly provided that the powers of the Plenipotentiary General for the Allocation of Labor extend to the territory of the Government General. The whole armament industry in the Government General was at first in the hands of the OKW, but after the establishment of the Reich Ministry for Armaments and War Production it came under the jurisdiction of the latter.

The evidence has shown that in other directions, too, the principle of uniform administration was extensively infringed upon. For this I refer to the statements of the witnesses Dr. Lammers and Dr. Bühler and to the content of the documents submitted by me, especially Document USA-135. This deals with the directives in “special matters concerning instructions Number 21 (Case Barbarossa),” in which it is expressly provided that the commander-in-chief of the Army shall be entitled “to order such measures in the Government General as are necessary for the execution of his military duties and for safeguarding the troops” and in which the commander-in-chief is empowered to delegate his authority to the army groups and armies.

All these infringements of the principle of a uniform administration of all special powers, however, pale beside the special position allotted to the Reichsführer SS Himmler also in respect of the territory of the Government General. The evidence, and particularly the testimony of Dr. Bilfinger, Oberregierungsrat in the RSHA, shows that as early as in 1939 when the defendant was appointed Governor General, a secret decree was issued in which it was provided that the Higher SS and Police Leader, East was to receive his instructions direct from the Reichsführer SS and Chief of the German Police, Himmler. Similarly, it is provided in the decree of the Führer and Reich Chancellor for the Preservation of German Nationality that the Reichsführer SS shall be directly empowered to effect the planning of new German settlement areas by means of resettlements. These two decrees conferred on the Reichsführer SS Himmler powers which, from the very first day of the existence of the Government General, tended to confront its administration with almost insurmountable difficulties. It was very soon evident that the general administration under the Governor General had at its disposal no executive organs, in the true meaning of the term. Since the Higher SS and Police Leader, East received his instructions and orders direct from Reichsführer SS Himmler and refused to carry out instructions emanating from the Governor General, it was very soon seen that in reality there were two separate authorities ruling over the Government General. The difficulties which thus arose were bound to become all the greater, as Higher SS and Police Leader Krüger, who for no less than 4 years was Himmler’s direct representative in the Government General, did not even inform the administration of the Government General before carrying out police measures.

It is a well-known experience in the life of any state that an administration lacking executive police organs is in the long run not capable of carrying out its appointed functions. This is true even under normal conditions, but it must be all the more pronounced in the administration of occupied territory. If we remember, moreover, that not only did the Reichsführer SS Himmler issue his instructions direct to the Higher SS and Police Leader, ignoring the Governor General, but that over and above this the Offices III, IV, V, and VI of the RSHA also gave direct orders to the Commander of the Security Police and the SD in Kraków, we can well assess the difficulties with which the civil administration of the Government General had to wrestle day by day.

Under these circumstances the Governor General had no choice but to make every attempt to reach some form of co-operation with the Security Police, unless he was prepared to relinquish any hope of building up a civil administration in the Government General. And in fact the history of the administration of the Government General—which lasted for over 5 years—is for the greater part nothing but a chronicle of uninterrupted struggles between the Governor General and the administration on the one hand, and the Security Police with the SD as represented by Reichsführer SS Himmler and the Higher SS and Police Leader, East, on the other.

The same applies to the activity of Himmler and his organs in the field of resettlement. As Reich Commissioner for the Preservation of German Nationality, Himmler and his organs carried out resettlement measures without even establishing previous contact with the administration of the Government General or informing the Governor General.

The numerous protests of the Governor General, addressed to Dr. Lammers, the Reich Minister and Chief of the Reich Chancellery, with regard to the measures taken by the Reichsführer and the Higher SS and Police Leader, East, and the difficulties they put in the way of the administration of that territory, have been established by the evidence. These protests led in the year 1942 to an attempt at redirecting the relationship between the administration and the Police. In retrospect, it can be said today as a result of the evidence that even this attempt was only utilized by Himmler and the Security Police to undermine internally and externally the position of the Governor General and his civil administration.

By a decree of the Führer dated 7 May 1942 a State Secretariat for Security was established in the Government General, and the Higher SS and Police Leader was appointed State Secretary. According to Article II of this decree, the State Secretary for Security also became the representative of the Reichsführer SS in his capacity as Reich Commissioner for the Preservation of German Nationality. The decisive provision of this decree is contained in Article IV, in which it is stated verbatim:

“The Reichsführer SS and Chief of the German Police can issue direct instructions to the State Secretary for Security in matters pertaining to security and the preservation of German nationality.”

Herewith, the contents of the secret decree issued in 1939 on the establishment of the Government General—which also provided that the Higher SS and Police Leader, East was to receive his instructions direct from the Berlin central offices and particularly from the Reichsführer SS in person—was expressly, and now publicly, confirmed. It is true that Article V of the Führer decree of 7 May 1942 provided that in cases of difference of opinion between the Governor General and the Reichsführer SS and Chief of the German Police the Führer’s decision was to be obtained through the Reich Minister and Chief of the Chancellery.

The Chief of the Reich Chancellery, Lammers, was interrogated on this subject when he appeared as a witness before this Tribunal. He testified that insofar as he found it possible at all to gain the Führer’s ear in these matters, the latter on principle invariably approved Himmler’s view. This is not surprising if we remember Himmler’s position in the German governmental system, particularly during the later war years. This deprived the Defendant Frank of the last possibility of influencing in any way the measures taken by Himmler and the Higher SS and Police Leader, East.

In consequence of Article I, Paragraph 3, of the Führer decree of 7 May 1942 the scope of duties of the State Secretary for Security had to be newly defined. Both the Higher SS and Police Leader and, backing him, the Reichsführer SS attempted to bring as wide a field as possible under their jurisdiction in connection with the new regulation of the competence of the State Secretariat; on the other hand, the Governor General, in the interest of the maintenance of some sort of order in the administration, naturally tried to obtain control of at least certain departments of the Regular Police and the Administration Police. There is no doubt at all that it was the Police that emerged the victor in these struggles.

On 3 June 1942 the Governor General was obliged—in a decree concerning the delegation of duties to the State Secretary for Security—to declare himself willing to transfer to the State Secretary all the departments of the Security Police and the Regular Police. I have submitted this decree to the Tribunal (together with its two Appendices A and B) in the course of the evidence as Exhibit Number Frank-4. The two appendices list all the functions of the Regular and Security Police that have ever existed in the German police system. In Appendix A, which covers the departments of the Regular Police, there are 26 headings in which not only all the departments of the Regular Police are transferred to the State Secretary for Security, but over and above that, almost all the departmental functions of the so-called Administration Police. I will only mention Heading 18 as one example among many. This transfers to the Regular Police, and thereby to the Higher SS and Police Leader, all matters connected with price control. What is true of the Regular Police applies in even greater measure to the departments of the Security Police. No change as compared with the earlier situation was brought about by placing under the jurisdiction of the Higher SS and Police Leader the whole of the Political and Criminal Police, political intelligence, Jewish affairs, and similar departments; these competencies were already his as leader of the Security Police and the SD, and were made entirely independent of the administration of the Government General under the secret decree of 1939. Departments were also transferred to the State Secretary for Security which had only the remotest connection with the tasks of the Security Police, for example, matters such as the regulation of holidays and so on.

Of considerable importance are the two last headings in the Appendices A and B, in which it is expressly provided that at conferences and meetings, particularly with the central Reich authorities, on all matters pertaining to the Regular and Security Police, the Government General—not the Governor—should be represented by the Higher SS and Police Leader. Therewith any competency possessed by the Governor General, even in regard to comparatively unimportant branches of the Administration Police, was transferred to the organs of Reichsführer SS Himmler, and the Government General was thus deprived of even the last remnants of an executive of its own.

Only by considering these facts and the development of the conditions obtaining between administration and police in the Government General is it possible to form an even approximately correct appreciation of the events in the Government General, which form part of the subject of the Indictment in this Trial.

Your Lordships, the Prosecution seeks to prove its accusations against the Defendant Dr. Frank in the main by quotations from the defendant’s diary. In this connection I have the following basic observation to make.

That diary was not kept personally by the Defendant Frank but was compiled by stenographers who were present at Government conferences and other discussions of the Governor General. The diary consists of 42 volumes with no less than 10,000 or 12,000 pages of typescript.

With one exception, the entries do not represent the outcome of dictation by the defendant, but take the form of stenographers’ transcripts. For the greater part—and this is evident from the diary itself—the authors of this diary did not record the various speeches and remarks word for word, but made a summarized version in their own words. The entries in the diary were not checked by the defendant, nor—again with one single exception—were they signed by him. The attendance lists stapled into several volumes of the diary—they are only contained in such volumes as relate to Government conferences—cannot be looked upon as a substitute for a confirmatory note.

Moreover, the evidence has clearly established that very many entries in the diary were not made on the basis of personal observations but came about through the fact that the author was told by participants about the subjects of Government meetings or other conferences after they had taken place, and then expressed it in the diary in his own words. Moreover, by an examination of the diary it can easily be ascertained that the entries cannot be considered complete.

All these facts bring us to the conclusion that the material evidential value of this diary must not be overestimated. The evidential value of this diary can in no way be compared with the evidential value of entries made personally by the person concerned.

Above all, however, it seems to me essential to point out the following: The contents of any document are of material evidential value only insofar as the document is appreciated in its entirety. The diary of the Defendant Frank with its 10,000 or 12,000 pages is one uniform document. It is improper to put in as evidence certain individual entries without showing the context in which alone some of them can be understood. But it is particularly improper—and this infringes upon the principles of any presentation of evidence—to select from some uniform whole, such as a long speech, a few sentences and put them in as evidence. In Document Book Number 2, I have listed a few examples of this and hereby refer to them.

As the Defendant Frank himself rightly pointed out in the witness box, the diary is a uniform whole; only in its entirety can it be probative and form part of the presentation of evidence. I have read through that diary of more than 10,000 pages and can only confirm his opinion. And that was why I did not use individual entries in presenting my evidence but put in the whole diary.

If I myself, in presenting evidence, have read certain single entries from the diary and if in the course of my present address I shall quote a few more passages from it, then, just as in the case of the extracts put forward by the Prosecution, their evidential value can certainly be gauged only within the framework of the whole diary.

The following may also be looked upon as having been established by the evidence: As the diaries show, and as is evident in particular from the testimony given by the witnesses Bühler, Böpple, and Meidinger, the Defendant Frank in his capacity as Governor General often made two or three improvised speeches in the course of one day. The extracts from the diary presented by the Prosecution consist, for the most part, of single sentences from such speeches. If we take into consideration both the temperament of the defendant and his habit of expressing himself in an incisive manner, then that is another reason which tends to reduce the probative value of these extracts from the diary. And we actually do find many diary entries which flatly contradict other entries on the same subject occurring a little earlier or later.

In connection with the many speeches made by the Defendant Frank, the following must not be left out of consideration and may also be looked upon as established by the evidence: It was a foregone conclusion that the Defendant Frank, as an avowed champion of the idea of a State founded on law and of the independence of the judiciary, would come into increasingly sharp conflict with the representatives of the police-state system; this developed to an even greater degree in the course of the war, both within the Reich and in occupied territory. The representatives of the police state, however, were Reichsführer SS Himmler and, for the area of the Government General, the Higher SS and Police Leader, East, above all and in particular SS Obergruppenführer and General of Police Krüger. The relation between the Defendant Frank on the one hand, and Reichsführer SS Himmler and his representative, Obergruppenführer Krüger, on the other, had been extremely bad even at the time the Government General was established. They deteriorated still more as the divergence of outlook concerning the tasks of the Police came ever more openly to the fore; and the Defendant Frank was forced to lodge increasingly strong protests with the Chief of the Reich Chancellery, Dr. Lammers, and the Führer himself regarding the violent measures taken by the Security Police and the SD.

As I have already mentioned, the Governor General, lacking an executive of his own, had no choice but to make repeated attempts to co-ordinate the work of the general administration with that of the Police, in order to be in a position to carry out any administrative work at all. Obviously these objectives demanded—at least on the face of things in a certain degree—a conciliatory tendency toward the general attitude of the Security Police and, above all, of the Higher SS and Police Leader, East. Moreover, the evidence has further established that the tension existing between the Governor General and the Higher SS and Police Leader often reached such a degree that the Defendant Frank could not but feel himself menaced and—to quote the words of the witness Bühler—was no longer a free agent and master of his own decisions.

The testimony of the witnesses Bach-Zelewsky and Dr. Albrecht leaves no doubt on this point. Quite rightly, therefore, the witness Dr. Bühler also pointed out that the Defendant Frank expressed himself with particular vehemence when the Higher SS and Police Leader or the commander of the Security Police and the SD were present at conferences, while his utterances were made on quite a different note when he was speaking to an audience composed only of members of the administration. Even a cursory inspection of the diary will confirm this. All these circumstances must be taken into consideration in assessing the substantive evidential value of the Defendant Frank’s diary.

It should also be noted that these diaries constituted the only personal property that Frank was able to rescue from the castle at Kraków. On his arrest he handed over all the diaries to the officers who took him into custody. It would have been an easy matter for him to destroy these documents.

Your Lordships, I now turn to the individual accusations brought against the defendant, and their legal aspects. The Defendant Frank is accused of having approved of, and participated in, War Crimes and Crimes against Humanity in the administration of occupied territory.

As the law stands, it rests on the principle that only a sovereign state, not an individual, can be a subject of international law. To make international law binding on an individual, such law itself would have to lay down that a certain set of facts constitutes a wrong and that the rule thereby established is applicable to an individual creating such a set of facts. Only in that way can individuals, who under the law as it stands are subject only to the criminal law applying in each state, by way of exception be directly bound by international law.

Deviating from this rule, existing international law permits, in exceptional cases, a state to punish the national of an enemy state who has fallen into its power, if before his capture he has been guilty of infringing the rules of war. But even here punishment is excluded if the deed was not committed on the person’s own initiative, but can only be attributed to his state of allegiance. Moreover, the conception of war crimes and their factual characteristics are the subject of great controversy both in judicial decisions and in legal literature.

Nor do the Hague Rules on Land Warfare, which form the Appendix to the IVth Convention on the Laws and Customs of War on Land and purport to be a codification of certain subject matter of the laws of war, list any facts which could be interpreted as a basis for the criminal liability of individuals. In Article 3 of this convention it is, on the contrary, expressly provided that not individuals but the state which infringed the rules may, under certain circumstances, be liable to pay an indemnity and is also responsible for all acts done by persons belonging to its armed forces.

In connection with the Hague Rules for Land Warfare of 1907 the following should also be noted: The principles therein enunciated were evolved from the experience of wars in the 19th century. Those wars were confined in the main to the armed forces directly concerned therein.

Now the first World War already overstepped this framework, and not only in respect of the geographical extent of conflict. On the contrary, the war became a struggle for extermination of the nations involved, a struggle in which each belligerent party utilized the whole of its war potential and all its material and imponderable resources. War technique having meanwhile been considerably perfected, the second World War was bound altogether to destroy the framework set up for the conduct of war by the Hague Rules for Land Warfare. That can be seen at a glance—the condition of Europe today reveals it. If we remember in addition that in Germany alone the greater part of almost every city has been destroyed as a result of bombing raids; and not only that, but that considerably more than a million civilians thereby lost their lives and that in a single major raid on the city of Dresden almost 300,000 people were killed, then it will be possible to realize that the Hague Rules for Land Warfare, at any rate in respect of many activities coming under the rules of war, can no longer be an adequate expression of the laws and customs to be observed in waging war. But if any doubt should exist on this subject, then that doubt will certainly be removed on contemplation of the consequences of the two atom bombs which razed Hiroshima and Nagasaki to the ground and killed hundreds of thousands of people.

Taking these circumstances into consideration, it is not possible to adduce the provisions of the Hague Rules for Land Warfare, even indirectly or by way of analogy, to establish individual criminal liability. Seeing that this is the case, it must be looked upon as impossible to give a clear and general definition of the factual characteristics of so-called war crimes. Referring to the fact that even Article 6 of the Charter of the International Military Tribunal only purports to furnish a list of examples, it will be realized that the question as to whether a certain line of conduct amounts to the commission of a war crime or not can only be answered on the merits of each particular case, and then only if all the circumstances are taken into consideration.

In the course of the presentation of evidence for the personal responsibility of the Defendant Frank, the Prosecution submitted as Exhibit USA-609 (864-PS) minutes of a conference held by the Führer with the Chief of the OKW on the future form of Polish relations to Germany. This conference took place on 17 October 1939. It is alleged that these minutes alone, by which the administrative goals of the Defendant Frank in the Government General are said to be established, reveal a plan or conspiracy at variance with the laws of warfare and humanity. This is an inadmissible conclusion, at least insofar as the Defendant Frank is concerned.

The Prosecution was unable to prove that the Führer entrusted the Defendant Frank with a task in conformity with the administrative aims demanded in that conference. Moreover, this seems very unlikely, because the directives laid down at that conference dealt mainly with measures which could not be carried out by the general administration, but only by the Security Police, the SD, and the other organs and offices under Reichsführer SS Himmler. In this connection special mention should also be made of the powers vested in Reichsführer SS Himmler before the date of that conference in his capacity of Reich Commissioner for the Preservation of German Nationality. Actually, there is at the end of Exhibit USA-609 a reference to a commission with which Himmler was charged. In consideration of the fact that the Defendant Frank, in the course of a short interview with Hitler about the middle of September 1939, had been told to take over the civil administration of occupied Polish territory as Chief of Administration and had not seen Hitler for a very long time after that, it can safely be assumed that the directives laid down at the conference between Hitler and the Chief of the OKW were intended, not for the Defendant Frank, but for Reichsführer SS Himmler, who was the only person to have the necessary executive organs at his disposal.

THE PRESIDENT: We will adjourn now.

[_A recess was taken._]

DR. SEIDL: Mr. President, My Lordships, another document to which the Prosecution has referred and which is also alleged to show the criminality of the administrative aims of the Defendant Frank is Exhibit Number USA-297, which is EC-344(16). The content of this document is a discussion which the Defendant Frank is said to have had on 3 October 1939 with a certain Captain Varain. The Defendant Frank testified in the witness box that he had never made any such or similar statements to an officer. Moreover, a comparison of the dates shows that this conversation, even if it should have taken place, can have no connection with the subject of the conference between the Führer and the Chief of the OKW, the latter not having been held until 17 October 1939, that is, at a later date.

Not within the framework of the evidence presented in connection with the personal responsibility of the Defendant Frank, but in connection with the accusation of so-called Germanization, a document was submitted with the Exhibit USA-300, 661-PS. This is a memorandum entitled “Legal Aspects of German Policy toward the Poles from the Ethno-Political Point of View.” According to a note on the title page, the legal part of this was to serve as a model for the Committee of the Academy for German Law which dealt with legal nationality questions. This document can have no probative value in connection with the personal responsibility of the Defendant Frank. He testified in the witness box that he had given no instructions for the writing of that memorandum and that he was not aware of its contents. Over and above this, it would seem that no substantive evidential value can be attached to that document within the scope of this whole Trial. Nor is it evident, from the memorandum, who wrote it or who gave instructions that it should be written. Its whole form and content would seem to show that it is not an official document, but rather the work of a private individual. It was stated to have been found at the Ministry of Justice in Kassel. But in actual fact there has been no Ministry of Justice at Kassel for many decades. All these circumstances would seem to indicate that the material probative value of this document is, to say the least, extremely small.

But whatever the evidential value of minutes of conferences that took place in the year 1939 on the occasion of the establishment of the Government General, the following should be pointed out:

In judging the conduct of the Defendant Frank it is not of such essential importance to know what Hitler, he himself, or other persons said on one occasion or another, but what policy the Defendant Frank actually pursued toward the Polish and Ukrainian peoples. And here there can be no possible doubt—on the basis both of the general result of the evidence and, in particular, of entries in the diary of the defendant himself—that he repudiated all tendencies and measures designed to effect Germanization. That is shown with great clarity by the extracts from the diary which I have submitted to the Tribunal. Thus on 8 March 1940 he declared at a meeting of department chiefs, that is, to an audience of men who as leaders of the various main departments were deputed to put his directives into practice:

“I have been charged by the Führer to look upon the Government General as the home of the Polish people. Accordingly no Germanization of any sort or kind is possible. In your departments you will please see that the two-language principle is strictly observed; you will also point out to district and provincial officers that no violence is to be used in opposing such safeguarding of Polish national existence. We have in a certain sense herewith taken over on trust from the Führer the responsibility for Polish national life.”

This declaration alone makes it apparent that the directives laid down in the conference between Hitler and the Chief of the OKW on 17 October 1939, as contained in Exhibit USA-609, 864-PS, cannot possibly have been made the subject of the duties with which the Defendant Frank was charged. On the other hand, in view of the entire activities of the Higher SS and Police Leader, East from the first day of his appointment, it can safely be assumed that it was Reichsführer SS Himmler whom Hitler charged with carrying out the directives laid down at his conference with the Chief of the OKW.

A diary entry of 19 February 1940 is on the same lines; in this the Defendant Frank advocates the formation of a Polish government or regency council.

On 25 February 1940, at a service conference of officials of the District of Radom, the Defendant Frank gave out, in program form, his directives regarding general administration. On this occasion the Defendant Frank said among other things:

“1. The Government General comprises that part of the occupied Polish area which is not a component part of the German Reich ...

“2. The Führer has decreed that this territory shall be the home of the Polish people. The Führer and Field Marshal Göring have impressed on me over and over again that this territory is not to be subjected to Germanization.

“3. In accordance with the instructions we have received under the Führer’s decree Polish laws will remain in force here.”

On 7 June 1942 the Defendant Frank stated word for word as follows:

“It is not as rulers by violence that we come and go in this country. We have no terroristic or oppressive intentions. Welded into the interests of Greater Germany, the living rights of the Poles and Ukrainians in this territory are also safeguarded by us. We have not taken away from the Poles and Ukrainians either their churches, their schools, or their education. We Germans do not wish to denationalize by violent means. We are sufficient unto ourselves, and we know that people must be born into our community and that it is a distinction to belong to it. And that is why we can look the world in the face in this our task.”

These examples could be amplified by many more, which all show clearly that the measures taken, at any rate by Frank, were intended to care for the Polish nation and that he repudiated any terror policy.

I now come to the so-called “peace-enforcing action.” When the campaign against Poland had ended in September 1939 that did not mean that all resistance had ceased. Very soon afterward new centers of resistance sprang up; and when on 9 April 1940 German troops occupied Denmark and Norway and on 10 May 1940 the German western army had begun their attack, the leaders of the Polish resistance movement believed that, in consideration of the general political and military situation, the time for action had come. This resistance movement was all the more dangerous because dispersed but not inconsiderable remnants of the former Polish Army were active in it. A large number of entries in the diary of the Defendant Frank show that the security situation deteriorated from day to day during that period. Here for instance is an entry for 16 May 1940:

“The general war situation requires that the most serious consideration be given to the internal security situation of the Government General. A large number of signs and actions lead to the conclusion that there exists a widely organized wave of resistance on the part of the Poles in the country and that we are on the threshold of violent happenings on a large scale. Thousands of Poles are already organized in secret circles; they are armed and are being incited in the most seditious manner to commit all kinds of violence.”

In consideration of this menacing general situation, the order was given—as the diary shows, by the Führer himself—that in the interest of the maintenance of public security all measures were to be taken to suppress the imminent revolt. That order was given through Himmler to the Higher SS and Police Leader. The administration of the Government General at first had nothing to do with it. It intervened, however, in order as far as possible to prevent the Security Police and the SD from taking violent measures and to make sure that innocent people should under no circumstances lose their lives.

The testimony given by the Defendants Frank and Seyss-Inquart in the witness box and the evidence given by the witness Dr. Bühler have shown that the efforts made by the administration of the Government General were so far successful in that all the members of the resistance movement rounded up by this special action were brought before a drumhead court-martial introduced by a decree issued in 1939; and moreover, the decisions of this court were not carried out before being submitted to a Board of Pardon which in many cases modified the sentence. The chairman of this Board of Pardon, until his appointment as Reich Commissioner for the Netherlands, was the Defendant Dr. Seyss-Inquart. As his testimony revealed, no less than half the death sentences pronounced by the summary court were commuted to imprisonment by the Board of Pardon. For the rest, in regard to the so-called peace-enforcing action, I refer to the oral testimony and to the extracts from the diary of the Defendant Frank which I read into the record.

Within the scope of the charges against him personally, the Defendant Frank is accused of having supported the resettlement plans of the Reich Commissioner for the Preservation of German Nationality (Himmler) and of having thereby also committed a war crime. There is no question but that resettlement, even when carefully planned and well prepared, means great hardship for those who are affected by it; in many cases a resettlement means the destruction of a person’s economic existence. Nevertheless, it seems doubtful whether resettlement constitutes a War Crime or a Crime Against Humanity, for the following reasons:

Germany today is being flooded with millions of people who have been driven from their homes and who own no property but what they carry with them. The misery thereby caused, which is bound to increase to an immeasurable degree in consequence of the devastation wrought by the war, is so terrible that the bishops of the Cologne and Paderborn ecclesiastical districts were moved on 29 March 1946 to bring this state of affairs to the attention of the whole world. Among other things they said:

“Some weeks ago we found occasion to comment on the outrageous happenings in the East of Germany, particularly in Silesia and the Sudetenland, where more than 10 million Germans have been driven from their ancestral homes in brutal fashion, no investigation having been made to ascertain whether or not there was any question of personal guilt. No pen can describe the unspeakable misery there imposed in contravention of all consideration of humanity and justice. All these people are being crammed together in what remains of Germany without means for earning a livelihood there. It cannot be foreseen how these masses of people who have been driven from their homes can become other than peace-disturbing elements.”

My Lords, I am not mentioning this in order to point out the enormous dangers connected with such measures, dangers which must arise, if only out of the fact that in view of her planned deprivations of territory, Germany—with an area reduced by 22 percent as compared with 1919—will have to feed a population increased by 18 percent and that in future there will be 200 inhabitants to the square kilometer. I am, further, not pointing to this state of affairs to show that if the present economic policy is continued and the so-called industrial plan is maintained, Germany is heading for a catastrophe the consequences of which cannot be confined to the German people. The evidential relevance of these facts is however shown by the following:

Millions of Germans were driven from their ancestral homes in accordance with a resolution taken at Potsdam on 2 August 1945 by President Truman, Generalissimo Stalin, and Prime Minister Attlee.

GENERAL RUDENKO: ML President, excuse me for interrupting the defendant’s counsel, but it seems to me that his legal considerations and the criticism of the decisions taken at Potsdam have no bearing on the present case.

DR. SEIDL: Mr. President, may I briefly define my attitude on this?

As far as I am concerned, I do not wish to criticize the decisions of the Potsdam Conference. However, I am anxious to find out whether, employing the rules of the Charter, a certain conduct which has been alleged on the part of the Defendant Frank constitutes evidence for War Crimes or Crimes against Humanity. It is only within the framework of investigating that question that I find myself forced to go into the decisions of the so-called Potsdam Conference and bring them up in my argument.

THE PRESIDENT: Dr. Seidl, the Tribunal considers that your references to the Potsdam Declaration are irrelevant, and the objection of General Rudenko is therefore sustained. You are directed to go on to some other part of your argument.

DR. SEIDL: Mr. President, I presume that the Tribunal have the translation of my presentation at hand. I am not quite clear about the question as to whether the final conclusion, which appears on Page 38, is also affected by the decision of the Tribunal which you have just announced.

THE PRESIDENT: It is affected by that, and I think you can pass on to Page 40, where you begin to deal with the subject of the Jews. That is the second paragraph on Page 40.

DR. SEIDL: Very well, Mr. President.

The Defendant Frank is further accused of having approved and carried out a program for the extermination of Jews of Polish nationality, thereby infringing upon the laws of war and humanity.

It is true that in a number of speeches given by the Defendant Frank in his capacity as Governor General, he revealed his point of view on the Jewish question. The extracts from the diary submitted by the Prosecution in connection with this matter comprise practically everything relevant thereto in the Defendant Frank’s diary of 10,000 or 12,000 typed pages. Nevertheless it shall not be denied that the Defendant Frank made no secret of his anti-Semitic views. He spoke in detail on this question when giving his testimony in the witness box.

But the question of the importance to be attached to the diary entries submitted by the Prosecution is quite another matter. Almost all of them consist of statements made by the Defendant Frank in speeches, but there has not even been an attempt by the Prosecution to prove the existence of a causal connection between these statements and the measures carried out against the Jews by the Security Police.

As a result of the evidence, in particular of the testimony given by the witnesses Dr. Bilfinger and Dr. Bühler, it can be looked upon as certain—in connection with the secret decree concerning the jurisdiction of the Security Police and the SD, of the year 1939, and the decree concerning the transfer of certain tasks to the State Secretary for Security—that all the measures concerning Jews in the Government General were carried out exclusively by Reichsführer SS Himmler and his organs. That is true for both the initiation and the organization of ghettos and the so-called final solution of the Jewish question.

In regard to the latter it may be said here, on the basis of the testimony given by the witnesses Wisliceny and Hoess and of the documents presented by the Prosecution, that these measures were undertaken on Hitler’s express orders and that only a small circle of persons was concerned in their execution. This small circle was confined in the main to a few SS leaders of Department IVA, 4b of the RSHA and the personnel of the concentration camps that had been selected for the purpose.

The administration of the Government General had nothing to do with these measures. The above facts also show that the anti-Semitic statements by the Defendant Frank as submitted by the Prosecution have no causal connection with the so-called final solution of the Jewish question. Since a causal link must be established before the question of illegality and guilt can even be considered, it does not seem necessary to dwell further on the matter—all the less because the factual elements of any punishable offenses can only be said to exist if at least an attempt has been made, that is, if the commission of the offense has at least been begun. Under the principles derived from the criminal law of all civilized nations, the statements contained in the diary of the Defendant Frank do not even constitute preparatory acts. In consideration of the tense and sometimes extremely frangible relationship between the Government General, on the one hand, and the Reichsführer SS Himmler and the Higher SS and Police Leader Krüger, on the other, it would also seem to be impossible to look upon the statements of the Defendant Frank as acts of incitement or complicity. The evidence has shown on the contrary that all the efforts of the Defendant Frank to investigate successfully the rumors about the elimination of the Jews, at least within his own administrative district, failed completely. Only to complete the picture need it be mentioned that the Concentration Camp of Auschwitz was not in the Government General, but in that part of Poland which was annexed to Upper Silesia. For the rest it cannot be clearly seen whether the erection and administration of concentration camps is in itself to be looked upon as fulfilling the requirements of a war crime or a crime against humanity, or whether the Prosecution considers the establishment of such camps solely as part of the so-called common plan. Setting aside the crimes committed in the concentration camps and considering the nature of concentration camps to be that in which people are confined for reasons of state and police security on account of their political opinions and without an opportunity of defending themselves in an ordinary court of law, it appears at least doubtful whether an occupying power should not have the right to take such necessary steps as this in order to maintain public order and security. Apart from the fact that it was not National Socialists and not Germans at all who first established such camps, the following must be mentioned:

In the American Occupation Zone alone there were, according to a statement ...

DR. ROBERT M. KEMPNER (Assistant Trial Counsel for the United States): Mr. President, we raise an objection. This matter is completely irrelevant.

THE PRESIDENT: Dr. Seidl, do you wish to say anything in answer to the objection?

DR. SEIDL: Mr. President, I beg you to overrule the objection by the Prosecution, and I should like to say the following: I am not interested in criticizing an occupying power; I am only concerned with the question of whether certain conduct of which the Defendant Frank has been accused by the Prosecution constitutes the evidence of a criminal act.

I base my case on the assumption that what is proper for one occupying power must, under similar circumstances, be allowed for another occupying power, especially when it is a question of accusations made against the defendant concerning actions carried out during the war, while, the state of war with Germany having ceased on 8 May 1945 at the very latest, these urgent reasons now perhaps no longer exist to that extent.

THE PRESIDENT: The Tribunal sustains the objection. There is no evidence of the statements which you have made. And in any event, the Tribunal considers them entirely irrelevant.

DR. SEIDL: I assume, Mr. President, that in that case I may continue with the last paragraph on Page 44.

THE PRESIDENT: I think so, yes, the last paragraph.

DR. SEIDL: It is not necessary to go into this matter in more detail here, because the evidence has shown that it was the Defendant Frank who from the first day of the National Socialists’ assumption of power fought against the police-state system and, above all, decried the concentration camps as an institution which could in no way be made to harmonize with the idea of a state founded on law. In this connection I refer to the testimony given by the witness Dr. Stepp, to the defendant’s own statement, and above all to the extracts from the defendant’s diary which I put in evidence. The evidence has further shown that the establishment and administration of the concentration camps lay within the sphere of Reichsführer SS Himmler’s organization. The camps, both in Reich territories and in all areas occupied by German troops, were exclusively under the command of the SS-WVHA or the Inspector General of the Concentration Camps. Neither the Governor General nor the general administration of the Government General had anything to do with these camps.

A further point of accusation against Frank is the charge that he supported violence and economic pressure as a means of recruiting workers for deportation to Germany. It is true that during the recent war many Poles came to work in Germany. But in this connection the following should be noted:

Even before the first World War, hundreds of thousands of Poles came to Germany as vagrant workers. This stream of vagrant workers continued to flow also during the period between the first and the second World Wars. In consequence of the unfortunate demarcation line, the Government General became an area that was distinctly overpopulated. The agricultural excess production areas had fallen to the Soviet Union, whereas important industrial areas were incorporated into the Reich. Under these circumstances, and because there were no riches to be found in the soil, the only valuable means of production lay in the working capacity of the population. And this—at any rate for the first few years—could not be utilized to a sufficient extent, because the other production factors were lacking. In order to avoid unemployment, and above all in the interest of maintaining public order and security, the administration of the Government General was bound, if only for reasons of State policy, to try to transfer as many workers as possible to Germany.

There can indeed be no doubt that during the first years of the administration most of the Polish workers went to the Reich voluntarily. When later, in consequence of the continuous bombing raids, not only Germany’s cities but also her factories crumbled to ruins and a not inconsiderable part of Germany’s capacity for the production of war materials had to be removed to the Government General for reasons of security, the aim of the Defendant Frank necessarily was to put a stop to any further transfer of labor. Over and above this, however, the Defendant Frank had from the very beginning opposed all violent measures in recruiting labor and solely for security reasons and in order not to create new centers of unrest had insisted that no compulsory measures were to be used and only propagandistic methods employed. That is established by the testimony of the witnesses Dr. Bühler and Dr. Böpple, and also by a large number of entries in the diary. In my presentation of evidence I have already referred to several of them. Thus, for example, the Defendant Frank said, among other things, on 4 March 1940:

“... I refuse to issue the decree demanded by Berlin establishing compulsory measures and threatening punishment. Measures that, viewed from the outside world, create a sensation must be avoided under all circumstances. There is everything to be said against the removal of people by violence.”

On 14 January 1944 he made a similar statement to the Commander of the Security Police. I quote:

“The Governor General is strongly opposed to the suggestion that police forces should be used in recruiting labor.”

These quotations could be amplified by many more.

I refer further to the evidence presented by me in respect to the treatment of Polish workers in Germany. The Defendant Frank continuously and repeatedly pleaded for better treatment of the Polish workers in the Reich.

For the rest, the legal position in the matter of recruiting foreign labor does not appear to be quite clear. I do not intend to go further into the legal questions pertaining to this matter. The defense counsel for the Defendant Sauckel will go into this matter fully and I just wish to say the following:

In the literature of international law it is undisputed that the conception of vital stress (Notstand) as recognized in criminal law would, in international law, too, preclude illegality in the case of a given violation of law. If the vital interests of a State are endangered, that State may, these interests being preponderant, safeguard them if necessary by injuring the justified interests of a third party. Even those writers who deny the application of the “vital stress” theory to international law—they are in the minority—grant the threatened State the “right to self-preservation” and therewith the right to enforce “necessities of state” even at the cost of the just interests of other States. It is a recognized principle of international law that a State need not wait until the direct threat of extinction is at its very threshold. There can be no doubt that after the entry into the war of the United States, with which for all practical purposes the productive capacity and the military might of almost the whole world were gathered together to overthrow Germany, the German Reich was faced with a situation which not only threatened the State as such with extinction but over and above that placed the bare existence of the people in jeopardy. Under these circumstances the right of the State leadership to make use of labor forces, even those in occupied territory, in this defensive struggle had to be acknowledged.

In addition, the following should not be passed over: The Prosecution alleges that many, if not most of the foreign workers were brought to Germany by force and that they were then obliged to do heavy labor under degrading conditions. However one may look upon the evidence on this question, the fact cannot be ignored that there are hundreds of thousands of foreign workers still living in Germany who were allegedly deported thither by force. They refuse to return to their homes, although no one now attempts to hinder them. Under these circumstances it must be assumed that the force cannot have been as great, nor the treatment in Germany as bad, as is alleged by, the Prosecution.

Another allegation refers to the closing of the schools. It may be left out of account whether international law recognizes any criminal classification which would make the closing of schools appear as a war crime or a crime against humanity. In time of war this would seem to be all the more unlikely as it is well known that schooling in wartime was considerably reduced, not only in Germany, but also in many other belligerent countries. There is all the less reason to investigate this question more thoroughly, as the evidence has shown that the schools were for the most part already closed when the defendant assumed office as Governor General. During his whole period of office he left no means untried to reactivate, not only the elementary and vocational, but also the higher forms of school. In this connection I will only mention the university courses which he initiated.

The Soviet Prosecution has presented as Exhibit Number USSR-335 a decree issued by the defendant to combat attacks against German reconstruction work in the Government General, dated 2 October 1943. There is no question but that this decree setting up a drumhead court-martial is not in conformity with what must be demanded of court procedure under normal circumstances. However, this decree can only be judged correctly if the circumstances which led to its promulgation are taken into consideration.

In general it should first be said that the reconstruction work of the administration of the Government General had to be carried on in a difficult territory and under circumstances which must be among the most difficult that have ever fallen to the lot of any administration. After the collapse of the Polish State, the German administration found, so to speak, a vacuum in which to organize and administer. In all spheres of administration they had to start completely afresh. If, in spite of the difficulties, they succeeded fairly quickly in repairing the war damage, particularly in the communications system, then that is incontestably to their credit.

The year 1940 was, however, to prove the only one in which the work of restoration in the area of the Government General could be carried out under fairly normal conditions. As the year 1941 began, the Germans proceeded to concentrate their troops for action against the Soviet Union and therewith initiated a period of immense strain for the administration of the Government General. The Government General became the greatest repair workshop and the greatest military transit territory that history has ever known. This carried in its train an increasing deterioration of the security situation. The resistance movement began to reorganize on an intensified scale. But the menace inherent in the security situation developed to a still more alarming degree when the German armies were forced to arrest their progress in Russia and when—after the catastrophe of Stalingrad—their march forward was transformed into a general retreat. In the course of the year 1943, the activities of the resistance movement and in particular of the numerous guerrilla bands, in which thousands of lawless elements were grouped, reached extremes that represented a danger to any kind of orderly administration. The administration of the Government General was forced again and again to deal with this matter. Thus on 31 May 1943 a service meeting of the authorities of the Government General was held to deal with the security situation. At that meeting the President of the Chief Department Internal Administration felt obliged to state among other things—I quote from the diary:

“... In their activities the guerrilla bands have revealed an increasingly well-developed system. They have now gone over to the systematic destruction of institutions belonging to the German administration; they steal money, procure typewriters and duplicating machines, destroy quota lists and lists of workers in the communal offices, and take away or burn criminal records and taxation lists. Moreover, raids on important production centers in the country have multiplied, for instance, on sawmills, dairies, and distilleries, as also on bridges, railway installations, and post offices. The organization of the guerrillas has become strongly military in character.”

In the course of the summer and autumn of the year 1943, the increasing activities of the partisans and the improvement in their military organization and equipment so endangered security in the Government General that it might perhaps under the circumstances have been better to turn over its entire administration to the appropriate army commanders and to proclaim a state of emergency. It is indeed not possible to describe conditions then existing in the Government General as anything else but a state of war. It was the period when at any moment the possibility had to be taken into account that a general revolt would break out over the whole country.

All this notwithstanding, the Defendant Frank even then made every effort under all circumstances to thwart any violent measures by the Security Police and the SD. It was in order to exercise at least a modifying influence on the Security Police and the SD and to have at least some guarantee against excesses that the Defendant Frank agreed to the order dated 9 October 1943 setting up a drumhead court-martial.

It is quite obvious from the content of this decree that its main purpose was to serve as a general preventive. It was meant as a deterrent to the guerrillas, and there can be no question but that in this it was temporarily successful. For the rest, the evidence has shown that even while this drumhead court-martial order was in operation, the Boards of Pardon continued to act and that many sentences passed by the drumhead court-martial were reversed by the boards.

In the course of the present Trial repeated mention has been made of the report by SS Brigadeführer Stroop concerning the destruction of the Warsaw Ghetto in the year 1943; Exhibit USA-275 (1061-PS). Both that report and a number of other documents reveal that all the measures in connection with the Warsaw Ghetto were undertaken exclusively on the direct instructions of Reichsführer SS and Chief of the German Police Himmler. I refer in this connection to the affidavit of SS Brigadeführer Stroop of 24 February 1946, submitted by the Prosecution as Exhibit Number USA-804 (3841-PS) and to the affidavit of the same date given by the former adjutant of the SS and Police Leader of Warsaw, Karl Kaleske. That is Exhibit Number USA-803 (3840-PS). These documents show quite clearly that those measures, like all others within the competence of the Security Police and undertaken on direct orders from either Reichsführer SS Himmler, the Higher SS and Police Leader, East, or on instructions from the RSHA, were carried out exclusively by the Security Police and the SD and that the administration of the Government General had nothing to do with them.

The Soviet Prosecution has also put in evidence as Exhibit USSR-93, under Article 21 of the Charter, the Report of the Polish Government. That report makes no distinction between the areas which were incorporated in the Reich and the territories of the former Polish State which were grouped together in the Government General. But particularly in view of the fact that the report makes no substantial statements as to the personal responsibility of the Defendant Frank, it does not seem necessary to delve further into this voluminous document. Like the Indictment itself, the report constitutes an accusation of a general nature; it does not deal in detail with the results of investigations and with evidence which might justify the conclusions drawn in the report. The objections to be raised to the report must appear all the more valid, since, to take only one example, in Appendix (1) of the report directives for cultural policy are appended which obviously purport to represent instructions given by the Governor General or his administration. Actually, however, nothing of the kind is to be found either in the _Official Gazette_ of the Government General or in any other documents. The witness Dr. Bühler stated during his interrogation that the administration of the Government General had never issued such or similar directives. In consideration of this alone, it would seem at most admissible to attach substantive probative value to this Exhibit USSR-93 only insofar as the statements therein made are confirmed by genuine documents and other unobjectionable evidence.

According to the Indictment, and in particular according to the statements in the trial brief presented by the Prosecution, the Defendant Frank is also alleged to be responsible for the undernourishment of the Polish population. Actually, however, the Prosecution is unable to produce any evidence to show that in the area governed by the Defendant Frank either famine occurred or epidemics broke out. The evidence has revealed on the contrary that the efforts of the Defendant Frank in the years 1939 and 1940 were successful in inducing the Reich to deliver no less than 600,000 tons Of grain. That made it possible to overcome the food difficulties caused by the war.

It is true that in the following years the Government General contributed in no small degree to the war effort by itself delivering grain. But it must not be overlooked that these deliveries were made possible by an extraordinary increase in agricultural production in the Government General. And this was in its turn made possible by a farseeing economic policy, especially by the distribution of agricultural machinery, seed corn, and so on. Nor should it be forgotten that the deliveries of grain by the Government General from the year 1941 onward also served to feed the Polish workers placed in Reich territory and that in general these grain deliveries were utilized to maintain the internal balance between the European economic systems. In principle, however, the following should be said concerning this question:

In a number of points of accusation the Prosecution has leveled reproaches against the administrative activities of the Defendant Frank in his capacity as Governor General without making an attempt to give an even approximately adequate description of the general work of the defendant and without pointing out its inherent difficulties. There can be no question but that such an attitude transgresses the fundamental rules of any criminal procedure. It is a recognized principle derived from the criminal law principles of all civilized states that a uniform natural process must be judged in its entirety and that its evaluation must take into account all the circumstances of the case that are in any way fit for consideration by the court when passing judgment. This would seem to be all the more necessary in the present case, as the Defendant Frank is accused of having pursued a long-term policy of oppression, exploitation, and Germanization.

My Lords, if the Defendant Frank had in truth had any such intentions, then he could certainly have attained his goal in far simpler fashion. It would not have been necessary to issue hundreds of decrees every year, decrees which for example for the year 1940 reached the proportions of this volume that I hold here in my hand. The Defendant Frank, from his first day of office, set himself to integrate the entire economic policy in a manner which one can only term constructive. Certainly he did this partly in order to strengthen the production capacity of the German nation engaged in a struggle of life and death. But at the same time there can be no doubt that the success of these measures also benefited the Polish and Ukrainian peoples. I do not intend to go into this matter in detail. I will only ask the Tribunal in this connection to take notice of the report given by the Chief of Government on the occasion of the fourth anniversary of the existence of the Government General on 26 October 1943. I have included this report in the document books I put in evidence. It is in Volume IV, Page 42. The report gives a concise summary of the measures taken and the successes achieved by the administrative acts of the defendant during these 4 years in all fields of industrial economy, in agriculture, commerce, and transport, in the finance and credit system, in the sphere of public health, and so on. Only in consideration of all these facts is it possible to form an approximately correct estimate of the whole position. For the sake of completeness I will add that the defendant by his administration succeeded in reducing the danger of epidemics—in particular typhus and typhoid—to a degree which had been found impossible in this area in the preceding decades.

If much of what had been achieved by the Defendant Frank in the Government General was destroyed in the subsequent fighting, that can certainly furnish no grounds for reproach against the general administration, which had nothing to do with military measures.

My Lords, I am certainly not going to deny that in the course of the recent war terrible crimes were committed in the territory known as the Government General. Concentration camps had been established in which mass destruction of human beings was carried out. Hostages were shot. Expropriations took place; and so on. The Defendant Frank would be the last to deny this; he himself waged a 5 year struggle against all violent measures. The Prosecution has put in evidence, as Exhibit Number USA-610 (437-PS), a memorandum which Frank addressed to the Führer on 19 June 1943. In this memorandum, on Page 11, he listed nine points in which he sharply condemned all the evils which had arisen in consequence of the violence practiced by the Security Police and the SD and of the excesses committed by various Reich authorities, against which all his efforts had proved unavailing.

These nine points are in the main identical with the points of accusation against Frank. The content of the memorandum of 19 June 1943, however, shows very plainly that the defendant denies responsibility for these abuses. It reveals, on the contrary, quite clearly that neither the defendant nor the general administration of the Government General can be held responsible for the said evils but that the whole responsibility must be borne by the institutions mentioned above, in particular the Security Police and the SD, or the Higher SS and Police Leader, East. If the Defendant Frank had had the instruments of power wherewith to abolish the evils he condemned, it would not have been necessary for him to address that memorandum to Hitler at all. He would then himself have been able to take all necessary steps. In addition to this the evidence has shown that that memorandum of 19 June 1943 was not the only one addressed to the Führer on the matter. It is clear from the testimony of the witnesses Dr. Lammers and Dr. Bühler and the defendant’s own statements in the witness box that from the year 1940 onward he sent protests and memoranda at regular intervals of a few months both to Hitler personally and to the Chief of the Reich Chancellery. These written protests were invariably on the subject of the violent measures taken and the excesses committed by the Higher SS and Police Leader and the Security Police, including the SD. But none of the protests met with success.

As can also be said on the basis of the evidence, the Defendant Frank continually made suggestions to Hitler on the subject of improving relations between the administration of the Government General and the population. The memorandum of 19 June 1943 is also cast in the form of a comprehensive political program. It includes, moreover, all the essential points of protest contained in a memorandum presented in February 1943 to the Governor General, at his own desire, by the leader of the Ukrainian Chief Committee. This latter memorandum was put in evidence by the Prosecution as Exhibit Number USA-178 (1526-PS). Such suggestions were also consistently rejected by Hitler.

Under these circumstances it is pertinent to ask what else the Defendant Frank could have done. Certainly he should have resigned. But that too he did. He offered his resignation no less than 14 times, the first time as early as 1939. His resignation was rejected by Hitler as often as it was tendered. But the Defendant Frank did more. He approached Field Marshal Keitel with the request that he be allowed to rejoin the Armed Forces as a lieutenant. That was in the year 1942. Hitler refused his consent to that too. These facts allow of only one conclusion, namely, that Hitler saw in the Defendant Frank a man behind whose back he (with the help of Himmler and the organs of the Security Police and the SD) could carry out the measures he considered requisite for attaining the aims of his power policy.

My Lords, when it became more and more obvious that Hitler and Reichsführer SS Himmler were about to abolish the last remnants of a State founded on law; when it became increasingly apparent that the power of the Police knew no bounds and that a police state of the purest water was in process of development, the Defendant Frank came forward and addressed four great speeches to the German public with a last appeal on behalf of the idea of a State founded on law. He did that when Hitler stood at the summit of his power. He addressed this appeal to the German public at a time when the German forces were marching on Stalingrad and into the Caucasus, when the German Panzer Armies in Africa stood at El Alamein, barely 100 kilometers from Alexandria. In the course of the evidence I read some extracts from these great speeches which the Defendant Frank made in Berlin, Heidelberg, Vienna, and Munich. Those speeches contained a clear repudiation of every form of police state and championed the idea of the State founded on law, of the independence of the judiciary, and of law as such. These speeches found a tremendous echo among lawyers, but unfortunately not in wider circles. Nor in particular were they echoed by the men who alone would have possessed the power to ward off the threatening catastrophe.

The consequences of this attempt to avert the extinction of the idea of the State founded on law by a last great effort are well known. The Defendant Frank was deprived of all his Party offices: he was dismissed from his post as President of the Academy for German Law. The leadership of the National Socialist Lawyers Association was conferred on the Reich Minister of Justice, Thierack. Frank himself was forbidden by Hitler to speak in public. Although the Defendant Frank again on this occasion sent in his resignation as Governor General, Hitler refused to accept it, as he had always done before. The reason for this, as given in a letter from the Reich Minister and Chief of the Reich Chancellery to the Defendant Frank, was that considerations of foreign policy had caused the Führer again to refuse this latest request of Frank to be allowed to resign. According to everything that has emerged from the evidence in this Trial it may be looked upon as certain that it was not only, and probably not even mainly, for such reasons that Hitler refused to accept Frank’s resignation.

The decisive factor was obviously the consideration that it was better policy not to let the Security Police and Reichsführer SS Himmler’s other organs fulfill their appointed task openly, but rather to let them continue their work under cover while maintaining a general civil administration under the Governor General.

Naturally this open breach between the Defendant Frank, on the one hand, and Hitler and the State Police system represented by Reichsführer SS Himmler and the Higher SS and Police Leader, East, on the other, could not fail to have repercussions on the position of the defendant in his capacity as Governor General. Still more than before the various Reich authorities now began to interfere in the administration of the Government General. Above all, however, it was quite clear from the summer of 1942 onward that the Higher SS and Police Leader, East, together with the organs of the Security Police and SD subordinated to him, took no more notice at all of any instructions issued by the Governor General and the general administration.

Both in the Government General and in the Reich itself legal institutions receded more and more into the background. The State was transformed into an unadulterated police state, and developments took the inevitable course which the Defendant Frank had foreseen and feared—the course which on 19 November 1941 he had outlined at a congress of the principal section chiefs and Reich group leaders of the National Socialist Lawyers Association in the following words:

“Law cannot be degraded to a position where it becomes an object of bargaining. Law cannot be sold. It is either there or it is not there. Law cannot be marketed on the stock exchange. If the law finds no support, then the State too loses its moral stay and sinks into the depths of night and horror.”

THE PRESIDENT: We will begin again at 10 minutes past 2.

[_The Tribunal recessed until 1410 hours._]

_Afternoon Session_

THE PRESIDENT: Dr. Pannenbecker.

DR. OTTO PANNENBECKER (Counsel for Defendant Frick): Mr. President, Gentlemen of the Tribunal:

The American Prosecution, through Dr. Kempner, has charged Defendant Frick with criminal actions according to Article 6, Items a, b, and c of the Charter. I should like first to examine the question as to whether Article 6 of the Charter, with its list of criminal acts, is to be considered as the authoritative expression of material penal law which would lay down, in a manner irrevocably binding on, and not subject to revision by the Tribunal, what actions are to be regarded as punishable; or whether Article 6 of the Charter concerns a rule of procedure defining the competence of this Tribunal for specific subject matters.

THE PRESIDENT [_Interposing_]: Perhaps it will be for the convenience of the interpreters if I say that we might, as it is now nearly half past 2, sit without a break until 4 o’clock, when we rise.

DR. PANNENBECKER: The latter interpretation was implied in the Prosecution’s presentation of the case by Sir Hartley Shawcross’ remark that although Article 6 of the Charter fills a gap in international penal procedure, the material penal law to be applied to the defendants has already been previously standardized by positive laws. Part II of the Charter, beginning with Article 6, is accordingly entitled: “Jurisdiction and General Principles,” and it may be inferred therefrom that Article 6 is intended to establish a ruling as to the competence of this Tribunal as to procedure in specific groups of crimes.

Sir Hartley Shawcross’ statements were directed against the objection that it is inadmissible and in contradiction with a basic legal principle to punish someone for an act which had not yet been forbidden at the time it was committed; an objection which has as a basis the conception that the Charter has created new material penal law with retroactive effect. It should be examined whether the prohibition of retroaction of penal laws is a legal principle of such importance that it should not be infringed. I need not state to this Court the reasons why this legal principle found general recognition in all civilized countries as a prerequisite and basic precept of justice.

In contrast to this, the Prosecution has in its speech charged the defendants with the fact that they themselves had continuously disregarded law and justice, and inferred from this that the defendants in this Trial could not appeal to such a legal principle. I do not believe, however, that such an argument can be decisive in this Trial. The Prosecution has replied in the negative to the further question of whether it would not have been right to pay back in the same coin and not allow the defendants of this Trial any possibility at all to defend themselves in a proper legal procedure. Such a course of simply exercising the power of the victor over the defendants has purposely not been assumed by the signatory powers for reasons presented in detail by the Prosecution. On the contrary, Sir Hartley Shawcross has appealed to the Tribunal to apply in this procedure—I quote—“the undisputed principles of international custom.”

If, however, it is intended to proceed in such a manner, then an examination must take place in keeping with the same principles of law, to determine the question whether the deeds with which the defendants are charged can be regarded as criminal acts for which punishment is possible according to the recognized principles of international custom. It is not, according to these principles, an argument if the use of a legal principle as fundamental as the prohibition of retroaction in penal law is in actual application to be made dependent on whether or not the defendants concerned themselves with law and justice. The decision of the signatory powers to subject, on the basis of considerations which have been seriously weighed, the conduct of the defendants to a proper trial recognizing all legal principles of international custom, therefore signifies not only the observance of legal procedure with all assurances of fair trial, but such a decision by the signatory powers also signifies adherence to the fundamental principles of a material guarantee of justice, of which the prohibition of retroactive penal laws is one.

In this connection I should like to point out that the decreeing of the retroactive validity of penal laws, when so ordered by the National Socialist Government for certain individual cases, to which Dr. Stahmer has already referred, shocked the entire civilized world. At that time, the violation of such a principle of law was generally condemned as a deplorable retrogression in civilization. I also ask the Tribunal to recall that one of the first measures taken by the occupation powers for deliverance from the National Socialist abuse of the law was to declare void any laws which had a retroactive effect on the material penal legislation.

In view of this situation there exist valid reasons, I believe, why Article 6 of the Charter should, in accordance with its heading, be regarded as a ruling on the jurisdiction of this Tribunal, all the more so as the signatory powers have already and with so much emphasis insisted on a renewed strict and uniform observance of the prohibition against retroactive penal laws.

On the basis of such an interpretation, whereby Article 6 establishes the jurisdiction of this Tribunal, it would be for the Tribunal by its own examination not only to determine whether the charges on which the Indictment is based are proved, but also to rule on the legal question as to whether, for the facts established in each case by the Prosecution, there exists a criminal law which makes punishment possible. To revert in this way to provisions of material criminal law in existence at the time the act was committed does not mean that it would be impossible for this Tribunal to call the accused to account for offenses which are punishable under all circumstances. There are, however, a number of restrictions resulting from this which in the opinion of the Defense it would be better to accept rather than violate a principle so essential to just procedure as is the prohibition of retroaction in criminal laws. I am therefore of the opinion that it is entirely possible, and not incompatible with the necessity for just expiation for war crimes, to interpret Article 6 in accordance with its heading as a ruling on the jurisdiction of this Court, but not as new material criminal law.[1] The next remarks concern themselves with the conspiracy, a matter which has been dealt with by Dr. Stahmer to such an extent that I can omit these pages. I continue now on Page 7 with the summary.

The Charter does not impose the interpretation that a defendant is responsible also for such acts of commission as exceed the measure of his participation in the common plan. The wording of the Charter, “in the execution of a common plan,” does not contradict the interpretation that the Charter establishes liability for acts of commission which remained within the scope of the said plan. To that extent the assumption of liability for the actions of others complies with a demand of justice, but beyond that it would violate essential legal principles. The Defense therefore advocates the concept that, as far as the actions of others are concerned, for which a defendant is to be made liable, proof must be required that these actions, in the manner of their execution, corresponded to the intention of the defendant. To give an example:

The participation of a defendant in rearmament against the regulations of the Versailles Treaty does not in itself justify the assumption that that defendant also desired a war of aggression which was later on planned by others in the further plan of restoring military power to the German people.

I should now like to turn to the various categories of crimes of which the Defendant Frick is accused, taking first of all the assertion of the Prosecution that the defendant participated in the planning and preparation of wars of aggression. With regard to the problem as to whether a war of aggression is a criminal offense according to the concepts of law for the period in question, I refer, in order to avoid repetition, to the statements of Professor Jahrreiss, with which, in behalf of the Defendant Frick, I fully concur.

By virtue of these convincing statements, there exists only one possibility of punishing co-operation in a war of aggression as a criminal offense capable of being perpetrated by individual persons, namely, when, contrary to the statement of Sir Hartley Shawcross, the Charter is applied as a standard of material penal law which has for the first time defined, with retroactive effect, a war of aggression as a criminal offense by individual persons. From the point of view of the other interpretation, which regards Article 6 of the Charter as a procedure regulating the jurisdiction of this Court, the Defense holds that the deduction is cogent that the Court is indeed declared competent to judge offenses against peace, but that the criminal guilt of the individual defendants is not proved therewith because one condition for this is lacking, namely, the possibility of establishing that the defendants have offended against a principle of generally valid international custom or a principle of national law which defined the war of aggression at the time it took place and declared it punishable as a crime of which a single individual could be guilty.

As it happens, the statesmen, during the period between the two World Wars, have neglected to establish adequate measures of general validity, by which it would have been made clear that anyone who, after the first wholesale slaughter of peoples, organized a second World War, would go about with a rope around his neck. The statements of the Prosecution, that such rules of international law are necessary, appear to be absolutely convincing, but the fact cannot be overlooked that such rules were nevertheless not created by the statesmen of that period at the right time. A missing rule of law, fashioned to fit a special case, cannot be replaced subsequently by an order of procedure or by the sentence of a Court whose task is to apply the general law, but not to create it for a single special case.

I shall now turn to the actual statements of the Prosecution concerning the participation of the Defendant Frick in the planning and preparation of wars of aggression.

The Prosecution sees such activity already in Frick’s earliest co-operation with the Party, which he continued until the year 1933, in order to bring Hitler to power. The Prosecution appraises in a similar way the subsequent activity of Frick after the taking over of the Government by Hitler, when he helped to consolidate the power of the Party and its leaders through measures of domestic policy, especially by his participation in the legal measures by which armed forces were created, and finally by his collaboration in measures by which direct preparations were made in case of war.

Proceeding from the interpretation that only deliberate participation by the defendant in the preparation of a war of aggression is of penal significance, I shall not take up the question as to whether the Prosecution has proved that Frick was aware that his collaboration in the advancement of the Party and its aims constituted a preparation for war, and intended it as such, and therefore helped to bring the war about.

In this connection the Prosecution has made the assertion that Hitler and his Party from the very beginning openly pursued the aim of bringing about a change in Germany’s situation in foreign politics by means of war. On the basis of this statement the Prosecution has declared that no special proof is necessary that in working for Hitler and his Party each of the defendants also knowingly collaborated in the preparation of a war of aggression.

As proof of the fact that Hitler and his Party had from the beginning planned a war of aggression, the Prosecution refers to the Party Program, which names as one of its aims the abolition of the Treaty of Versailles. No word is said, however, in the Party Program that this aim should be achieved by force of arms. In the Party Program, as the testimony of the Defendant Von Neurath has also shown, among other things, there is nothing to prove an intention existing from the very beginning to wage a war of aggression. Nor is anything different found in the other official publications of the Party from the time previous to Hitler’s assumption of the Government. Because as the Party did not, on the basis of its official publications, reveal any intention of bringing about the revision of the Versailles Treaty by force of arms, it was even before 1933 authorized outside the territory of the Reich, as for example in 1930 in Danzig, when it received the sanction of the then High Commissioner of the League of Nations and of the Polish Resident General.

From the time of his assumption of power on 30 January 1933 Hitler, as responsible head of the Government, adopted a quite unequivocal attitude with regard to the ways and aims of his foreign policy, both in official speeches and discourses as well as in private conversations. Unchangingly, and upon every occasion that presented itself after his assumption of power, he stressed his absolute desire for peace and his abhorrence of war, and he always defended this attitude with convincing reasons. He repeated again and again that he intended to obtain certain revisions of the Versailles Treaty by peaceful means only. I need not repeat the quotations to that effect from Hitler’s speeches, which were read by the Prosecution to prove how Hitler deceived the world, and the people he ruled, by his peace talks. And the world, including the German people, took these speeches which he, as responsible head of the Government, made again and again, quite seriously. In the face of that, warning voices which at an early stage were convinced that Hitler wanted war, remained a hopeless minority throughout the world.

The Prosecution has repeatedly alluded to this world belief which took Hitler’s assertions of peaceful intentions seriously, and the best proof of this delusion about peace even among the foreign statesmen, who also knew the Party Program, would certainly appear to lie in the fact that these statesmen neglected to so vast an extent to arm against Hitler’s war of aggression, in which nobody in Germany and in the world believed seriously except those who were directly initiated into Hitler’s most secret plans. From the Party Program and from isolated wild speeches made before 1933 during the period of parliamentary opposition, it is not possible to prove a continuous preparation for a war of aggression since the twenties, which is alleged to have been discernible to anybody who took a glance at the Party Program.

The Prosecution contends further that even if the warlike intentions were not discernible in a general way at first, the intention of Hitler to prepare a war of aggression must have been clearly visible to the Defendant Frick on account of the duties which he had to fulfill after 30 January 1933 in his capacity as Reich Minister of the Interior. These duties included measures for the strengthening of the internal political power of Hitler and his Party. The Prosecution referred in this connection to the collaboration of Frick in the legal decrees by means of which the opposition against Hitler’s system of government was destroyed in parliament and in the country; further, to the legislative measures which eliminated real self-government in the cities and communities, and to legislative and administrative decrees by which opponents of the National Socialist system were excluded from taking any part in the business of the State and in economic life.

The Prosecution has submitted that without these measures Hitler could not have conducted another war, for the beginning of which the complete destruction of opposition in the country was said to be a necessary prerequisite—particularly the establishment of Hitler’s absolute dictatorship. Yet in all the measures I have enumerated, a direct connection with the preparation for war is lacking. For these measures had equal meaning and significance, unconnected with a subsequent war, merely as projects of a National Socialist domestic policy. It has not been proved that beyond that the Defendant Frick was informed of Hitler’s more far-reaching plans, namely, after consolidating his power at home to pursue the aims of the Party’s foreign policy not by peaceful but by military means.

By establishing retrospectively that the strengthening of Hitler’s inner political authority was a necessary condition for his intentions for war as revealed later, nothing is achieved unless proof is forthcoming that Hitler had from the beginning aimed at power in the domestic sphere only as a first step toward the waging of wars, and that Frick was aware of this when he took part in the measures of domestic policy of which he is accused. Otherwise, as purely domestic measures, they do not come under the jurisdiction of this Tribunal according to the provisions of the Charter.

But there is no such evidence, and it is much rather to be assumed that Frick, as a typical official connected with domestic politics, considered his measures as absolutely independent acts which had nothing whatsoever to do with the solutions by force of questions of foreign policy. Nor can another view of the situation be derived from the measures dealing directly with Germany’s rearmament, that is, the reintroduction of general conscription and the occupation of the demilitarized zone of the Rhineland. In his capacity as Reich Minister of the Interior, Frick issued the orders of the civil administration for the mobilization of men liable for military service, and consequently he himself also signed the Armed Forces Law.

Yet even these measures in themselves were not to be recognized as preparation for a war of aggression. The reintroduction of compulsory military service and the assumption of military sovereignty over the demilitarized Western Zone were explained by Hitler himself, to his collaborators and the world, by arguments whose soundness was then widely accepted, and after the first shock many foreign statesmen still believed in Hitler’s well-founded assurances of peace, and advocated the opinion that there was no reason to fear any belligerent intentions on the part of Hitler.

To be sure, Hitler personally declared to his Commanders-in-Chief on 23 November 1939 that he had created the Armed Forces in order to make war. I refer to Document 789-PS; Exhibit Number USA-23. But Hitler previously cleverly obscured this intention by another argument which at that time still found credence in Germany and abroad, and—as proved by the evidence—even those collaborators in his own Cabinet who had not been initiated into his secret plans believed in it.

Thus it is that several defendants refer to the fact that they approved of the reconstruction of the German Armed Forces in the face of the provisions of the Versailles Treaty, but that they did not want a war and did not consider that by their collaboration they were participating in the planning of a war of aggression. As for the Defendant Frick, the view of the defense is that there is no proof that Hitler had informed him of his plans for war, and therefore his collaboration in the measures concerned with the reconstruction of the German Armed Forces cannot be charged against him as intentional collaboration in the planning of wars of aggression. A similar situation arises with regard to the defendant’s activity in organizing the civil administration in general for the eventuality of war, a task entrusted to the defendant as Plenipotentiary for Administration of the Reich by the second Reich Defense Law dated 4 September 1938.

I beg to point out again that the position of Plenipotentiary for Administration of the Reich was created only by this second Reich Defense Law of 4 September 1938, and thus was not included in the first Reich Defense Law of 21 May 1935.

To be sure, long before, even before 1933, experts from the various ministries held conferences dealing with the subject of Reich defense, meeting at irregular intervals after 1933 as the Reich Defense Committee, as shown in the documents submitted by the Prosecution. These meetings had nothing to do with an agreement to wage a war of aggression. They dealt with general questions of Reich defense, as is customary also in other countries. By the Reich Defense Law of 21 May 1935, the organization for Reich defense was more closely co-ordinated, particularly by the appointment of a Plenipotentiary for War Economy, and at his interrogation the Defendant Schacht explained in detail that the purpose in creating that position was not preparation for a war of aggression (according to the duties and regulations to be found in the first Reich Defense Law) but the organization of the economy for defense in the event of a war of aggression by other states.

The same holds true with regard to the position of Plenipotentiary for Reich Administration as created by the second Reich Defense Law of 4 September 1938, which was conferred on the Defendant Frick by virtue of his position as Reich Minister of the Interior. This position signified the co-ordinated establishment of the entire civil administration for the purpose of Reich defense. Regardless of whether, according to documents which have been submitted to the Tribunal, Hitler already wanted war at the time when he authorized the second Reich Defense Law, it is nevertheless relevant for the defense of the defendant whether Frick at that time was able to recognize the aggressive intentions of Hitler from the law itself and from his preliminary work thereon or from other evidence or information which was communicated to him then. From the law itself it cannot be discerned that Hitler’s intention was to use it in the sphere of civil life as an instrument of preparation for a war of aggression.

The kind of tasks which were given to the Defendant Frick in his capacity as Plenipotentiary for Reich Administration had to do merely with the concentration of domestic administration of Germany in case of a possible war or threat of war, and nothing else can be seen from Document Number 3787-PS (Exhibit Number USA-782), which was submitted subsequently.

The law is so formulated that it always refers only to the defense of the Reich in case of war. It speaks about the “state of defense” and mentions the case of a “surprise threat to the Reich territory,” in the event of which certain measures must be taken. Beyond this the law does not vouchsafe any hint, which would be in keeping with Hitler’s oft-repeated principle not to divulge any more of his plans than the person concerned had to know for his own work—a principle which he strictly adhered to even with his closest collaborators. In view of this principle it should not be assumed, nor has it been at all proved, that when the order for this law was given to the Ministry of the Interior any other information was imparted than the necessity for taking precautionary measures, by concentrating the full strength of the domestic administration of the country, against a surprise threat to Reich territory through a possible attack by other states.

It is not necessary for me to state in detail that such a measure cannot be considered as a premeditated preparation for a war of aggression when it had been explained to the competent authorities of the domestic administration that it was essential for the defense of the Reich against the threatening attack by another state. Hitler knew very well how to hoodwink all those who had no need to know about his secret plans, yet nevertheless should understand the reasons for the armament and the organization of the state ordered by him for the eventuality of war.

I will deal now very briefly with some further documents bearing on the activity of the Defendant Frick as Plenipotentiary for Reich Administration. Frick, in his speech of 7 March 1940, referred to this position—Document Number 2608-PS, Exhibit Number USA-714—and stated that the planned preparation of the administration for the possible event of war had been already effected during peacetime by the appointment of a Plenipotentiary for Reich Administration. This speech therefore merely confirms that which is already revealed by the text of the law. The same applies to Document 2986-PS, Exhibit Number USA-409, an affidavit by the defendant to the same effect. Therefore, according to this law, the position of the Plenipotentiary for Reich Administration, combined with the appointment of a Plenipotentiary for Economy and the post of Chief of the OKW, cannot be described as a “triumvirate” holding governmental authority in Germany. Nothing has ever become known either inside or outside Germany of a government by such a triumvirate, and the witness Lammers has also referred to the strictly subordinate tasks performed by these persons by means of ordinances—tasks which had nothing to do with the preparation of a war of aggression.

Another field of the defendant’s activity is likewise appraised by the Prosecution as participation in preparation for a war of aggression, namely, Frick’s work for the Association for Maintaining Germanism Abroad. I refer to Exhibit Number Frick-14 and Document Number 3258-PS, the latter submitted as Exhibit Number GB-262. Both documents reveal that Frick supported the said association as a union for the fostering of German cultural relations abroad and promoted its cultural efforts. It cannot, however, be gathered from the documents that Frick engaged in any capacity whatsoever for the furtherance of the aims of a so-called “Fifth Column” abroad. Another document from which the Prosecution deduced the approval of the policy of aggressive war by Frick is the affidavit of Messersmith, Document Number 2385-PS, Exhibit Number USA-68. This affidavit has been characterized by several defendants as inaccurate, and the Defendant Schacht in particular showed at his examination that in essential points it cannot be correct at all. The Prosecution was not able to produce the witness for cross-examination. I object on behalf of Frick against any use of the affidavit, all the more so since an additional clarifying interrogation of the witness through a written questionnaire only led to the result that the witness, by using general phrases, avoided giving concrete answers to the questions put to him. The answers to the questionnaire show plainly enough that Messersmith cannot make concrete statements at all and that in his affidavit he obviously was considerably deceived himself as to the extent of his memory.

I do not believe that his affidavit, which has been refuted in essential points, can be made use of for passing legal judgment. As to the question whether the Defendant Frick participated in conscious preparation for a war of aggression, the Prosecution further submitted Document D-44, Exhibit Number USA-428. From this document it is seen that the Reich Ministry of the Interior is supposed in the year 1933 to have issued a directive that official publications were not to be drawn up in a form which might enable people abroad to infer an infraction of the Versailles Treaty from such publications. This document does not reveal whether by these directives actual treaty violations were to be masked or whether it was only a question of avoiding the appearance of treaty violations.

The same problem applies to Document 1850-PS, Exhibit Number USA-742. This contains the minutes of a conference between the Leadership of the SA and the Reich Defense Minister, who proposed to the SA in 1933 that budgetary funds of the Reich should be set aside by the Reich Ministry of the Interior for the military training of the SA. The document does not throw any light upon the attitude of the Reich Ministry of the Interior toward this proposal, and even if it had accepted it, this again would have proved only that the Reich Ministry of the Interior furthered the restoration of the Armed Forces, a fact which anyhow is already proved.

Thus, none of these documents furnishes proof that the Defendant Frick recognized as preparation for a war of aggression the measures ordered by Hitler as necessary for the defense of the Reich.

It is true that during the war, in 1941, a few days before the outbreak of the war with the Soviet Union, a conference took place between the Defendant Rosenberg and representatives of various ministries concerning measures in case of a possible occupation of parts of the Soviet Union. This is shown in Document 1039-PS, Exhibit Number USA-146, Rosenberg’s report concerning these discussions, in which it is stated that negotiations took place with “Reich Minister Frick (State Secretary Stuckart).” This parenthesis means that the Reich Ministry of the Interior was represented in these negotiations by State Secretary Stuckart, therefore that Frick did not personally participate in the negotiations. As the negotiations took place only a few days before the beginning of the war in the East, it is not proved by the document that Frick himself was informed about the negotiation before the beginning of the war which, as it is generally known, was afterward proclaimed by Hitler as a necessary measure of defense against an imminent attack by the Soviet Union. It has been made clear by abundant evidence in this Trial how far Hitler kept his true aggressive intentions secret, and how well he knew how to cover up the true aim of all his political measures for years with thousands of convincing reasons to justify the individual measures of his policy of aggression.

There was a very small circle of collaborators whom Hitler informed about his war plans, but this circle was not selected according to the position of the person concerned in the Cabinet, or according to his position in the Party hierarchy, but exclusively from the point of view of whether it was necessary for the person concerned, with respect to his own tasks in the field of preparations for the war, to know the aggressive character of Hitler’s general policy or even his detailed plans of aggression. Document 386-PS, Exhibit Number USA-25, shows how systematically the principle of secrecy was kept, even as regards the older members of the Party and the administrators of important departments in the Reich Cabinet. Whoever, such as the Minister of the Interior, had merely to carry out measures within the framework of preparations for war which could well be similar to tasks of a purely defensive character was, in accordance with Hitler’s principle, not informed of the latter’s aggressive intentions. For this reason, the presence of the Defendant Frick is not shown in even a single one of these secret conferences in which Hitler informed a circle of selected men about his plans for foreign policy and his war aims. In the Document 386-PS just mentioned, Hitler especially emphasized and gave reasons for the exclusion of the Reich Cabinet as a body to which such plans should be made known.

In another record concerning a similar conference—Document L-79, Exhibit Number USA-27—the additional principle is laid down that no one should be told anything concerning the war plans who does not need to know these plans for his actual work.

Frick’s name is not only missing from the list of those present at Hitler’s conferences on his policy of aggression which took place before the war, but the same applies also to the numerous conferences concerning Hitler’s further war aims and aggressive intentions which were held during the war. The Defendant Frick was no more informed of the later attacks or included in their preparation, as is shown by the list of those present at Hitler’s lectures concerning his plans, which have in part been submitted here.

Frick, purely an expert in domestic administration who was not considered competent for military questions and questions of foreign policy, was deemed good enough to organize the civilian administration for the eventuality of any possible war, but in Hitler’s opinion, his foreign policy and military plans were none of Frick’s business. However, the Prosecution asserts further that after the conquest of foreign territories and their occupation, the Defendant Frick regulated the administrative policy in those territories and that he is responsible for it. The Prosecution considers this activity, of the defendant, according to Article 6, Letter (a) of the Charter, as “participation in the execution of wars of aggression.” According to the submission of the Prosecution, Frick exercised an over-all control of the occupied territories, especially in his capacity as chief of the Central Office for the occupied territories. On the basis of the same function, he is deemed to be responsible for all War Crimes and Crimes against Humanity which were committed in the occupied and incorporated territories before and during the war, up to his dismissal as Reich Minister of the Interior on 20 August 1943.

It is a question of legal interpretation whether the activity in the administration of occupied territories, pursuant to Article 6, Letter (a) of the Charter, is to be considered as the “execution of wars of aggression,” or whether criminality comes into consideration only under the point of view of crimes against the rules of war or against humanity. In deciding this question it appears important to me that it is not one of the tasks of an official of a civil administration to examine, after the conclusion of military operations, whether it is a case of legal or illegal occupation according to the standards of international law. An obligation for such an examination would be an exaggerated demand to make of the department of the civil administration or the administrative chief, whose activity cannot be described as illegal on the grounds that the territory administered by him had been annexed a short or even long time ago in violation of the regulations of international law. There is no obligation for such examination in the practice of civil administration. The Charter moreover does not demand such an interpretation because, when naturally construed, the military operations themselves might be understood to constitute an execution of wars of aggression, but not the later civil administration of conquered territories.

The punishment of crimes which occurred in the administration of the occupied territories would not be made impossible through such an interpretation. In any case these crimes are subject to punishment as Crimes against Humanity or against the rules of war according to the Charter. And now mention must be made of those territories in particular for which the Defendant Frick bears a responsibility.

First of all there are the territories which were incorporated in accordance with constitutional law into the commonwealth of the German Reich, which are therefore called “incorporated territories.” By their constitutional incorporation these territories came under the administration of the Reich, but only to that extent did they come under the authority of the Reich Minister of the Interior, in that the Defendant Frick bears the constitutional responsibility of a minister for the internal administration of these territories up to 20 August 1943. In the East, this mainly concerned the territories of West Prussia, Posen, and Danzig, in other words, the so-called returned Eastern territories which belonged, until the Versailles Treaty, to the commonwealth of the German Reich. In the East, the Memel district received the same constitutional treatment; in the West, the Eupen-Malmedy district; and in the Southeast, the Sudetenland. Furthermore the country of Austria was incorporated into the commonwealth of the German Reich. For all those territories Frick has a share in the laws and administrative measures brought about by the incorporation. He bears the usual responsibility of a Minister of the Interior for the domestic administration of these territories up to the time of his dismissal in August 1943. For the territory of Bohemia and Moravia on the other hand there existed a special Protectorate Government, which was described as autonomous in the decree concerning the establishment of the Protectorate—Document 2119-PS—and was therefore not controlled by the Reich Ministry of the Interior. In a similar way, an administration not dependent on the Reich Ministry of the Interior existed in the Polish territories, which were collectively designated “Government General” and were put under the jurisdiction of a “Governor General.” In contrast to the so-called “incorporated Eastern territories,” the Reich Ministry of the Interior had no right to issue orders or to handle administrative matters in the Government General, as can be seen from Document 3079-PS which contains Hitler’s decree concerning the administration of the occupied Polish territories. The same appears from numerous other documents, among them Document USSR-223, the Frank diary, in which he states that no Reich central offices are authorized to intervene in the government of his territory.

The same applied to all other occupied territories for which a special administration was established under any legal form. These separate administrations were not dependent on the corresponding departmental ministries in the Reich, but were under the jurisdiction of the administrative chief for the corresponding territories, who was himself directly subordinate to Hitler.

This applies to the occupied Soviet Russian territories, the entire administration of which was under the jurisdiction of a Reich Minister for the Occupied Eastern Territories. The same applies to Norway, where a Reich Commissioner was appointed. In a similar way, a Reich Commissioner was appointed for the Netherlands, who was also independent of the Reich Ministry of the Interior and was directly subordinate to Hitler. In Luxembourg, Alsace, and Lorraine, there were chiefs of civil administrations who were also not dependent on the Reich Ministry of the Interior, while in Belgium and northern France there was a military administration of which the same was true.

In the same way the administrative chiefs of the territories which were occupied in the Southeast of Europe were completely independent of the Reich Ministry of the Interior. For part of the occupied territories there exists, in the decrees issued at the time concerning the creation of a separate civil administration, a stipulation that the Reich Minister of the Interior was designated the central agency, and from this formulation the Prosecution has deduced a responsibility of the Defendant Frick for the administration of all the territories, as is Stated in the Indictment.

The actual tasks of the central agency can be seen from the order concerning the establishment of a central agency for Norway—Document 3082-PS, or Number 24 in the Frick document book. The witness Dr. Lammers has given a further explanation of the tasks. At that time it was the primary task of the central agency to put personnel at the disposal of the chiefs of the civil administrations in the occupied territories on request. Therefore, if a civil official was needed for any district, the administration of the district concerned applied to the central agency in the Reich Ministry of the Interior, which then put some official from the Reich at the disposal of the chief of the civil administration. The Reich Ministry of the Interior was especially fitted for this, as it had at its disposal numerous officials of the domestic administration in Germany.

But the transfer of an official from his own department to another office, which will alone give orders to that official from that moment on, does not establish responsibility for the further activity of that official in his new department, to whom the Reich Ministry of the Interior could issue no orders whatsoever. To take as an example: If the Minister of Justice transfers one of his officials to the Foreign Minister, naturally only the Foreign Minister is responsible for the further activity of this official. This activity of the central agency therefore does not justify the assumption of responsibility by Frick for the administration of the occupied territories.

The requisitioning of officials for the occupied territories was concentrated in the Reich Ministry of the Interior. That is, as the examination of the witness Lammers indicated—and I quote from the above-mentioned Document 3082-PS—“the unified co-operation adapted to the needs of Norway, of the supreme Reich authorities with one another and with the Reich Commissioner.”

In like manner, the hearing of evidence for the Defendants Rosenberg, Frank, and Seyss-Inquart, who functioned as chiefs of civil administrations in the occupied territories, has on no occasion revealed any co-operation of any kind with the Defendant Frick either in his capacity of Reich Minister of the Interior or Director of the Central Agency in this Ministry.

Now, the Prosecution has referred to several documents in order to prove that the Defendant Frick exercised extensive control over all occupied territories. Actually, however, those documents do not reveal an administrative activity of any greater extent than I have just stated. Document 3304-PS gives proof of an administrative activity for the incorporated Eastern Territories. This coincides with my statement that the incorporated Eastern Territories, in their internal administration, were subject to the Reich Ministry of the Interior by virtue of their constitutional incorporation into the German Reich. The document, however, bears no reference to the administration of the Occupied Eastern Territories, that is, the Government General or to the occupied Soviet Russian territories.

The other document submitted, 1039-PS, Exhibit Number USA-146, proves the transfer of administrative personnel from the department of the Reich Ministry of the Interior to the Reich Minister for the Occupied Eastern Territories, a typical task of the Central Agency which I have already discussed. The Prosecution has submitted further documents which reveal that the Reich Ministry of the Interior had a hand in the bestowal of German citizenship. Even this does not, however, prove any administrative authority of the Defendant Frick for the occupied territories, but merely a typical activity of a Minister of the Interior whose department is competent for the general regulations concerning German citizenship, including cases where persons living outside the Reich territory are involved. This activity of the Minister of the Interior can also furnish no proof of an extensive administrative policy and a general responsibility of the Defendant Frick for the administration of the occupied territories. In particular, in the occupied territories which were not incorporated into the Reich territory, Frick had no authority or competence whatsoever as far as the tasks of the Police were concerned.

Hitler directly commissioned Himmler to carry out police work in the occupied territories—see Document 1997-PS, Exhibit Number USA-319, Hitler’s decree concerning police security measures for the Eastern Territories, for which Himmler was directly responsible. The same is revealed by Document 447-PS, Exhibit Number USA-315, a directive of the OKW dated 13 March 1941, to the effect that the Reichsführer SS in the Occupied Eastern Territories is charged with special duties in the execution of which he will act independently and on his own responsibility. The same applies to the police tasks in the other occupied territories, which were assigned either to the Reichsführer SS Himmler or to the SS and police leaders who took their orders only from Himmler, although in many cases they were ostensibly assigned to the civil administrative chief in question, such as for example the Governor General in Poland (see excerpt from Frank’s diary in the Frick document book under Number 25, also USSR-223). In no case, therefore, were police tasks in the occupied territories under the Defendant Frick’s jurisdiction. Consequently, the Defendant Frick bears no responsibility for crimes against the laws of war and against humanity in the occupied territories, since in these territories he could neither order crimes nor prevent them.

Concerning the territory of the German Reich I must now examine the claim of the Prosecution as to the responsibility of the Defendant Frick for all the police measures, including the Gestapo, as well as for the establishment and administration of concentration camps. May I first refer to the documents submitted by me in evidence, which reveal that the Police, including the political police, was in 1933 still the concern of the individual states within the Reich, such as Prussia, Bavaria, _et cetera_.

In Prussia, the Secret State Police (Gestapo) and the concentration camps were established and administered by Göring in his capacity as Prussian Minister of the Interior. The tasks of the political police were then transferred by a Prussian law, dated 30 November 1933, to the office of the Prussian Prime Minister, which was also administered by Göring. So when the offices of the Reich and the Prussian Minister of the Interior were merged, in the spring of 1934, Frick did not assume the tasks of the political police which still remained incumbent upon Göring in his capacity as Prime Minister.

A similar regulation prevailed in the other states, where Himmler was gradually given the duties of special deputy for the political police. During this period, the Reich Minister of the Interior had only the right of so-called “Reich supervision” over the states, which Frick made use of for the enactment of general instructions and legal ordinances; and this is the only point where Frick, as Minister of the Reich, could exercise any influence on the affairs of the political police and concentration camps.

Frick made use of this possibility, in accordance with his basic attitude as confirmed by the witness Gisevius, to prevent and repress arbitrary actions by the political police as far as was in his power in the circumstances then prevailing. He endeavored, by the enactment of provisions of law and procedure, to restrict the arbitrary practices of the political police in the states.

I refer to Document 779-PS, submitted by me as Exhibit Number Frick-6. This is a decree dated 12 April 1934, containing restrictive provisions of this sort under a significant preamble—which I quote: “In order to remedy abuses occurring in the infliction of protective custody.” This is followed by directives to the governments of the states forbidding the application of preventive custody in numerous cases where it had previously been improperly ordered by the Gestapo. In this struggle of Frick against arbitrary actions by the political police in the states, the police had, it is true, ultimately come out better because they were under the direction of Göring and Himmler, with whom the “bureaucrat” Frick—as Hitler disdainfully called him—could not compare as regards influence in the Party and State. For that reason the political police in the states in practice frequently disregarded Frick’s ordinances. But Frick did not stand by idly as long as there was reason to hope that through his intervention the unrestrained practices of the political police in the states could be directed into orderly and legally regulated channels. I refer to Document 775-PS, Exhibit Number Frick-9, a memorandum from Frick to Hitler which clearly and unequivocally calls a spade a spade, mentioning legal insecurity, unrest, and embitterment, and severely criticizing individual cases of misuse of the right to order protective custody by the political police of the states. Here I would insert that the same document also proves that in the struggle over the churches, the defendant clearly took their side. This is also proved by Exhibit Number Neurath-1.

In his testimony the witness Gisevius refers to an additional memorandum which he himself drew up for Frick as a further attempt to restrain through severe criticism and by suggestions for legal control the arbitrary practices of the political police in the states. All of these attempts failed because Frick’s political influence was too insignificant and he could not assert himself against Göring and Himmler, and because at the time Frick himself could not yet see that the practices of Göring and Himmler were essentially in harmony with what Hitler actually wanted himself. Thus the documents submitted by the Prosecution, taken in conjunction with the evidence offered by the Defense, show that in the domain of the political police and in ordering protective custody, Frick had a certain competency at a time when the police was still a service administered by the individual states. This evidence also shows that during that time Frick’s jurisdiction was very limited and it further shows that Frick, acting within the bounds of his competency, took action solely in order to intervene against the terror and arbitrary actions of the Gestapo through general instructions and through repeated complaints in individual cases, so that the conclusion is not justified that Frick in any way actively participated in the Gestapo’s measures of terror and violence.

At a later period the legal situation changed. With Hitler’s decree of 17 June 1936—Document 2073-PS, Document Book Frick Number 35—police tasks for the entire Reich were combined and uniformly transferred to Himmler, whose department was formally made a part of the Ministry of the Interior under the title “Reichsführer SS and Chief of the German Police in the Reich Ministry of the Interior.”

The question now is whether this new regulation conferred on Frick, in his capacity as Reich Minister of the Interior, any authority of command or any right to issue instructions which could be enforced with regard to the political police, its offices and its functionaries. When Himmler, in accordance with his own wish, which he could gratify because of his influence on Hitler, was appointed Police Chief for the entire Reich, there did not exist in Germany a police or security ministry, properly speaking.

This is the reason why the uniform direction of the police through Himmler in person was formally attached to the Reich Ministry of the Interior. But Himmler wanted to be more than a department chief in the Ministry of the Interior. Therefore a position entirely novel in German administrative law was created for him and his purposes. The entire sphere of the police was separated from the rest of the activities of the Ministry of the Interior and placed under Himmler’s special jurisdiction under a newly created title of office which, as a government office, contained the words “Reichsführer SS,” thereby making it possible for Himmler to carry out political police tasks under a title of office characterizing him as Reichsführer SS and in that capacity giving him independence from any instructions issued by a minister of state.

In order to accentuate further the independence of his office within the bureaucratic hierarchy as well, Himmler was given the additional right from the very beginning to represent police matters before the Cabinet independently and on his own responsibility, like any Reich minister; this is also shown in the decree concerning his appointment, Document 2073-PS. This decree is a typical example of the overlapping of competencies which Hitler favored to excess in his government system. Himmler became part of the Ministry of the Interior and, as an official of the Ministry of the Interior, was formally bound to abide by instructions of the Minister. However, he was also an independent Chief of Police with the right to represent before the Cabinet on his own responsibility matters pertaining to the Police, thus excluding Frick in that respect. In addition to that, his orders simultaneously carried the authority of the Reichsführer SS, in which Frick had no authority at all to interfere.

In actual effect this involved arrangement also enhanced the tremendous influence of Himmler on Hitler. In keeping with his convictions, and to safeguard a well-ordered state apparatus, Frick repeatedly tried to intervene through general instructions intended to restrain the arbitrary acts of the political police. As late as 25 January 1938 he tried through a decree to curtail the admissibility of protective custody and he forbade it in a number of cases of improper application. I refer to Document 1723-PS, Exhibit Number USA-206, an extract of which under Number 36 appears in the Frick document book. He prohibited protective custody in lieu of, or cumulative to, a legal penalty, forbade its application by police authorities of the intermediate or subordinate levels, and gave orders that the accused should be heard before arrest. He decreed periodical examination of the reasons for the continuance of confinement and on principle forbade the protective custody of foreigners, whom the Police had authority only to expel from the Reich in case of acts endangering the State.

An obvious argument is that the Gestapo in practice disregarded all these instructions of Frick and that Himmler and his subordinates maintained an absolute reign of terror and violence. This is correct and has been confirmed in detail by the witness Gisevius. But something else appears of importance to me in the defense of Frick: To show that Frick himself disapproved of such arbitrary acts and that he tried to do all in his power to prevent them. Finally, however, Hitler forbade even this. He informed him through Lammers—as confirmed by the latter as witness—that he was not to concern himself with police matters, that Himmler could manage that better by himself and that the Police was doing well under Himmler.

Thus Himmler finally got complete control of the Police, and he gave outward expression to this by later dropping, with Hitler’s consent, from his official title, the words “in the Reich Ministry of the Interior,” simply referring to himself as “Reichsführer SS and Chief of the German Police,” which is also shown in the testimony of the witness Lammers.

I believe that, in view of the circumstances, the problem of the Defendant Frick’s criminal responsibility for the political police and their arbitrary measures is not established by the fact that the entire Police was formally incorporated in the Reich Ministry of the Interior after the year 1936, since it has been proved! that Frick himself did not participate in arbitrary acts, but on the contrary tried again and again to intervene against such arbitrary practice with all the power he possessed, which however was no match for the personality of Himmler and his influence with Hitler.

In order to insure fair judgment, I request that the actual situation as to power of command and authority, and not the purely superficial circumstances of a formal incorporation of the tasks involved in the Reich Ministry of the Interior, be taken into account.

I insert the following here: The Prosecution, during their presentation on 3 July 1946, submitted Document D-181, Exhibit GB-528, and stated in connection with that document that it proved that the political police were not only formally incorporated in the Ministry of the Interior, but that Frick was in fact responsible for the measures of the Police. Actually the document shows only that Frick as Minister of the Interior was officially contacted in the matter of the sterilization of those suffering from so-called hereditary diseases. The document has nothing to do with any measures of the Police, least of all with any measures of the political police. Moreover there is no information in it regarding Himmler’s position in the Ministry of the Interior.

Now I will continue with my plea: In this connection, I must briefly deal with the reference of the Prosecution to the fact that Hitler’s decree concerning the appointment of Himmler as Chief of the German Police—Document 2073-PS—had been countersigned by Frick himself.

I believe that the relationship between Frick and Himmler, as well as their divergent relations to Hitler, are sufficiently clear to justify the conclusion that the appointment of Himmler simply amounted to an agreement between Hitler and Himmler, to which Frick would have objected in vain. We are confronted with the same problem which applies to so many defendants, namely, that of the formal countersigning of an order issued by Hitler, which was then signed as a matter of form by the head of a department, although that department head had no influence on the order and could not have prevented it, especially as it would have had full constitutional effect as a Führer decree without the minister’s additional signature.

I now have to deal with several documents which the Prosecution consider to have a bearing on actual activity by the Defendant Frick within the sphere of tasks of the political police. I have already dealt with Document 3304-PS, to which the Prosecution referred in this connection. It concerns an ordinance on the assignment of a Higher Police Leader to the Reichsstatthalter (Reich Governor) in the Eastern territories which were incorporated into the commonwealth of the German Reich, and hence deals with the administrative organization of the Reich Governor’s office in a part of the Reich. This decree therefore falls within the scope of the general competence of the Ministry of the Interior, and accordingly does not furnish proof of any specific police activity. Moreover, this decree has nothing to do with any arbitrary acts of the Gestapo.

On the same lines in the decree of 20 September 1936—Document 2245-PS—concerning the appointment of police experts in the Prussian provincial administrations, which were also subordinate to the Reich Ministry of the Interior as offices of the general internal Reich administration, the assignment of a police expert to the office of general administration in the province is a measure of internal Reich administration. This measure, too, had no connection with arbitrary acts of the Gestapo, and more particularly it does not prove that the defendant issued any instructions to the Gestapo.

The situation is no different with respect to the documents which have been appraised by the Prosecution as demonstrating the participation of the defendant in the establishment and administration of concentration camps, or as a sign of approval of terror methods used by the Gestapo. In their statement of 22 November 1945, the Prosecution referred to Document 2533-PS as proof of the approval of these arrangements by the Defendant Frick. I need not go further into the contents of the document; it represents an article by the Defendant Frank in the journal of the Academy of German Law, of which Frick has erroneously been called the author by the Prosecution.

A further document does not, in the opinion of the Defense, contain sufficient evidentiary value to be utilized in giving legal judgment. I have in mind Document 2513-PS, Exhibit Number 235, which contains an excerpt from a speech which Frick allegedly made in the year 1927. But the excerpt is taken from a provincial Social Democrat newspaper, a small paper opposed to Frick, the reporter thus having no authentic copy of the speech at his disposal—and we all know what mistakes and misunderstandings are apt to be contained in such short reports, the wording of which cannot be checked by the speaker himself. Thus this document, according to which Frick is said to have stated that history is written not only with the ballot, but with blood and iron, is not a reliable source.

The Prosecution refers to dealings concerning the expropriation of land in order to extend the grounds of the Auschwitz Concentration Camp. The general domestic administration is competent for expropriation matters, and for this reason an official from the Ministry of the Interior was called into negotiations, who stated, however—Page 2 of the English translation of the document—that he was not authorized to dispose of the freehold of the land. Thus one cannot from this document either construe any political police activity on the part of the defendant, or an approval of the concentration camp system. Finally, in this connection the Prosecution states that the Defendant Frick personally visited the Oranienburg and Dachau Concentration Camps. The defendant does not deny the visit to Oranienburg in 1938, about which witness Hoess testified. At that time, as witness Hoess himself testified, the outward aspect of the camps was still generally that of a military training area. In any case, an official visitor to a camp at that time could not observe any indication of murder, ill-treatment, or similar crimes, so that such a visit is not a decisive argument for knowledge of crimes in the concentration camps.

On the other hand, Frick never visited the Dachau Concentration Camp, contrary to the testimony of the witness Blaha. I refer to the testimony of Gillhuber in regard to this, who as the constant companion of Frick must have known about such a visit if it had taken place. I take the liberty of pointing out that the two other constant companions of Frick were also named by me as witnesses, but in agreement with the Prosecution were considered by the Tribunal as unnecessary on the grounds that one of the companions would be sufficient as a witness.

Before concluding this chapter, I still have to go into the matter of an allusion made by the Prosecution which described Frick at one time as the Chief of the Reich Security Main Office. I beg to refer to the testimony of the witness Ohlendorf, who stated to the Court that the Reich Security Main Office (RSHA) was a creation of Himmler, who combined in this office his state police tasks and his functions as Reichsführer SS, with which Frick had no connection of any kind, much less any powers of command. The sole chief of this office was thus Himmler himself.

I must go further into the charges which are made against the Defendant Frick with respect to the persecution of members of the Jewish race. Frick did collaborate in legal measures, particularly the Nuremberg Laws, and in administrative measures which he regarded as an expression of a National Socialist racial policy. On the other hand there is no proof that Frick himself shared in or knew of the measures of physical extermination which, on Hitler’s direct orders, were carried out by Himmler and his organizations and kept absolutely secret from those who themselves had no part in these frightful events. Further, in his capacity as Minister of the Interior, the defendant is also accused of collaboration in the killing of the sick and insane. Hitler’s basic order is contained in Document 630-PS, Exhibit Number USA-342. This document shows that Hitler did not give an order for this to any government office but to two separate individuals, namely, Bouhler and Dr. Brandt, so that this was quite outside the ministries’ authority. Moreover, contrary to all rules, Hitler did not sign this order himself in an official capacity as Führer and Reich Chancellor, but used private stationery with the heading “Adolf Hitler.” This shows, a fact that the witness Lammers has confirmed, that Hitler did not give an order for these measures to the Ministry of the Interior or some other government office, but to two of his Party comrades, and the Party emblem is the only sign on this stationery. On the other hand, the documents submitted by the Prosecution prove that complaints were made which also reached the Ministry of the Interior, but they do not prove that, in contradiction to Document 630-PS, Frick personally was contacted on the subject of measures for the killings, or that he could have prevented them.

After his dismissal as Minister of the Interior on 20 August 1943 Frick was appointed Reich Protector of Bohemia and Moravia. Here he was given a task which from the start was definitely limited in its competence.

I refer to Document 3443-PS, which is also included as USSR-60 and under Number 29 in the Frick document book, and to 1366-PS, submitted by me as Exhibit Number Frick-5a. Furthermore, I refer to the testimony of the witness Lammers. The office of the Reich Protector was originally the unified representation of Reich authority in the Protectorate. In actual practice, however, its authority passed more and more to Frank, the Reich Protector’s State Secretary at that time.

With the appointment of Frick in August 1943 through a Führer decree which was not made public, the executive authority was now formally transferred to Frank, who from that date received the official title of “The German Minister of State in Bohemia and Moravia.” From that time on the Reich Protector retained essentially the right of representation and the right of pardon, improper use of which by Frick has been neither maintained nor proved by the Prosecution. On the other hand Frank, as “German Minister of State” according to the above-mentioned Führer decree, derived his executive authority directly from Hitler by whom he had been directly appointed, and from whom he received his instructions without Frick’s interpolation, Frick being in no way competent to exercise any influence thereon. Considering this state of affairs, the Defendant Frick cannot be incriminated by Document 3589-PS, Exhibit Number USA-720.

I now come to the Prosecution’s charge that Frick, by his membership in certain organizations, is responsible for certain criminal actions. The SS was one of these organizations mentioned by the Prosecution, to which, however, Frick never belonged. Thus he was never a general in the SS, as stated by the Prosecution. I would assume this to be merely an error on the part of the Prosecution. In any case, the Prosecution did not submit any form of proof. Frick was likewise never a member of the SA, as shown—probably by mistake—in the chart indicating the defendants’ membership in various organizations. For this too, there is no proof.

The Prosecution has further charged Frick with being the supreme head of the Gestapo, and therefore designated him as a member of this organization, with the argument that since the appointment of Himmler in 1936 as Chief of the German Police the Gestapo has been formally incorporated into the Reich Ministry of the Interior. But the Gestapo had its own chief in the person of Himmler, from whom alone it took orders, and Himmler’s formal subordination to the Minister of the Interior does not make the latter a member of that organization, which was exclusively under Himmler’s orders.

The Defendant Frick is further charged, in his capacity as Reichsleiter, with membership in the Political Leadership Corps. My colleague, charged with the defense of this organization, will in his turn deal with the character of this organization. As to the Defendant Frick, I have only to point out that he held the formal position of a Reichsleiter in his role as chairman of the Reichstag faction of the NSDAP. The Reichstag itself having lost all political importance after 1933, which requires no further explanation, this position of Frick’s was in practice equally unimportant and could not be compared with the position of a Reichsleiter who administered important political departments.

Finally Frick, as Reich Minister, was a member of the Reich Cabinet. With regard to the character and the authority of this organization I also refer first of all to the statements, which are yet to follow, of my colleague who has been appointed defense counsel for this organization.

I refer here only to the testimony of Lammers and Gisevius, and further to the excerpt from the book of this latter witness, which I have submitted as Exhibit Number Frick-13 as evidence of the position and authority which the Reich Cabinet had with respect to the dictatorial practices of Hitler. From all this, the Defendant Frick appears as a person who certainly took action politically to bring Hitler to power, and who temporarily exercised a decisive influence on internal policy after his goal had been achieved. All his measures, however, had inner political aims; they were not intended to have anything to do with the foreign political aims of a war of aggression, much less with Crimes against Peace or against the rules of warfare—and, as also specified by Article 6 of the Charter, only in such cases would this Court have jurisdiction, as stated by the Prosecution itself.

When Frick realized later that the policy was taking a course of which he could no longer approve, he tried to exert all his influence to bring about a change. But he had perforce to find out more and more clearly that Hitler would not listen to his remonstrances and complaints. On the contrary, he was forced to realize that these complaints destroyed Hitler’s confidence in him, and that he preferred to be advised by Himmler and similarly minded persons, so that finally, after the year 1937, Frick was no longer received by Hitler when he wanted to present complaints. Frick then gave up such hopeless attempts to bring about a change in the situation. Things would not have been altered by his resignation either, which the evidence has shown he repeatedly tendered in vain. Thus his tragedy lies in his entanglement in a system, in the first steps of which he had participated enthusiastically and the development of which he had imagined would be quite different. In any case, it appears important to me, in judging his personality and his actions, that even this presentation of evidence, which has gone on for months, has not given any proof of the personal participation of the defendant in any crime.

It is not without reason that John Gunther in his book _Inside Europe_, which I have presented to the Tribunal as evidence, describes precisely the Defendant Frick as “the only honest Nazi.” At the same place Gunther goes on to call him a “bureaucrat through and through.” Hitler himself kept calling him the “pen pusher” (“Paragraphenschuster”) because Frick—which was typical of him—did not become acquainted with him at some public meeting, but in his office in the police department in Munich in the year 1923.

This man felt enthusiasm for Hitler’s suggestive power, so lacking in himself, a Hitler who with big words appealed to his heart, his honor, and his patriotism. It was Hitler who made him proud of being able to participate in the reconstruction of a German nation which, through powerful armed forces, was to be in a position to play a peaceful yet active role in world politics.

And it was again Hitler who knew how to make his program appear to the bourgeois official Frick as the only way to forestall Bolshevik rule in Germany—this and many more superficial truths, twisted statements, and devices of propaganda which fooled so many people who fell for the suggestive power of Hitler, not realizing in time that they had subordinated themselves to the hypnotic will of a criminal, who was prepared to overthrow the pillars of civilization for his aims and who finally would leave Germany a monstrous spiritual and material field of rubble, for the removal of which I pray that this Trial may also contribute through a sentence in accordance with law and justice.

THE PRESIDENT: Dr. Marx.

DR. HANNS MARX (Counsel for Defendant Streicher): Gentlemen of the Tribunal, Mr. President.

I begin the speech for the defense of Julius Streicher.

When in May of the past year the final battles of the greatest and most horrible war of all time came to an end, the Germans were slow to rise again from the stupor in which they had, for the most part, spent the last months of the war. Like all the peoples of Europe they had suffered unspeakably for years. The last months in particular, with their hail of bombs, had brought so much misery to both the country and the people that it almost surpassed human endurance. This terror was increased by the knowledge that the war was lost, and by the fear of the uncertain fate which the occupation period would bring. And when finally the period of first anxiety had passed, when the German people were slowly beginning to breathe again, paralyzing horror spread once more.

Through the press and radio, through newspapers and motion pictures, knowledge was spread of the atrocities which had taken place in the East, on the steppes and in the concentration camps. Germany learned that people, men of its own blood, had slaughtered millions upon millions of innocent Jewish people. Most people felt instinctively that these deeds would necessarily be the greatest of all the accusations the world had to level against Germany.

The question of whether the German people in its totality had known and approved of these actions was, and is, the truly fateful question. It is the touchstone by which the decision must be made as to whether or not Germany will ever be able to return again as a nation with equal rights into the common cultural and spiritual sphere of the world. As in every case of guilt, there immediately arose here also the question as to who was responsible, and the search for that individual. Who had ordered these atrocities, who had carried them out, and how could such inconceivable things have happened at all, the like of which cannot be found in history even in the earliest days?

During all this asking and guessing, the news arrived that the former Gauleiter of Franconia and publisher of Der Stürmer, the present Defendant Julius Streicher, had fallen into the hands of the American troops. From the echo this news aroused in the press, which was exclusively directed and published by the occupying power, as well as in the radio news, it was to be gathered that the world was of the opinion that in the person of Julius Streicher not only had one of the numerous anti-Semitic propaganda agents of the Third Reich been taken prisoner, but in short Enemy Number One of the Jews.

Throughout the rest of the world the opinion evidently prevailed that in the person of Julius Streicher not only the most active propaganda agent for the persecution and extermination of the Jews had been seized, but that he had also participated to the highest degree in carrying out these acts of extermination. He was said to have been, as one heard, not only the greatest hater of the Jews and the greatest preacher of extermination of the Jews, but also the person to whose direct influence one could trace back the extermination of European Jewry.

It is only from this angle that it can be explained why the Defendant Streicher should sit here in the dock, together with the other defendants, among those chiefly responsible for the National Socialist system. For neither by virtue of his personality nor measured by his offices and positions does he belong to the circle of leaders of the NSDAP or to the Party’s decisive personalities. This view was probably also held in the beginning by the Prosecution, but was abandoned by them at an early stage, for the written Indictment already no longer charged the Defendant Streicher with any personal and direct part in the abominable mass murders. Rather did it state that there was less guilt with which he would be charged than in the case of any of the other defendants; only his propaganda, his activities by the written and spoken word, were made the subject of the accusation against him.

As far as particulars are concerned, the Counts of the Indictment against the Defendant Streicher were summed up as follows:

I. Support of seizure of power and consolidation of power of the NSDAP after the latter’s entry into the Government.

II. Preparation of aggressive wars by propaganda aimed at the persecution of the Jews.

III. Intellectual and spiritual preparation and education to encourage hatred against the Jews,

(a) in the German people,

(b) in the German youth, and

(c) in the active extermination of Jewry.

Without Julius Streicher, no Auschwitz, no Mauthausen, no Maidanek, no Lublin—thus the Indictment may be summed up briefly.

As far as Count One of the Indictment is concerned, the defendant does not deny that as regards the Party’s later seizure of power he supported and promoted it with all his might from its earliest inception. His support went to the extent of placing a whole movement which he had built up personally in Franconia at the disposal of Adolf Hitler’s Party which was small after the first World War, as one can imagine, and limited to southern Bavaria only. Furthermore, after Hitler’s release from the fortress of Landsberg, he immediately joined him again and subsequently championed his ideas and goals with the greatest determination.

THE PRESIDENT: I think this is a good time to break off. The Tribunal will adjourn.

[_The Tribunal adjourned until 12 July 1946 at 1000 hours._]

NOTES

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[1] Proceeding from this interpretation of the Charter there arises the need for a discussion on how the Indictment is to be construed with respect to the conspiracy charged therein. This construction is based on the legal concept of Anglo-American law which determines the responsibility of a plurality of persons differently and in a more far-reaching way than the German penal code, which contains the principles of law to which the accused were subject at the time when they committed the deed. The German penal code also provides that a person can be held responsible for offenses committed by others provided he participated in a common plan which was later carried out by others. But the German penal code places decisive weight on determining the extent to which the acts committed at a latter date correspond to the common plan. Since in the serious crimes which are being prosecuted before this Court the determination of the form of guilt in the original plan is necessary in order to permit punishment, later acts of commission by others can be charged against a defendant only to the extent to which they corresponded to arrangements to which the defendant deliberately agreed. A defendant who participated in certain plans cannot be held responsible for subsequent plans of a wider scope, or for acts of commission which far exceeded the original plans without his co-operation.

Responsibility for subsequent plans and acts of commission can be established according to German law only if it can be proved that the defendant, without participating in those subsequent plans and actions, at the time of his original participation recognized and approved this manner of development and execution and, in other words, deliberately encouraged it.

To revert to the example of the Prosecution:

He who participates’ in the plan for robbing a bank is responsible if this plan is carried out, even though he does not personally participate in the execution. But a person does not at the same time become guilty of premeditated murder if the active members subsequently and without his participation discuss murdering the guard or in case one of the members should shoot one of the guards without prior agreement, because the latter has caught him in the act.

Nobody can be convicted of premeditated murder if he did not participate in a plan to commit murder, unless it can be proved that when he participated in the plan for robbing the bank such killing of a guard was already contemplated and that in spite of this he approved the plan for the bank robbery. In that case he, too, would have deliberately contributed to the murder. In other words, according to the provisions of German substantive criminal law there does not exist a liability for so-called excesses of the immediate culprits or for an unforeseen development of plans not originally conceived on such a wide scope, so that a more far-reaching interpretation in line with the concept of conspiracy in Anglo-American law, which at the time when the accused committed their deed did not exist, would violate the principle which prohibits retroactive application of penal laws.

ONE HUNDRED AND SEVENTY-SEVENTH DAY Friday, 12 July 1946

_Morning Session_

THE PRESIDENT: The Tribunal will adjourn today at 4 o’clock.

DR. MARX: Mr. President, with the permission of the Tribunal I shall now continue with the presentation of the final plea for the Defendant Streicher. Yesterday I had come to the point where the individual accusations against Streicher had been summarized, and I had taken liberty of explaining that these accusations are subdivided into three different paragraphs:

1. Support of seizure of power and consolidation of the power of the NSDAP after its entry into the Government.

2. Preparation of aggressive wars by propaganda aimed at the persecution of the Jews.

3. Intellectual and spiritual preparation and education of the German people and German youth to effect the destruction of Jewry and to encourage hatred of the Jews.

With respect to Count One of the Indictment, the defendant does not deny that, with regard to the Party’s later seizure of power, he supported and promoted it with all his might from the very beginning. His support went to the extent of a whole movement which he had built up personally in Franconia and which he put at the disposal of Adolf Hitler’s Party, which was quite small after the first World War and limited to Southern Bavaria only. Furthermore, after Hitler’s release from the fortress of Landsberg he immediately joined him again and subsequently championed his ideas and aims with the greatest determination.

Until 1933 the defendant’s activity was limited to propaganda for the NSDAP and its aims, particularly in the field of the Jewish question. Nothing criminal can be seen in this attitude of the defendant as such. Participation in a party within a state which allows such an opposition party can be regarded as criminal only if, first of all, the aims of such a party are objectively criminal and if, subjectively, a member of such a movement knows, approves of, and thereby supports, these criminal aims.

The foundation of the entire charges against all the defendants lies in this very fact that the NSDAP is accused of having had criminal aims from the very beginning. According to the assertion of the Prosecution, the members of this Party started out with the plan of subjugating the world, of annihilating foreign races, and of setting the German master race above the whole world. They are accused of having harbored the will to carry out these aims and plans from the very outset by means of aggressive wars, murder, and violence. If, therefore, the Defendant Streicher’s mere participation in the NSDAP and his support of it are to be ascribed to him as a crime, it must be proved that the Party had such plans and that the defendant knew and approved of them.

The gentlemen who spoke before me have already demonstrated sufficiently that a conspiracy with such aims did not exist. Therefore I can save myself the trouble of making further statements on this subject and I can refer to what has already been set forth by the other defense counsel. I have only to deal with the point that the Defendant Streicher did not in any case participate in such a conspiracy, if the latter should be considered by the High Tribunal to have existed.

The official Party Program strove to attain power in a legitimate way. The aims advocated therein cannot be considered as criminal. Thus, if such aims did actually exist, they could only—by the very nature of a conspiracy—be known in a restricted circle.

The Party Program was not kept secret but was announced at a public meeting in Munich, so that not only the whole public of Germany but also that of the entire world could be informed about the aims of the Party. Therefore that element supplied by secret agreement towards a common aim, which is usually the characteristic sign of a conspiracy, is not present.

The evidence too, has shown nothing to the effect that already at that time there existed a plan for a war of revenge or aggression connected with the previous or simultaneous extermination of the Jews. If, nevertheless, a conspiracy should have existed, the latter would have confined itself to the restricted circle which revolved exclusively around Hitler. But the Defendant Streicher did not belong to that circle. None of the offices he occupied provides the least proof of that. As an old Party member he was just one among many thousands. As honorary Gauleiter, as honorary SA Obergruppenführer, he was also only an equal among equals. Thus one cannot find in any of the offices he held any connection or complicity with the innermost circle of the Party. It is also impossible to discern after the end of 1938 any personal relations with the leading men of the Movement, either with Hitler himself or with the Defendant Göring, or with Goebbels, Himmler, or Bormann.

The Prosecution did not offer any evidence on this point, nor did the proceedings produce any proof to that effect. Of all the material presented during all these months of the Trial, nothing can be taken as even a shadow of proof that the Defendant Streicher was so closely connected with the supreme authority of the Party that he could have, or even must have, known its ultimate aims.

In the Jewish question too the final aims of the Party—the effects of which were manifest in the concentration camps—were not, before the seizure of power and for several years after, formulated and determined as they appeared in the end. The Party Program itself provided for Jews to be placed under aliens’ law, and so the laws issued in the Third Reich followed this line. Only later on, it may be added, the program in this as in many other points became more radical and finally went haywire altogether under the influence of the war. But any proof that the Defendant Streicher knew other aims than those of the official Party Program has not been offered. Consequently it has not been proved that the defendant supported the seizure of power of the Party in cognizance of its criminal aims; and only on such a basis could a penal charge be brought against him.

The fact that the defendant, as Gauleiter, further endeavored to increase and maintain the power of the Party after the seizure of power is not disputed by him. But here, too, the defendant’s conduct can only be considered punishable if he knew at that time the objectionable aims of the Party. As a matter of actual fact it must be said here that the Defendant Streicher, in contrast to almost all the other defendants, did not remain in his position until the end, not even until the war. Officially he was dismissed in 1940 from his position of Gauleiter, but actually and practically he had been without any influence and power for more than a year before that time. But as long as he could still work within the modest framework of his capacity of Gauleiter, no criminal plans of the NSDAP were recognizable. In any case not for anybody who, like the Defendant Streicher, was outside the close circle surrounding Adolf Hitler.

Count Two of the Indictment brought against the Defendant Streicher, namely, the persecution of Jews as a means of preparation for a war of aggression, can be included here. Up to 1937 the existence of a plan for a war of aggression was in no way recognizable. In any case, if Hitler had had any intentions in that direction, he did not allow them to be recognized from the outside. If, however, anybody had been taken into his confidence at that time, it would have been the leading men in politics and the Armed Forces, who belonged to the closest circle around him. To those, however, the Defendant Streicher by no means belonged. It is especially significant here that at the outbreak of the war Streicher was not even appointed Wehrkreiskommissar (Commissioner of Military Administrative Headquarters) of his Gau. The individual conferences from which the Prosecution derives the evidence for the planning of the war which broke out later in no case ever saw the Defendant Streicher as participant. His name does not appear anywhere, neither in any written decree, nor in any minutes. Consequently no proof has been offered that Streicher knew of such alleged plans for waging war. This does away with the accusation that he preached hatred against the Jews in order to facilitate thereby the conduct of the war planned for some later time.

In this connection I should add that one of the main points in the program of the NSDAP was the slogan, “Get rid of Versailles!” The defendant adopted this point of the program which, however, does not mean he envisaged a repeal of the treaty by means of war.

Even the former democratic German governments, in the course of their negotiations with their former opponents in the World War, stressed the fact at all times that the Versailles Treaty presented no proper basis for permanent world peace and particularly for economic adjustment. Not only in Germany but everywhere in the rest of the world clear-thinking economic circles were against the Versailles Treaty. We may point especially to the United States of America as an example of this.

Almost all political parties in Germany, irrespective of their other aims, agreed that the Treaty of Versailles should be revised. Neither was there any difference of opinion over the fact that such revision was possible only on the basis of an agreement. Even to consider any other possibility of solution would have seemed Utopian, for the German Reich lacked all military power. The NSDAP also strove, at any rate as far as could be seen from outward signs, to find a solution to the problem in this way. To support such an aim, however, cannot be looked upon as a violation of treaty obligations and, therefore, cannot be made the object of a charge against the defendant. No proof has been offered that he thought of warlike complications or that he desired them.

I now come to the matter of the defendant’s attitude in the Jewish question. He is accused of having incited and instigated for decades the persecution of the Jews and of being responsible for the final extermination of Europe’s Jewry. It is clear that this accusation constitutes the decisive point of the Indictment against Julius Streicher and perhaps the decisive point of the total Indictment, for in this connection the attitude of the German people to this question must be tried and judged as well. The Prosecution takes the point of view that there is just as little doubt as to the responsibility of the defendant as there is doubt about the guilt in which the German people are involved. As evidence of this the Prosecution put forward:

(a) The speeches by Streicher before and after the seizure of power, particularly one speech in April 1925, in which, he spoke about the extermination of the Jews. Herein, in the prosecutor’s opinion, is the first evidence to be seen regarding the final solution of the Jewish question planned by the Party, namely, the extermination of all Jews.

(b) Active assertion of the person and authority of the defendant, especially on “Boycott Day,” 1 April 1933.

(c) Numerous articles published in the weekly paper, _Der Stürmer_, among them especially those dealing with ritual murder and with quotations from the Talmud. He is said to have knowingly and intentionally described therein the Jews as a criminal and inferior race and created and wished to create hatred of these people and the wish to exterminate them. The defendant’s reply to these points is as follows:

He states that he worked merely as a private writer. His aim was to enlighten the German people on the Jewish question as he saw it. His description of the Jews was merely intended to show them as a different and a foreign race and to make it clear that they live according to laws which are alien to the German conception. It was far from his intention to incite or inflame his circle of listeners and readers. Moreover, he always only propagated the idea that the Jews, because of their alien character, should be removed from German national and economic life and withdrawn from the close association with the body of the German people.

Further, he always had in mind an international solution of the Jewish question; he did not favor a German or even European partial solution and rejected it. That was why he suggested, in an editorial in _Der Stürmer_ in the year 1941, that the French island of Madagascar should be considered as a place of settlement for the Jews. Consequently, he did not see the final solution of the Jewish question in the physical extermination of the Jews but in their resettlement.

It cannot be the aim of the Defense to go into further details of the defendant’s actions as a writer and speaker, particularly with regard to _Der Stürmer_ and his reply to the accusations raised against him. His ideology and convictions shall not be explained, excused, or defended, nor his manner of writing and speaking either. Examination and judgment in this respect rest with the Tribunal alone. This much only shall be said, that between the defendant’s actions and the expressions frequently employed by him there is an antithesis which cannot be bridged. It may be stated that the defendant never, when in charge of an anti-Jewish undertaking, had coercive measures used against the Jewish population, as might necessarily be expected of him if the accusations made by the Prosecution were true.

I consider it my duty as defense counsel to broach and examine the question as to whether the Defendant Streicher with his speeches, his actions and his publications, not only strove towards the result alleged by the Prosecution but actually attained it. The question therefore should be examined as to whether Streicher actually educated the German people to a degree of anti-Semitism which made it possible for the leadership of the German nation to commit such criminal acts as actually occurred. Furthermore, it must be examined whether the defendant filled German youth with hatred against the Jews to the extent that is charged by the Prosecution. Finally, the question must be examined whether Streicher actually was the man who spiritually and morally prepared the executive organs for their active persecution of the Jews.

At the beginning of this exposition it appears important to point out that a great many of _Der Stürmer_ articles, from which the Prosecution endeavors to deduce an incitement to stamp out and annihilate the Jews, were not written by Streicher himself, but by his collaborators, especially by the Deputy Gauleiter, Karl Holz, who was well known for extremely radical tendencies. Even though the Defendant Streicher bears formal responsibility for these articles, which responsibility he expressly assumed before the Tribunal, this aspect nevertheless appears very important for the extent of his criminal responsibility.

Further it may be said in this connection that, according to the unrefuted statement of the defendant, the most caustic articles were written in reply to articles and writings in the foreign press, which contained very radical suggestions for the destruction of the German nation—also, no doubt, due to the existing war psychosis.

The Defendant Streicher—and this cannot be denied and shall not be defended—continually wrote articles in _Der Stürmer_ and also made speeches in public which were strongly anti-Jewish and at least aimed at the elimination of Jewish influence in Germany. During the first years Streicher found a comparatively favorable soil for his anti-Jewish tendencies. The first World War ended with Germany’s defeat, but wide circles did not wish to admit the fact of a military victory of Germany’s opponents of that time. They attributed this defeat exclusively to a breakdown of national defense and resistance from within and depicted Jewry as being the main culprit for this inner undermining. In doing this they intentionally overlooked the mistakes which had been committed by the Government of that time before and during the war with respect to domestic and foreign policy, as well as the errors of strategy. A scapegoat was sought on which to lay the blame for the loss of the war, and it was thought to have been found in the Jews. Jealousy, envy, and also disregard of personal shortcomings accomplished the rest in influencing feelings unfavorably toward the Jewish population. In addition to that came the inflation and in the following years the economic depression with its steadily increasing misery which, as experience shows, makes any nation ripe for any form of radicalism.

On this ground and in this setting _Der Stürmer_ developed. For these reasons it first met with a certain amount of interest and attracted a considerable number of readers. But even in the last years before the seizure of power it did not have great influence; its distribution hardly went beyond Nuremberg and its close vicinity. By means of attacks on persons known locally in Nuremberg and in other places, it managed to arouse in these localities, from time to time, a certain amount of interest and thereby to extend its circle of readers. Certain parts of the population were interested in the propagation of such scandal and for that reason subscribed to _Der Stürmer_.

But criminal action can only be seen here—and this is presumably the opinion of the Prosecution also—if this type of literary and oral activity led to criminal results. Now, was the German nation really filled with hatred for the Jews by _Der Stürmer_ and by Streicher’s speeches in the sense and to the extent asserted by the Prosecution?

The Prosecution submitted the evidence on this point in a very brief manner. It draws conclusions, but it has not produced actual proof. It alleges the existence of results, but cannot produce evidence for that assumption. The prosecutor has maintained that without Streicher’s incitements over a number of years the German people would not have sanctioned the persecution of the Jews and that Himmler would not have found among the German people anyone to carry out the measures for the extermination of the Jews. If, however, the Defendant Streicher is to be made legally responsible for this, then not only must it be proved that the incitement as such was actually carried through and results achieved in this direction; but—and this is the decisive point—conclusive proof must be produced that the deeds which were done can be traced back to that incitement. It is not the question of the result obtained which must primarily and irrefutably be proved but the causative connection between incitement and result. Now, how is the influence of _Der Stürmer_ upon the German people to be estimated, and what picture unfolds in the handling of the Jewish problem during the years between 1920 and 1944?

It is easy to recognize here three stages of development. The first period comprises the time of the defendant’s activity between 1922 and 1933; the second that between 1933 and 1 September 1939, or February 1940; the third, the time from 1940 to the collapse.

With regard to the first period, it would show a considerable lack of appreciation of the tendencies which had already existed in Germany for a long time and thereby a completely groundless exaggeration of Streicher’s influence, if no mention were made of the fact that long before Streicher there was already a certain amount of anti-Semitism in Germany. For instance a certain Theodor Fritsch had touched on the Jewish question in his journal _Der Hammer_ long before Streicher’s time, referring especially to the alleged menace offered by the immigration of Jewish elements from the East, which might overflow the country and acquire too much control in it.

Immediately after the end of the first World War the so-called “German National Protective and Defensive League” (Deutsch-Völkischer Schutz- und Trutzbund) appeared on the scene, which in contrast to _Der Stürmer_ and the Movement brought into being by Streicher, extended over the whole of Germany, setting as its aim the repression of Jewish influence. Anti-Semitic groups existed in the South as well as in the North long before Streicher. In comparison with these large-scale efforts, _Der Stürmer_ could only have a regional importance. This alone explains why its influence was never at any time or in any place of great importance.

It is a decisive fact, however, that the German nation in its totality did not let itself be influenced by all these groups either in its business relations or in its attitude towards Jewry and that even during the last years before the NSDAP came to power no violent actions against the Jews were committed anywhere by the people. However, when towards the end of the second decade after the first World War a considerable increase of the NSDAP became noticeable, this was not due to anti-Semitic reasons but to the fact that the prevailing confusion in the various parties had been unable to point to a way out of the ever-increasing economic misery. The call for a strong man became ever more urgent. The conviction became more and more firmly rooted among the broad masses that only a personality who was not dependent on the change of majorities would be able to master the situation.

The NSDAP knew how to exploit this general trend for its own ends and to win over the nation, sunk in despair, by making promises in all directions. But never did the masses think, when electing the NSDAP at that time, that its program would produce developments as we have witnessed.

With the seizure of power by the NSDAP in 1933, the second epoch was introduced. The power of the State was exclusively in the hands of the Party and nobody could have prevented the use of violence against the Jewish population. Now would have been just the right moment for the Defendant Streicher to put into effect the baiting the Prosecution has alleged. If by that time wide circles of the population, or at least the veteran members of the NSDAP, had been trained to be radical Jew haters, as stated by the Prosecution, acts of violence against the Jewish population would necessarily have taken place on a greater scale due to that feeling of hatred. Pogroms on the largest scale would have been the natural result of a truly anti-Semitic attitude of the people. But nothing like that happened. Apart from some minor incidents, evidently caused by local or personal conditions, no attacks on Jews or their property took place anywhere. It is quite clear that a feeling of hatred for the Jewish people did not prevail anywhere at least up to 1933, and the charge brought by the Prosecution against the defendant that ever since the very outset of his fight he successfully educated the German people to hate the Jews can thus be dropped.

The year of the seizure of power by the NSDAP also put _Der Stürmer_ to a decisive test. Had _Der Stürmer_ been considered by the broad masses of the German people as the authoritative champion against the Jews and therefore indispensable for that fight, an unusually large increase in the circulation would have followed. No such interest was, however, shown. On the contrary, even in Party circles demands were made that _Der Stürmer_ should be discontinued entirely; or at least that its illustrations, style, and tone should be altered. It became more and more clear that the already small interest in Streicher’s Jewish policy was steadily declining. It must be added that with the seizure of power by the Party the total press apparatus came under the control of the Party, which immediately undertook to co-ordinate the press, that is, to direct it from a central office in the spirit of the National Socialist policy and ideology. This was done through the Minister of Propaganda and the Reich Press Chief via the official “National Socialist Correspondence.” Particularly Dr. Goebbels, the Minister of Propaganda, described by various witnesses such as Göring, Schirach, Neurath, and others as the most bitter advocate of the anti-Semitic trend in the Government, is said to have given each week to the entire German press several anti-Jewish leaders, which were printed by more than 3,000 dailies and illustrated papers. If in addition we take into account that Dr. Goebbels was making broadcasts of an anti-Semitic nature, we need no further explanations for the fact that the interest in a one-sided anti-Semitic journal should diminish and that is what actually happened.

It is particularly significant that at that time it had been repeatedly suggested that _Der Stürmer_ should be suppressed altogether. This is brought out clearly in the testimony given by Fritzsche, on 27 June 1946, who stated in addition that neither Streicher nor _Der Stürmer_ had any influence in the Ministry of Propaganda and that he was considered so to speak as nonexistent. It may have been for the same reason that _Der Stürmer_ was not even declared a press organ of the NSDAP and was not even entitled to show the Party symbol. It was looked upon by the Party and State administration, in contrast to all papers which were considered to be of any importance, as a private paper belonging to a private writer.

The firm which published _Der Stürmer_, and which belonged at that time to a certain Härdel, was not inclined, however, to accept so quietly the dwindling of its circle of readers, for it was now aided by the fact that Streicher had become the highest leader in Franconia; and it knew how to make the most of this circumstance. Already at that time pressure was exerted on many sections of the population to prove their loyal political attitude and trustworthiness by subscribing to _Der Stürmer_. The witness Fritzsche also has alluded to this circumstance, stating that many Germans only decided to subscribe to _Der Stürmer_ because they thought it would be a means of paving the way for their intended membership in the Party.

So as not to give a false impression of the circulation figures of _Der Stürmer_ during the years between 1923 and 1933, the following analysis will show the different stages of its development.

In the years 1923 to 1933 _Der Stürmer_ was able to increase its circulation from some 3,000 to some 10,000 copies, and this in turn went up to some 20,000 shortly before the seizure of power. On the average, however, between 1923 and 1931 the circulation was only some 6,000 copies. Following the seizure of power, by the end of 1934 it had reached an average of some 28,000 copies. It was not until 1935 that _Der Stürmer_ became the property of the Defendant Streicher who, according to his statement, bought it from the widow of the previous owner for 40,000 RM—a not very considerable sum. From 1935 on the management of the business was taken over by an expert, who succeeded by clever canvassing in increasing the circulation to well over 200,000 copies; and this figure was later increased still further until it more than doubled. The relatively low circulation figures for _Der Stürmer_ up to the beginning of 1935 show that, despite the Party’s rise to power, popular interest in _Der Stürmer_ existed only to a small extent. The extraordinary increase in the circulation which began in 1935 is to be traced to the adroit canvassing methods already mentioned which were carried out by the new director Fink. The use of the Labor Front, as explained by the proclamation of Dr. Ley in Number 36 of _Der Stürmer_, 1935—which copy, Mr. President, I have taken the liberty of submitting as an exhibit—and the acquisition thereby of many thousands of forced subscribers must be ascribed to the personal relations of the manager Fink with Dr. Ley.

In that connection I further refer to a quotation from the _Pariser Tageblatt_ of 29 March 1935 reproduced in _Der Stürmer_ of May 1935. Here, too, it is stated that the increase of _Der Stürmer’s_ circulation cannot be ascribed to the desire of the German people for such kind of spiritual food. It is neither presumable nor probable in any way that the compulsory subscription to _Der Stürmer_, forced on the members of the Labor Front in such a manner, could have actually turned subscribers into readers of _Der Stürmer_ and followers of its line of thought. On the contrary, it is known that bundles of _Der Stürmer_ in their original wrappings were stored in cellars and attics and that they were brought to light again only when the paper shortage became more acute.

When, therefore, the Defendant Streicher wrote in his paper in 1935—Document Number GB-169—that the 15 years’ work of enlightenment of _Der Stürmer_ had already attracted to National Socialism an army of a million of “enlightened” members, he claimed a success for which there was no foundation whatsoever. The men and women who joined the Party after 1933 did not apply for membership as a result of the so-called enlightenment work of _Der Stürmer_ but either because they believed the Party’s promises and hoped to derive advantages from it or because by belonging to the Party they wanted, as the witness Severing expressed it, to insure for themselves immunity from political persecution. The sympathy for the Party and its leadership very soon decreased in the most marked manner. Thus the Defendant Streicher, too, lost authority and influence to an ever-increasing extent even in his own district of Franconia, at least from 1937 on. The reasons for this are sufficiently known.

Toward the end of 1938 he saw himself deprived of practically all political influence, even in his own district. The controversy between him and Göring ended with the victory of the latter. Hitler, when pressed to do so by the Defendant Göring, had dropped Streicher completely, as the Commander-in-Chief of the Luftwaffe at that time was naturally more important and far more influential than the Gauleiter, Streicher. The defendant even had to submit to Aryanization as carried out in the district of Franconia with its correctness being checked by a special commission sent by Göring. In the course of the year 1939 Streicher was completely pushed aside and was even forbidden to speak in public. At the outbreak of the war, in contrast to all other Gauleiter, he was not even appointed to the position of Wehrkreiskommissar of his own district.

During the last phase, in the war years, the Defendant Streicher had no political influence whatsoever. As from February 1940 he was relieved of his position as a Gauleiter and lived on his estate in Pleikershof, cut off from all connections. Even Party members were forbidden to visit him. Since the end of 1938 he had no connections whatsoever with Hitler, by whom he had been completely cast off from that time on.

In what way now did _Der Stürmer_ exert any influence during the war period? It can be said that during the war _Der Stürmer_ no longer attracted any attention worth mentioning. The gravity of the times, the anxiety for relatives on the battlefield, the battles at the front, and finally the heavy air attacks completely diverted the German people’s interest from questions dealt with in _Der Stürmer_. The people were weary of the continuous repetition of the same assertions. The best proof of how little _Der Stürmer_ was desired as reading matter can be seen in the fact that in restaurants and cafés _Der Stürmer_ was always available for perusal, whereas other papers and magazines were permanently being read. The circulation figures decreased steadily and unceasingly in those years. Certainly the influence of _Der Stürmer_ in the political sphere no longer amounted to anything.

During the periods mentioned _Der Stürmer_ was rejected by large circles of the population from the very outset. Its crude style, its often objectionable illustrations, and its one-sidedness aroused widespread displeasure. There can be no question of any influence being exercised by _Der Stürmer_ upon the German people or even the Party. Although the German people for years had been deluged with Nazi propaganda, or rather because of that very fact, a journal such as _Der Stürmer_ could exert no influence upon its inner attitude. Had the German people—as maintained by the Prosecution—actually been saturated with the spirit of fanatical racial hatred, other factors certainly would have been far more responsible for it than _Der Stürmer_ and would have contributed far more essentially to a hostile attitude towards the Jews.

But nothing of such nature can be established. The general attitude of the German people was not anti-Semitic, at any rate, not in such a way or to such a degree that they would have desired, or approved of, the physical extermination of the Jews. Even official Party propaganda with regard to the Jewish problem had exerted no influence upon the broad masses of the German people, neither had it educated them in the direction desired by the State leadership.

This is shown by the fact that it was necessary to issue a number of legal decrees in order to segregate the German population from the Jewish. The first example of this is the so-called Law for the Protection of German Blood and German Honor of September 1935, by the provisions of which any racial intermingling of German people with the Jewish population was subject to the death penalty. The passing of such laws would not have been necessary if the German people had been predisposed to an anti-Semitic attitude, for they would then of their own accord have segregated themselves from the Jews.

The law for the elimination of the Jews from German economic life, promulgated in November 1938, was along the same lines. In a people hostile towards the Jews, any trade with Jewish circles would have necessarily ceased and their business would have automatically come to a standstill. Yet in fact the intervention of the State was needed to eliminate Jewry from economic life.

The same conclusion can be drawn from the reaction of the greater part of the German populace to the demonstrations carried out against the Jews during the night of 9-10 November 1938. It is proved that these acts of violence were not committed spontaneously by the German people but that they were organized and executed with the aid of the State and Party apparatus upon instructions of Dr. Goebbels in Berlin. The result and the effect of these State-directed demonstrations—which in a cynical way were depicted for their effect abroad as an expression of the indignation of the German people at the assassination of the Secretary of the Embassy in Paris, Vom Rath—were different from that visualized by the instigators of this demonstration.

These acts of violence and excesses based upon the lowest instincts found unanimous condemnation, even in the circles of the Party and its leadership. Instead of creating hostility towards the Jewish population they roused pity and compassion for their fate. Hardly any other measure taken by the NSDAP was ever rejected so generally. The effect upon the public was so marked that the Defendant Streicher in his capacity as Gauleiter found it necessary in an address in Nuremberg to give a warning against exaggerated sympathy for the Jews. According to his statement he did not do this because he approved of these measures but only in order to strengthen by his influence the impaired prestige of the Party.

Previously, as appears from the testimony of the witness Fritz Herrwerth examined here, he refused SA Obergruppenführer Von Obernitz’s request to take part personally in the demonstration planned and called it useless and prejudicial. He publicly expressed this point of view later also, during a meeting of the League of Jurists at Nuremberg. In doing so he risked placing himself in open opposition to the official policy of the State.

All these facts show that despite the anti-Jewish propaganda carried on by the Government, actual hostility against the Jewish population did not exist among the people themselves. Thus it is as good as proved that neither Streicher’s publications in _Der Stürmer_ nor his speeches incited the German people in the sense maintained by the Prosecution. Therefore the general attitude of the German nation provides no proof of incitement to hatred of the Jews having been successfully carried out by the Defendant Streicher and leading to criminal results. The Prosecution, however, has further supported its accusation by the specific assertion that only a nation educated to absolute hatred of Jews by men like the defendant could approve of such measures as the mass extermination of Jews. Thereby the charge is made against the whole of the German people that they knew about the extermination of the Jews and approved of it; the severity and consequences of such a charge on the whole future of the German nation is impossible to estimate.

But did the German nation really approve of these measures? A fact can only be approved of if it is known. Therefore should this assertion of the Prosecution be considered as proved, then logically it must also be considered as proved that the German nation actually had knowledge of these occurrences. However, evidence in this respect has shown that Reichsführer SS Himmler, who was entrusted by Hitler with the mass assassinations, and his close collaborators shrouded all these events in a veil of deepest secrecy. By threatening with the most severe punishments any violations of the rule of absolute silence which was imposed, they managed to lower before the events in the East and in the extermination camps an iron curtain which hermetically sealed off those facts from the public.

Hitler and Himmler prevented even the corps of the highest leaders of the Party and State from gaining any insight and information. Hitler did not hesitate to give false information to even his closest collaborators, like Reich Minister Dr. Lammers, who was heard here as a witness, and to make him believe that the removal of the European Jews to the East meant their settlement in the Eastern Territories but by no means their extermination. However much the statements of the defendants may diverge on many points, in this connection they all agree so completely with one another and with the statements of other witnesses that the veracity of their testimonies simply cannot be questioned. If it was not possible for even the Defendant Frank in his capacity as Governor General of Poland to get through to Auschwitz, because without Hitler’s special consent even he was denied entrance, then this fact speaks for itself.

If even the leading personalities of the Third Reich, with the exception of a very small circle, were not informed and if even they had at best very vague information, then how could the general public have known about it? Under these circumstances the possibilities for finding out what was going on in the camps were extremely slight.

For the majority of the people, foreign news did not exist as a source of information. Listening to foreign radio stations was punishable with the heaviest penalties and therefore did not take place. And if it did, the news broadcast by foreign radio stations concerning events in the East, although, or rather because, it corresponded to facts, was so crass, so horrible beyond any human understanding, that it was bound to appear to any normal individual, as in fact it did, as intentional propaganda. Germany could only gain factual knowledge of the extermination measures against the Jews from people who either were working in the camps themselves or came in contact with the camps or their inmates or from former concentration camp inmates.

There is no need to explain that members of the camp personnel who were concerned with these happenings kept silent, not only because they were under stringent orders to do so, but also in their own interest. Furthermore, it is known that Himmler had threatened the death penalty for information from the camps and for spreading news about the camps and that not only the actual culprit but also his relatives were threatened with this punishment. Finally, it is known that the extermination camps themselves were so hermetically sealed off from any contact with the world that nothing concerning the events which took place in them could penetrate to the public.

The prisoners in the camps who came into contact with fellow-workers in their work kept silent because they had to. People who came to the camps were also under the threat of this punishment insofar as they could obtain any insight into things at all, which was all but impossible in the extermination camps. From these sources, therefore, no knowledge could come for the German people.

But the order for absolute silence was compulsory to a still greater measure for every concentration camp inmate who had been released. Hardly anybody ever came back to life from the actual murder camps; but if, once in a while, a man or woman was released, in addition to the other threatened punishments the threat of being sent back to the camp hung over them if they violated the order for silence. And this renewed detention would have meant gruesome death.

It was therefore nearly impossible to learn from released concentration camp prisoners positive facts concerning the occurrences in the camps. If this was the case with regard to normal concentration camps in Germany, it applied in a still greater measure to the extermination camps. Every lawyer who, as I did, defended people before detention in a concentration camp and who was visited by them again after their release, will be able to confirm that it was not possible, even in such a position of trust and under the protection of professional legal secrecy, to get former concentration camp inmates to talk.

If men such as Severing, who testified here—a Social Democrat of long standing, who was highly trusted by his party comrades and who was, because of this, in touch with many former concentration camp inmates—came to know of the real facts connected with the extermination of the Jews only very late and even then to a very restricted extent, then such considerations must apply even more to any normal German.

It can be derived with absolute certainty from these facts that the leaders of the State, that Hitler and Himmler, wanted under all circumstances to keep secret the extermination of the Jews; and this forms the base for another argument—in my opinion, a cogent one—against the anti-Semitism of the German people asserted by the Prosecution. If the German people had indeed been filled with such hatred of Jewry as the Prosecution affirms, then such rigorous methods for secrecy would have been superfluous.

If Hitler had been convinced that the German nation saw in the Jews its principal enemy, that it approved of and desired the extermination of Jewry, then he would obviously have published the planned and also the effected extermination of this very enemy. As a sign of the “total war” constantly propagandized by Hitler and Goebbels, there would indeed have been no better means to strengthen the faith in victory and the will of the people to fight than the information that Germany’s principal enemy, these very Jews, had already been annihilated.

So unscrupulous a propagandist as Goebbels certainly would not have failed to use such a striking argument if he could have based it on the necessary presupposition, that is, the German people’s absolute determination to exterminate the Jews. However, the “final solution” of the Jewish question had by all possible means to be kept secret even from the German people who had for years been subjected to the heaviest pressure by the Gestapo. Even leading men in the State and the Party were not allowed to be told of it.

Hitler and Himmler were evidently themselves convinced that even in the midst of a total war, and after decades of education and gagging by National Socialism, the German nation—and above all its Armed Forces—would have reacted most violently on the publication of such a policy against the Jews. The policy of secrecy followed here cannot be explained by any considerations of the enemy nations. In the years 1942 and 1943 the whole world was already engaged in a bitter war against National Socialist Germany.

An intensification of this struggle seemed hardly possible, at any rate not by the mere publishing of facts which had long since become known abroad. Apart from this, considerations of making a still worse impression on the enemy countries could hardly influence men such as Hitler, Goebbels, and Himmler.

If they had expected to achieve even the slightest tangible results by proclaiming to the German people the extermination of the Jews, they would certainly not have omitted to proclaim it. On the contrary, they would have tried in every way to strengthen by this means the German people’s faith in victory. The fact that they did not do this is the best proof that even they did not consider the German people radically anti-Semitic, and it is also the best proof that there can be no question of such anti-Semitism on the part of the German people.

I may therefore sum up by saying that all this stands in contradiction to the Prosecution’s assertion that the Defendant Streicher brought up the German people to hate the Jews to an extent which made them approve of the extermination of Jewry. Therefore, even if the defendant by means of his proclamations had aimed at achieving such an end he was not successful.

In this connection, light must also be thrown upon the part attributed by the Prosecution to the Defendant Streicher, namely that he had educated German youth in the spirit of anti-Semitism and had inculcated the poison of anti-Semitism so deeply into their hearts that these pernicious effects would be felt long after his death.

The main reproach made against the defendant in this connection is based on the fact that young people, as a result of Streicher’s education in hatred toward the Jews, are supposed to have been ready to commit crimes against Jews which otherwise they would not have committed, and that youth thus educated might be expected to perpetrate such crimes in the future too. Here the Prosecution relies mainly on the juvenile literature published by Der Stürmer and some announcements addressed to youth which appeared in this paper.

Far be it from me to gloss over these products or to defend them. Evaluation of them can and must be left to the Tribunal. In accordance with the basic principle of the Defense, the only question to be taken up here will be whether or not the defendant in any way influenced the education of youth in a manner to promote criminal hatred of Jews.

As for the books which have been mentioned here, it must be said that German youth scarcely knew of their existence—much less did they read them. No evidence has been produced in support of the Prosecution’s assumption to the contrary. The healthy common sense of German youth refused such stuff. German boys and girls preferred other reading material. It may be emphasized in this connection that neither the text nor the illustrations in these books could attract youth in any way. They were, on the contrary, bound to be shunned.

Of special importance in regard to this point is the fact that, Defendant Baldur von Schirach, the man responsible for educating the whole body of German youth, testified under oath that the afore-mentioned juvenile books published by this company were not circulated by the Hitler Youth Leadership and did not find a circle of readers among the Hitler Youth. The witness made the same assertions in regard to _Der Stürmer_. One of his closest co-workers, the witness Lauterbacher, stated in this connection that _Der Stürmer_ was actually banned for the Hitler Youth by the Defendant Von Schirach. It is clear that the very style and illustrations of _Der Stürmer_ were ill-adapted to attract the interest of young persons or to offer them ethical support. The step taken by the Reich Youth Leadership is therefore quite understandable.

Although some of _Der Stürmer_ articles submitted by the Prosecution seem to indicate that _Der Stürmer_ was read in youth circles and produced a certain effect there, it must be borne in mind that these were typical commissioned articles, that is, commissioned for propaganda purposes. There is no evidence whatsoever to support the Prosecution’s assertion that German youth harbored criminal hate toward Jews. Therefore, neither the German people nor its youth ...

THE PRESIDENT: Dr. Marx, perhaps this would be a convenient time to break off.

[_A recess was taken._]

DR. MARX: One might now be tempted to assume that _Der Stürmer_ exercised a particularly strong influence upon the Party organizations, the SA and SS; but this was not the case either. The SA, the largest mass organization of the Party, rejected _Der Stürmer_ just as did the mass of the people. Its publications were _Der SA-Führer_ and _Die SA_. The mass of the SA took these as the foundation of their ideology. These publications do not contain even one article from the pen of the Defendant Streicher. If the latter had really been the man the Prosecution believes him to be, the most authoritative and influential propagandist of anti-Semitism, he would of necessity have been called upon to collaborate in these publications, which were issued to instruct the SA on the Jewish question. A publication intended to provide ideological instruction could never have dispensed with the collaboration of such a man.

The fact that not one word by Julius Streicher himself ever appeared in these papers demonstrates afresh that the picture drawn of him by the Prosecution does not correspond in any way with the actual facts. The Defendant Streicher could gain no influence over the SA through his paper and the columns of _Der SA-Führer_ and _Die SA_ were closed to him. Even the highest SA leaders refused to advocate his ideas. The SA Deputy Chief of Staff, SA Obergruppenführer Jüttner, testifying before the commission on 21 May 1946, made the following statement in this connection:

“At a leader conference, the former SA Chief of Staff, Lutze, stated that he did not want propaganda for _Der Stürmer_ in the SA. In certain groups _Der Stürmer_ was even prohibited. The contents of _Der Stürmer_ disgusted and repelled most of the SA men. The policy of the SA with regard to the Jewish question was in no way directed at the extermination of the Jews; it aimed only at preventing a large-scale immigration of Jews from the East.”

The ideology of _Der Stürmer_ was thus rejected on principle by the individual SA man as well as by the SA leaders, and there is therefore no question of Streicher’s having influenced the SA.

Not only was the Defendant Streicher not asked to collaborate in SA publications, but his articles did not appear in any other newspapers and publications. He was given no chance of contributing either to the _Völkischer Beobachter_ or to other leading organs of the German press, although the Propaganda Ministry intended enlightenment on the Jewish question to form one of the noblest tasks of the German press.

The Defendant Streicher was given no opportunity, either by the State leadership or by the Propaganda Ministry, of impressing his ideas upon a wider circle. The Defendant Fritzsche, the man who shared the decisive authority in the Propaganda Ministry, testified that Streicher never exerted any influence upon propaganda and that he was completely disregarded. In particular, he was not entrusted with radio talks, although talks given over the radio would have had much greater effect on the masses than an article in _Der Stürmer_, which necessarily reached only a limited circle. The fact that even the official propaganda of the Third Reich made no use of the Defendant Streicher makes it clear that no results could be expected from his activities, and that, in fact, he had no influence at all. The official leaders of the German State recognized Streicher for what he actually was, the insignificant publisher of an entirely insignificant weekly. It must be stressed once more as clearly as possible that the fundamental attitude of the German people was no more radically anti-Semitic than that of German youth or the Party organizations. Success in instigating and inciting to criminal anti-Semitism is, therefore, not proven.

I now come to the last and decisive part of the accusation, that is, to the examination of the question: Who were the chief persons responsible for the orders given for the mass-extermination of Jewry; how was it possible that men could be found who were ready to execute these orders; and whether without the influence of the Defendant Streicher, such orders would not have been given or executed.

The main person responsible for the final solution of the Jewish question—the extermination of Jewry in Europe—is without doubt Hitler himself. Though this greatest of all trials in world history suffers from the fact that the chief offenders are not sitting in the dock, because they are either dead or not to be found, the facts ascertained have nevertheless resulted in cogent conclusions concerning the actual responsibility.

It can be considered as proved beyond any doubt that Hitler was a man of unique and even demoniacal brutality and ruthlessness who, in addition, later lost all sense of proportion and all self-control. The fact that his chief characteristic was ruthless brutality became apparent for the first time in its force when the so-called Röhm Putsch was suppressed in June 1934. On this occasion Hitler did not hesitate to have his oldest fellow combatants shot without any kind of trial. His unrestrained radicalism was further revealed in the way in which the war with Poland was conducted. He ordered the ruthless extermination of leading Polish circles merely because he feared an antagonistic attitude toward Germany on their part. The orders which he gave at the beginning of the Russian campaign were still more drastic. At that time he already ordered partial operations for the extermination of Jewry:

These examples show beyond doubt that respect for any principle of humanity was alien to this man. Furthermore the proceedings, by the depositions of all the defendants, have clearly established the fact that in basic decisions Hitler was not open to any outside influence.

Hitler’s basic attitude toward the Jewish question is well known. He had already become an anti-Semite during the time he spent in Vienna in the years before the first World War. There is, however, no actual proof that Hitler from the very beginning had in mind such a radical solution of the Jewish question as was finally effected in the annihilation of European Jewry. When the Prosecution declares that from the book _Mein Kampf_ a direct road leads to the crematories of Mauthausen and Auschwitz, this is only an assumption; and no evidence for it has been given. The evidence rather suggests the fact that Hitler also wanted to see the Jewish problem in Germany solved by way of emigration. This thought, as well as the position of the Jewish part of the population under the laws governing aliens, formed the official State policy of the Third Reich. Many of the leading anti-Semites considered the Jewish question as settled after the laws of 1935 had been promulgated. The Defendant Streicher shared this opinion. The stiffening of Hitler’s attitude to the Jewish question cannot be traced back beyond the end of 1938 or the beginning of 1939. Only then did it become apparent that in case of war—which he believed was propagated by the Jews—he was planning a different solution. In his Reichstag speech on 30 January 1939 he predicted the extermination of Jewry should a second World War be let loose against Germany. He expressed the same ideas in a speech made in February 1942, on the occasion of the 20th anniversary of the day on which the Party was founded. And, finally, his testament, too, confirms his exclusive responsibility for the murdering of European Jewry as a whole.

Though Hitler had adopted an increasingly implacable attitude on the Jewish question ever since the beginning of the war, there is nothing to show that he visualized the extermination of the Jews in the early stages of the war. His final resolution to this effect was undoubtedly formed when Hitler, probably as early as 1942, saw that it was impossible to secure a victory for Germany.

It can be assumed almost with certainty that the decision to exterminate the Jews originated—as did almost all of Hitler’s plans—exclusively with himself. It cannot be ascertained with certainty how far others who were closely attached to Hitler brought their influence to bear on him. If such influence did exist, it can only have come from Himmler, Bormann, and Goebbels. It can at least be stated beyond any doubt that during the decisive period from September 1939 to October 1942 Streicher did not influence him, nor, under the circumstances, could he have done so. At that time Streicher was living—deprived of all his offices and completely left in the cold—at his farm at Pleikershof. He had no connection with Hitler either personally or by correspondence. This has been proved beyond all doubt by the statements made by the witnesses Fritz Herrwerth and Adele Streicher, and by the statement under oath of the defendant himself. It cannot, however, be maintained in earnest that his reading of _Der Stürmer_ moved Hitler to give orders for wholesale murder. This should make it clear that the Defendant Streicher had no influence whatever on either the man who made the decision to exterminate Jewry, or on the orders issued by him.

In October 1942 Bormann’s decree ordering the extermination of Jewry was issued (Document 3244-PS). It has been established beyond all question that this order came from Hitler and went to Reichsführer SS Heinrich Himmler, who was charged with the actual extermination of the Jews. He for his part charged the Chief of the Gestapo, Müller, and his commissioner for Jewish affairs, Eichmann, with the final execution of the order. These three men are the three who are chiefly responsible, next to Hitler. It has not been proved that Streicher had any possibility of influencing them, or that he did actually influence them. He states—and there is no proof to the contrary—that he never knew either Eichmann or Müller, and that his relations with Himmler were slight and far from friendly.

Casually it might be mentioned that Himmler was one of the most radical anti-Semites of the Party. From the beginning he had advocated a merciless fight against the Jews; and in any case, judging by what we know of him, he was not the man to allow himself to be influenced by others in matters of principle. Apart from that, however, a comparison of the two personalities shows that Himmler was in every way the stronger and superior man of the two, so that for this reason alone the exertion of any influence by the Defendant Streicher on Himmler may be ruled out. I believe I may refrain from further illustration of this point.

I now come to the question of whether the activity of the Defendant Streicher had a decisive influence on the men who actually carried out the orders; that is, on members of the Einsatzgruppen on the one hand, and on the execution Kommandos in the concentration camps on the other; and whether any spiritual and intellectual preparation was necessary to make these men willing to execute such measures.

In his speeches in Nikolaev, Posen, and Kharkov—which have often been mentioned here—the Reichsführer SS stated unequivocally not only that he besides Hitler was responsible for the final solution of the Jewish question, but also that the execution of the orders was only made possible by the employment of forces which he himself had selected from among the SS. We know from Ohlendorf’s testimony that the so-called Einsatzgruppen consisted of members of the Gestapo and the SD, companies of the Waffen-SS, members of the police force with long service records, and indigenous units.

It must be stated as a matter of principle that the Defendant Streicher never had the slightest influence on the ideological attitude of the SS. The extensive evidence material of this Trial contains no shadow of proof that Streicher had any connections with the SS. The alleged Enemy Number One of the Jews, the great propagandist of the persecution of the Jews—as he has been pictured by the Prosecution—the Defendant Streicher never had the opportunity of writing for the periodical _Das Schwarze Korps_ or even for the _SS Leithefte_. These periodicals alone, however, as the official mouthpieces of the Reichsführer SS, determined the ideological attitude of the SS. These SS periodicals also determined their attitude toward the Jewish question. In these circles _Der Stürmer_ had just as small a public; it was rejected, just as it was in other circles. Himmler himself rejected Streicher ironically as an ideologist. Therefore the Defendant Streicher could not have had any influence on the ideology of the SS members of the Einsatzgruppen, much less on the old members of the Police, and least of all on the foreign units. Nor could he dictate the ideology of the execution squad’s in the concentration camps. Those men originated for the most part from the Death’s Head Units, that is the old guard units, of whom the above statement is true to a greater degree. Added to this is the fact that the experienced members of the Police, as well as the SS men with long service records, were trained in absolute obedience to their leaders. Absolute obedience to a Führer command was a matter of course for both.

Even those experienced police force members, however, accustomed as they were to absolute obedience, even the veteran SS men, could not simply be charged by Himmler with carrying out the executions of the Jews. Rather did he have to select men whom he trusted to lead these execution squads and to make them personally responsible for their assignments, pointing out explicitly that he would take all responsibility and that he himself was only passing on a definite order from Hitler.

Even these men, whom the Prosecution alleges to have been the elite of Nazism, were so far from being enemies of the Jews in the meaning of the Indictment, that the entire authority of the head of State and Führer, and of his most brutal henchman, Himmler, was required to force upon the men responsible for carrying out the execution orders the conviction that their order was based on the will of the authoritarian head of the State; an order which, according to their conviction, had the power of a fundamental State law and therefore was above all criticism.

The men charged to carry out the annihilation, therefore, obeyed their orders not for ideological reasons and not because they were incited to do so by Streicher, as the Prosecution contends, but solely in obedience to an order from Hitler transmitted to them through Himmler, and knowing that disobedience to a Führer order meant death. In this respect, too, therefore, Streicher’s influence has not been proved.

The accusations brought against the defendant by the Prosecution are herewith exhausted. But, in order to reach a conclusion and to form a judgment of the defendant which will take the actual findings fully into account, it seems advisable to give once more a short account of his personality and his activities under the Hitler regime.

The Prosecution considers him to be the leading anti-Semite and the leading advocate of a ruthless determination to annihilate Jewry. This conception, however, does justice neither to the part played by the defendant and the influence actually exercised by him, nor to his personality. The manner of the defendant’s employment in the Third Reich and the way in which he was called upon to co-operate in the propagation and final solution of the Jewish question shows the Prosecution’s conception to be false. The only occasion on which the defendant was called upon to take an active part in the fight against Jewry was in his capacity as chairman of the Action Committee for the Anti-Jewish Boycott Day on 1 April 1933. His attitude on that day is in direct opposition to his violent utterances in _Der Stürmer_ and makes it evident that the passages in his paper which have been attacked were pure propaganda. Although on that day he could have drawn upon the whole power of State and Party against Jewry, he was content to order that Jewish places of business be marked as such and put under guard. In addition, he gave explicit instructions that any molestation of the Jews or acts of violence, or any damage to Jewish property, was forbidden and would be punished. In the later stages no further use at all was made of the defendant. He was not even consulted on the ideological basis for the settlement of the Jewish question. He was unable to voice his ideas in the press or over the air. He was not asked to write on the clarification of the Jewish question either in the _Schulungsbriefe_ of the Party or the periodicals belonging to the organizations.

Not he but the Defendant Rosenberg was charged by Hitler with the ideological training of the German people. The latter was responsible for the Institute for Research into the Jewish Question, set up in Frankfurt, and not the Defendant Streicher; in fact, the latter was not even considered as a collaborator in this institute. The Defendant Rosenberg was commissioned with the arrangement of an Anti-Jewish World Congress in 1944. It is true that this assembly did not take place, but it is significant that the plans made for it did not include the participation of the Defendant Streicher.

The whole of the anti-Jewish laws and decrees of the Third Reich were drafted without his participation. He was not even called in to draft the racial laws proclaimed at the Party rally in Nuremberg in 1935. The Defendant Streicher did not take part in a single conference on even moderately important questions in either peace or wartime. His name does not appear on any list of participants or on any minutes. Not even in the course of the discussions themselves is one single reference made to his name.

The fight against Jewry in the Third Reich grew more and more embittered from year to year, especially after the outbreak of war and during its course. In contrast to this, however, the influence of the Defendant Streicher yearly grew weaker. Already by 1939 he was almost entirely pushed aside and had no relations with Hitler or other leading men of State and Party. In 1940 he was relieved of his office as Gauleiter and after that he played no further part in political life.

If the Defendant Streicher had really been the man the Prosecution believes him to be, his influence and his activity would have increased automatically with the intensification of the fight against the Jews. His career would not have ended, as it actually did, in political powerlessness and banishment from the scene of action, but with the commission to carry out the destruction of Jewry.

It cannot be denied that by writing _ad nauseam_ on the same subject for years in a clumsy, crude, and violent manner, the Defendant Streicher has brought upon himself the hatred of the world. By so doing, he has created a strong feeling against himself which led to his importance and influence being rated far higher than they actually were, for which he now runs the risk of having the extent of his responsibility similarly misjudged.

The defense counsel, who in this case had a difficult and thankless task, had to limit himself to presenting those aspects and facts which allow the true significance of this man and the role he played in the tragedy of National Socialism to be recognized. But it cannot be the task of the Defense to deny indisputable facts and to defend acts for which absolutely no excuse exists.

The fact remains, therefore, that this defendant took part in the demolition of the main synagogue of Nuremberg, and thus allowed a place of religious worship to be destroyed. The defendant states as an excuse that his aim in so doing was not the demolition of a building meant for religious worship, but the removal of an edifice which appeared out of place in the Old Town of Nuremberg, and that his opinion had been shared by art experts. The truth of this was proved by the fact that he left the second Jewish house of worship untouched until it finally, and without his connivance, went up in flames during the night of 9 to 10 November. However that may be, the defendant shows the same lack of scruple here as he does in his other actions. He must account here for his actions in this connection alone; the Defense cannot shield him. But here, too, the fact that the population of Nuremberg disapproved of these actions clearly and unmistakably must be stressed. It was clear to any impartial observer that the people viewed such actions with icy detachment and that only brute force could compel them to tolerate such measures and to look on at such senseless proceedings.

It is just as impossible for the Defense to express any opinion on the revival of the ritual murder myth. No interest whatsoever was taken in these articles; but their tendency is obvious. The only point in the defendant’s favor, apart from the good faith with which we must credit him, is the fact that the author of these articles was not himself, but Holz; he must, however, put up with the charge that he allowed it to happen.

It must appear incomprehensible that the defendant continued to play a part in the publication of _Der Stürmer_ long after he had been politically crippled and vanished from the scene of action. This very fact reveals his one-track mind better than anything else.

When the Prosecution accuses the defendant of having aimed at the physical annihilation of the Jews and prepared the way for this later result by means of his publications, I would like to refer to the statements given by the defendant under oath at his interrogation, to which I am here referring in their entirety.

The defendant claims that in the long series of articles published by _Der Stürmer_ since its foundation there were none demanding actual deeds of violence against the Jews. He also claims that among the issues, of which there were over one thousand, only about 15 were found to contain expressions which could form the basis for a charge against him in the meaning of the Indictment.

On the contrary, the defendant argued that his articles and speeches had always shown an unmistakable tendency to achieve a solution of the Jewish problem in its entirety throughout the world, since any kind of partial solution would serve no useful purpose and failed to reach the heart of the problem. Basing himself on this very point of view he had always expressed himself unequivocally as opposed to any kind of violence, and he would never have approved of an action such as that finally carried out by Hitler in such a gruesome manner.

This must raise serious doubts as to whether the defendant can be proved to have agreed with the mass murders practiced on Jewry, and I leave this decision to the Tribunal. In any case, he himself refers to the fact that he had no reasonably certain knowledge of these wholesale murders until 1944, a fact corroborated by the statements of the witnesses Adele Streicher and Hiemer.

He considered the articles published in the _Israelitisches Wochenblatt_ as propaganda and consequently did not believe them. In this connection, the fact that up to the autumn of 1943 he did not in any article express satisfaction concerning the fate of Jewry in the East is in his favor. Although he did write then on the disappearance of the Jewish reservoir in the East, there is nothing to show that he had any reliable source of information at his command. He might, therefore, very well have believed that this process of disappearance was not identical with physical annihilation but might represent the evacuation of the Jewish population assembled there to neutral countries or the territory of the Soviet Union. As no evidence has been presented to show that the defendant had received hints from any quarter in regard to the intended extermination of Jewry, he could not have conceived of such a diabolical occurrence which appears to be utterly inconceivable to the human mind. And it certainly cannot be assumed that the mental capacity of the defendant should have enabled him to foresee a solution of the Jewish question such as could only have originated in the brain of a person who was no longer in his right senses.

The defendant describes himself as a fanatic and seeker of truth. He professes to have written nothing and to have expressed nothing in his speeches which he had not taken from some authentic source and properly confirmed.

There is no doubt that he was a fanatic. The fanatic, however, is a man who is so possessed or convinced of an idea or illusion that he is not open to any other consideration, and is convinced of the correctness of his own idea and no other. A psychiatrist might regard it as a sort of mental cramp. Fanaticism of any kind is not far removed from maniacal obsession. As a rule it goes along with considerable overestimation of oneself and overevaluation of one’s own personality and its influence on the world around it.

Not one of the defendants here on trial shows such a wide discrepancy between fact and fancy as does the Defendant Streicher.

The Prosecution showed him as he appeared to the outside world. What he really was—and is—has been shown by the Trial. But only actual facts can form the basis for the judgment. Base your judgment also, Gentlemen, on the fact that the defendant in his position as Gauleiter of Franconia also showed many humane characteristics—that he had a large number of political prisoners released from concentration camps, which even caused criminal proceedings to be started against him. It should also be borne in mind that he treated the prisoners of war and the foreign laborers working on his estate very well in every respect.

Whatever the judgment against the Defendant Streicher may be, it will concern the fate of a single individual. It seems to be established, however, that the German people and this defendant were never in agreement on this essential question. The German people always disapproved of the aims of this defendant as expressed in his publications, and retained its own opinion of and attitude toward the Jews.

The Prosecution’s assumption that the tendentious articles in _Der Stürmer_ found an echo or a ready acceptance among the German population, or even produced an attitude which would readily accept criminal measures, is herewith fully refuted.

The overwhelming majority of the German nation preserved their sound common sense and showed themselves disinclined toward all acts of violence. The nation may therefore claim to be declared free of all moral complicity in, and co-responsibility for, those crimes before the public tribunal of the world, so as to be able again to take its place in the ranks of the nations.

I leave the decision on the guilt or innocence of this defendant in the hands of the High Tribunal.

THE PRESIDENT: I call on Dr. Sauter for the Defendant Funk.

DR. FRITZ SAUTER (Counsel for Defendant Funk): Gentlemen of the Tribunal, I have the task of examining the case of the Defendant Dr. Walter Funk. That is to say, I am to deal with a topic which unfortunately is especially dry and prosaic. May I first make a short statement.

I shall on principle refrain from making any statements on legal, political, historical, or psychological matters which may be too general, although the temptation to make such general statements, particularly within the framework of these proceedings, may be considerable. General statements of the kind have already been made in abundance by my colleagues and will probably be still further supplemented. Therefore, I shall limit myself to examining and presenting to you from the point of view of the Defense the picture which the evidence in this Trial shows of the personality of the Defendant Funk, his actions, and their underlying motives.

Gentlemen of the Tribunal, the entire course of this Trial and the particular evidence offered in his own case have shown that the Defendant Funk did not play a decisive part in the National Socialist regime at any time and in any of the cases indicted here.

Funk’s authority of decision was always limited by the superior powers of others. The defendant’s statement, made during his personal examination, that he was allowed to come up to the door, but was never permitted to enter, has been shown by the evidence to be quite correct.

Funk was entrusted with tasks by the Party—as distinct from the State—only during the last year prior to the seizure of power, that is, in 1932. These, however, were of no practical significance, as they were of very short duration. Funk was never appointed to any Party office after the seizure of power. He was never a member of any Party organization—SS, SA, or Corps of Political Leaders. Funk was a member of the Reichstag for only a little more than 6 months shortly before the seizure of power. Consequently he was not a member of the Reichstag when the fundamental laws for the consolidation of National Socialist power were passed. The Reich Cabinet passed the laws for which Funk is held responsible, in particular the Enabling Act, at a time when Funk had not yet been made a member of the Cabinet. At this, it will be remembered, he did not become a member until the close of 1937 by virtue of his appointment as Minister of Economics, that is, at a time when no further Cabinet sessions were held. As Press Chief of the Reich Cabinet Funk had neither a seat nor a vote in the Cabinet and could exert no influence whatsoever upon the contents of the bills drafted. I refer to Lammers’ statement in this connection. The same applies to the racial laws, the so-called Nuremberg Laws.

Funk’s relations with the Führer only became closer for a period of 18 months during which he had to give regular press reports to Hitler in his capacity as Press Chief of the Reich Cabinet, that is, from February 1933 to August 1934, up to the death of Reich President Von Hindenburg. Later, Funk reported to Hitler only on very rare occasions. In this connection the witness Dr. Lammers makes the following statement:

“Later he (Funk) only visited Hitler in his capacity of Reich Minister of Economics on very rare occasions. He was frequently not invited to attend conferences—even those to which he should have been invited. He complained to me about this frequently. The Führer often raised objections, saying that there were various reasons against Funk and that he himself viewed Funk skeptically and did not want him.”

That is the testimony given by Dr. Lammers on 8 April 1946. When asked whether Funk had often complained to him about his unsatisfactory position as Reich Minister for Economics and about the anxiety caused him by conditions generally, Dr. Lammers replied:

“I know that Funk was very much worried and that he wanted an opportunity to discuss his anxieties with the Führer. He was extremely anxious for an opportunity of reporting to the Führer in order to obtain information, at least, about the war situation.” (That was in 1943 and 1944). And Lammers continues: “With the best intentions in the world, Funk could not obtain an audience from the Führer, and I was unable to get him to the Führer.”

Funk explains the striking fact that he was invited to attend only four or five Führer conferences during the whole of his ministerial activity by saying that Hitler did not need him. Up to 1942 Hitler issued his instructions in economic affairs to Göring, who in his capacity of Delegate for the Four Year Plan was responsible for the entire economy. From the beginning of 1942 Hitler also issued instructions to Speer, who as Armament Minister had special authority to issue directives to all branches of production and from 1943 personally directed the entire production. Funk therefore never played the principal part in the economy of the National Socialist Reich, but always only a subordinate role. This was specifically confirmed by his Codefendant Göring in his statement on 16 March:

“Naturally, in view of the special powers delegated to me (Göring) he had to follow my directives in the field of economy and the Reichsbank. The responsibility for the directives and policy of the Minister for Economics and President of the Reichsbank Funk is entirely mine.”

In the session of 20 June the Defendant Speer also testified that in his capacity as Armament Minister he reserved to himself from the very beginning any authority of decision in the most important economic spheres such as coal, iron and steel, metal, aluminum, and the production of machinery. Prior to Speer’s commission at the beginning of 1942, electric power and building were entirely under the jurisdiction of Armament Minister Todt.

For the greater part, the evidence submitted by the Prosecution in the case of the Defendant Funk does not relate to acts personally committed by Funk or instructions issued by him, but rather to the various and widely differing positions which he occupied. On Page 29 of the trial brief the Prosecutor himself declares that the argument offered against Funk may be described as inferential. The Prosecution starts from the assumption that judging by the positions which he had held Funk must have had knowledge of the various events which form the subject of the accusation. Generally speaking, the Prosecution refers to instructions and directives issued by Funk personally only in the case of the application instructions which he issued in November 1938 in connection with the Four Year Plan decrees for the elimination of Jews from economic life. I shall deal with this chapter separately at a later stage.

Finally, Funk was not invited to attend political and military conferences. His position was that of a technical minister with very limited power of decision.

As Reich Minister for Economics Funk was subordinated to the Four Year Plan, that is, to Göring. Later on, the Armament Minister became Funk’s superior. And finally, as was shown by the testimony of Göring, Lammers, and Hayler, the Ministry of Economics became a regular trade ministry, which dealt mainly with the distribution of consumers’ goods and with the technicalities of foreign trade. Similarly in the case of the Reichsbank the Four Year Plan determined the use of gold and foreign currency. The Reichsbank was deprived of its right to decide on the credits to be granted to the Reich for the internal financing of the war when Funk took over office as its President. Funk is thereby exonerated of any responsibility for the financing of the war. The responsible agency so far had always been the Reich Minister of Finance: In other words, not Funk. Finally, as Plenipotentiary for Economics, Funk’s sole task in August 1938 was to co-ordinate the civil economic resources for such measures as would guarantee a smooth conversion from peace to wartime economy. These consultations resulted in the proposals presented by Funk to Hitler on 25 August 1939 in the letter which has been several times quoted under Document Number 699-PS. At his examination Funk stated that this letter did not portray matters with complete accuracy, since it was a purely private letter, a letter of thanks for birthday congratulations received from Hitler. This point will have to be taken up again later, as the Prosecution particularly emphasized Funk’s position as Plenipotentiary for Economics. The evidence shows that his position as Plenipotentiary General was Funk’s most disputed position, but also his weakest.

With regard to the occupied territories Funk had no decisive authority whatsoever. All the witnesses interrogated on the point testified to this. But all witnesses also confirmed that Funk always opposed the spoliation of the occupied territories. He fought against German purchases in the black markets; he opposed the abolition of the foreign exchange relations with Holland, a measure intended to facilitate German purchases in Holland; and, as we have heard from the witness Neubacher, he organized exports to Greece from Germany and the eastern European states, and even sent gold there. He also repeatedly opposed the financial overburdening of the occupied territories especially in 1942 and 1944, and the raising of the occupation costs in France. He defended the currency of the occupied countries against reported attempts at devaluation. In the case of Denmark he even succeeded in raising the value of the currency, in spite of all opposition. Furthermore, Funk fought against the arbitrary stabilization of exchange when currency arrangements were made with occupied countries. Germany’s clearing debt was always recognized by Funk as a true commercial debt even with regard to the occupied countries. This is shown especially by his proposal, mentioned here, to commercialize this clearing debt by a loan to be issued by Germany for subscription in all European countries. Funk was also opposed to the overworking and especially to the compulsory employment of foreign labor in Germany.

The Defendant Sauckel has already testified to this at his interrogation here. The witnesses Hayler, Landfried, Puhl, and Neubacher, and the Codefendant Seyss-Inquart, have all confirmed that these measures taken by Funk had favorable results for the occupied countries. According to these statements Funk always strove to keep order in the economic and social life of the occupied territories and to preserve it as far as possible from disintegration. He always disapproved and opposed radical and arbitrary measures and favored agreements and compromises. Even during the war Funk was always thinking of peace. This statement was made by the witnesses Landfried and Hayler, who added that Funk was repeatedly reproached for his attitude by the leading State and Party offices. The Defendant Speer also testified at his interrogation that during the war Funk had employed too many workers in the manufacture of consumers’ goods and that it was for this reason that Funk had to hand over the management of the consumers’ goods production in 1943.

That Funk revolted against the horrible “scorched earth” policy just as Speer did has been proved to the Court by Speer himself, as well as by the witness Hayler on 7 May 1946. This witness declared that he had seldom seen Funk so much upset as he was when informed of this order for destruction. Hayler testified that Funk, in his capacity of Reich Minister of Economics and President of the Reichsbank, gave orders that existing stocks should be protected from destruction as decreed, in order to insure a supply of consumers’ goods necessary for the population and to safeguard currency transactions in the German territory which had been abandoned.

The aim of Funk’s economic policy—one might call it the mainspring of his life work—was the formation of a European economic community based on a just and natural balance of interest of the sovereign states. Even during the war he relentlessly pursued this goal, although the exigencies of war and the restraints imposed on development by the war naturally impeded these efforts at every turn. Funk has given a graphic description of the economic Europe which he envisaged and strove to attain in some major speeches on economic policy. Extracts from some of these speeches, many of which received a hearing even in neutral and enemy countries, are included in the document book.

In judging the acts of the Defendant Funk, his whole personality must naturally be taken into consideration to some extent in investigating the motives from which he acted. Funk was never looked upon by the German people—as far as he was known at all—as a Party man capable of participating in brutal outrages, using methods of violence and terror or amassing fortunes at the expense of others. He inclined rather toward art and literature, which preference he shared with—for instance—his friend Baldur von Schirach. Originally, as you have been told, he wanted to study music, and in later years he preferred to have poets and artists in his house rather than, men of the Party and the State. In professional circles he was known and respected as an economist and a man with a wide theoretical and historical knowledge, who had risen from journalism and had been a brilliant stylist. His position as chief editor of the distinguished _Berliner Börsenzeitung_ was on a sound economic basis; by accepting the office of Press Chief in the Reich Cabinet at the beginning of 1933, after Hitler’s assumption of power, he even incurred a financial loss. Therefore, he was not one of those desperados who were glad to get into a well-paid position through Hitler. On the contrary, he made a financial sacrifice when he took over the State office offered him, and it therefore seems perfectly credible that he did this out of patriotism, out of a sense of duty toward his people, and in order to put himself at the service of his country during the hard times of distress.

In judging the personality and character of the Defendant Funk, it is also significant that he never held or tried to obtain any rank in the Party. Other people who took over high State offices in the Third Reich were given the title of an SS Gruppenführer, or were given, for instance, the rank of SA Obergruppenführer. Funk, on the contrary, was only a plain Party member, from 1931 until the end of the Third Reich, who carried out his State functions conscientiously, but made no effort to obtain any honors within the Party.

The only incident with which the Defendant Funk was reproached in this connection was the fact that he accepted an endowment in 1940, on his fiftieth birthday. In itself, of course, that is not a punishable act; but the Tribunal evidently evaluated it as a moral charge against the defendant. Therefore, we shall briefly define our position with regard to this. We remember how this endowment came about: The President and Board of the Reich Chamber of Economics (Reichswirtschaftskammer), as the highest representatives of German economic life, presented him on his fiftieth birthday with a farmhouse in Upper Bavaria and about 110 acres of ground. This farmhouse, of course, existed for the time being only on the paper of the presentation document and had still to be built. This presentation was expressly approved by the head of the State, Adolf Hitler; therefore it was not made secretly to the Reich Minister of Economics, but quite officially, without any suppression or secrecy in the matter.

The gift subsequently turned out to be an unfortunate one for Funk, as the building proved much more expensive than had been expected and Funk was required to pay a very high donation tax. Funk, who, up to that time, had never incurred debts and whose finances had always been well regulated, now found himself plunged into debt through this “gift” of a farmhouse. Göring heard of it and came to Funk’s assistance with a generous sum. When Hitler heard of Funk’s financial difficulties through Minister Lammers, he had the cash necessary to settle Funk’s financial troubles transferred to him in the form of a gift. With this Funk was able to pay his taxes and his debts. He used the remainder to create two public endowments, one for dependents of officials of the Reichsbank killed in action, the other to the same end for the staff of the Ministry of Economics. The farm was also to become an endowment at some later date. Funk’s treatment of the matter shows his delicacy in this respect too. Even though such an endowment could not be legally disputed, he felt that it was better to avoid such endowments and to make them over to the public, since he could not refuse to accept a gift from the head of the State.

Mr. President, I now turn to a new subject. I would propose to have a recess now.

THE PRESIDENT: The Court will adjourn now.

[_A recess was taken until 1400 hours._]

_Afternoon Session_

THE PRESIDENT: The Tribunal proposes to go until 4 o’clock without a break, if that is convenient.

DR. SAUTER: Gentlemen of the Tribunal, I have so far defined the position of the Defendant Funk in general statements; I am now going to deal with the criminal responsibility of the Defendant Funk on the separate charges made against him.

The first point of the Indictment deals with the support of the seizure of power by the Party, that is, the Defendant Funk’s Party activities from 1931 up to the end of 1932. The Defendant Funk is alleged to have helped the conspirators to seize power. This charge deals with the activities of the Defendant Funk from the date of his joining the Party in June 1931 up to the seizure of power on 30 January 1933. The Prosecution maintains that Funk’s activities on behalf of the Party during that period furthered the seizure of power by the National Socialists. That is correct. The Defendant Funk himself, when interrogated on 4 May, gave a detailed explanation of his reasons for considering the National Socialist seizure of power the only possible way of delivering the German people from the grave intellectual, economic, and social distress of that time. The economic program of the Party was, in his opinion, vague and mainly intended for propaganda. He himself wanted to gain recognition for his own economic principles in the Party, in order to work through the Party for the benefit of the German people. Funk gave a detailed description of these principles during his examination. They are based on the idea of private property, which is inseparable from the conception of the varying capability of a human being.

Funk demanded the recognition of private initiative and of the independence of the creative businessman, added to free competition and the leveling of social extremes. He aimed at the elimination of Party and class warfare, at a strong Government with full authority and responsibility, and at the creation of a uniform political will among the people. His conversations with Adolf Hitler and other Party leaders convinced him that the Party entirely accepted his principles and ideas. In Funk’s opinion he cannot be blamed for his support of the Party in its struggle for power. Funk believes that the discussions in this Trial furnish absolute proof that the Party came to power quite legally. But even the methods used by Funk to assist the Party cannot, in his opinion, be condemned. In any case the role attributed to him by the Prosecution does not fit the facts. The importance of Funk’s activities is at times greatly overestimated by them; in many other instances their judgment of these activities is completely false.

The evidence offered by the Prosecution consists mainly of references and extracts from reference books, and especially from a book by Dr. Oestreich, _Walter Funk—A Life for Economy_, which was submitted to the Tribunal as Document Number 3505-PS, USA-653. The core of this evidence is a “Program for Economic Reconstruction” by the Defendant Funk, which is printed on Page 81 of this book and which the Prosecution calls “the official Party declaration in the economic field” and “the economic bible for the Party organization.” This so-called “Program for Economic Reconstruction” forms the basis for the incorrect accusation made by the Prosecution on Page 3 of the trial brief, to the effect that the Defendant Funk assisted “in the formulation of the program which was publicly proclaimed by the Nazi Party and by Hitler.”

This “Program for Economic Reconstruction,” which was read word for word during the hearing of the Defendant Funk, actually did not contain anything unusual, let alone revolutionary, or anything which was in any way characteristic of the National Socialist ideology. The program indicates the need for providing work, creating productive credits without inflationary consequences, balancing public finances, as well as the need for protective measures for agriculture and urban real estate, and a redirection of economic relations with foreign countries. It is a program which, as Funk said in his testimony, might be advocated by any liberal or democratic party and government. The Defendant Funk only regrets that the Party did not fully subscribe to these principles. Later on his economic viewpoint involved him in constant difficulties and disputes with various Party offices, especially with the German Labor Front and the Party Chancellery, and with Himmler and most of the Gauleiter. This is also confirmed by the witness Landfried, who described these differences between Funk and the Party in detail in his interrogatory. Funk had the reputation in the Party of being mainly a liberal and an outsider. During that time, that is mainly in 1932, he established relations between Hitler and some of the leading personalities of German economic life. He also worked to promote understanding for National Socialist ideas and to gain support for the Party by trade and industry. By virtue of these activities he was frequently described as Hitler’s economic adviser. But that was not a Party office or a Party title.

In Document EC-440, USA-874, Funk states that Keppler, who was later appointed State Secretary, was considered the Führer’s economic adviser for many years before himself. By this reference Funk intended to show that the designation “Economic Adviser to the Führer” was given by the public to other persons also.

The period during which Funk was given Party assignments was a very short one. That these activities were never of decisive importance may be deduced from the fact that after the assumption of power Funk’s Party activities ceased completely. In other fields, such as food and agriculture, finance, and so forth, the Party incumbents who entered the civil service as ministers or state secretaries, _et cetera_, retained their Party office, which usually acquired greater importance. The elimination of the sole Defendant Funk from every Party office as soon as the assumption of power was complete shows clearly that the Party leaders did not attach much value to Funk’s work in the Party.

In cross-examining the Defendant Funk the Soviet Russian Prosecution showed him an article which had appeared on 18 August 1940 in the magazine _Das Reich_ on the occasion of his fiftieth birthday (USSR-450). In this article the author, an economist by the name of Dr. Herle, emphasizes that Funk “as intermediary between the Party and economic circles had become a pioneer working toward a new spiritual attitude in German economic life.”

In this connection we may say that Funk never denied that he regarded it as his task to construct an economic system with an obligation toward state and community on the one hand, yet based on private ownership and private initiative and responsibility on the other. Funk always acknowledged and adopted the political aims and ideals of National Socialism. The majority of the German people embraced these goals and ideologies, as was proved by several plebiscites. Funk himself did not suspect that all the good intentions and idealistic aims, so often emphasized by Hitler when he came into power, would later crumble in the blood and smoke of war and sink to such an inconceivable inhuman level. Funk testified explicitly that he considered the authoritative form of government—by which he meant the strong state, a responsible cabinet, the social community, and an economic system with social obligations—a prerequisite in order to overcome the grave intellectual and economic crisis through which the German people were then passing. He always expressly acknowledged that politics must have precedence over economics.

On 30 January 1933, as Press Chief of the Reich Government, Funk took up the State office of a Ministerial Director in the Reich Chancellery. Six weeks later, however, the direction of press policy passed into the hands of Dr. Goebbels, when the latter became Reich Minister for Public Enlightenment and Propaganda; and the press department of the Reich Government, which Funk was to have directed, was merged in the newly established Ministry for Propaganda. For the time being he retained only the right to make his press report personally to Reich President Von Hindenburg and Reich Chancellor Adolf Hitler—until Hindenburg’s death. Then this activity also came to a complete standstill, so that the Office of Press Chief of the Reich Government existed only on paper. This was also expressly confirmed by the Defendant Fritzsche during his examination as a witness on 28 June.

The guilt of the defendant is inferred mainly from the fact that he was a State Secretary in the Ministry of Propaganda. The hearing of evidence has shown, however, that as State Secretary, Funk had nothing whatsoever to do with actual propaganda work. He made no radio speeches, nor did he speak at public meetings. Press policy, on the other hand, was dictated by Dr. Goebbels in person even at that time.

Even at that time, however, Funk gave particular attention to the wishes and complaints of the journalists. He protected the press against misuse by official departments and made every effort to safeguard the individuality of the press and to enable it to work in a responsible manner.

All this has been established by a number of witnesses to whom I refer on Pages 17 to 24; in particular by the witnesses Amann, Kallus, Fritzsche, Oeser, and Roesen. The two latter witnesses have indeed confirmed the fact that Funk as State Secretary in the Ministry of Propaganda also worked energetically on behalf of Jews and such persons as were oppressed and hindered in their spiritual and artistic work by the legislation and cultural policy of the National Socialists. Funk did so much on behalf of such people that he jeopardized his own official position to such an extent that the Ministry actually considered him politically unreliable.

[sm type begins]As to defendant’s activity in the Reich Ministry of Propaganda, the Prosecution charges him as follows:[sm type ends]

[sm type begins]“By means of such an activity in the Ministry of Propaganda the Defendant Funk participated in establishing the power of the conspirators over Germany, and is particularly responsible for the persecution of ‘political dissenters’ and Jews, for the psychological preparation of the people for war, and for the weakening of the strength of and will for resistance of the victims selected by the conspirators.”[sm type ends]

[sm type begins]Also in this point of the accusation, the guilt of the Defendant Funk has been derived almost exclusively from the fact that he occupied the position of a state secretary in the Ministry of Propaganda. The hearing of evidence, however, has shown that Funk had nothing to do with actual propaganda activity in his position as State Secretary. Funk did not deliver any speeches, either through the radio or in public meetings. The press policy was directed by Dr. Goebbels in person ever since the Ministry had been established. However, Funk took care, to a large extent, of the wishes and complaints of the journalists. He protected the press against trespassing by Government offices and tried to secure for the press an individual look and an activity conscious of its responsibilities. This is expressed by the digest from the book written by Dr. Paul Oestreich: _Walter Funk—A Life for Economy_, Document 3505-PS, Exhibit USA-653, Document Book Funk Number 4b.[sm type ends]

[sm type begins]Some of Funk’s wordings from that period of his activity in the Ministry of Propaganda, as for example, the sentence “the press is no barrel organ” and the saying “the press should not be the scapegoat of the government” later have become all but household words.[sm type ends]

[sm type begins]As State Secretary Funk had, on the whole, only organizational and economic tasks, he managed the financial side of the activity of the numerous organizations and institutes which were controlled by the Ministry of Propaganda, such as, particularly, the Reich Broadcasting Company, further the German Trade Publicity Council (Werberat der deutschen Wirtschaft), the State-owned film combines, the State-owned theaters and orchestras and the State-owned press agencies and newspapers. As to art, and according to his artistic tastes, he occupied himself with music and theater. In the direction of the Ministry of Propaganda, a complete separation between political tasks on the one hand and organizational and economic tasks on the other hand took place. This has been stated in unison by all witnesses examined on this point. Minister Dr. Goebbels in person directed the propaganda policy, exercising complete, absolute and exclusive control. His assistants herein were, not his State Secretary Funk, but his old collaborators from the propaganda organization of the Party, who, for the most part, were taken over by him in a personal union into the newly created Ministry of Propaganda. Funk, however, did not belong to the propaganda department of the Party, neither before nor after the Ministry was established. The assertion of Mr. Messersmith in his affidavit, submitted under Document 1760-PS, according to which Goebbels had incorporated Funk into the Party organization, is erroneous, and can obviously be attributed to the fact that Messersmith had, as an outsider, no insight into the division of work within the Ministry of Propaganda, and moreover, apparently identified readily the propaganda activity of the Party with the propaganda of the State Ministry. This has been confirmed by the questionnaire submitted by Messersmith, as asked for by the Defendant Funk, on May 7th, 1946, (Document Book Funk, Supplement Number 5). This questionnaire shows that Messersmith cannot even state whether he had a conversation with the Defendant Funk a few times or only once; furthermore, that he does not remember any more what topic was discussed at that time, nor in what capacity Funk was present at this meeting. With such vague and unreliable statements of a witness nothing, of course, can be proven.[sm type ends]

[sm type begins]As a proof of the fact that Funk had nothing to do with the actual propaganda activity and—as the Defendant Göring has asserted here as a witness—did not play any important part at all in comparison to Goebbels, I refer to the affidavit of the former Reichsleiter for the press, Max Amann, of April 17th, 1946 (Document Book Funk, Exhibit 14). At first, the Prosecution has submitted an affidavit sworn by this witness, of December 19th, 1945 (Document 3501-PS); the statements contained therein have been, in the new affidavit of April 17th, 1946, supplemented and corrected in essential points. In this new statement, submitted to the Prosecution and to the Defense, the witness Amann gives evidence that also, according to his knowledge, Funk, as State Secretary in the Ministry of Propaganda, had nothing to do with the actual propaganda activity. For the rest, the witness confirms the statements of the Defendant Funk, namely, that he (Amann) did not know in person the distribution of activities and the interior management of the Ministry, and that his statements are exclusively based op information by other persons. The witness Heinz Kallus, on the other hand, worked for some years as an official of the Ministry of Propaganda. Kallus, too, confirms under oath in the answers, in the questionary addressed to him (Exhibit Number Funk-18), that on the whole Funk was engaged in administration and financial questions, and the same was testified by the Defendant Hans Fritzsche during his examination as a witness before this Tribunal on June 27th and 28th.[sm type ends]

[sm type begins]In the trial brief of the Defendant Funk, Page 9—Document 3566-PS—the Prosecution submitted the notes of an SS-Scharführer Sigismund as evidence for the importance of the position which Funk is supposed to have held in the Ministry of Propaganda. An official of this Ministry, by the name of Weinbrenner, is supposed to have declared to that SS-Scharführer that it was impossible to know whom Minister Goebbels would entrust with the office of radio superintendent, as Goebbels took most of the important decisions only in agreement with Under Secretary Funk. Now, Dr. Goebbels did not as a matter of course undertake the appointment to the leading post in broadcasting without getting in touch with Funk, the chairman of the administrative board of the Reich Broadcasting Corporation (Reichsrundfunkgesellschaft); this, however, does not prove anything concerning the nature and the significance of the activity of the Defendant Funk nor of the aims he pursued thereby. After all, the Prosecution has been able to submit but one single document bearing the signature of Funk as Under Secretary, namely, the fixing of a date for the coming into force of a decree for the execution of a law concerning the Reichskulturkammer, of November 9th, 1933 (Document 3505-PS); hereof the Prosecution deduces a responsibility or, at any rate, a co-responsibility of the Defendant Funk for the entire legislation for the control and co-ordination of the cultural professions (Kulturberufe).[sm type ends]

[sm type begins]This conclusion appears to be wrong; quite apart from the fact that the point in question is the fixing of a date for a decree concerning execution, therefore a purely formal act, it must be emphasized that this law was decided by the Reich Cabinet of which the Defendant Funk at that time was not a member.[sm type ends]

[sm type begins]Funk stated in his examination that, during the entire duration of his activity in the Ministry of Propaganda, he hardly gave his signature more than three times representing Dr. Goebbels. For the rest, the Defendant Fritzsche testified here as a witness, on June 28th, 1946, that the position of Dr. Goebbels’ long-time collaborator and personal advisor Hanke, who later on became Under Secretary and Gauleiter, corresponded far more to the usual position of an under secretary in the Ministry, than the one of the Defendant Funk. It was Hanke, too, who maintained the liaison of Minister Goebbels with the section heads and advisers of the Ministry, a task adhering otherwise to the under secretary in a ministry, but which was never entrusted to the Defendant Funk, although he was an under secretary.[sm type ends]

[sm type begins]It is proven by the affidavit of the former editor-in-chief of the _Frankfurter Zeitung_, Albert Oeser (Exhibit Number Funk-1), and of the attorney-at-law Dr. Karl Roesen (Exhibit Number Funk-2), as well as by the affidavits of the witness Heinz Kallus (Document Funk-18), that the Defendant Funk, in his position as an under secretary of the Ministry of Propaganda, energetically undertook to help Jews and other persons who were oppressed and thwarted in their intellectual or artistic activities by the National Socialist legislation and cultural policy, and that he did this under heavy risks to his own position.[sm type ends]

[sm type begins]Among the persons for whom Funk interceded were not only Jewish editors, but also many prominent German artists, and the witness Kallus (cf. his questionnaire in the Document Funk-18) mentions in this connection the Jewish proprietors of a big Berlin directory publishing firm, whom Funk had given permission to carry on with their business, against considerable resistance of the competent section of the Ministry and of the German trade publicity council (Werberat der deutschen Wirtschaft). The witness Kallus stated further, that, owing to this attitude toward the Jewish cultural workers, Funk was “suspect” to Dr. Goebbels and to the chief of the press section, Berndt, who was known to be particularly radical. Editor-in-chief Oeser explicitly states, as a witness, in his affidavit (Document Book Funk Number 1) that he has made his statements voluntarily to prove the “human attitude” of the Defendant Funk, and gives the names of eight Jewish editors of the _Frankfurter Zeitung_, whom Funk had given permission to carry on with their profession. In this connection, Oeser further remarks: “He (Funk) herewith proved his human understanding. Indeed, I have never heard from him (Funk), in the course of our conversations, any inhuman utterances. Owing to his (Funk’s) concessions, the endangered people obtained, in part repeatedly, the possibility to hope and to work anew with us and to prepare, without loss of income, their change of profession and their emigration.” Oeser, a well-known economic journalist, who always kept completely aloof from the Party, explicitly states that Funk, without any doubt, exposed himself by his attitude toward the Jews.[sm type ends]

[sm type begins]In the cross-examination of the Defendant Funk the Prosecution referred to an affidavit, produced by the Prosecution, of an editor called Franz Wolf; this witness expressed—Document 3954-PS, Exhibit USA-377—the opinion that Funk may well have given those exceptional permissions not out of human sentiments, but rather in order to maintain the high standard of the _Frankfurter Zeitung_. By the way, the author of the affidavit was actually one of the Jewish editors who were given permission to further exercise their profession by Funk. The assumption of the witness Wolf is in direct contradiction to the positive statements of the witness Oeser. The Defendant Funk, too, opposed this interpretation and has pointed out that at that time such considerations were of no importance to him. In later years, when the _Frankfurter Zeitung_ was to disappear, he had, so he said, used his influence in order to insure the further publishing, out of material considerations too, as this newspaper was, as an economic paper, highly esteemed abroad and was the best commercial newspaper of the country. However, this does not alter the fact that Funk had, at that time, used his influence repeatedly and with success in favor of Oeser and his collaborators, for purely humanitarian reasons.[sm type ends]

[sm type begins]The witness Kallus finally declared in his questionnaire (Page 3 of Document Funk-18) that he remembers several occasions where Funk made possible the emigration of Jewish people under tolerable conditions. Kallus confirms hereby the statements of the witness Luise Funk (Document Book Funk, Exhibit Number 3), according to which the Defendant Funk often received, in the years when he was Under Secretary of State in the Ministry of Propaganda, letters of thanks from Jews who had emigrated at that time from Germany and who thanked Funk for having given them facilities for liquidating their businesses and for having procured them permission to take along abroad considerable parts of their fortunes.[sm type ends]

[sm type begins]Evidence concerning this second part of the Indictment has accordingly shown that Funk is guilty in the sense of this part of the Indictment neither in his official capacity nor by his actions. He has helped, as far as it was within his power, many Jews and many individuals who were endangered and hindered in their cultural work, out of their material and spiritual distress, although by doing so he jeopardized his own position.[sm type ends]

Now, Gentlemen of the Tribunal, I turn to another subject—the charge appearing under Point 4 of my brief, Page 24 onward, namely, that he participated in the preparation of wars of aggression; a point which is dealt with by Figure 4 of the Indictment. The accusation against the Defendant Funk is: “that with full knowledge of the aggressive plans of the conspirators he participated in the planning and preparation for such wars.”

As evidence of this, the Indictment first of all points out that Göring’s Ministry of Economics was brought under the Four Year Plan as the “high command of the German war economy,” and was placed under Funk’s command. The Indictment also states that according to the Law for the Defense of the Reich of 4 September 1938 Funk, in his capacity as Plenipotentiary for Economics, was explicitly charged with the mobilization of German economy in case of war.

The Prosecution’s assertion that the Reich Ministry of Economics was brought under the Four Year Plan before it was handed over by Göring to Funk is quite correct, but the so-called “high command of the German economy” was not in the hands of the Reich Minister of Economics, Funk, but entirely in those of the Delegate for the Four Year Plan—that is, the Codefendant Göring. Göring has confirmed the fact that Funk was obliged to follow his instructions. In addition, the most important branches of production were managed—as we have already shown—by special plenipotentiaries of the Four Year Plan, who were under the control of Göring and received their instructions from Göring—not from Funk. The Reich Ministry of Economics itself was merely the office which carried out the directives of the Four Year Plan. The Defendant Funk has testified that some offices were only formally under his supervision and functioned in reality as autonomous institutions of the Four Year Plan.

Funk’s position as Plenipotentiary for Economics was vigorously disputed from the beginning. When the Defendant Funk was cross-examined, Document EC-255 was submitted, a letter from the Reich War Minister, Von Blomberg, to the Delegate for the Four Year Plan, Göring, dated 29 November 1937, wherein Blomberg proposes that the Defendant Funk, who had just then, on 27 November 1937, been appointed Reich Minister of Economics, should also be appointed Plenipotentiary for War Economy. This was not, however, done.

Göring himself took over the Reich Ministry of Economics to begin with, and only handed it over to the Defendant Funk in February 1938, 3 months afterward. Then the High Command of the Armed Forces—more especially the Army Economic Staff under General Thomas, whose name has been mentioned repeatedly—requested that the Plenipotentiary for War Economy should be bound in the future to follow the directives of the High Command in all questions concerning supplies for the Armed Forces. In this Document, EC-270, USA-840, the Economic Staff of the High Command of the Armed Forces claims a right to direct the Plenipotentiary for War Economy in nearly all his fields of activity.

The Defendant Funk tried by means of a conversation with Reich Marshal Göring and a letter to Reich Minister Dr. Lammers to clarify his position as Plenipotentiary for War Economy, and as such claimed to be placed under the direct command of Hitler and not bound to abide by the directives of the High Command of the Armed Forces. Göring and Lammers concurred with Funk’s opinion. It must, however, be emphasized most strongly that this did not affect Funk’s subordination to Göring, for all the other supreme Reich offices and ministers directly subordinate to Hitler’s command were also bound by the directives of the Delegate for the Four Year Plan, that is, by Göring’s directives.

It is a remarkable fact that according to the Reich Defense Law of 4 September 1938—the Second Reich Defense Law—the Defendant Funk did not become Plenipotentiary for War Economy, but Plenipotentiary for Economics, without the word “War,” and that this act explicitly stated that Funk was bound to comply with the demands of the OKW. The OKW, therefore, won its battle against Funk in the end.

But the individual economic departments, which according to the Reich Defense Law were under the direction of the Plenipotentiary for Economics for his special assignments, were equally unwilling to recognize him. In an interrogatory by the former State Secretary Dr. Hans Posse, Funk’s deputy as Plenipotentiary for Economics (Document 3819-PS, USA-843) which was produced during the cross-examination of the Defendant Funk, Posse states that the Plenipotentiary for Economics “never really exercised any function.” The ministers and state secretaries of the individual economic departments of finance, agriculture, transport, _et cetera_, did not, according to Posse, wish to be placed under Funk’s control, and even protested against it. Posse also mentions the disputes which Funk had with the Four Year Plan. He calls these conflicts “the struggle for power,” which in this connection simply means the authority to make decisions concerning the other economic departments. This was not a dispute between Göring and Funk; that is untrue because obviously Funk as Plenipotentiary for the Economics was still subordinate to Göring. Actually, this was a quarrel among state secretaries. The individual economic departments declared that they were subordinate to the Delegate for the Four Year Plan and refused to recognize the right of the Plenipotentiary for Economics to give them directives, since Funk himself was under the direction of the Four Year Plan. The state secretaries of the Four Year Plan supported the departments in their interpretation, and this lack of clarity and the overlapping of competencies caused the authority to issue directives to pass formally from the hands of the Delegate of the Four Year Plan a few months after the outbreak of the war.

Questioned by the Prosecution as to whether he had been in the habit of discussing important matters with Funk, the above-mentioned State Secretary Posse replied: “Yes; but these discussions did not produce results.” Posse confirms that the authority given to Göring was much more extensive and that Göring finally dissolved the office of the Plenipotentiary for Economics. According to Funk this happened as early as December 1939, a few months after the outbreak of the war. Funk retained only the formal right to issue decrees. This has also been confirmed by Lammers. Therefore, the Codefendant Göring’s statement that he was also of the opinion that Funk’s position as Plenipotentiary for Economics could be described as having existed only on paper is quite correct.

[sm type begins]Naturally the office of the Plenipotentiary for Economics worked in continuous business relations with the other economic departments, with the Four Year Plan, with the staff of the department for defense economics of the German Supreme Command, and with the Plenipotentiary for Administration, that is to say, the Reich Minister of the Interior. As proof the Prosecution presented various documents showing that at the meetings of the Deputy Plenipotentiary for Economics and his staff, questions of finance, war production, labor, and others were discussed. In this connection the office of the Plenipotentiary once also treated the question of employing prisoners of war in the industry, but this was an entirely theoretical discussion (Document Number EC-488, USA Exhibit Number 842).[sm type ends]

[sm type begins]Why this General Staff economy work, which had to be done in times of peace for the eventuality of war, should be incriminating for the Defendant Funk is not clear. Besides, until August 1939 he personally did not take any interest in the details of these questions. All this work of the Plenipotentiary for Economics consisted of general preparations in case of war and did not apply to any special war. However, when Funk’s proposition for changing over from peacetime to wartime economy was worked out in co-operation with the other economic departments in August 1939, the danger of war with Poland was already pressing.[sm type ends]

Nowhere in the material presented by the Prosecution is there a single indication of the fact that the Defendant Funk knew anything about military and political conversations and preparations which had as their object the planning of war—in particular, a war of aggression to be waged by Germany. Funk was never invited to take part in any conversations of this kind. He was, in particular, not present at the well-known discussion with Göring on 14 October 1938, which was treated exhaustively by the Prosecution on Page 24 of the trial brief. According to the Prosecution, Göring during that meeting referred to an order issued by Hitler for an unusual increase in armaments, especially weapons of attack. The Prosecutor declared during the session of 11 January 1946 that at that meeting Göring addressed words to Funk which were described as “the words of a man already at war.” Several documents included in the Funk document book and submitted to the Tribunal prove, however, beyond doubt that the Defendant Funk did not attend that meeting at all, as he was in Sofia at the time in order to conduct economic negotiations with Bulgaria. This exhibit, which the Prosecution obviously intended to use as a main exhibit, is thereby invalidated. On 25 August 1939, the date of Funk’s letter to Hitler to which I referred this morning, the German and Polish armies were already completely mobilized and stood face to face with each other. He was, therefore, compelled to act in that particular manner, and by that time he was no longer able to cancel any of the preparations. All this is corroborated by the diary kept by the witness Kallus and submitted in the Funk document book under Number 18. The Defendant Funk stated here on the witness stand:

“It was naturally my duty as Plenipotentiary for Economics to do all I could to prevent the civilian section of the economy from being shattered in the event of war, and it was also my duty as president of the Reichsbank to increase as much as possible the Reichsbank’s reserves of gold and foreign currency.”

He goes on to say:

“That was necessary on account of the general political tension at the time, and it was also necessary in case no war would come about but only economic sanctions which, in view of the political situation at the time, one could and must expect.”

Funk likewise says:

“It was also my duty as Reich Minister of Economics to increase production.”

That is an exact quotation from the Defendant Funk’s testimony. On this subject the witness Puhl, who was vice president of the Reichsbank, states in his interrogatory of 1 May, which is in the hands of the Tribunal, that the position of the Reichsbank in the last 7 months of Funk’s presidency before the outbreak of the war had not been materially strengthened, and that very little business had been done in the exchange of foreign assets for gold since January 1939. The Reichsbank’s cautious policy in regard to gold and foreign currency, according to this witness, was in line with its customary practice.

Puhl’s statement is important for the correct understanding of the reference made by Funk, in his letter to Hitler of 25 August 1939, to the conversion of foreign assets into gold. During the period of Funk’s presidency of the Reichsbank the transactions to which he alludes were no longer of any importance. The exaggerated phrases used by Funk in his letter to Hitler make the contents appear much more important than they actually were.

Funk explained this fact during his examination by saying that this letter was a private letter of thanks, that in those days every German was under a very great strain owing to the tense political events throughout Europe, and that he wanted to inform his Chancellor at this moment when the country was in danger of war, that he, Funk, had also done his duty. This was the first and only occasion on which Funk actively exercised his functions as Plenipotentiary for Economics.

Here I must insert something which is based upon some minutes which the Prosecution did not submit until the hearing of evidence had been concluded; Document 3787-PS. These are the minutes of the second meeting of the Reich Defense Council held on 23 June 1939. Funk, as Plenipotentiary for Economics, attended that meeting of the Reich Defense Council, which took place about 2 months before the beginning of the war. The text of the minutes, however, leaves no doubt whatever that they concern general, and therefore mainly theoretical, preparations for any war. Furthermore, to appreciate this document it must be remembered that during the war which broke out 3 months later the whole of the Defendant Funk’s assignments in connection with the distribution of labor was transferred to the Four Year Plan, since the main functions of the Plenipotentiary for Economics were formally and completely abolished, as I have previously shown, shortly after the outbreak of war.

To continue with my brief—the Defendant Funk has explained in detail during his examination that up to the very end he did not believe that war would come, but that on the contrary he thought that the Polish conflict would be settled by diplomatic means. The accuracy of this statement is also confirmed by the witnesses Landfried, Posse, and Puhl, the defendant’s three closest co-workers, in interrogatories submitted to the Court (Exhibit Numbers Funk-16 and 17 and Document 3849-PS). The danger of war with Russia came to Funk’s knowledge for the first time when he heard of Rosenberg’s appointment as plenipotentiary for the unified treatment of eastern European problems in April 1941. We remember that at that time Lammers and Rosenberg gave the Defendant Funk the same explanations, generally speaking, as those stated to the Tribunal here by all the witnesses heard on this question. He was told that the reason for the preparations for war against Soviet Russia was that the Soviet Russians were massing considerable forces along the entire border, that they had invaded Bessarabia, and that Molotov, in his discussions on the subject of the Baltic Sea and the Balkans, had made demands which Germany could not fulfill. As Rosenberg stated that the assignment given him by Hitler also included economic measures, Funk placed a ministerial director, Dr. Schlotterer, at Rosenberg’s disposal as liaison official. Schlotterer later took over the direction of the economic section of the Rosenberg Ministry and joined the Economic Operations Staff East of the Four Year Plan. The Ministry for Economics itself and Funk had practically nothing to do with economic questions in the occupied East and concerned themselves merely with questions bearing on German internal economy. The Ministry for Economics had no authority whatever to make decisions in the Occupied Eastern Territories. During his cross-examination the Defendant Funk was shown an extract from an interrogation of 19 October 1945, dealing with the subject “Preparations for War against Russia” (Document Number 3952-PS, USA-875). In this interrogation Funk stated that the Defendant Hess asked him at the end of April 1941 whether he, Funk, had heard anything about an impending war against Russia. Funk replied: “I have not heard anything definite, but there seems to be some discussion along that line.”

The explanation of this conversation at the end of April 1941 between two men who were not informed of the facts may well be that at that time Funk did not yet definitely know the reason for Rosenberg’s assignment, but knew only of suspicions and rumors.

On 28 May 1941 Rosenberg had a meeting with Funk (Document 1031-PS). In this meeting, as you may recall, they discussed the question of how the monetary problem in the East might be regulated in the event of war against Russia and the occupation of those territories by German forces. Gentlemen, in my opinion it is quite natural that in view of an impending war, even a war of defense, the authorities responsible for money matters should discuss the question of the handling of these matters in case enemy territory should be occupied. Funk was opposed to any solution likely to give rise to speculation; and he described the suggested rate of exchange for marks and rubles as entirely arbitrary. He agreed with Rosenberg that the Russian territory should have its own national currency as soon as conditions permitted. For the rest he demanded further investigation of these problems, especially since the matter could not be decided in advance.

Here too, therefore, Funk approached matters with his characteristic caution and endeavored to find a solution which would create stable conditions from the very start. If the necessity for printing ruble bills to meet the most urgent demands for currency was mentioned in the discussion with Rosenberg—though not by Funk—Funk did not see anything either unusual or criminal therein. If the currency of a country has been depleted, it is absolutely necessary for fresh money to be provided by the power responsible for maintaining a stable monetary system. Who made the banknotes was of no importance to Funk; the essential point for him was by whom the banknotes were issued and in what quantity. Moreover, the production of a new banknote requires months of preparation, so that the execution of such a plan—which, as I said, was in any case not Funk’s—could not have taken place until much later.

A few weeks after this discussion the war actually broke out. Funk knew that there was danger of war with Russia. That Germany had long been preparing for such a war was however as little known to him as the fact that Germany would attack and thus wage a preventive war. Funk was informed neither of the march into Austria nor of the negotiations in regard to the Sudetenland—in September and October 1938 he was not even in Germany—nor was he informed of the seizure of the remainder of Czechoslovakia. In the case of Poland, he knew that the conflict was acute, but nothing more; of Russia the same thing was true. But in both cases he was informed even of this only a short time before the actual outbreak of war. As far as wars with other countries were concerned, Funk received no information whatsoever before the opening of hostilities; he was only informed afterward.

All the facts I have mentioned form a clear indication that Funk knew nothing of Hitler’s intentions with regard to foreign policy, and that he had no knowledge whatsoever of the fact that Hitler was planning wars of aggression. In the summer of 1939 Funk certainly devoted particular attention to the conversion of German economy from a peacetime to a wartime basis. But as an official of the Reich, Funk considered it to be not only his right but also his duty to prepare the German people for a defensive war and to take the necessary economic measures.

However, the Prosecution believes that it can eliminate all these doubts by describing the Reichsregierung or the National Socialist Party as a criminal organization which conspired against other nations, and whose sole task was to plan and wage wars of aggression, to subjugate and enslave foreign nations, and to plunder and Germanize other countries. This deduction is erroneous, since those plans were devised and executed only by Hitler himself and a few of the men closest to him, of the type of Goebbels, Himmler, and Bormann. According to the evidence we have heard, there can be no doubt that even the highest officials of the State and the Armed Forces—and in particular Funk—were not informed of these plans, but that these plans were concealed from them by a cunning system of secrecy.

Any comparison with the secret societies mentioned by the Prosecution, which in other countries banded together in criminal organizations, as for example the Ku Klux Klan in America, is impossible for a further reason. The Ku Klux Klan was organized from the start as a secret society for the purpose of terrorizing and committing crimes. In 1871, after scarcely 6 years of existence, it was expressly forbidden by the North American Government through a special law, known as the Ku Klux Klan Act. At that time the Government even imposed martial law on it and fought it with every possible means. It was an organization with which the Government and Congress of the United States never had any dealings. A man like Funk would, of course, never have joined a secret society, a criminal organization against which the Government was fighting. However, the National Socialist Party in Germany was never a secret organization, but was a party recognized by the Government and considered lawful. The unity between this Party and the State was even declared in a special Reich law. Since 1934 the leader of this Party was at the same time the elected head of the Reich, and this head of the State and his Government have been constantly and officially recognized as a government by the entire world from 1933 on. It was due precisely to this international recognition of Hitler by every foreign country—a recognition which continued to be extended in part even during the second World War—that Funk and millions of other Germans never doubted the legality of the Government and that such doubts, if they ever entered their minds, were immediately dispelled. Millions of German officials and German soldiers assumed, just as Funk did, that they were only doing their duty in not withholding from the head of the State the recognition accorded to him by every country in the world.

[sm type begins]The foreign countries, their statesmen as well as their general staffs, the press as well as the intelligence service of other countries, were certainly better informed about the German situation and also about the true aims of German politics than the German citizen who had no access to foreign newspapers, who was not permitted to listen to foreign radio stations if he did not want to land in jail or on the scaffold, who for years lived as isolated as in jail and could not even trust his neighbors and friends—not even his relatives—and dared not talk things over with anybody. Even ministers knew no more about Hitler’s true plans than any other fellow citizen and even of major State affairs they mostly learned only afterward through the newspapers or the radio. Who could have ever conceived the thought that foreign states would maintain diplomatic relations with a criminal organization and that official persons of foreign countries should recognize and call upon a man in whom they saw the head of a band of conspirators?[sm type ends]

As already mentioned, Funk has never denied that in his plans and directives he naturally took into account the possibility of wars which might some day have to be waged by Germany, just as it is part of the duty of every general staff in the world to take such possibilities into consideration. At that time Funk had every reason to do so in his capacity as Minister of Economics and Reichsbank president; for the world situation since the first World War had been so tense, and the conflicting interests of individual nations had frequently appeared insurmountable to such a degree that, unless he wanted to be accused of neglecting or betraying the interests of his own people, every statesman had to make the preparations necessary for waging war. A preliminary activity of this kind is, therefore, not in itself of criminal significance; and Funk has no doubt that during those years the ministers of economics and bank presidents of other countries also made—and had to make—similar preparations for the event of war. In the case of Funk it is of no importance whether or not he for his part ordered such preparations, but only whether or not he knew that Hitler was planning aggressive wars and intended to wage such aggressive wars in violation of existing treaties and in disregard of international law.

But Funk, as he declared under oath, did not know this, nor did he act on this premise. Hitler’s constant affirmations of peace prevented such a possibility from entering his mind. Today, of course, we know on the basis of the actual events that followed and on the basis of the facts established by these proceedings, that those peace assertions of Hitler’s, which were still on his lips when he committed suicide, were in reality only lies and deception. But at that time Funk regarded Hitler’s protestations in favor of peace as perfectly genuine. It never occurred to him at that time that he himself and the whole German nation could be deceived by Hitler; he believed Hitler’s words just as did the entire world, and thus he was the victim of that deception just as was the entire world. If no blame attaches to foreign statesmen and generals who believed Hitler’s protestations, although they certainly were better informed on Germany’s rearmament than was Funk, the faith which he himself had in the head of the State cannot be called a crime.

Gentlemen of the Tribunal, I have now examined the Prosecution’s accusation that Funk had planned wars of aggression; and I turn to another point of the Indictment, which concerns Funk’s activities in the occupied territories and the charge of forced labor.

The Prosecution offered very little evidence against Funk on the subject of forced labor or the slave-labor program. In the main he is held responsible for the compulsory employment of foreign workers on the grounds that he was a member of the Central Planning Board from autumn 1943 on. The first session of the Central Planning Board at which he was present took place on 22 November 1943, that is to say, at an advanced stage of the war, and after that he very rarely attended meetings. The Defendant Speer testified to this, and it is also evident from the minutes of the Board, which were very carefully kept. And I should like to emphasize the fact that Funk never had anything to do with the employment of labor either in his capacity as Minister of Economics or as president of the Reichsbank. He was on principle opposed to taking in too many workers from the occupied territories, especially by force, because this interfered with the economic and the social life of these territories. The Codefendant Sauckel and the witnesses Landfried and Hayler have confirmed this, and it is also shown by the remarks made by Funk himself at the meeting held in Lammers’ office on 11 July 1944 (Document 3819-PS), which was frequently quoted in Court. Here, for instance, Funk expressed disapproval of ruthless raids to recruit foreign workers.

If Funk sent representatives to the Central Planning Board, he did so only to insure that the necessary raw materials were allocated to the industries engaged in manufacturing consumer’s goods and goods for export, but never to deal with questions of foreign labor, in which he was not at all interested. Although the Prosecution, in cross-examining the witness Hayler, on 7 May 1946, confronted him with a statement by Funk during the preliminary interrogation of 22 October 1945, Document Number 3544-PS, to the effect that he had “not racked his brain” over these labor problems, it must also be stated on the part of the Defense that in the next sentence of these minutes—in the same breath, so to speak—Funk declared that he had always done his utmost to prevent workers being taken away from their homeland, in this case France. This second sentence, although not quoted by the Prosecution, seems to be of special importance because it clearly reveals Funk’s disapproval of the compulsory measures used in connection with the utilization of foreign labor. The Defendant Speer, however, testified before the Tribunal on 20 June that the Central Planning Board made no plans at all for the utilization of labor. Only occasional discussions on questions concerning the utilization of labor took place here. The records containing the actual results of the negotiations and decisions of the Central Planning Board have not been introduced by the Prosecution. It has been shown that Funk, who attended only a few of the meetings of the Central Planning Board, never received the full notes but only the minutes, which revealed nothing. Before Speer was responsible for decisions on war production, and before Sauckel became Plenipotentiary General for the Allocation of Labor—that is, before 1942—the question of recruiting labor for production was dealt with by the Four Year Plan, that is, by Göring and not by Funk. Later on applications for workers required, as Speer has testified, were usually made by the industries directly to the offices controlling the allocation of labor. While Funk was still in charge of production in the Reich Ministry for Economics and working in accordance with the directives of the Four Year Plan, questions concerning the allocation of labor were not dealt with by the Reich Ministry for Economics at all, but by the Plenipotentiary General appointed under the Four Year Plan for the various branches of industry—that is, by Göring—by means of direct negotiation with the Plenipotentiary General for the Allocation of Labor. Speer clarified this in connection with Document Sauckel Number 12. He also clarified the fact that several branches of industry, such as overground and underground construction not falling within the competency of the Reich Minister of Economics, were cited in this document as belonging to it.

[sm type begins]Some other items had been rectified previously already by Sauckel’s defense counsel. The various economic offices (Wirtschaftsämter) likewise did not request manpower from the Reich Ministry of Economics. They were, however, not offices of the Reich Ministry of Economics, but were incorporated in the so-called intermediate instance, that is, in the provincial authorities, or in the Gauleitungen.[sm type ends]

[sm type begins]An important point in this connection is the establishment of the fact that up to 1943, that is, up to the time in which Funk was at all competent in questions of production, foreign workers came to Germany through recruitment solely upon the basis of a voluntary decision. With respect to this, I refer to the decree of the Reich Minister for Labor promulgated on 30 July 1940, presented in Funk’s book of documents under Number 12, in which the conformity with obligations internationally agreed upon is specifically pointed out.[sm type ends]

Finally it must be stated that Funk, at the time when he joined the Central Planning Board, no longer had any production assignments and could therefore no longer claim workers, so that in consequence he had no further interest in this aspect of the Central Planning Board’s activities.

[sm type begins]Regarding Funk’s attitude toward the economy of occupied territory, and measures taken by him to insure the maintenance of orderly economic conditions and especially of stable conditions of currency, I refer to the questionnaires Landfried (Exhibit Number Funk-16) and Puhl (Exhibit Number Funk-17), as well as to testimony of the witnesses Hayler, Neubacher, and Seyss-Inquart. I will refer only to Document 2263-PS, introduced by the Prosecution during cross-examination of the Defendant Funk, a letter from the Under Secretary of the Ministry of Economics to the Armed Forces High Command of 6 June 1942, in which the transfer of 100 million Reichsmark from occupation money is requested for purchases by Roges Raw Material Incorporated (Rohstoffhandelsgesellschaft) on the black market in France.[sm type ends]

[sm type begins]Here we deal with the purchases in occupied territories mentioned before, resulting from instructions by the Four Year Plan. These, however, represent exactly those purchases against which Funk protested. His protests finally culminated in the decision of the Delegate for the Four Year Plan (Göring) to prohibit any such further purchases. As is known, Funk personally had no authority to issue instructions for the occupied territories. Moreover such controlled purchases by authorities must be looked upon in a different light from the uncontrolled purchases of the various State, Party, and Armed Forces agencies, against which Funk fought time and again (Questionnaire Landfried, Document Book Number Funk-16).[sm type ends]

Summarily it must be said that the evidence submitted has proved beyond doubt that the Defendant Funk took a great many measures to prevent the exploitation of occupied territories and that the fact that he succeeded in preventing the devaluation of currency in occupied countries was in itself enough to protect them from suffering damage to an extent which cannot be evaluated in detail.

With that, Gentlemen of the Tribunal, I leave this point of the Indictment against Funk and turn to a further charge against him, namely, his participation in the elimination of Jews from economic life in November and December 1938, which forms Point 3 of the Indictment against him.

Gentlemen, the charges which the Prosecution has made against Funk contain many details with which, in view of the time at my disposal, I am unable to deal fully. With regard to such details I shall refer to statements made by Funk himself in this connection. First of all, however, I must deal more fully with what seems to me the most important of all the charges made against Funk, namely, that of playing a part in the persecution of the Jews. The Defendant Funk considers this to be the most important factor in his trial.

Gentlemen, no one in Germany has ever asserted that Funk was one of those fanatical anti-Semites who took part in the pogroms against the Jews or who approved of these proceedings and profited by them; Funk always condemned such actions. This can be explained not only by his natural disposition and the environment in which he grew up, but also by his years of work as a journalist, mainly in connection with that section of the press which dealt with economic policy and consequently kept him in continuous touch with the Jewish circles of importance to economic life. Experts in that field know, and still have respect for, Funk who even at that time showed an attitude that was free of all anti-Semitism, and friendly toward the Jews rather than hostile.

It is tragic to a certain extent that in spite of this the name Funk, of all names, has been repeatedly connected in this Trial with the decree of November 1933, as a result of which the Jews were eliminated from economic life. Whether he liked it or not, all questions concerning the treatment of Jews in the economic life of Germany were under the jurisdiction of his department as Minister for Economics. As an official it was his duty to issue the necessary executive instructions.

This was certainly particularly difficult for Funk, in view of his tolerant attitude. At that time he had already been a civil servant of the Reich Propaganda Ministry and the Ministry for Economics for 8 years, and yet, during all that time, the Prosecution could not cite a single instance of any display of anti-Semitism on Funk’s part or any evidence of his having urged or approved of the use of force, terrorism, or injustice against the Jews. On the contrary, we know from the statements of various witnesses that Funk repeatedly interceded for his Jewish fellow citizens in the course of these years; that he looked after them and tried in their interests to alleviate hardships, to prevent encroachments on their rights, and to spare the lives and careers of human beings, even if they were Jews or political opponents of his own.

It is, therefore, not surprising that this man, with his wide experience in the economic field, this man of far-reaching knowledge, with his frankly tolerant views, was most painfully affected when on 10 November 1938 he had to witness the destruction of Jewish homes and shops in Berlin, and when he received one report after another confirming the fact that Goebbels and his clique, exploiting the indignation of the populace over the assassination of a German by a Jew, were organizing such pogroms throughout Germany, and that these outrages were leading not only to the destruction of Jewish property, but also to the murder of many Jews and to the persecution of many thousands of innocent citizens.

The affidavit of this assistant, Ministerialrat Kallus (Document Book Number Funk-15) of 9 December 1945, and that of Frau Luise Funk of 5 November 1945 (Funk Document Book Number 3), prove clearly that Funk condemned such excesses most severely, that he was incensed to the extent of calling them filthy outrages even when addressing Dr. Goebbels himself, and that he threatened to resign in the event of a repetition. Even at that time he told the mighty Goebbels to his face that one should be ashamed of being a German.

All this, Gentlemen, expressed the justified indignation of a man who for years had made every effort to insure moderation toward Jews and political opponents and had received many a letter of gratitude for so doing—a man who had fought for years to prevent terrorism, to secure for all his fellow citizens the rights to which they were entitled, and to raise the standard of German economic life—and who now saw all his efforts frustrated in a single night by the brutal fanaticism of a Dr. Goebbels.

Funk himself, during his interrogation, gave us a vivid description of how, ever since he entered office as Minister of Economics in February 1938, he had been subjected to continuous pressure by Goebbels and Dr. Ley to eliminate the Jews from the economic life of the country in the same way as they had been eliminated in 1933 from its cultural life.

The witness Dr. Hayler stated here that Himmler also found fault with Funk for this. Funk himself testified to the difficulties which again and again occurred during those years with workers stirred up by propaganda, who were sometimes no longer willing to work under Jewish managers, or did not dare to do so; and how, in these oppressive conditions, numerous Jewish owners sold their businesses—frequently at cut prices—to people who seemed to Funk as the Minister of Economics entirely unfit to acquire or manage such businesses. Funk tried again and again to stem this overwhelming development. He made continual efforts to put a brake on this process of Aryanization; to provide for a reasonable and just settlement for Jewish owners of businesses; and to allow them to emigrate from Germany with their property. But Funk realized more and more clearly every day that he was too weak to stop this movement and that the radical elements around Dr. Goebbels and Dr. Ley were gaining the upper hand, in which they were unfortunately able to rely on Hitler’s authority. Hitler had allowed himself in the course of time to be won over more and more to the policy of radical treatment of the Jewish question by a few irresponsible advisers who are not sitting in the dock today.

The events of 9 November 1938 burst like a bombshell into this fight between Funk and other considerate people on the one side, and Goebbels and Ley on the other. As Dr. Goebbels himself admitted later to Fritzsche, they were aimed directly at the person of the Defendant Funk, who was thus to be confronted with a _fait accompli_. As the witness Landfried testified, Dr. Goebbels did in fact attain his ends through this operation of November 1938. Goebbels was able to refer later to Hitler’s own order for the Jews to be completely excluded from the economic life of Germany, although Funk, as the minister concerned, repeatedly made allusion to the relations with foreign countries upon which the German Reich and its economy depended.

The orders necessary to carry out this program were given by Göring in his capacity of Delegate for the Four Year Plan, on the direct orders of Hitler. Funk never had any doubt that in this particular affair Göring also was to a certain degree only a puppet, because he had always known Göring to be a man who condemned extreme radicalism in this particular question of the Jews. Funk’s views on this point were shared by wide circles of the German people, and the fateful Göring meeting of 12 November 1938 (Document 1816-PS) proved this to be correct. This document has been mentioned here repeatedly. At a meeting which preceded that of 12 November 1938, Göring sharply condemned the acts of terrorism which had occurred and declared to the Gauleiter present that he would make every Gauleiter personally responsible for acts of violence committed in his district. But what was the good of that?

In the course of the second meeting, the minutes of which were submitted to the Tribunal under Number 1816-PS, Goebbels ultimately succeeded in imposing his radical demands; and the course taken by this meeting forced Funk to admit that the complete elimination of the Jews from German economic life could no longer be delayed for the simple reason that the circles in power had become far too fanatical. It became evident to Funk that legislative measures were necessary if the Jews were to be protected from further acts of terrorism, looting, and violence and if they were to get any reasonable compensation. During the Göring meeting of 12 November 1938, Funk repeatedly expressed his views again, as is shown by the records. It was due to the efforts made by the Defendant Funk, with the support of Göring, that Jewish businesses were reopened for the time being, that the whole procedure was taken out of the hands of the arbitrary local agencies and put on a legal basis throughout Germany, and finally that in order to gain time in which to carry out this action a definite date was set for its completion. Anyone who reads carefully the minutes of the Göring meeting of 12 November 1938 will, in spite of their incorrect and incomplete formulation, be able to find definite and repeated indications of Funk’s moderating influence; namely, his insistence—repeatedly mentioned in the minutes—on the reopening of Jewish stores, his proposal that the Jews be allowed to retain at least their securities, and finally his attitude to Heydrich’s demand that the Jews be placed in ghettos. The minutes of 12 November 1938 prove beyond doubt that it was Funk who opposed Heydrich’s proposal by saying: “We don’t need ghettos. Surely the Jews could move closer together among themselves. The existence of 3 million Jewish people among no less than 70 million Germans can be regulated without ghettos.” This is a literal quotation.

Funk therefore wanted to save the Jews at least from being interned in ghettos. It must be admitted that at that time Funk did not entirely succeed in securing recognition for his point of view, so that the proposal that the Jews should be allowed to retain their securities, for instance, was turned down, although Funk pointed out, as the minutes show, that to realize the Jewish securities would suddenly flood the German stock market with securities to the value of 500 million Reichsmark and would, therefore, have serious consequences for the German stock market. The decisive question in judging the Defendant Funk is not so much his success as the fact that he made an obvious effort to save for the Jews all that could be saved in the circumstances; and we must not lose sight of the fact that in all those measures Funk acted only in his capacity as Minister of Economics, that is, as an official who merely gave the order to execute a command which Göring as Delegate of the Four Year Plan had issued on the orders of Hitler. Funk found himself in exactly the same position of constraint, as, for example, the Reich Minister of Finance, Graf Schwerin von Krosigk, who at that time had to order the punitive levy of 1,000 million Reichsmark to be paid by the Jews, or the Reich Minister of Justice and the Reich Minister of the Interior, both of whom issued similar executive instructions in their respective spheres. The Tribunal must decide the difficult legal question of whether a state official whose government has been legally recognized by all the governments of the world is liable to legal punishment for putting into effect a law—and I emphasize the word “law”—passed in accordance with the legislative system of this state. This legal problem is entirely different from the other question, dealt with in the Charter and by the Prosecution, as to whether or not the fact that an official order was given by a superior can serve as an excuse. I might add here that I shall not discuss this legal question because I shall leave it to the other members of the Defense. I shall discuss only whether an official who puts into effect a law passed by the internationally recognized government of his country thereby becomes liable to punishment. That is an entirely different problem from the one dealt with by the Charter.

Gentlemen, since this has not been dealt with before, I have to state the following; I read at the bottom of Page 50: Our natural sense of justice fully approves that a citizen, an official, or even a soldier, cannot defend himself by reference to the official order given him by his superior if this order obviously implies an illegal act, and especially a crime; and if in the existing circumstances and in due consideration of all the accompanying facts, the subordinate realizes, or should realize, that the official order is contrary to the law.

If the latter condition exists, in other words, if the official order obviously constitutes a breach of the law, it may in general be fully approved that the subordinate is not accorded the right to refer to his superior’s official order as an excuse and to maintain that he was only carrying out that order. In that respect this stipulation of the Charter contains nothing essentially new, but only the confirmation and further development of legal principles which are recognized to a varying extent in the penal codes of most civilized nations today. A certain amount of precaution, however, seems to be indicated in this matter, for it should not be forgotten, on the other hand, that obedience to the orders of a superior—not obedience to the law, but to a superior—is, and must in future remain the foundation of every government in all nations if the orderly functioning of the state administrative apparatus is to be secured; and that it would be dangerous for the civil servant to decide for himself whether to keep his oath of allegiance.

But, Gentlemen, in our case something different is involved: We are dealing here with the obedience of the citizen and especially of the civil servant, such as Funk was at that time, to a national law, which was legally promulgated in accordance with the constitutional rules of this State. If we wish to find a just and correct answer to this complicated juridical question, which so far has not been treated in literature, it will be pertinent to disregard entirely conditions in Germany and the present Trial, and to ask ourselves what decision would be given in a case where a civil servant of a different country—not Germany—carried out a law. Let us assume for instance, that some foreign country embracing a minority promulgated, in accordance with its constitution, a law exiling from its territory all members of this minority, or confiscating for the benefit of the state the property of such inhabitants, or turning over to the state or partitioning among other citizens the large agricultural estates of such inhabitants. Let us assume that such a case exists and let us ask ourselves: Does the civil servant in this nation really commit a crime if he carries out this lawful order? Is it really the duty of the official charged with the execution of this law to refuse to obey the law and to declare that in his personal opinion the law concerned is a crime against humanity, or has he even the right to do so? In such a case, Gentlemen, would any state today grant its civil servants permission to examine whether the law proclaimed is contrary to the principles of humanity or to the fluctuating norms of international law? What state would tolerate the refusal of its civil servants for such a reason to execute a law already proclaimed?

[sm type begins]Or another example: Let us assume that the laws of a nation decree that certain new weapons are to be introduced into the armed forces, or that more warships are to be built, or that some preparations have to be made for war. Should an individual civil servant really have the right to refuse the execution of the law, even perhaps to sabotage its execution, and then to say, by way of explanation, that in his personal opinion concerning international law it involved the preparation of an aggressive war, consequently an international crime?[sm type ends]

The Tribunal will have to decide these legal problems. But Funk may point out in his own defense the fact that by reason of his entire ideology and background it was especially painful to him to issue these executive instructions, although he believed he was only doing his duty as a civil servant.

In this connection I wish to remind you of Funk’s circular of 6 February 1939 (Document 3498-PS, Trial Brief Funk, Page, 19), where he emphasizes to his officials that it was their duty to “insure that it was carried out in a correct manner in every respect” and where he already feels impelled to disclaim personal responsibility for these measures by expressly emphasizing: “How far and how rapidly the powers conferred by the Four Year Plan are to be exercised will depend on the instructions to be given by me in accordance with the directives of the Delegate for the Four Year Plan.” This special reference made by the Defendant Funk to the legal decrees of the Four Year Plan, which was authorized to promulgate laws, originated in the defendant’s desire to express formally and solemnly, and to establish for the future, the fact that in issuing the executive instructions in 1938 he was a victim of his obedience to the State, a victim of his loyalty to the laws of the State to which he had sworn allegiance.

Funk’s circular of 6 February 1939, already mentioned on Page 19 of the trial brief, clearly expresses the qualms of conscience which had gripped Funk in those days, although he had not incriminated himself—qualms which, during his interrogation by an American officer on 22 October 1945, led to his complete nervous collapse, so that Funk was unable to restrain his tears and told the interrogating officer: “Yes, I am guilty; I should have resigned at that time.”

These same qualms of conscience gripped the defendant throughout the entire Trial and are still haunting him; and we remember that in the session of 6 May 1946, when this point was discussed, Funk was so deeply shaken that he could hardly continue talking and finally declared here before you, Gentlemen, that at that moment he fully realized that this, meaning the atrocities of November 1938, was the starting point of the chain of events leading to those horrible and frightful things of which we have learned here, some of which he too had already heard of during his imprisonment, and which culminated in Auschwitz. He felt, as he said during his interrogation on 22 October 1945, “deep shame and heavy guilt,” and he still feels it today; but he had put the will of the State and the laws of the State above his own feelings and above the voice of conscience since he, as a civil servant, was tied by duty to the State. He felt these ties all the more strongly as these legal measures were particularly necessary for the protection of the Jews in order to save them from losing their rights completely, and from suffering further despotism and violence. These are the very words of the Defendant Funk; and they represent his actual feelings. Today Funk still feels that it was a terrible tragedy that he of all people was charged with these things—he who never during his entire life said a spiteful word against a Jew, but had wherever he could always worked for tolerance and equality for the Jews.

If during his interrogation on 22 October 1945 Funk said: “I am guilty,” it need not be investigated here whether the defendant intended these words to apply to his criminal guilt, or only to a moral guilt which he saw in the fact that he had remained in an office which compelled him to carry out laws incompatible with his own philosophy of life. Funk was not in a position to decide for himself the complicated legal question of whether an official of an internationally acknowledged state can be punished at all if he only carries out laws passed in accordance with the legal constitution of this state. For the Defendant Funk his “guilt” did not lie in the fact that he had signed the executive instructions in November 1938, since this had been his duty as an official, rather did he consider himself guilty because he had remained a member of the Government although he found the acts of terror which had occurred intolerable, and abhorred them; he was not involved in the “conflict of conscience,” of which he spoke when he was interrogated, because he acted according to the laws which he considered necessary under the conditions prevailing at the time. This conflict was a result of the fact that he had not, in this difficult situation, listened to the voice of his conscience and had not resigned his ministerial office. But the decisive reasons for his attitude and his final decision to remain in office in spite of his feelings about the matter were certainly not material considerations. His reputation as a journalist and his abilities as such would easily have enabled him to find another suitable position. Much is to be said for the opinion that the Defendant was held in office above all by the thought that his resignation would in no way improve matters, but that on the contrary the administration would become still more radical under an unsuitable and fanatical successor, while by staying in office he might hope to alleviate much distress.

These considerations, which may have guided the Defendant Funk in the first place, were certainly correct up to a point. His State Secretary, Dr. Landfried, at least has testified that later on too Funk often expressed serious misgivings concerning the action taken against the Jews in November 1938 and showed very strong disapproval of all excesses and infringements of the law committed by various Government agencies in carrying out the action. Funk could talk openly to his confidant Landfried, and he often complained to him that he had no power to prevent such excesses. But, as he said to Landfried: “We of the Ministry of Economics should take particular care to see that no one makes illicit profits out of the Aryanization—that is, the transfer to non-Jewish ownership—of business firms.” And Ministerialrat Kallus described in his deposition of 19 April 1946 the various measures taken at that time by Funk to protect the interests of Jewish owners. Kallus also told us that Funk even made personal efforts to insure that his orders were carried out by his subordinates in a proper manner.

Gentlemen, thus a sense of duty on the one hand, and humane feeling on the other, were the motives which kept the defendant in office and thus brought him into a situation where he is today charged with criminal action.

Mr. President, I am now coming to a new subject and I have altogether about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes to 4.

THE PRESIDENT: Can you finish it by that time, Dr. Sauter?

DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes. On further thought, Mr. President, it will take about half an hour.

THE PRESIDENT: We will adjourn at this time.

[_The Tribunal adjourned until 15 July 1946 at 1000 hours._]

ONE HUNDRED AND SEVENTY-EIGHTH DAY Monday, 15 July 1946

_Morning Session_

MARSHAL: May it please the Tribunal, the Defendant Ribbentrop is absent today.

THE PRESIDENT: Would it be convenient to Counsel for the Prosecution and the Defense if at 2 o’clock today we were to deal with those interrogatories and affidavits which have come in since the last applications were made?

SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): My Lord, it would be perfectly convenient for the Prosecution.

THE PRESIDENT: Dr. Sauter, do you think it would be convenient for the Defense Counsel to deal with those matters at 2 o’clock?

DR. SAUTER: Certainly, Mr. President; I will inform the other defense counsel that these applications will be discussed at 2 o’clock.

DR. RUDOLF DIX (Counsel for Defendant Schacht): I agree with my colleague, Dr. Sauter, that this should be done. But if this is done at 2 o’clock it will interrupt my final speech. I should be very grateful if it could be done immediately after Dr. Sauter finishes his speech, so that I could present my plea coherently. It would be very awkward if I were interrupted.

THE PRESIDENT: Certainly, Dr. Dix. Very well; we will do it immediately after Dr. Sauter’s plea.

DR. SAUTER: May I speak now, Mr. President?

THE PRESIDENT: Yes, Dr. Sauter.

DR. SAUTER: May it please the Tribunal; before the adjournment on Friday, I explained in conclusion the position and the attitude of the Defendant Funk with respect to the Jewish question. On this occasion I pointed out that in connection with the executive instructions issued late in 1938 on the legal exclusion of the Jews from economic life, the Defendant Funk acted only in his capacity as a Reich official and in the performance of the duties of that office.

On Friday, I finished my statements in that respect with the words:

It was a sense of duty on the one hand, and humane feeling on the other, which kept the Defendant Funk in office and thus brought him into a situation where he is today charged with criminal action.

Now, Gentlemen of the Tribunal, I turn to the last chapter of my appraisal of the Defendant Funk, of his motives and actions, and will now deal with the gold deliveries by the SS to the Reichsbank, and with the relation of the Defendant Funk to the concentration camp question. That is to say, I am going to refer to Page 58 of the written speech which has been submitted to you.

It is a peculiar tragedy in the life of the Defendant Funk that he was not only forced by fate in the year 1938 to issue executive instructions for laws which he always inwardly condemned and repudiated more than anybody else, but that once again, in the year 1942, he became involved in a particularly horrible manner with Jewish persecutions. I am thinking now of the deposits made by the SS in the Reichsbank, that is to say, the matter on which a film was shown here of the steel vault of the Frankfurt Branch of the Reichsbank and about which two witnesses have testified, namely, Vice President Emil Puhl and Reichsbank Councillor Albert Thoms.

The Defendant Funk was already examined about this matter of the gold deposits at the preliminary proceedings on 4 June 1945, (see 2828-PS); at that time, however, no details were disclosed to him, and Funk made the same statement then as he did before this Tribunal, namely, that he was only briefly told about the matter in question on a few occasions, and that he had not attached any importance to it at all. That is also the reason why the Defendant Funk could not at first recall those happenings very well during the proceedings here. He did not know anything more about them than he had already said.

Nevertheless, Gentlemen of the Tribunal, Funk had to expect that this matter would be brought up in the Trial, at any rate in the cross-examination. And this was actually done by the American Prosecution on 7 May 1946, who submitted an affidavit by the witness Emil Puhl, Vice President of the Reichsbank, in which at first sight Puhl appeared to make serious accusations against the Defendant Funk. Now it is remarkable that since the beginning of this Trial the Defendant Funk has repeatedly referred to this very witness Puhl for various points, and that since December 1945 he has repeatedly requested that the latter be interrogated. Measured by ordinary human standards, Funk would certainly not have done this if he had had a bad conscience and had reason to expect to be compromised in the most damaging way by his own witness regarding the concentration camp matter. But the oral examination of the witness Emil Puhl here before this Tribunal showed beyond a doubt that Puhl could no longer in any way maintain the incriminating statements in his affidavit, as far as the character of the Defendant Funk and his knowledge of the particulars of the SS deposits were concerned.

It is true that Funk, as he recalled after Puhl’s testimony (and concerning this I submitted on 17 June 1946 a corrected copy of his sworn testimony), was once asked by Reichsführer SS Himmler whether articles of value which had been seized by the SS in the Eastern Territories could be deposited in the vaults of the Reichsbank. Funk answered this question in the affirmative and told Himmler that he should delegate somebody to discuss the matter with Vice President Puhl, and settle the details. Himmler at that time told Funk that his Gruppenführer Pohl could do this and that the latter would get in touch with Vice President Puhl. That was all that Funk at that time, I believe in 1942, had discussed with Reichsführer SS Himmler and which he on that occasion also repeated to his Vice President Puhl who was actually directing the business of the Reichsbank and therefore responsible for this affair.

There was nothing extraordinary in this question of Reichsführer SS Himmler, at least nothing which Funk could recognize. For, as far as Funk knew, the SS was at that time in charge of the entire police service in the Occupied Eastern Territories. For that reason it often had to confiscate valuables just as the ordinary police did in the interior, that is, within Germany. Moreover, all gold coins, foreign currency, _et cetera_, in the Occupied Eastern Territories had to be turned in according to law, and these deliveries in the Eastern Territories were naturally made to the SS, because there were no other state offices equipped for that purpose. Funk also knew that the concentration camps were under the direction of the SS and thought that the valuables which were to be given to the Reichsbank by the SS for safekeeping belonged very probably to that category of valuables which the entire population was obliged to deliver.

Finally, as has been ascertained in the course of this Trial, the SS was constantly just as much engaged in the fighting in the East as the Armed Forces, and like the latter the SS had also collected so-called booty in the abandoned and destroyed towns of the East and delivered it to the Reich. Therefore, there was nothing at all extraordinary for Funk in the fact that the SS possessed gold and foreign currency and brought it in for delivery in the regular way.

Now, the essential point in this whole business is the question whether the Defendant Funk knew or saw that among the objects delivered by the SS there were unusual quantities of gold spectacle frames, gold teeth, and similar objects which had come into the hands of the SS not through legal but criminal confiscations. If—and I emphasize, Gentlemen, if—it could be proven that the Defendant Funk had seen such objects in the deposits of the SS, this would naturally have caused him some surprise. But we heard the witness Puhl say in the most positive way that the Defendant Funk had no knowledge of this and, indeed, that Vice President Puhl himself knew no further details about it. In any case Funk never saw what particular gold objects and what quantities the SS delivered.

Now, it has been said against Funk that he himself entered the vaults of the Berlin Reichsbank several times, and from this one felt entitled to draw the conclusion that he must have seen what objects had been delivered to the Reichsbank by the SS. This conclusion is obviously wrong because the evidence shows that during the entire period of the war Funk went to the vaults of the Reichsbank only a very few times for the purpose of showing these vaults and the bullion of the Reichsbank stored there to special visitors, especially foreign guests. But on those few visits to the vaults he never saw the deposits of the SS. He never observed what in particular the SS had deposited in his bank. This is established beyond doubt, not only by the sworn statement of the Defendant Funk himself, but also by the oral testimony of Vice President Puhl and Reichsbank Councillor Thoms here in this courtroom. This Prosecution witness, who is certainly free from suspicion and who by his own admission volunteered to testify, has declared here under oath that the valuables were delivered by the SS in locked trunks, boxes, and bags and were also stored away in these containers, and that Funk was never present in the vaults when the bank employees made an inventory of the contents of an individual box or trunk. The witness Thoms, who was in charge of these vaults, never saw the Defendant Funk there at all. Therefore, Funk neither knew of the proportions which the deliveries of the SS gradually assumed in the course of time, nor did he know that the deposits contained jewelry, pearls, and precious stones, and also spectacle frames and gold teeth. He never saw any of those things and none of his officials ever reported to him about them either.

Now it is the opinion of the Prosecution that Funk, as President of the Reichsbank, surely must have known what was kept in the vaults of his bank; but this conclusion is also evidently mistaken and does not take into consideration actual conditions in a large central issuing bank. Funk, who was also Reich Minister of Economics, had in his capacity as President of the Reichsbank no occasion whatever to bother about the deposit of an individual customer, even if this happened to belong to the SS. As President of the Reichsbank he did not bother about any deposits of other clients of his bank either, since this was not his job. On only one occasion, following a suggestion of his Vice President Puhl, he asked Reichsführer SS Himmler—this was during his second conversation with him—whether the valuables deposited by the SS in the Reichsbank could be converted into cash in the legal course of business at the Reichsbank. Himmler gave his permission and Funk passed this information on to his Vice President Puhl. But in this matter he was only thinking of gold coins and foreign currency, that is to say, of those particular valuables which had to be turned in to the Reichsbank as a matter of course in the German Reich and which could be and had to be converted into cash by the Reichsbank. The idea never occurred to Funk that the deposits might contain gold teeth or other such remarkable objects which had their origin in criminal acts in concentration camps. He heard about these things to his horror for the first time here in the courtroom during the Trial.

The only remaining point in the statement of the witness Puhl which might excite a certain amount of suspicion, Your Honors, was the question of preserving secrecy, which in fact played a very important part indeed in the examination of the witness. Vice President Puhl stated here at the beginning of his testimony that the Defendant Funk had told him that the matter of the SS deposits must be kept especially secret. Funk, on the other hand, has always denied this in the most insistent manner and declared under oath that he never talked to Puhl at all about any such secrecy. Thus at the very beginning, here in the courtroom, we had one statement pitted against another, oath against oath. Vice President Puhl’s statements regarding this point, however, seemed somewhat contradictory from the beginning. For on one occasion Vice President Puhl said that this secrecy had not struck him as anything extraordinary, since after all secrecy is preserved about everything that occurs in a bank. In answer to a special question, Puhl then stated repeatedly that he did not notice at all that the Defendant Funk had supposedly spoken about preserving secrecy.

When, however, the affidavit of the witness Thoms of 8 May 1945 was read and pointed out to the witness Puhl, the latter finally stated here under oath on 15 May 1946 that it was plainly visible from this affidavit that the desire for secrecy emanated from the SS. The SS considered it important that this business should be transacted secretly. The SS, as Puhl said, had been the ones originally responsible for the imposition of secrecy. This was the literal conclusion of the witness Puhl’s sworn statement and at the end of it he again confirmed that the obligation for secrecy was desired and imposed by the SS.

The initial contradiction regarding this point between the statements of the Defendant Funk and those of the witness Puhl was hereby completely eliminated, Your Honors, in favor of the defendant. Puhl himself could no longer maintain his original assertion that it was Funk who had ordered the SS deposits to be kept secret. Therefore, in arriving at your verdict, you must proceed from the premise that the statement of the Defendant Funk is correct in this point also and deserves preference, for he has declared under oath from the very beginning and with the utmost certainty that he himself knew nothing about keeping anything secret and that he had never spoken of any such secrecy to Puhl, either. Moreover, there was absolutely no reason for Funk to say anything to Puhl about any special secrecy, since Funk was obviously of the opinion that the valuables involved were only of the kind which had to be turned in and confiscated, and which came within the regular lawful business of the Reichsbank and need not be kept secret, regardless of whether these things which had to be turned in were the property of a prisoner in a concentration camp or the property of a free individual.

It was never made clear by the evidence submitted why the SS on their part stressed the importance of preserving secrecy to Vice President Puhl and why, furthermore, the SS opened the deposit in the name of Melmer instead of in the name of the SS, and the Prosecution for their part did not attach any importance to clearing up this point. However, in any case, the demand of the SS for secrecy evidently did not strike Vice President Puhl as unusual any more than it did the witness Thoms who had nothing at all to do with the matter but who confirmed the fact that this secrecy was nothing unusual. But nevertheless, Your Honors, one thing is still a fact, namely, that nothing was kept secret from the numerous employees of the Reichsbank about exactly what kinds of objects were involved. On the contrary, the Reichsbank personnel was even entrusted by Vice President Puhl with the task of sorting the valuables delivered and converting them into cash at the pawn shop. Dozens of Reichsbank officials who regularly entered the vaults could see the various articles every day, and the Reichshauptkasse, an institution entirely separate from the Reichsbank, from time to time settled accounts for the conversion of valuables into cash with the Reich Ministry of Finance in a quite open and thoroughly routine way. Naturally, the Defendant Funk did not know, and still does not know today, whether and to what extent agreements had been reached between the Finance Minister and Reichsführer SS Himmler for accounting for the gold articles to the Reich. He was never interested in it, and indeed it did not concern him.

From all these facts, as shown by the evidence, one can readily conclude that Funk himself knew nothing about the things which were turned over to the Reichsbank at the time, and that even Vice President Puhl and Reichsbank Councillor Thoms did not think there was anything bad connected with the things, although Thoms, at least, had seen of what the deposits actually consisted.

For this reason there is no longer any need to examine the obvious question as to whether the initial statements of Puhl with regard to the deposits of the SS should not have been received with a certain skepticism from the very beginning. Puhl apparently had the understandable desire at least by his written affidavit to shift responsibility from himself to the shoulders of his President Funk in order to free himself of his own responsibility for the unpleasant facts of the case when he was told during his imprisonment that the gold articles of the SS consisted mostly of spectacle frames and gold teeth and had been taken from victims of concentration camps. At the beginning, even Puhl apparently did not see anything wrong in the whole business. For him the matter was an ordinary business transaction of the Reichsbank for the account of the Reich, which he dealt with in the same manner as he dealt with gold articles and foreign currency that had been confiscated by the Customs Investigation Office or the Office of Control for Foreign Currency or any other State authority. Gentlemen, whatever one may judge the responsibility of Vice President Puhl to be, at all events these things lie outside the responsibility of the Defendant Funk who is the only one with whom you are concerned in connection with this point here. In the period after this time Funk had only two or three very brief and unimportant conversations with Puhl regarding these gold deposits with a view to converting into cash gold coins and foreign currency delivered in the regular way. Outside of this, Funk did not concern himself at all with this whole matter any more. He knew even less about the matter than Puhl, and it is not without significance that Puhl declared here under oath that he would never have permitted these gold objects to be deposited in the Reichsbank at all if he had had the slightest notion that the things had been taken from concentration camp victims under criminal circumstances by the SS. If Vice President Puhl did not know that and could not have guessed it, then Funk could have known even less about it, and Puhl’s initial statement which was to the effect that—as he said at the time—“the gold articles had been accepted by the Reichsbank with Funk’s knowledge and agreement and had been converted into cash with the assistance of the Reichsbank personnel,” was a grossly misleading statement to the Prosecution. Subsequently during his imprisonment when Puhl first learned of the true circumstances, he surely must have felt the same compunctions as Funk, however innocent the latter was in the case. In conclusion, Puhl declared here under oath that he would not have tolerated such transactions either, and that he would have brought the matter to the attention of the Directorate of the Reichsbank as well as to that of President Funk if he had known that the valuables were taken from victims of concentration camps and had been informed about the nature of these valuables.

In connection with this topic, therefore, I come to the following conclusion: The Reichsbank certainly transacted business for the account of the Reich, the subject matter of which was derived from criminal acts of the SS; but the Defendant Funk knew nothing of this. He would not have tolerated such transactions had he known the true circumstances. Therefore, he cannot be made criminally responsible for this.

The same is true, Your Honors, with regard to Reichsbank credits for the business agencies of the SS, concerning which I shall limit myself to a few sentences. In his written affidavit of 3 May 1946 the witness Puhl has given a completely misleading account of this matter also. For he stated originally that credits of 10 to 12 million Reichsmark furnished by the Gold Discount Bank upon the instruction of the Defendant Funk were used—and I am now quoting literally: “for financing production in SS factories by workers from concentration camps.”

In his oral examination as a witness, Puhl then was asked whether Funk had any knowledge that persons from concentration camps were employed in these factories at all. In reply to this, Puhl declared literally: “I am inclined to assume this, but I am not in a position to know it.” Therefore, he was not able to give any definite evidence concerning Funk’s knowledge, but only to express a conjecture. In contrast to this, Funk’s own statement in regard to this matter is quite clear and convincing. It was to the effect that he knew, indeed, about the request for credit by the SS, and that he even granted it, but that he knew nothing about the nature of the SS enterprises concerned and about the people who were employed in them. Funk stated this under oath. Accordingly, this credit transaction, which moreover occurred about 2 years before the affair of the SS gold deposits, that is, prior to 1940, incriminates neither the Defendant Funk nor the witness Vice President Puhl. At that time, in 1940, neither of them was acquainted with the conditions in the concentration camps. They only learned about them much later, that is, in the course of this Trial. Nor did the Defendant Funk know that persons from the concentration camps were working in the afore-mentioned SS factories for which the credit was intended.

Gentlemen, in this connection it appears necessary to devote a few more sentences to a discussion of the question whether Funk ever visited a concentration camp. The witness Dr. Blaha, who was examined here, stated that Dr. Funk was once in Dachau in the first half of 1944. This visit was supposed to have occurred as a sequel to a conference of the Finance Ministers at Berchtesgaden, or in some other place in this region, in which Funk is said to have participated. Yet, Gentlemen, when he was examined here, the witness Dr. Blaha was unable to say that he had personally seen the Defendant Funk in Dachau, but had only heard from camp inmates at Dachau—that is, from other persons—that the Reich Minister of Economics, Funk, was with many other visitors allegedly present. He did not see him; nor would he have known him if he had. From the very beginning Funk himself has flatly denied this visit to Dachau. He also stated this under oath, and the affidavit made by his constant companion Dr. Schwedler (contained in the Funk document book under Number 13 submitted to you) proves beyond a doubt that Funk never was in a concentration camp. Dr. Schwedler is in a position to know this, as at that time he was the constant companion of the defendant and knew where Funk was from day to day. Moreover, Funk was never a Finance Minister, as the witness Dr. Blaha assumed, and never took part in a conference of Finance Ministers. Therefore, it appears beyond any doubt that what the witness Dr. Blaha stated here purely from hearsay is based on false information, or he has confused Funk with another visitor, which was very easily possible since the Defendant Funk was comparatively unknown to the public. The conclusion, therefore, is that Funk never visited a concentration camp and never personally became aware of the conditions prevailing in such camps.

Now, by this assertion Funk by no means wishes to allege that he knew nothing at all about the existence of concentration camps. Funk was naturally cognizant of the fact, just as almost any other German, that there were concentration camps in Germany after 1933; just as he knew that there were and still are penitentiaries, prisons, and other penal institutions in Germany.

But what he did not know, and what I want to stress here, was the very large number of such concentration camps and the hundreds of thousands, even millions, of their inmates. Equally unknown to him were the countless atrocities committed in these camps, which first became known only in this Trial. In particular it was only during this Trial that Funk learned that there were extermination camps which murdered millions of Jews. Funk had no knowledge of this; he has stated this under oath and it also appears absolutely credible, for one of the most important results of this Trial, in the opinion of the Defense, consists in providing proof of the fact that the German people in general knew nothing about the large number of concentration camps or the conditions within them, but that on the contrary those conditions were kept secret in such a cunning and cruel way that even the highest officials of the Reich including the very ministers knew nothing about them.

Your Honors, the Defense have now presented their views on that part of the Indictment which, had it been true, would have tragically incriminated the man Funk. One may think as one pleases about acts of violence during a political and economic struggle, especially in stormy revolutionary periods, but in the opinion of the Defendant Funk himself there can be no disagreement on one point, namely, with regard to the concentration camp atrocities committed for years, especially against the Jewish population. Anyone who participated in such unheard-of atrocities should be made to atone for them in the severest way, according to the opinion of the entire German people.

That is also the point of view of the Defendant Funk, which he expressed here on 6 May 1946 when he replied to the American prosecutor from the witness stand that as a man and as a German he felt deeply guilty and shamed for the crimes which Germans committed against millions of poor people.

Gentlemen, I have now reached the end of my consideration of the Funk case as far as criminal law is concerned, and that is the duty of the Defense in this Trial.

The examination of the evidence with regard to the Funk case has, in the opinion of the defendant, produced proof that a legal guilt, a criminal guilt, on his part does not exist, and that he can ask you for his acquittal with a clear conscience because he has never committed any criminal acts in his life.

Your task as judges will now be to find a just verdict for the Defendant Funk, a verdict which will not make him atone for the crimes of others, crimes he could not prevent and which he may not even have known about, but a verdict which only establishes the degree of his own guilt and not the degree of his political guilt, but of his criminal guilt which is the sole object of these proceedings. This verdict should be valid not only for today but also recognized as just in the future when we shall view these terrible events in the proper perspective and dispassionately as we would ancient history; a verdict, Your Honors, which will not only satisfy the nations which you represent, but which will also be recognized as just and wise by the German people as a whole; a verdict, finally, which is not only destructive, retaliatory, and which will sow hatred for the future, but one which will make it possible for the German people to move forward toward a happier future of human dignity and charity, of equality and peace.

THE PRESIDENT: Mr. Dodd, will you or Sir David deal with this. Sir David, I have got a document drawn up by the General Secretary which shows in the first place, in the case of the Defendant Göring, that there are four interrogatories which have been submitted, and to which the Prosecution has not objected. Is that right?

SIR DAVID MAXWELL-FYFE: That is so, My Lord, so there is no further comment with regard to that first application.

THE PRESIDENT: Yes. Then, with reference to the Defendant Ribbentrop, there are two affidavits to which there is no objection, and there are three further affidavits which have not been received, I understand.

SIR DAVID MAXWELL-FYFE: That is so, My Lord.

THE PRESIDENT: And one document to which the defendants’ counsel wants to refer in its entirety, namely, TC-75, is that right?

SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is so. There is no objection to that.

THE PRESIDENT: Perhaps I had better go on to the end of the documents and then call upon Dr. Horn for what he has got to say about those three, because as far as I can see, there are only these three documents and an affidavit for Seyss-Inquart from a man called Erwin Schotter, and another from a man called Adalbert Joppich, which have not yet been received.

SIR DAVID MAXWELL-FYFE: That is so, My Lord.

THE PRESIDENT: And three letters from Seyss-Inquart to Himmler which have not yet been produced.

SIR DAVID MAXWELL-FYFE: That is so, My Lord.

THE PRESIDENT: Also, in the case of Fritzsche there are two interrogatories of Delmar and Feldscher which have not yet been received.

SIR DAVID MAXWELL-FYFE: My Lord, with regard to the three letters of the Defendant Seyss-Inquart, they have been received, but they have not yet been translated into French, and I think, My Lord, the simplest way would be if the Tribunal took it that provisionally there is no objection but that the French Delegation reserve their right to make any objection if, upon receiving the translation, they find there is any objection to make.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: My Lord, the French Delegation will let the Tribunal know if they find there is any objection.

THE PRESIDENT: Yes. Now, with reference to the rest, so far as the Prosecution are concerned, what are the objections, if any?

SIR DAVID MAXWELL-FYFE: My Lord, I think the only objection there is concerns the application of Dr. Servatius for the Defendant Sauckel. Your Lordship sees that after the interrogatories granted by the Tribunal there are certain documents which were introduced on 3 July by the Defendant Sauckel to be considered by the Tribunal, and then there is a number which is lettered “A” to “I.” The Prosecution suggests that these documents are cumulative of the large number of documents already introduced on behalf of this defendant, and, My Lord ...

THE PRESIDENT [_Interposing_]: Just one minute, Sir David. These documents “A” to “I,” were they applied for after the case had been closed?

SIR DAVID MAXWELL-FYFE: They were submitted on 3 July, Sir. That would be after the case had been closed.

THE PRESIDENT: But that was at the time, was it not, when we were asking for supplementaries?

SIR DAVID MAXWELL-FYFE: Yes, at the very end.

THE PRESIDENT: That very day?

SIR DAVID MAXWELL-FYFE: Yes. My Lord, I am sorry, but the case was not technically closed, for that day was open for any defendant to put in.

THE PRESIDENT: Are these documents which you have just been referring to—“A” to “I”—are they already all in the document book?

SIR DAVID MAXWELL-FYFE: Dr. Servatius tells me they are.

My Lord, I have just been having a word with Dr. Servatius and he says that the one to which he attaches the greatest importance is “A,” the decree by the Defendant Sauckel as to return transportation of sick foreign workers. My Lord, I am quite prepared on that assurance by Dr. Servatius not to make any objection to number “A,” and Dr. Servatius, on the other hand, says that he does not press for the others.

My Lord, there is another application which has just come in on behalf of the Defendant Sauckel for a document. It is an affidavit by the defendant himself, dated 29 June 1946. The Prosecution have no objection to the application.

My Lord, I think the only other matter with regard to the Defendant Sauckel is with regard to an affidavit from a witness called Falkenhorst. My Lord, that again, the Prosecution submits, is cumulative.

THE PRESIDENT: You say Falkenhorst?

SIR DAVID MAXWELL-FYFE: Falkenhorst, Sir. My Lord, it is the very last application on my list.

DR. ROBERT SERVATIUS (Counsel for Defendant Sauckel): Mr. President, may I make a statement concerning the witness Falkenhorst? This witness was called for Bormann; I waived his examination and submitted this affidavit with the approval of the Tribunal, and since, in my opinion, it was approved, I waived the witness. I assume that this is quite clear and is confirmed by the Prosecution also.

THE PRESIDENT: Do you mean, Dr. Servatius, that the affidavit from Falkenhorst had already been granted before?

DR. SERVATIUS: I assume it was granted at that time. The witness was waiting outside and I was asked whether I would like to question him, and I said in reply that I had an affidavit which was limited to one particular incident and it would be sufficient if I could submit the affidavit. He was the last witness who was supposed to be examined here, after the end of the actual hearing of evidence.

SIR DAVID MAXWELL-FYFE: My Lord, I do not insist in the opposition in these circumstances. My Lord, that is all the comment the Prosecution have to make.

THE PRESIDENT: What about these two affidavits asked for by Dr. Steinbauer from Erwin Schotter and Adalbert Joppich?

SIR DAVID MAXWELL-FYFE: My Lord, we have not got these yet. As I understand it, they have been admitted by the Tribunal subject to any objection, and I am afraid we cannot tell until we have seen them.

THE PRESIDENT: I see; well, then for the rest you have no other objections?

SIR DAVID MAXWELL-FYFE: No other objections.

THE PRESIDENT: Sir David, we have just had another document placed before us which contains an application on behalf of the Defendant Sauckel to call as a witness his son Friedrich Sauckel. The Prosecution has objected to that on the ground of irrelevance and cumulativeness.

SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is the position.

It did not seem, on consideration of the outline of the evidence, that the evidence of the defendant’s son would contribute anything fresh.

THE PRESIDENT: And that application was made after the 3 July? No, I see that is wrong. It was submitted before, but it was not mentioned on 3 July.

DR. SERVATIUS: Mr. President, it was an application to bring the witness here from England, since presumably he can give information regarding a number of things. I have not yet made a formal application. It was just a request to have him brought from England to Nuremberg for the purpose of finding out whether he knows anything of importance, as he claims.

SIR DAVID MAXWELL-FYFE: My Lord, I would not make objection to the defendant’s son being brought here for the purpose of Dr. Servatius’ having a talk with him and seeing whether he can contribute anything.

THE PRESIDENT: The difficulty that these sorts of applications put the Tribunal in is that the case never closes.

SIR DAVID MAXWELL-FYFE: Yes, My Lord, I quite agree.

DR. SERVATIUS: I did not know that the witness was in England. He was a prisoner and there had been no news about him previously.

THE PRESIDENT: Then, Sir David, do we have an affidavit from the Defendant Sauckel himself which you have already dealt with?

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: Then there is an affidavit by the Defendant Jodl on behalf of Kaltenbrunner; the application has been received at the General Secretary’s office on 5 July.

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: That was after the last date when the defendants’ counsel were asked for their applications.

SIR DAVID MAXWELL-FYFE: Well, My Lord, I am afraid I have not been able to collect the views of the Prosecution on that point.

My Lord, the substance of that affidavit was contained in Dr. Kauffmann’s speech. I do not think it really has any materiality, I mean that there is any real—that there can be any objection to the affidavit, because I am almost positive I remember this passage occurring, or an equivalent passage, giving the Defendant Jodl’s views on Kaltenbrunner in Dr. Kauffmann’s speech. My Lord, therefore, I do not think we should occupy time discussing it and therefore I think we should let the affidavit go in.

THE PRESIDENT: Very well. Then there is an application from the Defendant Rosenberg for a document entitled “Tradition in Present Times.” That has been objected to as cumulative.

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: Dr. Thoma, are you wanting to say anything in support of that application or is it sufficiently covered by your speech?

DR. THOMA: I am of the opinion that it has been sufficiently dealt with in my speech.

THE PRESIDENT: Then, Dr. Horn, there are two affidavits, one from Ribbentrop and one from Schulze, not yet put in. Do you want them?

DR. MARTIN HORN (Counsel for Defendant Von Ribbentrop): Mr. President, there must be some mistake about the Schulze affidavit. I have not submitted any Schulze affidavit or made any application for it.

THE PRESIDENT: It was a mistake. Then, as to Ribbentrop’s affidavit, are you asking as to that or have we already dealt with that?

DR. HORN: No, I am asking that official cognizance be taken of the affidavit of Ribbentrop, and of Document TC-75. The other two affidavits of Thadden and Best have already been approved.

THE PRESIDENT: Yes. Why do you desire the Defendant Ribbentrop to make an affidavit? He has given his evidence in full. Is it something that has arisen since?

DR. HORN: The Defendant Ribbentrop only commented on a few documents which were submitted to him during his cross-examination when he had an opportunity to speak only very briefly about them. I did not want to make my final speech any longer with a detailed discussion of the other documents and, therefore, I have submitted this affidavit and beg the Tribunal to approve it.

THE PRESIDENT: Then, with regard to TC-75 ...

SIR DAVID MAXWELL-FYFE: My Lord, that is one of our original British documents. I have no objection to Dr. Horn using it.

THE PRESIDENT: How about the translation, though? I suppose it is a German document, is it not?

DR. HORN: Yes, it is a German document which was only translated in part and I have referred to the entire contents in my final plea.

THE PRESIDENT: Is it a very long document or not?

DR. HORN: No, it has only nine pages, Mr. President. The Prosecution submitted one page of the document to the Court in evidence. Then later I ascertained that there were two copies of the document. I then took the second copy, which represents the complete document, and submitted it to the Tribunal, and have had it translated.

THE PRESIDENT: It has been translated?

DR. HORN: Yes.

THE PRESIDENT: Very well then, that is all right then.

Now, Dr. Steinbauer, what about these two affidavits that you are asking for, one from Erwin Schotter and another from Adalbert Joppich?

DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): I have submitted the two documents for translation and since the Translation Division is very busy I have not received the translation yet. But I should like to submit the two originals to the Tribunal under the numbers already given, Seyss-Inquart-112 and 113.

THE PRESIDENT: Has the Prosecution seen the substance of the affidavits or not?

SIR DAVID MAXWELL-FYFE: No, My Lord, we have not. My Lord, they are very short affidavits. I will ask someone to read them in German through the day and let the Tribunal know before the Tribunal rises tonight.

THE PRESIDENT: Was the application made before 3 July, or when was it made?

DR. STEINBAUER: Yes, on 3 July exactly. I received both of these two documents on 3 July through the General Secretary and presented them on the same day.

THE PRESIDENT: The Tribunal will consider the matter then and they will be glad to hear from the Prosecution if they have any objection.

DR. STEINBAUER: Mr. President, may I present one more document on this occasion? The Tribunal had approved the interrogation of Dr. Reuter and the day before yesterday I received the answer with the questions of the Prosecution ...

THE PRESIDENT: What was it you were saying, Dr. Steinbauer?

DR. STEINBAUER: That I received the approved document containing the interrogation of the witness, Dr. Reuter, on Saturday in a German and English translation. I should like to submit the original to the Tribunal under Number 114.

THE PRESIDENT: What is the name of the person who was interrogated?

DR. STEINBAUER: The physician, Dr. Gero Reuter. He was questioned about health conditions in the Netherlands. The Tribunal expressly granted me that interrogatory.

THE PRESIDENT: Well, that will be considered, then.

DR. STEINBAUER: Then I shall submit it to the Court under Number 114.

THE PRESIDENT: Sir David, perhaps you can look at that later.

SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I understood that the Tribunal had already approved and that this was just putting in the answer.

THE PRESIDENT: Yes, that is all.

SIR DAVID MAXWELL-FYFE: Then, My Lord, there can be no objection.

THE PRESIDENT: I ought to say that in order to save time, all these documents which we are now dealing with must be taken to be offered in evidence now because some of these defendants’ cases have been finally dealt with.

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: And they must, therefore, be given the appropriate numbers as exhibits, and defendants’ counsel must see to that. They must give numbers to them and give them in with those numbers to the General Secretary so that the documents will be identified as exhibits on the record.

SIR DAVID MAXWELL-FYFE: My Lord, I appreciate that. I gather that Dr. Steinbauer has just given that the Number 114.

THE PRESIDENT: Yes, and the same applies to all the other defendants’ counsel, the counsel for Göring and Ribbentrop and the counsel for Raeder and the other defendants, because these are dealing with a considerable number of interrogatories and affidavits, all of which ought to have exhibit numbers.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.

My Lord, Dr. Siemers just wanted to know that his applications were covered. I think he is quite safe.

THE PRESIDENT: Yes. Well, then, the only thing that remains is Dr. Fritz’s on behalf of the Defendant Fritzsche. There are two interrogatories which have not been received, as I understand, from Delmar and Feldscher. Those have been granted, and the interrogatories and the answers will be put in when you get them.

SIR DAVID MAXWELL-FYFE: That is the way I understand it, My Lord.

THE PRESIDENT: Well, then, the Tribunal will consider all these matters and make the appropriate order upon it.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.

THE PRESIDENT: We will adjourn now. Wait a minute, wait a minute!

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): In the case of the Defendant Von Papen there are still a number of interrogatories which have not been received. In the meantime, I have received four interrogatories with answers, but they are still with the Translation Division. Three interrogatories have not yet come back. I request an opportunity to present them later on.

THE PRESIDENT: They have been granted before, I suppose? Have they been granted?

DR. KUBUSCHOK: Yes, they had already been granted, with the exception of one affidavit which I have also dealt with here but which has not yet been translated and has been in the Translation Division for some time.

THE PRESIDENT: Yes, but the application for that interrogatory had been allowed, I suppose?

DR. KUBUSCHOK: I presented this application recently. I was told to have this affidavit translated, but I have not yet received the translation. I shall submit this document together with the others as soon as I receive them from the Translation Division.

THE PRESIDENT: Very well. We will adjourn now.

[_A recess was taken._]

THE PRESIDENT: Go on, Dr. Dix.

DR. DIX: Mr. President, Gentlemen of the Tribunal. A mere glance at the dock reveals the singularity of Schacht’s case and the story of his imprisonment and defense. There in the dock sit Kaltenbrunner and Schacht. Whatever the powers of the Defendant Kaltenbrunner may have been, he was in any case Chief of the Reich Security Main Office. Until those May days of 1945, Schacht was a prisoner of the Reich Security Main Office in various concentration camps. It is surely a rare and grotesque picture to see jailor and prisoner sharing a bench in the dock. At the very start of the Trial this remarkable picture alone must have given cause for reflection to all those participating in the Trial: judges, prosecutors, and defense counsel alike.

Schacht was banished to a concentration camp on the order of Hitler, as has been established here. The charge against him was high treason against the Hitler regime. The judicial authority, the Peoples’ Court, headed by that bloodthirsty judge, Freisler, would have convicted him, had not his imprisonment turned into detention by the victorious Allied Powers. Since the summer of 1944 I was assigned to defend Schacht before Adolf Hitler’s Peoples’ Court; in the summer of 1945 I was asked to conduct his defense before the International Military Tribunal. This, too, is in itself a self-contradictory state of affairs. This, too, compels all those participating in the Trial to reflect on the personality of Schacht. One involuntarily recalls the fate of Seneca; Nero, as a counterpart to Hitler, put Seneca on trial for revolutionary activities. After the death of Nero, Seneca was charged with complicity in Nero’s misgovernment and cruelties, in short, with conspiring with Nero. A certain wry humor is not lacking in the fact that Seneca was then declared a pagan saint by early Christianity as early as the fourth century. Although Schacht does not indulge in such expectations, this historical precedent nevertheless forces us to remain always conscious of the fact that the sentence to be pronounced by this High Court will also have to be justified before the judgment seat of history.

The picture of the Third Reich has been revealed to the Tribunal in a thorough and careful presentation of evidence. It is a picture with a great deal of background. An opportunity was given to depict this background also, as far as it was possible within the limits of such a thorough-going investigation entailing a judicial presentation of evidence which, to be sure, though thorough enough, was nevertheless concluded as soon as possible according to the requirements of the Charter.

In order to learn what it was like under Hitler in German countries, there is still enough which has been left to the intuition of the Court. It is not possible, and never will be possible, to understand Hitler Germany from a constitutional point of view, according to the scholarly conceptions and views of people with a legal mind. As a scholarly topic, “The Constitution under Adolf Hitler” is a _lucus a non lucendo_. Mark my words, “The Constitution”—that is, the reduction of the Hitler State to a legal system, and not the attempt as made in the final plea by Jahrreiss, to explain the tyranny of a despot under the aspect of legal research. A scientific sociology of the Third Reich would, although feasible, be very difficult and therefore has not yet appeared.

Only very few Germans living in Germany knew the conditions and the distribution of power within those circles of people who were seemingly or actually called upon to contribute their share toward the formation of a political will. Most Germans will be surprised when this picture is unveiled. How much less possible was it for a foreigner to form a correct judgment of the constitutional, sociological, and inner political conditions of Hitler Germany at the time when the Indictment was presented. But a correct judgment of these things was the prerequisite for an Indictment correctly founded in both fact and law.

I am of the opinion that the members of the Prosecution were thereby confronted with a task which defied solution. I am furthermore of the opinion that the Prosecution would never have presented their criminal charges against the defendants under the count of a conspiracy if they had been able to see the distribution of political power in Hitler Germany in the same way as this may perhaps be today possible, although with great difficulty, for an intelligent, politically gifted observer and listener at this Trial.

A conspiracy within the meaning of the Indictment was, as a practical matter, not possible in Adolf Hitler’s Third Reich, as my colleagues have already pointed out. The only thing possible in the Third Reich was a conspiracy by the opposition against Adolf Hitler and the regime. Several such conspiracies were formed, as was here proven. The relationship between conspirators is somewhat different than that between an accomplice and the chief perpetrator. The part to be played by the individual conspirator in the execution of the common plan may vary. Some, or a single one, of the conspirators may hold a leading position within the conspiracy. At all times, however, co-operation is necessary. Common usage of the term in itself precludes speaking of a conspiracy when only one commands and all the others are merely executive agents.

I am, therefore, of the opinion that that which was defined as a crime here in this hall can never constitute the elements of a conspiracy according to criminal law. Other legal factors which might enter into the question are of no interest to me as defense counsel for the Defendant Schacht, because no criminal charge whatsoever can be brought against Schacht personally, as an individual, and without connecting him with deeds of others—in other words merely on the basis of his own actions. Schacht himself desired only the permissible and the beneficial, and his actions served these intentions. To the extent that he erred politically, he is in all candor prepared for the verdict of history. Yet even the greatest dynamics of international law cannot penalize political error. If it did this the profession of the statesman and politician would become impossible. World history is more affected by mistakes and errors than by correct perceptions. According to Lessing’s wise words, the perception of absolute truth is God’s privilege. There remains for man as his greatest blessing only the quest for truth. _Nescis, mi fili, quanta stultitia mundus regitur_, as old Axel Oxenstierna once said, and he was probably right.

Schacht declared here that he felt that he had been most grossly deceived by Adolf Hitler. He thereby admitted that certain of his decisions and actions had been wrong. The Prosecution disputes Schacht’s good faith and imputes to him the _dolus_ of having deliberately worked for a war of aggression as Adolf Hitler’s financial agent, thereby becoming by implication criminally responsible, from the point of view of the conspiracy, for all the cruelties and atrocities which were committed by others during this war. The Prosecution itself was not able to produce any direct proof of these allegations. They attempted to do so first by means of alleged documentary evidence in the form of misinterpreted statements by Schacht, torn from their context. For this the Prosecution referred to witnesses who could not be made available for examination before this Court because some of them were absent and some had died. I recall, for example, the affidavits of Messersmith and Fuller, and Dodd’s diary notes. Their lack of value as evidence was clearly set forth to the Tribunal by Schacht during his examination. In the interest of saving time I do not wish to repeat things which have already been said, and which surely must still be within the recollection of the Court.

The Prosecution further attempted to base its charges on actions of Schacht which had been established beyond reasonable doubt. All these arguments of the Prosecution are mistaken conclusions from allegedly incriminating circumstances. I shall confine myself to an enumeration of the most essential wrong conclusions. The others either result from these directly or by analogy.

Schacht was opposed to the Treaty of Versailles, says the Prosecution. That he was indeed. The Prosecution does not hold this opposition in itself against him. However, it concludes from this that Schacht wanted to do away with the treaty by force. Schacht favored colonial activity, says the Prosecution. He did so indeed. They do not reproach him for this, either, but conclude from this fact that he wanted to conquer the colonies by force, and so it goes on.

Schacht as President of the Reichsbank and Minister of Economics co-operated with Hitler, consequently he endorsed Nazi ideology. Schacht was a member of the Reich Defense Council, consequently he was in favor of a war of aggression. Schacht helped to finance rearmament during its first phase until early in 1938, consequently he wanted war. Schacht welcomed the union with Austria, consequently he approved of a policy of violence against that country. Schacht devised the “New Plan” in commercial policy, consequently he wanted to procure raw materials for armament. Schacht was concerned about the possibilities of livelihood for the excess population in central Europe, consequently he wanted to attack and conquer foreign countries and to annihilate foreign peoples. Over and over again Schacht warned the world against an anti-German policy of oppression and the moral defamation of Germany, consequently Schacht threatened war. Because no written evidence has been found that Schacht resigned from his official positions as a result of his antagonism to war, the conclusion is that he resigned from these official positions merely because of his rivalry with Göring.

The list of these false conclusions could be continued _ad infinitum_. It finds its culmination in the fallacy that Hitler would never have come to power if it had not been for Schacht, that Hitler would never have been able to rearm if Schacht had not helped. But, Gentlemen, this kind of evaluation of evidence would convict an automobile manufacturer because a taxi driver, while drunk, ran over a pedestrian. In his speeches or writings Schacht never advocated violence or even war. It is true that after Versailles he pointed out again and again the dangers which would result from the moral outlawing and economic exclusion of Germany. In this opinion he is in the best international company. It is not necessary for me to cite before this Tribunal the numerous voices, not of Germans, but of members of the victor states, heard soon after the Versailles Treaty and all in the same tone as the warnings of Schacht. Moreover, the correctness of these objections to that treaty will be absolutely valid for all time. At no time did Schacht however recommend, or even declare possible, other ways than those of a peaceful understanding and collaboration. As an avowed economic politician, it was clearer to him than to anybody else that war can never solve anything, not even if it is won. In all of Schacht’s utterances his pacifist attitude was expressed again and again; perhaps the shortest and most striking of them was that statement at the Berlin Congress of the International Chamber of Commerce, when Schacht in the presence of Hitler, Göring, and other exponents of the Government called out to the assembly: “Believe me, my friends, all nations desire to live, not to die!” This pronounced pacifist attitude of Schacht is indeed confirmed by all witnesses and affidavits.

For the few in the world—and I purposely say in the world, not only in Germany—who from the very beginning recognized Hitler and his Government for what they were, it certainly was a cause for anxiety and sorrow, or at the very least puzzling, to see a man like Schacht placing his services and his great professional ability at the disposal of Adolf Hitler after he had come to power. The witness Gisevius also shared this anxiety, as he has testified here. Later on he convinced himself of Schacht’s honorable intentions through the latter’s upright and courageous behavior in 1938 and 1939. In his interrogation Schacht outlined for us the reasons which caused him to act in this manner. I need not and do not wish to repeat them in the interest of saving time. The evidence has not shown anything which would refute the veracity of this presentation by Schacht. On the contrary, I only refer for example to the affidavit of State Secretary Schmid, Exhibit Number 41 of my document book, containing detailed statements on this subject on Page 2, which are in complete agreement with Schacht’s description. A consideration of the remaining testimony and affidavits as a whole leads to the same result. In order to understand the manner in which Schacht acted at that time both directly after the seizure of power as well as after he had recognized Hitler and his disastrous activity, it is absolutely necessary to form a clear picture of Adolf Hitler’s pernicious spell and his system of government. For both are the soil in which Schacht’s actions grew, and by which alone they can be explained. I realize that one could speak about this for days and write volumes about it if one wished to treat the subject exhaustively. However, I also realize that before this Tribunal short references and spotlights will be sufficient in order to gain the Tribunal’s understanding.

The disintegrating collapse of imperial Germany in 1918 presented the German people, who were heterogeneously composed and had never become an organic unit, with a parliamentary democratic form of constitution. I venture to assert that all political thinking which is not directed by selfish motives must strive for democracy, if this is also understood to include the protection of justice, tolerance toward those of different convictions, freedom of thought, and the political development of humanity. These are the highest timeless ideals which, however, in their very constitutional forms actually harbor dangers in themselves. When democracy appeared for the first time on the European continent, reactionary political thinkers like Prince Metternich and the like opposed every democratic impulse, because they saw only the dangers of democracy and not its educative qualities and historical necessity. In pointing to these dangers they were unfortunately right. Perhaps the cleverest nation which ever lived, the Greeks of antiquity, had already pointed out the danger of democracy developing through demagogy to tyranny; and probably all philosophizing political thinkers from Aristotle to Thomas Aquinas, and down to the present time, have pointed out the danger of this development. This danger becomes all the greater if democratic freedom in the theoretical constitutional sense does not arise and grow organically, but becomes more or less a chance gift to a nation.

_En fait d’histoire il vaut mieux continuer que recommencer_, a great French thinker once said. Unfortunately, this has made Germany the latest and, it is to be hoped, the last example of a tyranny of a single despot established by means of a diabolical demagogy. For there is no doubt that the Hitler regime was the despotism of an individual, whose parallel is to be found only in ancient Asia. In order to understand the attitude of any individual toward this Government—not only that of Schacht and of the Germans, but that of any person and any government in the world which has collaborated with Hitler, and on the part of the foreign countries such collaboration based on confidence was much greater toward Hitler than toward any government of the intermediate Reich or of the State of the Weimar Constitution—it is necessary to analyze the personality of this despot, this political Pied Piper, this brilliant demagogue who, as Schacht testified here in his interrogation with understandable agitation, not only deceived him, but also the German people and the whole world. In order to accomplish this deceit, Hitler was forced to bring under the spell of his personality innumerable clever and politically trained individuals besides Schacht, even those outside the German frontiers. He succeeded in doing this even with prominent foreigners, including those in leading political positions. I shall refrain from citing names and quotations to prove this point. The fact is generally known to the Tribunal.

I shall now skip the next lines and continue on Line 10 of the same page. How was this influence of Hitler possible, both in Germany and abroad? Of course, Faust also succumbed to Mephistopheles. In Germany, all the circumstances of the conditions prevailing at that time, which have been described here in the evidence given by Schacht and others, favored this influence. The complete collapse of the parliamentary party system and the resulting necessity, felt already at the time by the existing Government, of having to rule by emergency decrees enacted without parliamentary participation, thus establishing a dictatorship of ministerial bureaucracy as a forerunner of the Hitler dictatorship, produced in nearly every quarter a cry for stronger leadership. The economic crisis and unemployment opened the ears of the masses, as misery always does, to demagogic insinuations. The complete lethargy and inactivity of the center and leftist parties of the time also created among critical and intelligent observers, of whom Schacht assuredly was one, the inward readiness and longing to welcome spirited political “dynamics” and activity. If someone, like the sharp-witted and perspicacious Schacht, already at that time discovered faults and dark sides, he could hope, as Schacht did, by his very active penetration into the Movement or by co-operation with leading State departments quickly and easily to combat these shady aspects, which in any case beset every revolutionary movement. “When the eagle soars, vermin settle on his wings,” replied the late Minister of Justice Gürtner, quoting from Conrad Ferdinand Meyer’s novel Pescara, when I pointed out these shady sides to him after the seizure of power. These considerations are in themselves reasonable and plausible. The fact that they contained a political error even in Schacht’s case does not deprive them of their good faith and honest convictions. However, we ought not to forget that here, during the proceedings, we heard of a message from the American Consul General Messersmith, dating from 1933, in which he joyfully hails the report that decent and sensible people are now joining the Party too, as this gave reason to hope that radicalism would thereby cease. I refer to the relevant document submitted here by the Prosecution, Document Number L-198, report Number 1184 by the American Consul General Messersmith to the Secretary of State in Washington.

“Since the election on March 5th, some of the more important thinking people in various parts of Germany have allied themselves with the National Socialist movement, in the hope of tempering its radicalism by their action within rather than from without the Party.”

But what Messersmith very reasonably says of ordinary Party members of that time, naturally applies also, _mutatis mutandis_, to the man who offered his co-operation in a leading Government post. The reasons Schacht gave for his decision at the time to accept the post of President of the Reichsbank and later of Reich Minister of Economics are, therefore, thoroughly credible in themselves and have no immoral or criminal implication. Schacht, indeed, has acknowledged his activity. He only lacked the intuition to recognize at the outset the personalities of Hitler and some of his henchmen for what they were. But that is no punishable act; neither does it indicate any criminal intention. This intuition was lacking in most people both within and without the German frontiers. The possession of intuition is a matter of good fortune and a divine gift unfathomable by reason. Every man has his limitations, even the most intelligent. Schacht is certainly very intelligent, but in this case reason prevailed at the cost of intuition. In the last analysis this process can only be fully appreciated when those mysterious forces are taken into account which affect world events, and of which Wallenstein says: “The earth belongs to the evil spirit, not to the good” where he speaks of “the sinister powers of evil which lurk in the bowels of the earth.” Adolf Hitler was a prominent example of these powers of darkness and his influence was all the more nefarious since he lacked the grandeur which accompanies Satan. He remained a half-educated, completely earth-bound bourgeois who also lacked any sense of the law. The Defendant Frank said truly of him that he hated jurists, because the jurist appeared to him as a man of law, as a disturbing factor in the face of his power. Thus he could promise everything to everybody and not keep his promise, for a promise to him meant only a technical instrument of power, and signified no legal or moral obligation.

Neither was the pernicious influence of Himmler and Bormann detected by Schacht at this time, or probably by anybody else. Yet all those crimes that are now covered by the Indictment matured within this very trio, for to Himmler politics were identical with murder, and in his purely biological view he regarded human society as a breeding farm and never as a social and ethical community. A personality like Adolf Hitler, and his effect upon men, even including such intelligent men as Schacht, can only be correctly judged by following the prophetic vision of the poet, as I have already just tried to do, thereby achieving insight otherwise inaccessible to the mind of man. The demon undoubtedly became incarnate in Adolf Hitler to the detriment of Germany and the world, and perhaps I can summarize by quoting—and this is absolutely necessary for an understanding of Schacht’s conduct, as well as that of all those others who deliberately and in all purity of heart offered their services to Hitler—a passage from Goethe, which in a few words sums up and discloses the mystery. Here lies the key to the understanding of all those who flocked to follow Hitler. May I quote from “Poetry and Truth,” Part 4, Book 20, as follows:

“Although the demoniac can manifest itself in everything material and immaterial, and indeed be singularly apparent in beasts, it assumes its most extraordinary form when associated with man, and constitutes a power which if not contrary to is yet a disturbing element in the moral world order. There are innumerable names for the phenomena which are brought to light in this way. For all philosophies and religions have tried both in prose and in poetry to solve this riddle and to dispose of the matter once and for all, which they may well continue to do in the future. But the demoniac assumes its most dreadful form when it manifests itself preponderantly in any one human being. During my lifetime I have had occasion to observe several such persons, either closely or from afar. They are not always the most distinguished persons, either in intellect or in talent, and they rarely excel by their goodness of heart; yet a tremendous force emanates from them, and they exercise an incredible power over every creature and even over the elements, and none can tell how far such influence will extend. No coalition of moral forces can prevail against them; it is in vain that the better part of humanity attempts to put them in disrepute as victims of deception, or as impostors. The masses are attracted to them. They seldom or never find contemporary equals, and nothing short of the universe itself, against which they begin the fight, can overcome them; and these observations may perhaps have inspired that curious but monstrous saying: _Nemo contra Deum, nisi Deus ipse_.”

I think I have demonstrated that the fact that he served Hitler does not incriminate Schacht and that it can by no means be concluded from this act that at that time he embodied the criminal deeds of Hitler and his regime into his own intentions. He did not even think them possible. Therefore he followed no dolus eventualis either; on the contrary: Insofar as the violent character of the regime disturbed him he believed he would be able, through his appointment to an important post, to contribute to the abolition and prevention of those attendant phenomena of which he also disapproved, and to aid Germany’s recovery within his sphere of activity in a decent and peaceful manner.

That being the case, not the slightest reproach could be made against him for not only serving Hitler after the seizure of power, but also for helping him to gain control. This latter charge is, therefore, completely immaterial as evidence of criminal behavior or of criminal intent. However, there is no need for this argument at all, since as a matter of fact Schacht did not help Hitler to gain power. Hitler was in power when Schacht began to work for him. Hitler’s victory was already assured when the July elections of the Reichstag in 1932 brought him no less than 230 seats. These represented about 40 percent of the total votes. There had been no such election result for any party for decades. But the immediate political future was thereby established under a Government headed by Hitler, thanks to the very rules of the German democratic Constitution and every other democratic constitution. Any other path was beset with the danger of civil war.

It was only natural that Schacht, who at that time honestly believed in Hitler’s political mission, did not wish to take this path. It was likewise natural that he should take an active part whenever he believed that thereby he might be able to prevent harmful radicalism in the economic political domain. A wise French statesman says:

“Every epoch confronts us in some way with the task of creating benefits or preventing abuses. For this reason, in my opinion, a patriotic man can and must serve any government which his country appoints for itself.”

By serving Hitler, Schacht, in his opinion, was serving his country and not Hitler. This opinion may have been the greatest of mistakes, and it has subsequently revealed itself as completely erroneous as far as Hitler was concerned, yet Schacht can never be criminally charged for acting as he did at that time, neither directly nor circumstantially. And indeed we must not forget that the Hitler of 1933 not only seemed to be a different man from the Hitler of 1938 or even of 1941, but actually was different. Schacht has already referred during his interrogation to this transformation, which was caused by the poison of mass worship. Moreover, the transformation of such personalities is a psychological law. History proves this in Nero, Constantine the Great, and many others. In the case of Hitler there exist many irreproachable witnesses for the truth of this fact, irreproachable in the sense that a purpose or an intention to violate the law, to raise terrorism to a principle, and to attack mankind with a war of aggression, can never be imputed to them. I merely wish to quote a few of them. I could multiply the quotations a hundredfold. In 1934 Lord Rothermere wrote an article in the _Daily Mail_, entitled: “Adolf Hitler from Close By.” I quote only a few sentences:

“The most prominent figure in the world today is Adolf Hitler ... Hitler stands in direct line with those great leaders of mankind who seldom appear more than once in two or three centuries ... it is delightful to see that Hitler’s speech has considerably brightened his popularity in England.”

THE PRESIDENT: Dr. Dix, I thought the Tribunal had refused to allow the writings of Lord Rothermere to be put in evidence or used.

DR. DIX: I interpreted the decision of the High Tribunal barring quotations from Lord Rothermere from the document book to mean—and this is also the reason given in the Indictment—that this was a matter for argument which should not be submitted in evidence as a fact, and that it would be irrelevant in the hearing of the evidence that Rothermere and others were of this opinion; and from this I drew the conclusion—and I am still of the opinion today that this conclusion is correct—that in the course of my argument, that is, in the course of my appraisal of the evidence, I could cite passages from the literature of the entire world, insofar as it is known, in order to support a line of thought. That Rothermere said that is not a fact which I want to submit to the Tribunal as evidence, but only in support of the assertion forming part of my argument that not only Schacht but also other intelligent and prominent people, even outside of Germany, at first had the same opinion of Hitler’s personality ...

THE PRESIDENT: Dr. Dix, the Tribunal has already indicated its refusal to allow this to be used as evidence, because it does not pay any attention to the opinions expressed by this author. Therefore, we think it would be better if you went on to some other part of your argument.

DR. DIX: Then I ask—the Tribunal surely has a translation of my final speech before it—that I be allowed to quote a short passage from Sumner Welles, and then a passage, which seems very important to me, from the book written by the last British Ambassador. I should be very grateful if I could quote both of these two passages for, if one wants to prove that even an intelligent man can hold a certain opinion and is entitled to hold it, then I do not know but what the most obvious and convincing proof for that lies in the fact that other intelligent and completely objective people also held the same view. I shall lose an important point of my argument if I am not permitted to quote the two short passages, and I should like to ask that they be heard briefly; it is only the quotation from Sumner Welles and Henderson.

THE PRESIDENT: I have not said anything about Sumner Welles. It was only because we had expressly excluded the writings on this subject of Lord Rothermere that we thought it was inappropriate that you should quote him. I do not think we excluded these other books to which you here refer in your speech and therefore we thought you might go on to that.

DR. DIX: I quote from Sumner Welles’ book _Time for Decision_, published in New York in 1944:

“Economic circles in each of the western European democracies and the New World welcomed Hitlerism.”

And it is only right, when Great Britain’s last Ambassador in Berlin, even during the war, states on Page 25 of his book:

“It would be highly unjust not to recognize that a great number of those who joined Hitler and worked for him and his Nazi regime were honest idealists.”

Further on he makes this interesting remark:

“It is possible that Hitler was an idealist himself in the beginning.”

And the Government of the United Kingdom would surely never have concluded a naval treaty with Hitler Germany in April 1935, and therewith have contributed in the interests of justice to a modification of the Versailles Treaty, if they had not had entire confidence in Hitler and his Government. Finally, the same holds true for all the international treaties concluded by Hitler, including the treaty concluded with Russia in August 1939. And it is a striking fact, even today, that so intelligent a man of such high ethical standing as the late British Prime Minister Chamberlain declared in a speech as late as January 1939—at a time when Schacht had already long been treading the dark paths of conspiracy against Hitler, in the face of the events of 1938—that he had gained the definite impression from Hitler’s recent speech that these were not the words of a man who was making preparations to plunge Europe into another war. I do not doubt that these words were not spoken as a matter of tactics, but reflected the speaker’s true opinion. Such examples could be quoted in great number. Is it desired to deny to a German, in 1933 and the following years, the right to come to the same opinion about Hitler in good faith?

The fact that Schacht did not enter office as Minister of Economies until after 30 June 1934 is not inconsistent with this either. Only in retrospect does the full enormity of these events become clear. In June 1934 we were still in the midst of revolutionary turmoil, and history will be able to show similar occurrences in any revolution of this kind. I do not have to give detailed proof of this, nor do I wish to do so. The events of 30 June provided just as little, if not less, motive for Schacht to turn away from Hitler with disgust, as they did for the governments in the world who not only continued diplomatic relations with Hitler in full confidence, but also rendered him great honors and allowed him to score important successes in foreign policy, especially after 1934.

If Schacht, however, cannot be criminally charged with the fact that he placed himself at the disposal of Hitler’s Government, it is surely completely superfluous, indeed it would be beside the point, to attempt to make long statements in excuse of individual acts, such as his petition addressed to the Reich President in 1932, or his letter to Hitler in the same year. Anybody who knows life can find a thoroughly natural explanation for them in the fundamental attitude of Schacht. If this attitude is proved to be unobjectionable from the point of view of criminal law and the rules of evidence, then no such documents can be used in argument against Schacht. It is the principle that matters. The same holds true for Schacht’s participation in the so-called meeting of industrialists. On this subject I should only like to remark by way of correction that Schacht neither presided at this meeting nor administered these funds exclusively for the National Socialist Party.

Now one witness here has passed judgment on Schacht’s attitude toward the seizure and consolidation of power during this period:

“Schacht was an untrustworthy person,” he said. “Schacht betrayed the cause of democracy at that time. I therefore refused in 1943 to join a Government proposing to overthrow Hitler with Schacht’s participation.”

This was the former Minister Severing who, according to his own statement, relinquished his ministerial chair and premises on 20 July 1932, when the Berlin Chief of Police and two police officers called on him, demanding his withdrawal with the assertion that they had been authorized to do so by the Reich President. Severing withdrew, as he said himself, to avoid bloodshed. In spite of the great respect which I feel toward Severing’s clean political character, I am forced to my regret to deny him any right to pass competent judgment on statesmen who, unlike him and his Government coalition, did not remain lethargically passive. Severing and his political friends indeed bear a disproportionately greater responsibility than Hjalmar Schacht for Adolf Hitler’s seizure of power because of their indecision and, finally, their lack of political ideas; but they do not have to answer for this to any judge except history. And this responsibility will be all the greater since the witness indeed makes the claim that at that time he had already recognized that Hitler’s accession to power meant war. If one may really believe that he possessed this correct political intuition, then his responsibility, and that of his political friends, will be all the greater in view of their passivity on that and later occasions, and again this responsibility will be disproportionately greater than that of Hjalmar Schacht. Our German workers are certainly no greater cowards than the Dutch. Our hearts rejoiced to hear a witness here describe the manly courage of Dutch workers who dared to strike under the very bayonets of the invading army. The following which Severing and his political friends deservedly had in the German working class might perhaps have induced them not to watch the dissolution of the trade unions with such dull passivity as was the case in 1933, had only their natural leaders such as Severing and his colleagues been a little more daring and willing to expose themselves. In the last resort, the Kapp revolt in 1923 was also overcome by the general strike of the workmen. The Hitler regime was not so strong in 1933 that it did not have to fear the truth of the poet’s words addressed to the workers: “All wheels stand still at your strong arm’s will.” The National Socialist Government at that time was quite well informed about this and was consequently apprehensive. This is also apparent from Göring’s interrogation on 13 October 1945, the transcript of which was quoted and submitted by Professor Kempner on 16 January 1946. Göring said: “You must consider that at that time the activity of the Communists was extraordinarily strong and that our new Government as such was not very secure.” But even this strong arm which I have just mentioned required a guidance which was denied to the working class and for which men like Severing would have been indicated. In all justice they will have to account for their passivity, not before the judge in a criminal court, but before history. I do not presume to pass a final judgment. I confine myself to revealing this problem and to attributing a full and embarrassing measure of self-righteousness to the witness Severing, although I respect him as a man, if he feels himself called upon to accuse others, when studying the question as to who from the view point of history is guilty of the seizure and consolidation of power by Nazism—especially if, in contrast to Schacht, he intuitively foresaw the later evolution of Hitler—instead of submitting himself with humility to the judgment of history, relying on his undoubtedly unimpeachable views and his undoubtedly pure intentions.

Let us always bear in mind, in the interest of historical truth, that especially at the beginning of the Nazi rule there were only two power groups, with the exception of foreign intervention, which could perhaps have liberated Germany, namely, the Army and the working class, provided, of course, that both were under the proper leadership.

I had to go into more detail on this point because such a detrimental remark by such a blameless and distinguished man as Severing brings with it the danger of unjust deductions regarding my client. It would have been agreeable to me if I could have been spared this discussion of Severing’s incriminating testimony. Severing has further brought the charge of political opportunism against Schacht. In politics, to be sure, the boundary between opportunism and statesmanlike conduct dictated by expediency is very fluid. Before appraising Schacht’s conduct in 1932 and 1933 as opportunistic, his past should also have been considered. After 1923 this past lived in the public eye. It has partly been a subject of these proceedings, partly it is already known to the Court. This past speaks rather for the fact that Schacht does what he judges to be right, not only with a great disregard of consequences, but also with great courage. Indeed, he has also proved this courage as a conspirator against Hitler, as is bound to appear from an examination of this activity as conspirator, and as Gisevius expressly described here.

But let us go back with Schacht to the year 1923. At that time he stabilized the mark against all parties interested in inflation; in 1924 he blocked credits against all hoarders of foreign currency; in 1927 he deprived the exchange speculators of the credit basis for their exchange manipulations. From 1925 to 1929 he fought against the debt and expenditure policy of the municipalities and thereby incurred the enmity of all the mayors. In 1929 he signed the Young Plan and thus defied the opposition of the heavy industry circles and continuing this policy, he fought openly since 1934 against the perversions and abuses of the Nazi ideology and never personally carried out a plan or an order which was contrary to his conscience or his sense of justice.

Every statesman must make certain concessions during a time of fanaticism. Certain sticklers for morality—of whom there are many today—who demand a steely hardness for the protection of principles, should not forget that steel has two qualities, not only solidity but also flexibility.

My Lord, I have now finished one particular section; the next one would take longer. I certainly will not finish it until after 1 o’clock. I should be grateful if Your Lordship would call the noon recess now. I am now coming to Appendix Number 1 ...

THE PRESIDENT: Dr. Dix, I think you had better go on until 1 o’clock.

DR. DIX: Your Honors, in the translated copy which you have before you, there are two appendices at the end. I had to employ this device because the matters dealt with in this annex occurred after I had given my speech to be translated. Therefore, I had to work in my comments on this subject somehow, and could only do it by way of an appendix.

And so I now come to the reading of Appendix 1, which is at the back, and to the opinion of the testimony of Gisevius as expressed by my colleague, Dr. Nelte, since I am here concerned with evaluating the testimony of witnesses.

Insofar as my colleague Dr. Nelte criticized the objective reliability of the testimony of Gisevius regarding his statements incriminating the Defendants Keitel, Göring, and so on, I refrain from any statements. The Prosecution may take any standpoint it desires. This is not my task.

But now Dr. Nelte has also attacked the subjective credibility of Gisevius in the personal character of this witness and thus also indirectly the reliability of his testimony concerning Dr. Schacht. This demands a statement of my opinion, and a statement of a very fundamental nature.

Your Honors, it is here that minds part company. A gap that cannot be bridged opens up between Schacht’s standpoint and the standpoint of all those who adopt the train of thought with which Dr. Nelte attempts to discredit the character of Gisevius, the deceased Canaris, Oster, Nebe, and others. I most certainly owe it to my client, Dr. Schacht, to state the following fundamental point very clearly and unequivocally:

Patriotism means loyalty to one’s fatherland and people and fight without quarter against anyone who criminally leads one’s fatherland and people into misery and destruction. Such a leader is an enemy of the fatherland; his actions are infinitely more dangerous than those of any enemy in war. Every method is justified against such a criminal State leadership, and the motto must be: _à corsaire, corsaire et demi_.

High treason against such a State leadership is true and genuine patriotism and as such highly moral, even during war. Who could still entertain the slightest doubt after the findings of this Trial, and finally after the testimony of Speer about Hitler’s cynical remarks regarding the destruction of the German people, that Adolf Hitler was the greatest enemy of his people, in short, a criminal toward this people, and that to remove him any means were justified and any, literally any, deed was patriotic. All those on the defendant’s bench who do not recognize this are worlds apart from Schacht.

I had to make this point in order to clear the atmosphere. After this fundamental clarification I can refrain from refuting details in Dr. Nelte’s attacks against Dr. Gisevius. Insofar as Dr. Nelte fails to see any willingness for active service among these resistance groups to which Dr. Schacht belonged, I need only point to the many hundreds who were hanged on 20 July alone; Schacht numbers among the very few survivors, and he too was to be liquidated in Flossenbürg. I point to the dead victims of the political judiciary of the Hitlerian State whose numbers run into thousands. Truly, the waging of a war of conspiracy against Hitler and the necessity for cunning and dissimulation in connection therewith were no less dangerous to life and limb than exposing one’s self at the front.

During the very fair cross-examination conducted by my colleague, Dr. Kubuschok, Gisevius immediately admitted his mistake resulting from the ban on publication, in the affair of Papen’s resignation. I have nothing more to say about this.

THE PRESIDENT: The Tribunal will adjourn.

[_The Tribunal recessed until 1400 hours._]

_Afternoon Session_

DR. DIX: May it please the Tribunal, I had concluded with the consideration of the probative value of the statements made here by the witnesses Severing and Gisevius.

Now, on concluding the evaluation of Schacht’s conduct up to about 1935 and entering the period from 1935 to 1937, I would emphasize once more that in order to save time I will not repeat the arguments which were presented to the Tribunal in detail during the cross-examination, as for instance the nonparticipation of Schacht in the legislation which led to the total disregard for international law, because this took place before his entry into the Cabinet. The decisive event for the stabilization of Hitler’s power, the merging of the offices of the Reich President and of the Chancellor of the Reich in the person of Hitler, also lay outside his co-operation and responsibility. By this decree the Army took its oath to Hitler. The Chancellor of the Reich not only had police authority as heretofore but also authority over the Army. It is not my task to investigate who bears the political responsibility and thus the historic guilt for this law; in any case, it is not Schacht.

All the basic anti-Jewish laws were also enacted before he entered into office as a minister. He was completely surprised by the subsequent Nuremberg Laws. The decree dealing with the exclusion of the Jews from German economic life dated 12 November 1938 and the ordinance concerning the use of Jewish property and possessions of 3 December 1938 were issued after he had left his post as Minister of Economics and thus without his active collaboration. The same applies to the decree excluding Jews from the Reich Labor Service, which moreover probably hardly inconvenienced them. The law providing for the death penalty for secret reserves of foreign exchange, the so-called Law of Betrayal of the People, was not directed specifically against the Jews but solely against big industry and high finance; also it was not evolved by Schacht but by the Minister of Finance. Schacht did not want to effect a breach of relations on account of such laws because he believed it was his duty to perform a more important task. In any case, this can hardly be regarded as important, for in the Jewish question Schacht, by his public speeches and his reports to Hitler, showed such a favorable attitude toward the Jews that it would be unjust to disqualify him politically and morally for such a reason, much less from the angle of criminal law. As examples I would remind you of the Reichsbank speech after the anti-Jewish pogrom in November 1938, the speech at Königsberg, the memoranda of the year 1935, and so forth. In the Third Reich Schacht was considered the most courageous and active protector of the Jews. I only remind you of the letter of the Frankfurt businessman, Merton, which was submitted to the Court, and of the illuminating statement of the witness Hayler. According to the latter, when Hayler reproached Himmler for the events of November 1938, he replied that after all it had been the fault of the economic administration that matters had reached such a point. Of a man like Herr Schacht one could not expect anything better than that he should exercise a constant restraining influence in the Jewish question and be opposed to the will of the Party.

In response to my further inquiry Justice Jackson defined this specific charge of the Prosecution as follows: Schacht is not being charged with anti-Semitism, but for activities which have a causal connection with the atrocities committed against the Jews within the framework of the planned war of aggression. Thus it follows that a denial of guilt as to a war of aggression leads with compelling logic to the denial of any guilt as to the atrocities which were committed against the Jews during the war. Justice Jackson made some phases of the legislation in respect to the Jews during Schacht’s term as Minister the subject of his cross-examination. I shall refrain from this part of the cross-examination; going into the questions put to Schacht and answered by him is irrelevant according to the Charter and the previously mentioned authentic interpretation of this part of the Indictment by Justice Jackson. The anti-Semitic legislation of the Third Reich and the personal attitude of an individual defendant toward it are, according to the Charter, relevant in these proceedings only insofar as they are connected with other crimes which are subject to punishment according to the Charter, as for example the conspiracy to wage war, mass extermination, and so forth. According to the Charter they cannot constitute an offense in themselves, not even one against humanity. Only those defendants are punishable for their deeds who can be proved to have participated in the planning of a war of aggression with its resulting inhuman consequences for the Jews. A prerequisite for their conviction on this account, however, is that they recognized and desired this goal and its result. There exists no purely objective liability for the outcome in criminal law. According to the Charter, he who desired the war and thus also the inhuman actions connected with it is punishable; but the incriminating activity must always have occurred in the course of the execution of such a plan. This purely legal consideration in itself excludes the conviction of Schacht on the grounds of atrocities against the Jews.

Another discrepancy between the Prosecution, especially with regard to the statements of Justice Jackson, and myself must likewise be clarified at this point, otherwise we will be talking at cross purposes. During the cross-examination Justice Jackson repeatedly pointed out that the defendant is not being charged with anti-Semitism as such, that he is not being charged with his opposition to the Treaty of Versailles, that he is not being charged with his ideas and statements on the so-called Lebensraum problem as representing the food problem of the central European nations, that he is not being charged with his colonial aspirations; but that he is being charged with all this only to the extent that it served, with his knowledge and desire, for the preparation of a war of aggression. By this objection Justice Jackson meant to preclude certain questions and discussions. This would have been justified and I too could now forego such arguments, were not the Prosecution taking away with one hand what it is giving with the other, because in the course of argumentation all this, namely, Schacht’s alleged anti-Semitism, _et cetera_, is used as indirect proof, that is, as circumstantial evidence that Schacht had prepared and desired this war of aggression. The Prosecution of course does not count all that as a criminal fact in itself, but as indirect proof, as circumstantial evidence. Therefore in evaluating the evidence, I must also treat these problems. I think I have finished dealing with the Jewish question. With regard to the problem of Lebensraum, in order to save time, I can probably refer to what Schacht has stated here during his interrogation in justification of his statements and activities in this respect. The colonial problem was the subject of cross-examination by Justice Jackson insofar as he tried to prove that colonial activity by Germany was impossible without world domination, or at least the military domination of the seas. Further development of this train of thought would result in the Defendant Schacht being charged with the fact that his striving for colonies logically depended on the planning of a war of aggression. That is a false conclusion. I think that Justice Jackson’s conception of colonial policy is too imperialistic. Anyone desiring colonies for his country without attendant domination of the world or the sea bases his colonial activity on a lasting state of peace with the stronger maritime powers. He must necessarily believe in peace with these powers. Germany also possessed colonies from 1884 until the first World War; her merchant marine carried on the necessary traffic with these colonies. Her merchant marine before this war would also have been sufficient. Aviation, in reply to Justice Jackson’s question, would not have been essential. Nothing supports the presumption that in his desire for colonies Schacht would have striven to eliminate foreign naval supremacy by means of war. In view of his general conduct one can hardly credit him with being as foolish as all that. France and Holland likewise possess colonies, the sea routes of which they certainly do not control.

This charge of the Prosecution is therefore inconclusive. Moreover, the Tribunal knows that during the years before the war nearly all the statesmen of the victorious powers were sympathetic to these colonial aspirations of Germany, as is shown in many of their public speeches.

I now come to the subject of rearmament, that is, to the activity of Schacht in his capacity as President of the Reichsbank and Reich Minister of Economics until 1937, in other words, up to the time when he changed from a loyal servant of Adolf Hitler to a traitor against him and took to the dark ways of artifice and dissimulation while making preparations for an attempt on his life.

The Prosecution considers the violation of the Versailles Treaty, the Locarno Pact, and other treaties as indirect proof, that is, as circumstantial evidence, of his criminal intention to wage a war of aggression. This involves first the question of whether any treaty violations took place and, if so, whether these treaty violations must be judged as indications of an intent to wage a war of aggression on the part of members of the Reich Government, Schacht included. It is impossible, and also unnecessary, to discuss exhaustively in this plea the problem of whether actual treaty violations were committed and to what extent. My colleague Dr. Horn has already touched upon this question. A short remark can serve to show at least the problematical nature of this question. This again is important for a proper evaluation. There are no lasting treaties, neither in the domain of civil jurisdiction nor, still less, in the domain of international law. The _clausula rebus sic stantibus_ often plays a much more important role in the domain of international law affecting the political intercourse between nations than in private dealings between individuals. One must be very careful not to apply, offhand, the relatively narrow principles of civil law to the breadth and depth of international law. International law has its own dynamics. The highly political intercourse between nations is subject to other juridical aspects than the commercial and personal relations between individuals. The most striking proof of the correctness of this thesis is the juridical basis of the Indictment, particularly insofar as it deals with the sentence _nulla poena sine lege poenale_ and demands, instead of sanctions, the individual punishment of the leading statesmen of an aggressor nation. Whoever upholds the conception of the Prosecution in this respect, acknowledges the dynamics of international law and the fact that international law develops according to a process of its own.

History has taught us that treaties based on international law do not usually come to an end by a formal repeal but succumb to the development of events. They inevitably sink into oblivion. In specific instances opinions may differ as to whether this is the case or not; but that does not affect the basic truth of this statement. The militarization of the Rhineland and the introduction of general conscription, the extent of rearmament which Schacht approved of and strived for, the voluntary “Anschluss” of Austria to Germany, which was also basically desired by Schacht, all of these certainly are offenses against the meaning and text of the above-mentioned pacts, particularly the Versailles Treaty. If, however, such violations are only answered by formal protestations, and otherwise very friendly relations continue to exist and honors are even conferred upon the offending nation, and if agreements are concluded which alter the basic stipulations of such a treaty, as for instance the Naval Pact with Great Britain, the view is fully justified that because of all this such a treaty is gradually reaching a state of obsolescence and extinction, or at least there is cause for such a subjective point of view.

I beg you to consider that the prerequisite for the conclusion of an armament pact, as for instance the Naval Pact with Great Britain, is the military sovereignty of both nations. The denial of such sovereignty to Germany was, however, one of the main aspects of the Versailles Treaty. I do not wish to speak here about the justice or injustice of this treaty. I know the Court’s wish, or rather prohibition, in regard to this matter, and of course I shall observe it. But I must speak about the legal possibility and therefore the innocence, criminally speaking, of Schacht’s personal opinions on the question of treaty violation. Even if, therefore, one still wished to defend the point of view that the said treaties have not become obsolete, one cannot, at least as far as its inherent honesty is concerned, doubt the justification of an opinion to the contrary. But if this is recognized, these treaty violations no longer provide any proof of the criminal intention of a war of aggression. And that is all that matters. For the violation of treaties in itself is not considered a punishable act by the Charter. Here, too, Schacht can justify his good faith by referring to the same or similar views on the part of leading foreign statesmen, in whom it is therefore logically impossible to assume the existence of a suspicion as to a desire for aggression on the part of Germany. Here again I must limit myself to a few instances, since a complete enumeration would exceed the time limit of this plea.

The first of the violations of the Versailles Treaty is supposedly the reintroduction of general conscription. With regard to this measure, the British Foreign Secretary, Sir John Simon, with a statesman’s far-sighted objectivity, gave the following reply, which was universally made known in reports by the press and radio and which therefore is valid as legal evidence:

“There is no doubt that an agreed reduction of the armaments of other big nations was to follow upon the forced disarmament of Germany.”

This remark contains a confirmation of the juridical point of view I developed a while ago, in spite of the criticism of Hitler’s action that follows. The same applies to the fact that the visit of Sir John Simon and Mr. Anthony Eden to Berlin took place 8 days after this so-called treaty violation, namely, on 24 March 1935. It would not have taken place if this measure of Hitler’s had been considered abroad as militarily aggressive. I will just mention in passing the history of the treatment of this question by the Council of the League of Nations, which is well known. Should Schacht, as a German and a German Minister, judge it in a manner different from that of the foreign Governments?

A second treaty violation by Hitler was the occupation of the Rhineland, also in March 1935. This action did not only violate the Versailles Treaty ...

THE PRESIDENT: [_Interposing_] The date of the occupation of the Rhineland was not March 1935, but March 1936.

DR. DIX: I cannot ascertain that at the moment.

The point in question is that this action took place, namely, the occupation of the Rhineland. This action was not only a breach of the Treaty of Versailles but also of the Locarno Pact, that is, of an undoubtedly voluntarily contracted treaty. Two days later Mr. Baldwin stated in the House of Commons, in a speech made public and therefore valid as legal evidence, that, while Germany’s conduct could not be excused, there was no reason to assume that this action contained a threat of hostilities. Was Schacht, a German and a German Minister, to take a different and more skeptical attitude in regard to the aggressive significance of the act than foreign statesmen? And particularly when he was forced to note the fact, which is now history and is universally known, that 10 days after this breach of treaty the Locarno Powers, except Germany, submitted to the Council of the League of Nations a memorandum which proposed the reduction of the number of German troops in the Rhineland to 36,500 men and only endeavored to avoid the strengthening of the SA and SS in the Rhineland and the erection of fortifications and airfields. Should not this memorandum be interpreted as a ratification of an alleged breach of the treaty?

A third breach of the treaty was the fortification of Helgoland, which was hardly observed by the contracting parties, and merely called forth from Mr. Eden, in the now famous public speech before the House of Commons on 29 July 1936, the remark that it was not considered favorable to increase the difficulties of the proceedings by individual questions like the one under discussion. Was the German Minister Schacht to take another and more rigorous attitude?

And what about the terroristic annexation of Austria in March 1938 when, moreover, Schacht was no longer Reich Minister for Economics? If foreign countries had gathered from this action the conviction that Hitler was preparing a war of aggression, they would not have abstained from threatening to use force. Was the German Minister Schacht to hold a different and stricter opinion? He did, in fact, have a different opinion at the time and was already eagerly at work with Witzleben and others to eliminate Adolf Hitler and his regime by means of a Putsch; an effort on the part of these patriotic conspirators which was frustrated, as the unequivocal testimony of the witness Gisevius has shown, because Hitler was able to record one success after another in foreign politics.

I merely remind you of the unequivocal evidence of Gisevius regarding the effects of the Munich Agreement on the influence of the opposition group of which Schacht was a leader; I remind you of the evidence of Gisevius regarding the warnings and hints in this connection sent across the German frontiers to responsible personalities of foreign countries. Is it fair to require from the German Minister Schacht a more critical attitude to those political developments than that adopted by foreign countries whose interests had been injured? As we know from Gisevius, from Vocke, and from all the affidavits submitted, he did have this critical attitude from 1937 on, in which year he took to the dark ways of a conspirator. I remind you of his first contact with the then General Von Kluge. I could give many examples such as those just mentioned. I do not criticize this attitude of foreign countries; that is not for me to do, quite apart from the fact that I have complete understanding for the pacifist attitude it reveals, which is fully aware of its responsibilities. It is, however, my duty to point out that no warlike intention can be imputed to Schacht on account of his opinions and attitude, when the same opinions and the same attitude can be identified as belonging to the foreign countries whose interests had been injured. If foreign countries could entertain the hope of maintaining further friendly relations with Hitler, the same right must be conceded to Schacht as far as he claims it. He does not, however, claim it for himself, at least not after the Fritsch crisis of 1938.

After that time he, in contrast to the foreign countries, had a very clear idea of the danger, which fact, according to the evidence of Gisevius, is undeniable, and he personally risked his life and liberty to maintain peace by attempting to overthrow Hitler. The fact that all these Putsch actions before the war and after the outbreak of war were unsuccessful cannot, according to the evidence submitted, be considered his fault. The responsibility for the failure of this German resistance movement does not lie with the latter but elsewhere, within and without the German frontiers. I shall return to this later.

There remains, therefore, the fact of rearmament as such. Here, too, I can refer essentially to the statements Schacht made in justifying himself during his cross-examination. This was exhaustive, and a repetition would be superfluous. It is therefore also completely superfluous to enter into an academic discussion as to whether Schacht’s views were right; that is to say, whether it is correct that a certain amount of military force sufficient for defensive purposes is necessary for any country and was particularly necessary for Germany, and whether he was correct in his opinion that the nonfulfillment by the parties to the Versailles Treaty of the obligation to disarm justified the rearmament of Germany. The sole point in question is whether these opinions and motives of Schacht’s were honest, or whether he pursued secret aggressive intentions under cover of this defensive armament. But these proceedings have established absolutely nothing to disprove the honesty of these opinions and motives. Of course, one can question the fact whether the quotation “_si vis pacem, para bellum_” has absolute validity; or whether objectively any pronounced rearmament does not carry an inherent danger of war, since good armies with competent officers naturally strive for a chance for real action. Of course, one can defend the thesis that moral strength is stronger than any armed strength. The cohesion of the British Empire and the world-wide influence of the Vatican’s foreign policy could perhaps be cited as proof of this. All these questions carry a certain relativity in themselves; at any rate, one thing is certain: Even today in all large countries of the world the warning is constantly repeated that one must be militarily strong in order to preserve peace. Nations whose individualism and love of liberty rejected general conscription and a strong standing army now act to the contrary and honestly believe that they thereby serve peace. Let us take as an example a nation whose love of peace absolutely no one in the world, even the most mistrustful, can question, namely, Switzerland. Yet this peace-loving nation has always taken pride in maintaining the defense capacity of its people with the very intention of protecting its freedom and independence in a peaceful manner. One may academically call this idea of discouraging foreign aggression by the maintenance of a sufficiently strong defensive army imperialistic. It is, at any rate, honestly entertained by peaceful and liberty-loving nations and perhaps serves the cause of peace more effectively than many so-called antimilitaristic and pacifist doctrines. This sound point of view has really nothing to do with militarism. Whoever today recognizes this viewpoint as justified for great and small nations cannot contest the honesty of this view on the part of Schacht in the years 1935 to 1938. I have no more to say about this.

I also need not give a wearisome enumeration of figures and make specialized technical statements to the effect that this part of rearmament which Schacht first financed with 9,000 million, and then reluctantly with a further 3,000 million Reichsmark, was by no means sufficient for a war of aggression, in fact, not even for an effective defense of the German frontiers. The answers that the witnesses Keitel, Bodenschatz, Milch, General Thomas, Kesselring, et cetera, have given to this in their depositions and affidavits are available and have been submitted to, or officially brought to the attention of, the Tribunal. In this respect they are unanimously agreed that even at the outbreak of war—that is, 18 months later—Germany was not sufficiently armed for an aggressive war; that therefore, when Hitler led this nation into a war of aggression in August 1939, it was not only a crime against humanity but also against his own people, the people with whose leadership he was entrusted.

Therefore I also consider it superfluous to go into long discussions as to whether Blomberg’s statement that Schacht was aware of the progress of rearmament is correct, or the statement of Schacht and Vocke that this was not so. I accept without further discussion the sincerity of Blomberg’s statement. But since he had more to do with the technical side of rearmament than the Reichsbank had, general experience would seem to indicate that the memory of Schacht and Vocke is more reliable on this point than Blomberg’s, to whom this report to the Reichsbank was a matter of secondary importance for his department. For the Reichsbank the desire to be informed about the technical progress of the armament as well as about the financial expenditure was a very important matter. One remembers such facts better than unimportant secondary matters. In any case it is established that until the budget year 1937-38 only 21,000 millions were spent on armament, of which 12,000 millions were financed by credits of the Reichsbank, and that, according to Generaloberst Jodl’s statement of 5 June, on 1 April 1938 only 27 or 28 divisions were ready, whereas in 1939 there were already 73 or 75 divisions.

It needs no expert to show that this volume of expenditure and armament on 1 April 1938 was entirely insufficient for a war of aggression. Indeed Hitler was of the same opinion when in his memorandum of August 1936, which has been submitted to the Court, and which was handed to Speer in 1944, he pointed out, along with many derogatory remarks about Schacht’s conduct of economic affairs, that 4 precious years had gone by, that we had had time enough in these 4 years to determine what we could not do, and that he hereby gave orders that the German Army must be ready for action in 4 years, that is, in the course of the year 1940.

I should like to remind the Court that after Schacht’s withdrawal as President of the Reichsbank, 31,500 millions were spent on armament during the two budget years 1938-39 and 1939-40. The issuing and expenditure of money on armament therefore continued without Schacht, and indeed to a considerably greater extent. Schacht had once written to Blomberg that he was not a money-making machine.

He exercised constant pressure on Blomberg along this line. I refer only to his letter to Blomberg on 21 December 1935, which has been submitted to the Tribunal. He exercised a restraining influence by means of explanatory lectures to officers of the War Ministry and of the Armed Forces Academy. He refused the railway loan of 1936 requested by the Minister of Communications, which was indirectly in the interest of armament; and he stopped the credits of the Reichsbank as early as the beginning of 1937, concluding them by compromising on a final grant of 3,000 millions. He refused the credit which the Reich Minister of Finance requested from him in December 1938.

He created an automatic brake for armament expenditure through the mefo bills, which from the technical and financial point of view was a somewhat bold measure, although legally tenable. These served at first to finance the armament expenditure but restricted further armament expenditure after their expiration on 1 April 1939 because the Reich was obligated to redeem them. Schacht’s foresight proved true. The increase in employment brought such a rise in the state revenues that it would not have been difficult to liquidate the mefo bills at their expiration 5 years later. Keitel’s statement has proved that during the budget year beginning 1 April 1938, 5,000 million marks more were spent for armament than during the preceding year, although as from 1 April 1938 the Reichsbank credits had completely ceased. Half of the 5,000 millions would have sufficed to redeem the mefo bills which matured during the budget year beginning 1 April 1939. The use of this money for further rearmament would have been avoided; but this was exactly what Schacht intended. From the beginning he had limited the validity of the mefo bills to 5 years; he stopped the credit assistance of the Reichsbank on 1 April 1939 in order to limit armament. It was impossible for Schacht to foresee that Hitler would simply break a strict credit obligation and not redeem the bills. These facts in themselves show that his attempts to resign could have had no other reason than opposition to any further armament, and the refusal to accept responsibility for it. In this sense the assertion of the Prosecution that he wanted to evade responsibility is completely correct.

Nothing indicates that any other motives than those which are obvious from the facts just mentioned caused him to make this attempt to relinquish his duties. If the Prosecution maintains that the reason was his antagonism to Göring, this is also correct insofar as Schacht was an opponent of the Four Year Plan, of which Göring was the chief. That the reason was rivalry of power is a pure supposition, an interpretation of actual events which justifies the quotation: “Interpret to your heart’s content; should you fail to explain, you will at least insinuate.”

The Reichsbank memorandum of November 1938, which led to the dismissal of Schacht and most of his collaborators including Vocke, is also unequivocally and forcibly opposed to armament. It naturally had to contain reasons for this which were derived from the departmental jurisdiction of the Reichsbank. Its aim was obvious. Hence Hitler’s remark, “This is mutiny.” The memorandum ends with the demand for control of the capital and loan market as well as the management of taxation by the Reichsbank. Compliance with this demand would have deprived Hitler of every possibility of raising money for further armament, and therefore this demand was unacceptable to him. Schacht and his colleagues knew this. Accordingly, they deliberately sought a break by this step. Schacht now bore no further responsibility. From now on he could devote himself exclusively to the plans for a _coup d’état_ by the conspiracy group to which he belonged. He became a traitor to Hitler. By remaining Minister without Portfolio, he hoped to learn more about what went on than if he resigned altogether; this was vital for the aims of his conspiracy group. I shall return to this point later.

The fact of armament, as such, therefore, proves absolutely nothing for the assertion of the Prosecution that Schacht deliberately contributed to the preparation of a war of aggression. Simultaneous economic armament, however, belongs of necessity to armament in the modern sense. On the German side this was already recognized for the first time at the beginning of the first World War by two very important German Jews, the founder of the Hamburg-America Line, Albert Ballin, and the great German industrialist, Rathenau. This is the same Rathenau who made the wonderful speech on peace during the Genoa Conference, which was received with wild applause by the delegates of those very powers which had opposed his country but 4 years previously as enemies, and who, as German Foreign Minister, was the victim of an anti-Semitic outrage in the early twenties. I probably can assume that the personality of Albert Ballin is known to the Court. Both men recognized, at the very outbreak of the first World War, the error of omitting economic mobilization. Rathenau then organized the so-called War Raw Materials Department of the War Ministry. The first Plenipotentiary General for War Economy, for this is what he really was, was thus ideologically a pacifist; and certainly since that time there is probably no mobilization plan by any nation which does not provide for the purely military armament to be accompanied by a corresponding economic preparation for war. Therefore, the designation of a Plenipotentiary General for War Economy, even if he had taken up his duties, which as the evidence demonstrates most convincingly he never did but remained a dummy, does not show anything in the way of proof that the intention to wage a war of aggression existed. This post is equally necessary when arming for defense. The same applies to the institution of the Reich Defense Council, the Reich Defense Committee, _et cetera_. As such they are the same harmless, matter-of-course factors. They have no incriminating value. Only their misuse for the purpose of a war of aggression would be incriminating. However, Schacht’s criminal intention in this respect has not been established, nor has anything else been found. I therefore refrain from going into details on this subject.

In conclusion, the Prosecution sees something incriminating in the so-called maintenance of secrecy regarding certain mobilization measures and mobilization arrangements, as for example the second Reich Defense Law. Here, too, a natural and worldly-wise way of thinking deprives these findings of any incriminating character. All nations are accustomed to treat mobilization and armament measures as secret. Upon further consideration and after closer observation this practice can, of course, be recognized as a very superfluous routine matter. Only plans and technical details can be really kept secret. The fact of rearmament as such can never be kept secret. The same applies to the existence of a large body which is to serve the purpose of this rearmament. Either it becomes known because it starts to function, or, like the ominous Defense Council, it remains hidden and secret only because it does not function.

In the memoirs of a Czarist officer regarding his experiences in the Russo-Japanese war I found the following humorous observation:

“If I, as a member of the General Staff, wished an incident to become known, I had it classified as ‘secret’ and my wish was fulfilled. If I wished to keep something secret, which was almost an impossibility, I unobtrusively gave it free circulation and occasionally my wish was fulfilled.”

One should not quibble in a vacuum; but if one wishes to find the truth, one must take into account the teachings of experience based on hard facts.

Thus, the fact of the military activation of Germany after the seizure of power by Hitler and the subsequent rearmament was never a secret to the world. The main proceedings have produced a great deal of evidence to this effect. We know the report of Consul General Messersmith; we know his sworn testimony of 30 August 1945, submitted by the Prosecution under Number 2385-PS, according to which the armament program—he speaks of a giant armament program immediately following the seizure of power—and the rapid development of the air program had been apparent to everybody; it had been impossible to move in the streets of Berlin or in any other city of importance in Germany without seeing pilots or aviators in training. He expressly states, on Page 8 of his testimony, that this giant German rearmament program was never a secret and was quite publicly announced in the spring of 1935.

I would like to remind you, amongst a great deal of other evidence, of the remark of Ambassador Dodd, who contends that he pointed out to Schacht that the German Government had bought high-grade airplanes from American airplane manufacturers for 1 million dollars and had paid for them in gold. Even if Ambassador Dodd perhaps made a mistake in this detail, yet all this still proves that German rearmament—the extent of which was surely even overestimated abroad at that time—must have been, at the very best, an open secret.

Therefore it is not even necessary to refer to the mutual visits of the Chiefs of General Staffs, to which Milch and Bodenschatz testified, the visits of the Chief of the British Intelligence Service, Courtney, the permanent presence in Berlin of military attachés of nearly all countries, in order to recognize that the so-called secret rearmament was quite public and only safeguarded a few technical secrets, as did rearmament in every state. The outside world knew of the existence of this rearmament and, in any case, considered it to be compatible with world peace longer than Schacht himself did.

It is not for me to criticize the attitude of the outside world, nor is it my intention to do so. Each part on the stage of life has its own rules of tact, including the part played by the defendant and his defense counsel. Their task is to establish a defense, and not to bring charges and make an attack. In connection therewith I expressly wish to guard against a possible misunderstanding to the effect that I want to appear as an accuser, a critic, or a know-it-all in any way. I present all this only from the aspect of my submission that the indirect circumstantial evidence submitted by the Prosecution is not conclusive.

Furthermore, the Prosecution argues that Schacht was a member of the Reich Cabinet, at least as Minister without Portfolio from the time of his dismissal in January 1938, as Minister of Economics, until January 1943. The Prosecution makes the Reich Cabinet responsible—criminally responsible—for the belligerent invasions of Hitler. This argumentation has an attractively convincing power for somebody who starts with the normal concept of a Reich Cabinet. The effect disappears once it has been ascertained that the so-called Reich Cabinet was not a cabinet in the usual sense applying to a constitutional state.

Judgments should not, however, be based on outward appearances and form—not on fiction, but only on actually established conditions. This makes it necessary to penetrate sociologically the nature of the Hitler regime and to examine whether a member of the Reich Cabinet, hence of the Reich Government as such, must in this capacity bear the same criminal responsibility as if he were in any other normal state set-up, be it a democratic republic or a democratic monarchy or a constitutional monarchy or a monarchy which, although absolute, was nevertheless founded on law, or some other constitutionally based set-up which bears the character of a somehow lawful state based on a constitution. We are thus obliged to investigate the actual sociological structure of the Hitler regime. We have heard an account on the Führer Order (Führerbefehl) in this connection by Professor Jahrreiss. Here, too, I want to avoid repetition and would only state the following in abbreviated form:

I want to say first of all, in order to avoid once more the danger of a misunderstanding, that when I speak of the Hitler regime here I do so without referring in any way to the persons sitting in the dock; naturally with the exception of Schacht. For the latter, I do so in the negative sense, for he did not belong to the regime as such, in spite of the fact that he was a member of the Reich Government and President of the Reichsbank. I leave the question completely open as to whether any of the other defendants should be considered a member or supporter of the regime. That question is subject only to the judgment of the Tribunal and the evaluation of the defense counsel for each case.

At the very beginning of my argument I indicated that, even for a person who lived in Germany during the Hitler regime, it is difficult to differentiate between the ostensible distribution of power and the actual underlying influence, since this requires a great deal of political intuition; it is bound to be impossible to judge for people who lived outside Germany and can only be arrived at through the findings resulting from the presentation of evidence before this Tribunal. We have established here that the Reich Cabinet, whom Hitler termed a club of defeatists, was convened for the last time in 1938 and that it met then only to receive a communication from Hitler. For actual deliberation and the passing of a resolution it had last been convened in 1937. We have also established that Hitler deliberately kept all news of political importance from the Reich Cabinet, as is proved quite unequivocally by the so-called Hossbach minutes of 10 November. During this meeting the Führer called the attention of the chiefs of the branches of the Wehrmacht and the Reich Foreign Minister, who were present—Schacht, of course, was not present and did not learn about the Hossbach minutes until he came here—to the fact that the subject for deliberation was of such great importance that it would result in full Cabinet meetings in other countries but that, just because of its great significance, he had decided not to discuss the matter with the Reich Cabinet.

Thus, at least after 1937, the members of the Reich Cabinet can no longer be considered the architects and supporters of the political aspirations of the Reich. The same holds true for the members of the Reich Defense Council, which as such was nothing but a bureaucratic and routine affair. Accordingly Hitler, in the spring of 1939, explicitly excluded the Reich Defense Council also from further war preparations, saying: “Preparations will be made on the basis of peacetime legislation.”

Despotism and tyranny showed themselves in unadulterated form as from 1938. It is a characteristic quality of the Fascist as well as the National Socialist regime, to have the political will concentrated in the head of the Party, who with the help of this Party subjugates and becomes master of the State and the nation. Justice Jackson also recognized this when he stated, on 28 February 1946, that the apex of power rested with a power group outside the State and the Constitution.

To speak, in the case of such a regime, of a responsible Reich Government and of free citizens who, through some organizations or others, could exert influence on the formation of the political will, would be to proceed from entirely wrong hypotheses. Intangible elements devoid of all sense of responsibility usually gain influence on the head of the State and Party in such regimes. The formation of the political will can be recognized in its crystallized form only in the head of the State himself; all around him is shrouded in a haze. It is another characteristic of such a regime—and this again belongs to its inner untruthfulness—that beneath the surface of seemingly absolute harmony and union several power groups fight against each other. Hitler not only tolerated such opposing groups, he even encouraged them and made use of them as a basis for his power.

One of the defendants spoke here of the unity of the German people during this war in contrast with the first World War, but I must stress in reply that hardly at any time during its history was the German nation so torn internally as it was during the Third Reich. The apparent unity was merely the quiet of a churchyard, enforced through terror. The conflicts between the individual high functionaries of the German people, which we have ascertained here, reflect the inner strife-torn condition of the German nation, carefully concealed through the terror wielded by the Gestapo.

To give only a few examples: We were confronted here with the conflicts between Himmler and Frank, between Himmler and Keitel, between Sauckel and Seldte, between Schellenberg and Canaris, between Bormann and Lammers, between SA and SS, between Wehrmacht and SS, between SD and Justice, between Ribbentrop and Neurath, and so on and so forth. The list could be continued ad libitum.

Even ideologically the Party in itself was divided into pronounced oppositional groups, which was shown already at the very beginning of the presentation of evidence by Göring’s testimony. These oppositions were fundamental, and they were not bridged by Hitler but rather deepened. They were the instrument from which he elicited his power. The ministers were not responsible governing persons, as in any other state where law is the foundation; they were nothing but employees with specialized training who had to obey orders. And if a departmental minister, as in the case of Schacht, did not wish to submit to this, it resulted in conflict and resignation from his post.

For this very reason no minister could in the long run take full responsibility for his department, because he was not exclusively competent for it. A minister, in accordance with constitutional law, must first of all have access to the head of State; and he must have the right to report to him in person. He must be in a position to reject interference and influences coming from irresponsible sources. None of the characteristics applicable to a minister apply to the so-called ministers of Adolf Hitler. The Four Year Plan came as a surprise to Schacht. Similarly, the Minister of Justice was surprised by so extremely important a law as the Nuremberg Decrees. Ministers were not in a position to appoint their staffs independently. The appointment of every civil service employee required the consent of the Party Chancellery. The intervention and influence of all possible agencies and persons of the various Chancelleries—Chancellery of the Führer, Party Chancellery, _et cetera_—asserted themselves. They, however, were agencies placed above the ministries and they could not be controlled. Special delegates governed over the heads of the departmental chiefs. Ministers, even the Chief of the Reich Chancellery, as we have heard from Lammers, might wait for months for an audience, while Herr Bormann and Herr Himmler had free access to Hitler.

The anticamera and camarilla, indispensable accessories of all absolutism, have at all times been difficult to fathom as to the personal responsibility of the individual circles of which they are composed. The irresponsible influences exerted over and affecting Hitler were absolutely intangible.

Generaloberst Jodl described to us here how Hitler’s sudden actions, caused by some urge and attended by the most serious consequences, could be traced back to influences of an entirely obscure and unknown sort, such as pure chance, conversations at a tea party, or the like. For the objective facts this bears out what I already mentioned in the beginning. And so this state of affairs precludes even the possibility of the planning of a crime such as a war of aggression within a clearly defined circle of persons, much less within the so-called Reich Government. But where no planning is possible, there can be no plot, no conspiracy either, the most striking characteristic of which is this very common planning, even though the participants have different and varied roles. Let us assume the broadest conceivable interpretation of the ostensible exterior characteristics of the conspiracy. I am following Justice Jackson’s line of reasoning. He who takes part in a counterfeiters’ plot is guilty of conspiracy, even through he may have written only a letter or acted as bearer of the letter. He who participates in a plot for robbing a bank is guilty of murder if, in the course of the execution, not he but a third party in the group of planners commits murder. At all times, however, the prerequisite is a body of persons capable of evolving a common plan. Such a thing was not possible for Adolf Hitler’s ministers; it was not possible at all under Hitler. From this it follows that no conspirator could participate in Hitler’s crime of having forced upon his own people and the world a war of aggression, except those who served Hitler as assistants.

The forces at work in the Third Reich as depicted thus permit in thesis only the assumption that there existed a punishable complicity or punishable assistance, not, however, a punishable group offense such as a conspiracy. Whether such complicity or such punishable aid in the crime of a war of aggression committed by Hitler exists for individual defendants personally can only be investigated and decided in each individual case. It is my task to investigate this only in the case of Schacht.

A collective crime such as conspiracy is, however, excluded as inconceivable and impossible in the light of the actual conditions as already established. But even if this were not the case, the subjective aspect of the deed is completely lacking in the case of Schacht. Even if the objective facts of a conspiracy were to exist for a certain circle of the accused and even with the most liberal interpretation of the concept of conspiracy, it is still essential that the conspirator should include the plan of conspiracy and the aims of the conspiracy within his will, at least in the form of _dolus eventualis_.

The strict facts constituting a conspiracy can best be illustrated by comparison with a pirate ship. In reality every crew member of the pirate ship, even a subordinate, is guilty and an outlaw. But a person who did not even know that he was on a pirate ship but believed himself to be on a peaceful merchant vessel, is not guilty of piracy. He is equally innocent if, after realizing the pirate character of the ship, he has done everything he could to prevent any piracy, as well as to leave the pirate ship. Schacht did both.

As far as that is concerned, research on conspiracy also recognizes that a person is not guilty who has withdrawn from the conspiracy by a positive act before attainment of the goal of the conspiracy, even if he did co-operate previously in the preparation of the plan for conspiracy, which was not the case with Schacht. In this connection, I also consider as being in my favor Mr. Justice Jackson’s answer when I put up for discussion, during Schacht’s interrogation, the question whether the persecution of the Jews is also charged to Schacht. Mr. Justice Jackson said, yes, if Schacht had helped prepare the war of aggression before he withdrew from this plan for aggression and its group of conspirators and went over unreservedly to the opposition group, that is, to the conspiracy against Hitler. This desertion would then be the positive act which I have mentioned whereby a person at first participating in a conspiracy would separate himself from it.

This legal problem does not even enter into consideration as far as Schacht is concerned, because the evidence has shown that he never desired to participate in the preparation for a war of aggression.

As already stated, this accusation of the subjective fact of the conspiracy has not been proved either by direct or by indirect evidence. For the events up to the year 1938 I can point to the statements made previously. It has been proved that from 1938 on, at the latest, Schacht fought the bitterest struggle imaginable against any possibility of war in such a form that he attempted to overthrow the person responsible for this risk of war and this will for aggression and, thereby, the regime.

Your Lordship, I have now arrived at the end of a section, if Your Lordship would care to announce a recess now.

THE PRESIDENT: We will adjourn.

[_A recess was taken._]

DR. DIX: I beg your pardon for being late, but I was detained at the entrance.

Gentlemen of the Tribunal, I have arrived at the discussion of the beginning of the opposition by means of the various Putsch actions.

It is quite irrelevant and of incidental importance to investigate whether the attempts at a Putsch, which occurred at shorter or longer intervals during the war, would have been instrumental in securing better peace terms for Germany. This is absolutely meaningless for the criminal evaluation of Schacht’s course of action. Doubtlessly, according to human reckoning, a successful prewar Putsch would have prevented the outbreak of war; and a successful Putsch after the outbreak of war would at least have shortened the duration of the war. Therefore such skeptical considerations about the political value of these Putsch attempts do not disprove the seriousness of the plans and intentions for a Putsch, and that is all that counts in a criminal legal evaluation. For it proves first of all that a person who has been pursuing them since 1938, and even since 1937, if one includes the attempt with Kluge, could not possibly previously have had warlike intentions. One does not try to overthrow a regime because it involves the danger of war, if previously one has oneself worked toward a war. One does so only if by all one’s actions, even that of financing armament, one wished to serve peace. For this reason these repeated Putsch attempts on the part of Schacht do not have any legal significance of a so-called active repentance for previous criminal behavior but constitute _ex post_ proof that he cannot be accused even before 1938 of deliberately working for war, because it would be logically and psychologically incompatible with Schacht’s activity of conspiracy against Hitler.

These Putsche thus prove the credibility of Schacht in respect to his explanation of the reasons and intentions which caused him actively to enter the Hitler Government and to finance armament to the extent to which he did, namely, to the amount of 12,000 millions. They prove _ex post_ the purely defensive character of this financing of armament; they prove the credibility of Schacht’s contention of having tactically achieved, in addition, a general limitation of armament. If one does believe this explanation of Schacht’s, and I think one must believe it, then one cannot speak of Schacht’s co-operation in instigating a war of aggression.

This credibility is also proved by another circumstance. Schacht originally contradicted the testimony of Gisevius and my questions following the same line, that he had admired Hitler at the beginning and had unreservedly considered him a brilliant statesman. He described this in his interrogation as an erroneous assumption. He said that he had recognized from the beginning many of Hitler’s weaknesses, especially the fact of his poor education, and had only hoped to be in a position to control the disadvantages and dangers resulting from them. By this contradiction Schacht made his defense more difficult; but he is wise enough to have recognized this. Thus what he deliberately forfeited from the point of view of evidence which would serve his defense, he gains with regard to his credibility upon objective evaluation of evidence based on psychological experience. For a person who serves the truth by contradiction deserves increased credibility, when the suggested untruth or the half-truth is more advantageous to him technically and tactically by way of evidence.

There should be no doubt about Schacht’s leading role in the activities of the various conspiracies about which Gisevius testified on the very basis of this credible testimony. During the cross-examination Mr. Justice Jackson confronted Schacht with photographs and films which superficially show a close connection with Hitler and his paladins. This can only have been done in order to throw doubt on the earnestness of his active opposition to Hitler. I must, therefore, deal briefly with this point of the photographs and films. Mr. Justice Jackson has coupled this accusation with another one by quoting speeches ostensibly expressing great devotion on the part of Schacht toward Adolf Hitler even during the Putsch period. This accusation is on the same level. I believe that this argument cannot stand up either before the experiences of life nor before what we can observe of history. History teaches us that conspirators, especially if they belong to the closer circle of dignitaries of the threatened head of state, show special devotion for purposes of camouflage. Nor has it ever been observed that such people impart their intentions to the prospective victim in a spirit of contradictory loyalty. One could cite many examples of this from history.

There exists an effective German drama by a certain Neumann which concerns itself with the murder of Czar Paul by his first Minister, Count Pahlen. The Czar believes to the very end in the ostentatious devotion of Count Pahlen, even while the latter is already sharpening his knife. And the historical documents in existence include a note by Count Pahlen to the Russian Ambassador in Berlin, immediately before the assassination, in which Count Pahlen persists in speaking about “_Notre auguste Empereur_,” and so forth. Significantly, this drama bears the title _The Patriot_.

Thus, there is a higher patriotism than the merely formal loyalty of a servant of the nation. It would be closer to the psychological truth if this presumptive devotion, assumed for the sake of appearances, and the assurances of loyalty during this period were judged more in favor of the objective credibility of Schacht’s explanations than _vice versa_. As a conspirator, he had to camouflage himself especially well. To a certain degree this had to be done by practically everyone who lived under this regime in Germany. As far as the photographs are concerned, it is probably an inevitable consequence of every social and representative participation in a body that one becomes a victim of the camera along with the members of the body whether one likes it or not. A member of a Government cannot always avoid being photographed with these people on the occasion of their meetings. As a result we have pictures that show Schacht between Ley and Streicher and the scene in the film showing the reception of Hitler at the railroad station. Viewed ex post, these pictures give no pleasure to the observer, and certainly not to Schacht either. But they do not prove anything. In a natural evaluation belonging to a normal average experience of life, I consider these pictures without any value as evidence, either _pro_ or _contra_.

Foreign countries, too, through their prominent representatives, had social intercourse with Adolf Hitler’s Government, and this not only through their diplomatic corps. I wish to assure you that the Defense is in a position to produce pictures of a much more grotesque sort which do not seem nearly as natural as Schacht being photographed together with men who, after all, were his fellow dignitaries in the Third Reich. To produce such pictures, however, might not be very tactful on the part of the Defense; yet should it be necessary to investigate the truth in all seriousness, a defense counsel might have to take upon himself the odium of indiscretion. I do not believe that there is any need for me to do so in this case, because the irrelevance and insignificance of such a presentation of evidence through pictures taken on state occasions of the Third Reich seems to me to be obvious.

The only incriminating point pressed by the Prosecution which is left for me to argue now appears to be that Schacht, after his retirement as Minister of Economics and even after his retirement as President of the Reichsbank in January 1939, remained Minister without Portfolio until 1943. Schacht declared that this had been stipulated by Hitler as a condition for his release from the Ministry of Economics. Hitler’s signature, as that of the head of the State, was necessary for his dismissal. Had Schacht refused to remain as Minister without Portfolio, he would surely have been arrested sooner or later as a political suspect and thus been deprived of all possibility of action against Hitler. The witness Gisevius has testified as to the discussions at that time between him and Schacht concerning the continuation of Schacht’s function as Minister without Portfolio. In these deliberations the idea was quite justly considered important that Schacht could be of more use to the group of conspirators as a scout or an outpost if he remained in this position, to outward appearances at least, within the Reich Government. Even as Minister without Portfolio, Schacht remained exposed to great danger, as is shown by his and Gisevius’ declarations and as becomes obvious from Ohlendorf’s statement that Schacht already in 1937 was on the black list of the State Police.

How much Hitler feared Schacht is proved by his subsequent remarks to Speer, which have been discussed here, particularly his remarks about Schacht after the attempted assassination on 20 July. I would also remind you once more of Hitler’s memorandum of 1936, which he gave to Speer in 1944 and which shows that he saw in Schacht a saboteur of his rearmament plans. It has been declared and proved by Lammers that Schacht tried later on to get rid even of this nominal position. Lammers and Schacht have proved furthermore that this position of Minister without Portfolio was without any special importance. Hence my reference to him as an officer with assimilated rank, that is, an officer without command authority, a sham officer. Schacht could not give up the position unless there was a row, and the same held true of his position as Reichsbank President. Schacht, therefore, had to maneuver in such a way that he would be thrown out. He succeeded in this, as I explained, as Reichsbank President through the well-known memorandum of the Directorate of the Reichsbank and the refusal of credits by the Reichsbank in November 1938 contained therein. As far as his position of Minister without Portfolio was concerned, he succeeded through his defeatist letter of November 1942. In the meantime he made use of the time for the attempted _coup d’état_ in autumn 1938 and for the various other attempted _coups d’état_ leading up to that of 20 July 1944, which finally caused him to be put in a concentration camp.

A criminal reproach can on no account be made against him in his position as Minister without Portfolio. For his proved conspiratorial activity against Hitler during all this time eliminates by force of logic the supposition that he had furthered Hitler’s war plans and war strategy during this time. In any event, we can only raise—and even that only in the vacuum of abstraction—a political reproach against the Schacht of the years 1933-37. But this, too, is fully compensated by the extraordinarily courageous attitude of Schacht after this period. To obtain its just evaluation, may I remind you of the interesting statement of Gisevius to the effect that he, who had at first looked with a certain skepticism upon Schacht’s original attitude, not in a criminal but in a political sense, had later become completely reconciled with Schacht by the extraordinary courage which Schacht displayed as opponent and conspirator against Hitler since 1938. I am of the opinion, therefore, that the fact that Schacht remained as Minister without Portfolio does not incriminate him either directly or indirectly, neither according to penal law, which is out of the question, nor morally, if one takes into consideration his behavior as a whole, his motives, and the accompanying circumstances and conditions.

If the Prosecution now finally argues, on the basis of the text of the afore-mentioned memorandum by the Directorate of the Reichsbank, that an opposition to war is not evident from the memorandum, but only technical reflections on finance and currency, then I have only to refer in this respect to my earlier statements and the testimony of Vocke. The presentation of facts by Schacht himself would not even be necessary to refute this argumentation. Vocke in his capacity as closest collaborator declared quite unequivocally that Schacht wished to limit and sabotage rearmament from the moment when he recognized that it was becoming a potential war danger. The sworn affidavit of Hülse and the sworn affidavits of all the collaborators of Schacht in the Reich Ministry of Economics tally with the testimony of Vocke in this respect. I need not quote them individually. They are known to the Tribunal. The Tribunal does not need the commentary of a defense counsel on them; they speak for themselves. If the Prosecution now finally bases its argument on the text of the memorandum which, it is true, actually only deals with financial problems, then again I cannot suppress the remark that such an argumentation moves in a vacuum insofar as one does not take the experiences of history and the general experiences of life into consideration. Naturally, as I have already said, the Directorate of the Reichsbank could only bring up arguments from their department, particularly so in dealing with a Hitler. One says one thing while meaning another.

If the Directorate of the Reichsbank, along with their President, Schacht, had revealed their true purpose in this memorandum, namely, to avert the danger of war and to combat Hitler’s will of aggression, then they would have deprived themselves of the effect of technical departmental influence. Hitler very well understood the purpose of this memorandum when he shouted, after reading it: “That is mutiny!” With this, Hitler recognized the only thing that can be said of Schacht as conspirator: He was never a mutineer and conspirator against world peace; but, insofar as he was a conspirator and mutineer, he was so only against Adolf Hitler and his regime.

Again in this case I must ask the High Tribunal to turn their attention to Appendix Number II, which I must insert at this moment, because the matter that is dealt with here did not reach me for translation until after I had submitted my final speech.

I said that Schacht, insofar as he was a conspirator, was so only against Hitler. As such, he was the subject of ironical belittling by Generaloberst Jodl and my colleague Nelte through the epithet, “frock-coat and drawing-room revolutionary.” Now history teaches that the quality of the tailor does not play any role in the case of the revolutionary. And as far as the drawing room is concerned, shacks have no revolutionary precedence over palaces. I would just recall the political drawing rooms of the great French Revolution or, for example, the elegant officers’ club of the select Preobrashensk regiment under many a Czar. Should the Gentlemen of the Tribunal be of the opinion that Schacht and his accomplices themselves should have done the shooting, then all I can say is that things were not as easy as all that. Schacht would have loved to do the shooting himself; he proclaimed that here emphatically. But it was not possible for him to do so without possessing the power to master the attendant confusion, thereby making the attempt a revolutionary success. Thus generals with troops were necessary. I do not wish to repay Generaloberst Jodl with the same coin and shall therefore refrain from saying “a necessary evil.”

The further reproach of the basic lack of working-class elements to strengthen the Putsche is contradicted by the social composition of the revolutionaries of 20 July. As I stated before, all this is irrelevant for the decision of the Tribunal. But my client is morally entitled to expect his defense counsel not to let this ironical thrust pass, especially since it was delivered in the limelight of public opinion.

In summing up I may say: After the elections in July 1932 it was certain that Hitler was able and bound to seize power. Previous to this Schacht had particularly warned the foreign countries of this development, and thus he had not contributed to it. After the seizure of power only two roads were open to him, as to every German: He either had to estrange himself or to enter the Movement actively. The decision at these crossroads was a purely political one without any criminal aspect. Just as we respect the reasons which caused the foreign countries to collaborate with Hitler much more intensively and in a more pro-German way than with the previous democratic Governments of Germany, we must recognize the good faith of all those Germans who believed themselves able to serve the country and humanity better by remaining in the Movement, that is, within the Party or the apparatus of officialdom, because of the greater possibilities of exerting their influence, than by grumbling and keeping aloof. To serve Hitler as minister and President of the Reichsbank was a political decision, about the political correctness of which one can argue _ex post facto_ but one which certainly lacked any criminal character. Schacht has always remained loyal to the motivating reason for his decision, namely, to combat any radicalism from an influential position. Nowhere in the world, which knew his oppositional attitude, could he see any signs of warning or support. He saw only that the world trusted Hitler much longer than he himself did and permitted Adolf Hitler to gain honors and foreign political successes, which hampered Schacht’s work which had already for a long time been directed toward removing Adolf Hitler and his Government. He led this struggle against Adolf Hitler and his Government with a courage and determination which must make it appear a pure miracle that not until after 20 July 1944 did fate overtake him, when he was sent to a concentration camp and was in danger of losing his life either through the Peoples’ Court or through a spectacular act of the SS. He is sufficiently wise and self-critical to realize that from a purely political angle the picture of his character will be adjudged diversely in history, or at least in the immediate future, according to favor or hatred of the parties. He humbly resigns himself to the judgment of history, even if one historian or another will label his political line as incorrect. But with the pride of a good conscience he faces the judgment of this High Tribunal. He stands before his judges with clean hands. He also stands before this Tribunal with confidence, as he has already manifested in a letter which he addressed to this Tribunal before the beginning of the proceedings, in which he states that he is grateful to be able to expose before this Tribunal and before the whole world his actions and doings and their underlying reasons. He stands before this Tribunal with confidence because he knows that favor or hatred of the parties will have no effect on this Tribunal. While recognizing the relativity of all political actions in such difficult times, he remains sure of himself and full of confidence with regard to the criminal charges which have been raised against him. Whoever would be found guilty of being criminally responsible for this war and the atrocities and inhuman acts committed in it, Schacht, according to the evidence which has been given here with minute exactness, can confront that culprit with the words which Wilhelm Tell flings in the face of the emperor’s assassin, Parricida: “I raise my clean hands to Heaven, and curse you and your deed!”

I therefore request the findings to be established to the effect that Schacht is not guilty of the accusation which has been raised against him and that he be acquitted.

THE PRESIDENT: I call on Dr. Kranzbühler for the Defendant Dönitz.

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for the Defendant Dönitz): Mr. President, Gentlemen of the Tribunal: “War is a cruel thing, and it brings in its train a multitude of injustices and misdeeds.”[2] With these words of Plutarch’s, Hugo Grotius begins his examination of responsibility for war crimes; and they are as true today as they were 2,000 years ago. Acts constituting war crimes, or considered as such by the opponent, have at all times been committed by belligerents. But this fact was always held against the vanquished parties and never against the victors. The law which was applied here was necessarily always the law of the stronger.

While more or less stable rules have been governing land warfare for centuries, in naval warfare the conceptions of the belligerents with regard to international law have always clashed. No one knows better than the British statesmen to what extent these conceptions are dictated by national or economic interests. I refer in this respect to noted witnesses such as Lord Fisher and Lord Edward Grey.[3] Therefore, if ever in history a naval power would have had the idea of prosecuting a defeated enemy admiral, based on its own conception of the rules of naval warfare, the sentence would have been a foregone conclusion from the very indictment.

At this trial two admirals are under indictment for a naval war which has been termed criminal. Thus the Tribunal is confronted with a decision regarding conceptions of law which are necessarily as divergent as the interests of a naval power and a land power. It is not only the fate of the two admirals which depends upon this decision. It is also a question of personal honor to hundreds of thousands of German seamen who believed they were serving a good cause, and who do not deserve to be branded by history as pirates and murderers. It is for these men, the living as well as the dead, that I feel bound by a moral obligation to reject the accusations raised against German naval warfare.

What are these accusations? They are divided into two main groups: Unlawful sinking of ships and deliberate killing of shipwrecked personnel. I shall deal first with the accusation of the illegal sinking of ships.

Two reports by Mr. Roger Allen, of the British Foreign Office, made in the autumn of 1940 and spring of 1941, form the nucleus of that accusation. I do not know to whom and for what purpose these reports were made. According to their form and content they appear to serve propaganda purposes, and for that reason alone I consider them to have little value as evidence. Even the Prosecution submitted only part of the accusations made therein. The reports trace only one-fifth of the total number of supposedly unlawful attacks back to submarines, whereas four-fifths are ascribed to mines, airplanes, or surface craft. The Prosecution omits these four-fifths, and this reticence may be explained by the fact that the use of these combat means on the British side differed in no way from that on the German side.

With regard to the use of submarines, however, there does seem to exist a difference between the principles followed in Germany’s conduct of the naval war and that of our enemies. At any rate, the public in enemy countries and in many neutral countries believed so during the war, and partly still believes it today. Propaganda dominated the field. At the same time the vast majority of all critics neither knew exactly what principles applied to German U-boat warfare, nor on what factual and legal foundations they were based. It shall be my task to attempt to clarify this.

The reports by Mr. Roger Allen culminate in the assertion that the German U-boats, beginning with the summer of 1940, torpedoed everything within range. Undoubtedly, the methods of submarine warfare gradually intensified under the pressure of the measures directed against Germany. This war, however, never degenerated into an orgy of shooting governed only by the law of expediency. Most of what might have been expedient for a U-boat was left undone to the last day of the war because it could only be regarded as legally inadmissible, and all measures of which Germany in her conduct of naval warfare is being accused today by the Prosecution were the result of a development in which both sides took part through measures and countermeasures, as occurs in the course of every war.

The London Protocol of 1936 formed the legal basis for German submarine warfare at the beginning of this war. These regulations were incorporated verbatim into Article 74 of the German Prize Ordinance, which even Mr. Roger Allen calls a reasonable and not inhuman instrument. This Prize Ordinance was sent in 1938 in draft form to the two U-boat flotillas and to the U-boat training school and served as a basis for the training of commanders. Stopping and examining merchant vessels was performed as a tactical task. In order to facilitate for the commander in economic warfare the quick and correct evaluation of his legal position towards ships and cargoes of the enemy and of neutral countries, the prize disc was constructed, which through simple manipulations indicated the articles of the Prize Ordinance to be applied. Thus, insofar as preparations had been made at all for economic warfare by submarines they were based exclusively on the German Prize Ordinance, and thus on the London Protocol.

The German High Command actually did adhere to this legal foundation in the initial stages of the war. The combat instructions for U-boats of 3 September 1939 contained clear orders to the effect that submarine warfare was to be carried on in accordance with the Prize Ordinance. Accordingly, sinkings were permissible only after stopping and examining the ship, unless it attempted to escape or offered resistance. Some examples were submitted to the Tribunal, from the abundance of available instances, showing the chivalrous spirit in which the German submarine commanders complied with instructions given. In particular, assistance afforded to the crews of ships lawfully sunk, after having been stopped and examined, occasionally reached a point where it could scarcely be justified on military grounds. Lifeboats were towed over long distances, whereby the few available U-boats were diverted from their combat mission. Enemy ships which might have been sunk lawfully were permitted to go free in order to send the crews of ships previously sunk to port aboard them. It is therefore only correct that Mr. Roger Allen stated that the German U-boats, during the first weeks of the war, adhered strictly to the London regulations.

Why was this practice not kept up? Because the conduct of the enemy made such a procedure militarily impossible, and at the same time created the legal prerequisites for its modification.

I shall consider the military side first. From the very first day of the war, U-boat reports reached the Flag Officer of U-boats and the Naval Operations Staff stating that hardly an enemy ship submitted voluntarily to being stopped and examined. The merchant vessels were not content with attempting to escape through flight or by changing their course and bearing directly down upon the U-boat in order to force it to dive. Every U-boat sighted was at once reported by radio; and subsequently, in the shortest space of time, attacked by enemy airplanes or naval forces. However, it was the arming of all enemy merchant vessels that settled the matter. As early as 6 September 1939 a German U-boat was shelled by the British steamship _Manaar_, and that was the starting signal for the great struggle which took place between the U-boats, on the one hand, and the armed merchant vessels equipped with guns and depth charges, on the other hand, as equal military opponents.

In order to show the effect of all the measures taken by the adversary, I have presented to the Tribunal some examples which I do not wish to repeat. They show unequivocally that further action against enemy merchant ships in accordance with the Prize Ordinance was no longer feasible from the military standpoint and meant suicide for the submarine. Nevertheless, the German command for weeks on end continued to act according to the regulations governing the Prize Ordinance. Only after it was established that action on the part of enemy merchant ships—especially armed action—no longer took the form of individual measures but of general instructions, was the order given on 4 October 1939 to attack all armed enemy merchant ships without warning.

The Prosecution will perhaps take the standpoint that, in lieu of this, submarine warfare against armed merchant vessels should have been discontinued. In the last war the most terrible weapons of warfare were ruthlessly employed by both sides on land and in the air. In view of this experience the thesis can hardly be upheld today that in naval warfare one of the parties waging war should be expected to give up using an effective weapon after the adversary has taken measures making the use of it impossible in its previous form. In any case such a renunciation could only be considered if the novel utilization of the weapon were undeniably illegal. But this is not the case for the utilization of German submarines against enemy merchant shipping, because the measures taken by the enemy changed not only the military but also the legal situation.

According to German legal opinion a ship which is equipped and utilized for battle does not come under the provisions granting protection against sinking without warning as laid down by the London Protocol for merchant ships. I wish to stress the fact that the right of the merchant ship to carry weapons and to fight is not thereby contested. The conclusion drawn from this fact is reflected in the well-known formula: “He who resorts to weapons must expect to be answered by weapons.”

During cross-examination the Prosecution referred to this interpretation of the London Protocol as fraudulent. It admits only the closest literal interpretation and considers the sinking of a merchant ship as admissible only if the latter has offered active resistance. It is not the first time that fundamental differences of opinion exist between contracting parties with respect to the interpretation of a treaty, and the extremely divergent interpretations of the meaning of the Potsdam Agreement of 2 August 1945 provide a recent example. Diversity of conception, therefore, does not permit the conclusion that the one or the other party acted fraudulently during the signing or the subsequent interpretation of a treaty. I will endeavor to show how unjustified this charge is particularly in regard to the German interpretation of the London Submarine Protocol.

There are two terms on which the German interpretation hinges, namely, that of “merchant vessel” and “active resistance.” If I now consider some legal questions, this will in no way represent a comprehensive exposition. I can only touch on the problems and due to lack of time must limit myself also when dealing with research on the subject. I shall primarily refer to American sources, because the interests of naval strategy of that nation were not as firmly established as those of the European nations and its research literature can thus claim greater objectivity.

The text of the London Protocol of 1936 is based, of course, on a declaration which was signed at the London Naval Conference of 1930. The committee of jurists appointed at that time expressed its opinion concerning the greatly disputed definition of a merchant vessel in the report of 3 April 1930:

“The committee wishes to place on record that the expression ‘merchant vessel’ where it is employed in the declaration is not to be understood as including a merchant vessel which is at the moment participating in hostilities in such a manner as to cause her to lose her right to the immunities of a merchant vessel.”

This definition clarifies at least one thing, namely, that by no means every vessel flying a merchant flag may lay claim to being treated as a merchant vessel in the sense of the London Agreement. Beyond this, the explanation has few positive aspects because the question through what kind of participation in hostilities a vessel loses her right to the immunity of a merchant vessel is again subject to the interpretation of the contracting parties. The London Conference, as far as I can see, did not consider this ticklish question any further, and one is probably entitled to assume that this remarkable reserve is based on experiences which the same powers had accumulated in Washington 8 years before.

The Washington Conference of 1922 was held under the impression of the first World War; and therefore it is no wonder that Great Britain, the naval power which during the World War had suffered most from German submarine warfare, now tried to outlaw and abolish altogether by international law submarine warfare against merchant shipping. The resolution, named after the American chief delegate, Root, which in its first part substantially corresponded to the London text of 1930, served that aim. But in the second part the Root Resolution goes further and stipulates that any commander who, no matter whether he acted with or without higher orders, violated the rules established for the sinking of merchant vessels should be punished as a war criminal like a pirate. Finally it was recognized that under the conditions stipulated in the resolution submarine warfare against merchant shipping was impossible, and such warfare was therefore renounced altogether by the contracting powers. The Root Resolution designates these principles as an established part of international law. While it was accepted as such by the delegates, none of the five participating naval powers, U.S.A., Britain, France, Japan, and Italy ratified it.

In connection with the Root Resolution, however, another question was discussed which is of the greatest importance for the interpretation of the London Protocol, namely, the definition of the term “merchantman.” Here the two conflicting views in the entire U-boat question became clearly evident. On the one side there stood Britain, on the other France[4], Italy, and Japan, while the United States took the position of a mediator. According to the minutes of the Washington Conference, the Italian delegate, Senator Schanzer, opened the offensive of the weaker naval powers by expressly emphasizing that a merchantman, when regularly armed, might be attacked by a submarine without preliminaries. In a later session Schanzer repeated his statement that the Italian delegation applied the term of “merchantman” in the resolution only to unarmed merchant vessels. He declared this to be in explicit accordance with the existing rules of international law.[5]

The French delegate, M. Sarraut, at that time received instructions from his Foreign Minister, M. Briand, to second the reservations of the Italian delegate.[6] He thereupon moved to have the Italian reservations included in the minutes of the session.

The Japanese delegate, Hanihara, supported this trend with the statement that he thought it was clear that merchant vessels engaged in giving military assistance to the enemy ceased in fact to be merchant vessels.[7] It can therefore be seen that in 1922, three of the five powers represented expressed the opinion that armed merchant vessels were not to be regarded as merchant vessels in the sense of the Agreement.

Since the whole resolution threatened to collapse because of this difference of opinion, a way out was found which is typical of conferences of this kind. Root closed the debate with the statement that in his opinion the resolution held good for all merchant ships as long as the ship remained a merchant vessel.[8] With this compromise a formula was created which, while representing a momentary political success, would not however carry any weight in the case of war, for it was left to every participating power to decide whether or not it would grant the armed merchant vessels the protection of the resolution in case of war.

I have described these events of the year 1922 a little more in detail because the powers which took part in them were the same as those which participated in the London Naval Conference of 1930. The London Conference was the continuation of the Washington Conference, and the subjects that had been discussed and included in the minutes of the first conference were of great importance for the second conference. Experts too—and by no means only German but above all American and French experts—based their examinations on the close connection of both conferences, and it was precisely for that reason that they declared the result achieved in the question of submarines to be ambiguous and unsatisfactory. Here I merely wish to point to Wilson’s summarizing report on the London Naval Treaty.[9]

This report, besides the ambiguity of the concept “merchant vessel,” also stresses the uncertainty connected with the words “active resistance”; and it is with these very words that an exception from the protection of the merchantman is connected, an exception which likewise is not contained in the actual text of the London Agreement but which nevertheless is generally recognized. I am referring to merchantmen in an enemy convoy. If the London Agreement were interpreted literally, it would be understood that even merchantmen in an enemy convoy must not be attacked without warning but that an attacking warship would have to put the escort vessels out of action first and then stop and search the merchantmen. However, this suggestion, which is impossible from a military point of view, evidently is not made even by the Prosecution. In the report of the British Foreign Office, which has been mentioned several times, it says:

“Ships sailing in enemy convoys are usually deemed to be guilty of forcible resistance and therefore liable to be sunk forthwith.”

Here even the Prosecution accepts an interpretation of the words “active resistance,” an interpretation which results in no way from the treaty itself but is simply a consequence of military necessity and thus dictated by common sense.

And this very same common sense demands also that the armed merchantman be held just as guilty of forcible resistance as the convoyed ship. Let us take an extreme instance in order to make the matter quite clear. An unarmed merchant ship of 20,000 tons and a speed of 20 knots, which is convoyed by a trawler with, let us say, 2 guns and a speed of 15 knots, may be sunk without warning, because it has placed itself under the protection of the trawler and thereby made itself guilty of active resistance. If, however, this same merchant ship does not have the protection of the trawler and instead the 2 guns, or even 4 or 6 of them, are placed on its decks, thus enabling it to use its full speed, should it in this case not be deemed just as guilty of offering active resistance as before? Such a deduction really seems to me against all common sense. In the opinion of the Prosecution the submarine would first have to give the merchant ship, which is far superior to it in fighting power, the order to stop and then wait until the merchant ship fires its first broadside at the submarine. Only then would it have the right to use its own weapons. Since, however, a single artillery hit is nearly always fatal to a submarine but as a rule does very little harm to a merchant ship, the result would be the almost certain destruction of the submarine.

“When you see a rattlesnake rearing its head, you do not wait until it jumps at you but you destroy it before it gets the chance.”

These are Roosevelt’s words, in which he justified his order to the United States naval forces to attack German submarines. This reason seemed sufficient to him to order the immediate use of arms even without the existence of a state of war. It is a unique instance in the history of warfare, however, to grant one of two armed opponents the right to fire the first shot and to make the other wait to be hit first. Such an interpretation is contradictory to all military reason. It is no wonder, therefore, if in view of such divergent opinions, the experts on international law, even after the London Treaty and the signing of the London Protocol of 1936, consider the treatment of armed merchant vessels in naval warfare to be an unsolved question. Here too I should like to refer to only one source of research, which enjoys especially high authority. It is the draft of an agreement on the rights and duties of neutrals in naval warfare, an agreement which leading American professors of international law, such as Jessup, Borchard, and Charles Warren, published in the _American Journal of International Law_ of July 1939 and which includes arguments which furnish an excellent idea of the latest trend of opinion. Article 54 of this draft corresponds word for word to the text of the London Agreement of 1936, with one notable exception: The term “merchant vessel” is replaced by “unarmed vessel.” The next article then continues:

“In their action with regard to enemy armed merchant vessels, belligerent warships, whether surface or submarine, and belligerent military aircraft are governed by the rules applicable to their action with regard to enemy warships.”

This opinion is first of all explained by historical development. During the time when it was customary to arm merchant vessels, that is, until the end of the last century, there was no question of any protection for the merchant vessel against immediate attack by an enemy warship. With the introduction of armor plating the warship became so superior to the armed merchant vessel that any resistance on the part of the latter was rendered futile, and the arming of merchant ships therefore gradually ceased. Only this defenselessness against warships, and this alone, granted merchant vessels the privilege of not being attacked without warning by the enemy: “As merchantmen lost effective fighting power they acquired a legal immunity from attack without warning.”

This immunity was never conceded to the merchant vessel as such but only to the defenseless and harmless merchant vessel. In regard to this the American expert on international law, Hyde,[10] stated in 1922, that is, after the Washington Conference and the afore-mentioned Root Resolution on U-boat warfare:

“Maritime states have never acquiesced in a principle that a merchant vessel so armed as to be capable of destroying a vessel of war of any kind should enjoy immunity from attack at sight, at least when encountering an enemy cruiser of inferior defensive strength.”

Legal as well as practical considerations, therefore, led the above-mentioned American authorities, after the signing of the London Agreement and shortly before the outbreak of this war, to form the opinion that armed merchant ships do not enjoy protection from attacks without warning.

Here the old discrimination between defensive and offensive armaments is also rejected as inapplicable. It is a well-known fact that the American Secretary of State, Lansing, in his note to the Allies on 18 January 1916, took the point of view that any kind of armament aboard a merchant vessel will make its fighting power superior to that of a submarine and that such armament is therefore of an offensive nature.[11]

In the later course of the first World War, the United States changed its opinion and declared that mounting guns on the stern could be taken as proof of the defensive character of the armaments. This standpoint was adopted in some international agreements and drafts, as well as by British jurists in particular. It does not do justice to the practice of naval warfare.

First of all, in this war the guns on many vessels were mounted from the very start in the bows, for instance, regularly on fishing trawlers. Furthermore, the antiaircraft weapons of the merchant vessel, which were especially dangerous for the submarine, were frequently placed on the bridge, and could therefore be used in all directions. Besides, there can be no differentiation between defensive and offensive armaments as to the way the weapons are placed.

In this respect orders alone and the way in which these weapons are meant to be employed are the decisive factors. Soon after the war had started the orders of the British Admiralty had already fallen into German hands. A decision of the Tribunal has made it possible for me to submit them. They are contained partly in the _Confidential Fleet Orders_, chiefly, however, in the _Defense of Merchant Shipping Handbook_. They were issued in 1938. They do not therefore deal with countermeasures against illicit German actions but, on the contrary, were already issued at a time when warfare in accordance with the London Agreement was the only form of submarine warfare taken into consideration in Germany.

The instructions further show that all British merchant vessels acted, from the first day of the war, according to orders received from the British Admiralty. These involved the following points with respect to submarine warfare:

(1) Reporting of submarines by radio telegraphy.

(2) The use of naval artillery.

(3) The use of depth charges.

These instructions were supplemented on 1 October 1939, when a call was transmitted over the radio to ram all German submarines.

It might seem unnecessary after this survey to make any mention at all of the defensive and offensive character of such orders. The orders on the use of artillery by merchant vessels, however, do make such differentiation; that is, guns are to be used for defense only, as long as the enemy on his part adheres to the regulations of international law, and for the offensive only when he no longer does. The orders covering the practical execution of these directives reveal, however, that there is no difference at all between defensive and offensive use. Admiral Dönitz explained this in detail when he was heard in Court, and I do not want to repeat it. Actually, from the very beginning of the war merchant vessels were under orders to fire on every occasion on every submarine which came within range of their guns. And that is what the captains of British merchant vessels did. The reason for this offensive action can certainly not be found in the conduct of German submarines during the first weeks of the war, for even the Foreign Office report admits that this conduct was correct. On the other hand, British propaganda may have had great influence, since in connection with the unintentional sinking of the Athenia on 3 September 1939, it disseminated through Reuters on 9 September the assertion that unrestricted submarine warfare was in progress and upheld this assertion notwithstanding the fact that the conduct of German submarines during the first weeks of the war refuted this accusation. Together with the announcement of the British Admiralty’s ramming orders of 1 October 1939, the merchant navy was again officially informed that the German U-boats had ceased to respect the rules of naval warfare and that merchant vessels were to adjust their conduct accordingly. It seems to me of no importance that a corresponding written supplement to Admiralty orders was not issued until the spring of 1940, because nowadays a naval war is not directed by letters but by wireless. But according to the latter, the British captains, as from 9 September or 1 October 1939 at the latest, were directed to use their guns offensively against the German U-boats in accordance with the Admiralty’s instructions as contained in its handbook. The German order to attack armed enemy merchant vessels without warning was issued only on 4 October. Thus it was justified in any case, even if one did acknowledge a difference in treatment for vessels with defensive and offensive armament.

The guns on the merchant vessels and the orders concerning their use were, however, only a part of a comprehensive system of the use of merchant vessels for military purposes. Since the end of September 1939 the fastest vessels, that is, those ships that were the least endangered by submarines but, on the other hand, were especially suited for chasing U-boats, received depth charge chutes, that is, armaments which call for location of a submerged submarine and thus may be judged as typical weapons for the offensive.

However, another factor of greater general importance, and also of greater danger to the submarines, was the order to report every enemy ship on sight, giving its type and location. This report was destined, so said the order, to facilitate taking advantage of an opportunity, which might never recur, to destroy the enemy by naval or air forces. This is an unequivocal utilization of all merchant vessels for military intelligence service with intent directly to injure the enemy. If one considers the fact that according to the hospital ship agreement even the immunity of hospital ships ceases, if they relay military information of this type, then one need have no doubts about the consequences of such behavior on the part of a commercial vessel. Any craft putting out to sea with the order and intention of using every opportunity that occurs to send military reports about the enemy to its own naval and air forces is taking part in hostilities during the entire course of its voyage and, according to the afore-mentioned report of 1930 of the committee of jurists, has no right to be considered a merchant vessel. Any different conception would not do justice to the immediate danger which a wireless report involves for the vessel reported and which subjects it, often within a few minutes, to attack by enemy aircraft.

All of the Admiralty’s directives, taken together, show that British merchant vessels, from the very first day of the war, closely co-operated with the British Navy in combating the enemy’s naval forces. They were part of the military communications network of the British naval and air forces and their armament of guns and depth charges, the practical training in manipulation of the weapons, and the orders relative to their use, were actions taken by the British Navy.

We consider it out of the question that a merchant fleet in this manner destined and utilized for combat should count among the vessels entitled to the protection of the London Protocol against sinking without warning. On the basis of this conception and in connection with the arming of all enemy merchant vessels, which was rapidly being completed, an order was issued on 17 October 1939 to attack all enemy merchant ships without warning.

THE PRESIDENT: Dr. Kranzbühler, we may as well break off now.

SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but I promised to tell the Tribunal about the two affidavits put forward for the Defendant Seyss-Inquart. We have no objection to them. I promised to tell Your Lordship today. I am sorry to have to detain you.

[_The Tribunal adjourned until 16 July 1946 at 1000 hours._]

NOTES

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[2] _De jure pacis ac belli_, Book II,