Chapter IV: Front Matter (4)

LAMMERS: That decision was the Führer’s. The way it happened in practice was that the Minister of Finance submitted the application for a credit. That was done in duplicate. One letter with the appropriate order was directed to the Reich Minister of Finance, and the second letter with such an order was addressed to the President of the Reichsbank.

DR. SAUTER: Dr. Lammers, these technical details do not really interest us. We are only interested in this: Did Dr. Funk, as President of the Reichsbank have any influence on the question of whether and to what extent the German Reich could claim credit from the Reichsbank? Only this interests us.

LAMMERS: I can answer that only by citing technical details. All I received were those two documents from the Finance Minister. It was entirely a matter of having them signed. They were signed in one second by the Führer and then they were sent back. I never had an order to negotiate with Herr Funk or with Herr Schacht or with the Minister of Finance. It was entirely a matter of having them signed, nothing else.

DR. SAUTER: So that according to your knowledge these instructions came from Hitler and not from the Reichsbank president?

LAMMERS: The instructions were signed by the Führer.

DR. SAUTER: Dr. Lammers, you have already mentioned once the so-called Committee of Three or Three Man College, which was formed in the later years. Regarding this Committee of Three the Prosecution maintain that Funk was also a member of this committee, and that this committee represented, so to speak, the highest court as far as the legislation of the Reich Government during the war was concerned.

LAMMERS: One cannot say that at all. I have already stated that these three men, each acting independently, had the right to issue decrees with the consent of the two others, and that there were very few and quite insignificant decrees.

DR. SAUTER: You mean decrees of little importance, decrees for his department?

LAMMERS: Yes.

DR. SAUTER: Furthermore, Dr. Lammers, the Defendant Göring stated during his examination that the powers which Dr. Funk had as Plenipotentiary for Economy—I think in 1938—were transferred for the most part to the Delegate for the Four Year Plan, that consequently Dr. Funk’s powers, generally speaking, existed only on paper. I should be very interested in knowing whether these powers of the Plenipotentiary for Economy were transferred to the Delegate for the Four Year Plan, in other words, Göring, formally, as well as in fact.

LAMMERS: That was based on a decree of the Führer and a special order issued by the Führer.

DR. SAUTER: When was that, approximately?

LAMMERS: The Four Year Plan was set up in 1936, and it was extended in 1940 for another 4 years. These special powers which Herr Funk later surrendered to the Four Year Plan were based on an agreement between Reich Marshal Göring and Minister Funk, an arrangement which, as far as I know, had the Führer’s approval.

DR. SAUTER: Dr. Lammers, you have already told the Tribunal that since 1938, I think, no more meetings of the Cabinet took place and that in the end Hitler even prohibited informal discussions among ministers. Can you tell us anything as to whether and, if so, how often the Defendant Dr. Funk had an opportunity, during the 7 years he was Minister, to talk to Hitler, to report to him, and so forth?

LAMMERS: Well, during the first years, as I have said, he reported frequently as Press Chief.

DR. SAUTER: And later as Minister of Economics?

LAMMERS: Later, as Minister of Economics, he very rarely came to the Führer. At many conferences he was not consulted, even at conferences in which he ought to have been consulted. Quite often he complained to me about that. I tried in every way to do my best to include him in such conferences, but I did not always succeed.

DR. SAUTER: Dr. Lammers, I have noticed that minutes have been read here in which it is clearly said, and I think by you, that the Defendant Funk as Minister for Economics has asked you that he be permitted to participate in this or that important conference, and that you had expressly stated in that record that the Führer had refused that, or that the Führer had prohibited it. May I show you an example? I remember a meeting of 4 January 1944, Document 1292-PS, concerning questions of labor employment. In those minutes it says—once more said by you—that Funk’s request to be able to participate had been refused. Can you remember such cases and can you give us the reasons?

LAMMERS: Yes, I can remember such cases, but I do not know whether they were mentioned in the minutes. Probably I informed Herr Funk that I had made the greatest effort to have him participate in these conferences; the Führer, however, had refused.

DR. SAUTER: The reason?

LAMMERS: Frequently the Führer made objections; those were various reasons in the case of Funk. He was sceptical about him and did not want him there.

DR. SAUTER: Witness, in April of 1941 you are supposed to have informed the Defendant Dr. Funk that Rosenberg had received an order from Hitler for a uniform treatment of the problems in the Eastern Territories. Besides giving that message to Funk you are supposed to have passed it on to Göring and Keitel. From that fact the conclusion has been drawn by the Prosecution that Funk was one of the influential persons concerned with the preparation for aggressive war against Russia.

Can you tell us whether and, if so, why you also passed that message on to the Defendant Funk at that time?

LAMMERS: Either the Führer told me to do so—which I do not think was the case—or I believed that from the economic point of view Funk would be interested in this information. I passed it on to him as a special personal gesture; I do not remember any particular reason now. I certainly must have passed the same message on to others, but not in writing; the others probably received it orally.

There was no question at all of an aggressive war when Rosenberg was given that task by Hitler. He was supposed to be merely a sort of political commissioner for the Eastern Territories. He was to study the conditions of the peoples there.

DR. SAUTER: Dr. Lammers, roughly at the same time, that is to say, the spring of 1941, and shortly before the beginning of the Russian campaign, you are supposed to have had some further discussions with the Defendant Funk on the subject of what turn the foreign political situation in respect to Russia might possibly take in the near future. On that occasion you are supposed to have told Defendant Funk something regarding the reasons why Hitler believed in the possibility of a war against Russia. What did you tell Defendant Funk at that time regarding these preparations for the war undertaken at one time or another?

LAMMERS: It must have been what I knew myself at the time, namely, information which the Führer had given me, that troop concentrations in Russia had been observed, which allowed the conclusion to be drawn that an armed conflict with Russia might occur. These were the words the Führer used. He believed that things would come to a head with Russia and therefore wished that one man, and that was Rosenberg, should concern himself with Eastern questions, since the possibility of an armed conflict with Russia did exist. That is probably what I told Funk. I cannot imagine what else I could have told him.

DR. SAUTER: At that time, Dr. Lammers, you are supposed to have mentioned not only troop concentrations on the Russian side along the Eastern frontier of Germany, but also the Russian march into Bessarabia.

LAMMERS: Yes, it is possible that that was the case. The Southeast, at any rate; and perhaps I mentioned that the discussions which had taken place with Russia, with Molotov, were unsatisfactory.

DR. SAUTER: In that connection, since you now refer to the discussion with Molotov, you are supposed to have told Defendant Funk in particular that Russia was making considerable claims on the Balkans and in respect to the Baltic Sea, and that because of these claims Hitler was reckoning with the possibility of war. Could that be correct?

LAMMERS: It is possible that we have talked about it, but I cannot remember for certain.

DR. SAUTER: And you know, Dr. Lammers, that in this connection an organization was established under the heading “Central Planning?” Do you know that?

LAMMERS: Yes.

DR. SAUTER: Defendant Funk was also made a member of the Central Planning, and I think that was at the end of 1943. Is it correct that Funk, when he joined the Central Planning, was no longer at all interested in the use of workers for German production, and why was that so?

LAMMERS: I believe that Funk’s only interest in the Central Planning was to receive raw materials for civilian production.

DR. SAUTER: For civilian production at home?

LAMMERS: Yes, at home. That was his interest in the Central Planning, since he was responsible only for the distribution of these economic goods, and civilian production had been transferred to Minister Speer.

DR. SAUTER: When?

LAMMERS: I think that was at the very moment when the Minister for Armament and Munitions was converted into a Minister for Armament and War Production. I think that was in 1942. Thus Funk was, of course, very interested in raw materials; but the employment of labor, in my opinion, interested him very little, since he did not have enough raw material at all to allow civilian production to go on.

DR. SAUTER: And then, Dr. Lammers, I have one last question: Can you remember that Defendant Funk in the year 1944—it is supposed to have been in February and also a few times during subsequent months—visited you and told you of his trouble because of the unsatisfactory position which he was occupying as Minister of Economics and Plenipotentiary for Economics, and that on this occasion he talked to you about the question of whether his conscience would allow him to retain his position as President of the Reichsbank and Reich Minister of Economics, and, if so, why he did so and why he did not place this office at the disposal of somebody else? Perhaps you can say something about this?

LAMMERS: I have frequently discussed these questions with Funk.

DR. SAUTER: When?

LAMMERS: In 1943, but particularly afterwards in 1944. I know that he was considerably worried about this and that he wanted very much to have an opportunity to take his worries to the Führer personally. If he did remain in office then it was only because he realized that during wartime he could not resign from his post; that would not be the right thing for a good German, to resign during wartime. But he had the most fervent wish to be able to report to the Führer about the economic situation and mainly about the particular impressions which the Gauleiter in the individual districts had. He had the most fervent wish, once for all, to report to the Führer and learn at least something about the war situation and talk about the question of ending the war. That was since the beginning of September. I made several attempts to submit the matter to the Führer; and I nearly succeeded later by camouflaging the real reason and pretending there was another important reason, some question of finance.

I submitted the matter to the Führer; but the Führer sized up the situation, and, although Herr Funk had been waiting at my office for days for the report, he refused the request, probably because of Bormann’s efforts towards this end. With the best intentions Funk did not succeed in seeing the Führer and I did not succeed in taking him to the Führer.

DR. SAUTER: Mr. President, I have otherwise no further question.

DR. RUDOLF DIX (Counsel for Defendant Schacht): Mr. President, if you wish to close the session at 5 o’clock, I must say that I shall not have finished by 5 o’clock; and I am reluctant to break off my examination. I leave it up to the Tribunal whether we should extend the session or whether we should break off now.

THE PRESIDENT: I think you had better go on, Dr. Dix; we have nearly 10 minutes.

DR. DIX: Witness, other witnesses and you too—you on the strength of vast experience and your position as Chief of the Reich Chancellery from the seizure of power until the collapse—have stated that applications for resignation were prohibited by Hitler. I therefore do not want to put any more questions on that subject; I merely want to discuss the attempts to resign which Schacht actually made. I ask you first of all to answer the general questions with “Yes” or “No.”

Did Schacht send in applications for resignation or not?

LAMMERS: Yes.

DR. DIX: I should now like to discuss with you the individual applications for resignation. I cannot expect you, without any help, to recall individual occasions. I permit myself therefore to help your memory along a little in connection with the first question.

Please recall March 1937, when Schacht stopped Reichsbank credits, that is, gave notice with reference to them and you visited him in connection with this. Was that the first application for resignation?

LAMMERS: I remember that very exactly, since Herr Schacht’s application for resignation was very unpleasant for Hitler; and he gave me the task of straightening the matter out with Schacht. Thus I made several personal visits to Schacht, but he refused to withdraw his application for resignation; and he gave, as his reason, the fact that he could not approve any longer the Führer’s credit policy and that he was afraid of inflation and would have to protect the German nation from that. As for the freedom of action, he had to...

THE PRESIDENT: Dr. Dix, is it necessary to go into details? We gather that there are several offers to resign. Is it necessary to go into the details of each one?

DR. DIX: In that case we leave it. It is enough for me, Dr. Lammers, if you confirm that in March 1937 Schacht made his first application for resignation.

LAMMERS: And then there was a compromise and Herr Schacht, first of all, was to remain in office 1 more year, although the law called for a term of 4 years.

DR. DIX: Please try to remember what happened further in August 1937. Göring had issued a decree concerning mines. It was Schacht’s view that this was an unwarranted interference with matters under his jurisdiction. Did a second application for resignation follow?

LAMMERS: Yes.

DR. DIX: And did not Schacht write a letter on that occasion addressed to Göring, 5 August, a copy of which he sent to Hitler? Can you remember that?

LAMMERS: Yes. It was because of that letter that Hitler dismissed Schacht afterwards.

DR. DIX: Now we come to the war. Did Schacht also repeat his applications for resignation during the war? Please recall the summer of 1941 and a memorandum which Schacht sent to Hitler regarding the necessity of a speedy conclusion of peace?

LAMMERS: The first application for resignation was handed in because it had been prohibited to listen to foreign broadcasting stations. Schacht was thereby forbidden to listen to many foreign stations; and he complained about it and handed in an application for resignation, whether in writing or verbally, I do not know. The request was refused, and later he submitted a memorandum in which he discussed the end of the war and the political and economic situation. I had to tell Schacht, in answer to this memorandum, that the Führer had read it and had nothing to say in reply. Thereupon, in 1942, Schacht again asked me to ask the Führer if he was disposed to receive another memorandum. At this the Führer gave me the order to write to Schacht and tell him to refrain from submitting any further memoranda.

DR. DIX: I could, Mr. President, recall the important points of this memorandum of the summer of 1941 for the witness. If the Tribunal is familiar with the details of this memorandum, which we do not have and which we could ascertain only on the basis of the witness’ memory by asking him questions, then I should like to present to him the exact contents of this memorandum. If on the other hand the Tribunal is of the opinion...

THE PRESIDENT: Have you the memorandum?

DR. DIX: No, we do not have the memorandum—only in memory—that is to say, Schacht remembers it.

THE PRESIDENT: If the memorandum is lost and you can prove the loss, you can put the contents of it to the witness. If the contents are not relevant it is no good even for the witness. Are the contents of the document relevant?

DR. DIX: These points which I want to submit I do consider relevant. It is not very long either. It is not long.

THE PRESIDENT: So far as the question of proof is concerned, the rule is, I think, if the document has been lost, you can prove the contents of it and you can put it to the witness. Yes, you can put the main points to him, Dr. Dix.

DR. DIX: The question which you put to me involves considerable responsibility. At the moment I can merely assure you that I am convinced that the memorandum has been lost; but whether I can prove it, the negative fact that it is lost, that is something I cannot say at the moment. I am convinced it is lost.

THE PRESIDENT: Herr Schacht presumably is going to say it was lost. You, of course, cannot prove it yourself but I mean you can prove it by Schacht.

DR. DIX: Yes, Schacht will prove it when he becomes a defendant on the stand.

[_Turning to the witness._] This was in September 1941, that is to say, after the great successes in Russia by the German Army. Then Schacht wrote in this memorandum to Hitler that Hitler had now reached the peak of his success and that this was the most favorable moment for him to aim at peace. In the case of any further duration of the war...

MR. DODD: I suggest, would it not be more proper for counsel to ask this witness, first of all, whether or not he recalls the contents of the memorandum before reading what purports to be the contents?

THE PRESIDENT: I think he should, yes.

DR. DIX: I did not remind him of the contents; I just wanted to recall to him the individual points. Dr. Lammers has already said that.

THE PRESIDENT: I think you had better put it to him sentence by sentence and not all at once.

DR. DIX: But, I am not proposing to read it, Your Honors, I am merely trying to repeat the contents as Schacht remembers them. I cannot read it, of course, since I do not know it.

THE PRESIDENT: Would you ask the witness if he remembers what the contents were, not putting it in a leading form.

DR. DIX: Yes, I shall certainly ask him. But I think he has already answered, that he no longer remembers all the details, therefore I wanted to aid his memory by recalling the main points.

THE PRESIDENT: Ask him what he does remember of it.

DR. DIX: Well then, Dr. Lammers, without my presenting the main points to you, what do you remember?

LAMMERS: I think that in this memorandum Herr Schacht set forth the economic capacities of Germany and of foreign countries, that he pointed out that this period in 1941—I believe it was in the autumn—was the most favorable moment for peace negotiations, for bringing the war to an end. He also explained the world situation but I cannot remember how. He sketched the political situation in other countries. He talked about America, Italy, Japan, and he compared the factors. After the Führer had looked at the memorandum he put it aside and he said, “I have already disapproved of that; I do not want that.”

Further details I do not know.

DR. DIX: When you mention “other countries,” do you remember that he stated that Italy’s withdrawal was merely a question of time, since the opposition group around the King would not rest until Mussolini was brought down?

LAMMERS: Yes, it is possible that it did say that, but I cannot remember definitely.

THE PRESIDENT: One moment. The Tribunal will adjourn now.

[_The Tribunal adjourned until 9 April 1946 at 1000 hours._]

ONE HUNDRED AND THIRD DAY
Tuesday, 9 April 1946

_Morning Session_

[_The witness Lammers resumed the stand._]

THE PRESIDENT: Yes, Dr. Dix.

DR. DIX: Witness, it has been pointed out that I am putting my question too soon after your answers and that you are replying to my questions too quickly.

MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): I should like to take up a matter before the examination of the witnesses, if I may ask the indulgence of the Tribunal.

I regret to say that this matter of printing documents has proceeded in its abuses to such an extent that I must close the document room to printing documents for German counsel. Now, that is a drastic step, but I know of nothing less that I can do and I submit the situation to the Tribunal.

We received from the General Secretary’s office an order to print and have printed a Document Book Number I for Rosenberg. That document book does not contain one item in its 107 pages that, by any stretch of the imagination, can be relevant to this proceeding. It is violent anti-Semitism and the United States simply cannot be put in the position, even at the order—which I have no doubt was an ill-considered one—of the Secretary of the Tribunal, of printing and disseminating to the press just plain anti-Semitism; and that is what this document is. Now, I ask you to consider what it is.

I should say it consists of two kinds of things: anti-Semitism and what I would call, with the greatest respect to those who think otherwise, rubbish. And this is an example of the rubbish we are required to print at the expense of the United States and I simply cannot be silent any longer about this:

“The philosophic method suited to bourgeois society is the
critical one. That holds true in a positive as well as a
negative sense. The domination of purely rational form, the
subjugation of nature, the freeing of the autonomous
personality, all that is contained in the method of thinking
classically formulated by Kant, likewise, the isolation of the
individual, the inner depletion of nature and community life,
the connection with the world of form which is contained in
itself and with which, all critical thinking is concerned.”

Now, what in the world are we required to print that for?

Let us look at some of the anti-Semitism. Now, let us look at what we are actually asked here to disseminate, Page 47 of this document book:

“Actually, the Jews, like the Canaanites in general, like the
Phoenicians and Carthaginians, represent a bastard
population...”

And it goes on largely upon that theme. Then it goes on:

“The Jews are arrogant in success, obsequious in failure, shrewd
and crooked wherever possible, greedy, of remarkable
intelligence, but nevertheless not creative.”

I do not want to take this Tribunal’s time, but last night we received an additional order to print 260 copies more of this sort of thing, and I have had to stop the presses; and we cannot accept the duty of printing this stuff unless it is reviewed by the Tribunal.

Most of this book, as far as we have been able to check it, has already been rejected by the Tribunal; and nobody pays the least attention to the Tribunal’s rejection, and we are ordered to print. Now, with the greatest deference, I want to say that the United States will print any document that a member of this Tribunal or an alternate certifies, but we can no longer print these things at the request of the German counsel nor at the ill-considered directions which we have been receiving.

DR. THOMA: At the moment I want merely to explain that on 8 March 1946 I was expressly given permission by the Tribunal to quote excerpts from philosophical books in my document book. Consequently, I have based my work on the assumption that Rosenberg’s ideology is an offspring of the so-called new romantic philosophy and have quoted philosophical excerpts from serious new romantic philosophical works, works which have been recognized by science.

Secondly, Your Honors, I have earnestly endeavored not to submit any anti-Semitic books. What has just been read to me must be simply translation mistakes.

I have quoted the work of a famous Evangelical theological teacher, Homan-Harling; and secondly, I have quoted a work of a recognized Jewish scholar, Isma Elbogen; and, thirdly, I have quoted from an excerpt from the periodical _Kunstschatz_ written by a Jewish university professor, Moritz Goldstein. I have deliberately refrained from bringing anti-Semitic propaganda into this courtroom. I request, therefore, that the documents quoted by me be investigated to see whether they are really trash and literary rubbish. I still maintain that the works which I have quoted were written by American, English, and French scholars—recognized scholars—and that the quotations which Mr. Justice Jackson has just read about the bastard race, _et cetera_, come as far as I know, from non-German scholars. But I should have to look at that once more. At any rate, may I ask the Tribunal that my compilation of excerpts be investigated to see whether it is in any way nonscientific or not pertinent.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal thinks that there must have been some mistake in sending to the Translation Division this book of documents without having it presented to Counsel for the Prosecution first. The Tribunal made an order some time ago, saying that Counsel for the Prosecution should have the right to object to any document before it is sent to the translation department.

Some difficulty then arose because documents had been mostly in German. There was a difficulty about Counsel for the Prosecution making up their minds as to their objections until they have been translated. That difficulty was presented to us a few days ago; I think you were not in court at the time, but no doubt other members of the United States counsel were here. We had a full discussion on the subject, and it was then agreed that Counsel for the Prosecution should see Counsel for the Defense and, as far as possible, discuss with them and point out to them the documents which Counsel for the Prosecution thought ought not to be translated, and, in case of disagreement, it was ordered that the matter should be referred to the Tribunal. So that so far as the Tribunal are concerned, they have done everything that they can to lighten the work of the Translation Division. Of course, insofar as documents have been presented to the Translation Division for translation, which the Tribunal had already denied, that must have been done by mistake because the General Secretary’s office, no doubt, ought to have refused to hand over to the Translation Division any document which the Tribunal had already denied. But the general principles which I have attempted to explain seem to the Tribunal to be the only principles upon which we can go, in order to lighten the work of the Translation Division. That is to say, that Counsel for the Prosecution should meet Counsel for the Defense and point out to them what documents are so obviously irrelevant that they ought not to be translated.

MR. JUSTICE JACKSON: Well, if Your Honor pleases, I do not think it is a mistake. It arises from a fundamental difference which this Tribunal has not, I think, made clear.

What the issues here are—counsel says that he thinks he should try the new romanticism of Rosenberg. We are charging him for the murder of 4 or 5 million Jews. The question here is one of ideology. The only purpose in ever referring to the anti-Semitic sentiments is the motive. There is no purpose here in trying the question of anti-Semitism or the superiority of races, the fundamental difference in viewpoint. They believe—and, of course, if they can try this issue with this Tribunal as a sounding board, it forwards their purpose—they believe in trying that issue.

The first thing we get is this book with the order to print it. We cannot tell when they are going to present something in the document room. I simply must not become a party to this spirit of anti-Semitism. The United States cannot do it. And the Tribunal’s directions to counsel are simply being ignored; that is the difficulty here.

THE PRESIDENT: I do not know if you have in mind the order which we made on 8 March 1946, in these terms:

“To avoid unnecessary translation, Defense Counsel will indicate
to the Prosecution the exact passages in all documents which
they propose to use, in order that the Prosecution may have an
opportunity to object to irrelevant passages. In the event of
disagreement between the Prosecution and the Defense as to the
relevancy of any particular passage, the Tribunal will decide
what passages are sufficiently relevant to be translated. Only
the cited passages need be translated, unless the Prosecution
require the translation of the entire document.”

Now, of course, if you are objecting to that ruling on principle, well and good, but the ruling seems to the Tribunal, up to the present at any rate, to be the best rule that can be laid down, and we reiterated it after full discussion a very few days ago.

MR. JUSTICE JACKSON: I am calling Your Honor’s attention to the fact that Your Honor’s order is not being observed and that we are being given these documents to print without any prior notice. The boys in the pressroom are not lawyers; they are not in the position to pass on these things. I do not have the personnel; my personnel, as this Tribunal well know, is reduced very seriously. I cannot undertake it in the pressroom here after an order comes from the General Secretary’s office—a review of what can be done.

THE PRESIDENT: Well, but did you...

MR. JUSTICE JACKSON: The order is not being carried out; that is the difficulty.

THE PRESIDENT: You mean that none of these documents were submitted to the Counsel for the Prosecution?

MR. JUSTICE JACKSON: The documents were not submitted to Counsel for Prosecution. They came to the pressroom with an order to print from the General Secretary’s office. That is what I am arguing, a grievance; one I shall have to remedy. We are in the very peculiar position, Your Honor, of being asked to be press agents for these defendants. We were ordered to print 260 copies of these stencils that I have. The United States cannot be acting as press agents for the distribution of this anti-Semitic literature, which we have protested long ago was one of the vices of the Nazi regime, particularly after they have been argued on and have been denied by the Court. This, it seems to me, is a flagrant case of contempt of court, to put these documents through after the Tribunal has ruled on them and ruled out this whole document book of Rosenberg.

THE PRESIDENT: Certainly, so far as these documents have been denied, they ought never to have been submitted to the translation department. Might not the Tribunal hear from Sir David Maxwell-Fyfe, because he was here on the previous occasion, the last occasion that we dealt with this subject?

SIR DAVID MAXWELL-FYFE: May it please Your Lordship, my understanding of the matter is that the Rosenberg documents had been processed—that was what we were informed—before our last discussion of the matter, and I therefore suggested to the Tribunal that the practical application of the proceeding should begin with the documents of the Defendant Frank. That is what I said to the Tribunal.

THE PRESIDENT: Then my recollection is that, after we made this rule of 8 March 1946, Counsel for the Prosecution—I think all four prosecutors, and I rather think the document came in signed by the United States, but I am not certain of it—pointed out that there were great difficulties in carrying out this ruling of 8 March, because of the difficulty of Counsel for the Prosecution making up their minds about what documents were irrelevant, having regard to the fact that they had to be translated for them to do it. Is that not so?

SIR DAVID MAXWELL-FYFE: That difficulty arose with Dr. Horn over the Ribbentrop documents.

THE PRESIDENT: But a written application was made to the Tribunal to vary this rule of 8 March 1946, and it was then after that that we had the subsequent discussion in open court when we came to the conclusion that we had better adhere to the ruling of 8 March 1946. And I see from Rosenberg that the documents, these documents, had been processed already beforehand.

SIR DAVID MAXWELL-FYFE: Since our last discussion, of course, we have been trying to get this procedure going. Dr. Dix has met Mr. Dodd and me on the Schacht documents, and I understand that other learned Defense Counsel are making arrangements to meet various members with regard to theirs. But before this time, before the matter arose sharply on the Ribbentrop documents, there had not been any discussion with Counsel for the Prosecution. That is the position.

THE PRESIDENT: But what I am pointing out is that that was because the Prosecution were not carrying out the rule of the 8th March 1946. It may have been impossible to carry it out, but they were not carrying it out.

SIR DAVID MAXWELL-FYFE: I do not know exactly how Your Lordship means, “The Prosecution were not carrying it out.”

THE PRESIDENT: Both the Prosecution and the Defense, I suppose; because the application which came to us after the ruling of 8 March 1946 was made on behalf of the Prosecution that they had such difficulties in getting translations for the documents that they proposed another ruling.

SIR DAVID MAXWELL-FYFE: I am sorry, My Lord, if we have not carried it out. It is the first time that anybody suggested this to me...

THE PRESIDENT: I do not mean to criticize you.

SIR DAVID MAXWELL-FYFE: We all have taken immense trouble. Everyone co-operated in every way. I was not aware that we were at fault; I am very sorry if we were.

THE PRESIDENT: I do not mean that, Sir David, but I think there was a difficulty in carrying this out, and I think there was a proposal that the rule should be varied. I will look into that and see whether I am right about it. I remember seeing such an application, and then we had the subsequent discussion in open court in which we decided to adhere to this rule of 8 March; and no doubt this difficulty has arisen, as you pointed out, because of the Rosenberg documents’ having been processed before.

Probably the best course would be now...

[_There was a pause in the proceedings while the Judges conferred._]

Mr. Justice Jackson, wouldn’t the best course be for you to object in writing to all the documents which you object to, and then they will be dealt with by the Tribunal after argument.

MR. JUSTICE JACKSON: But, Your Honor, the Tribunal has once rejected the documents, and yet we get an order to print. The Tribunal’s orders are not being observed, and—I do not want to criticize counsel—but we have had no opportunity to pass on these. These stencils that I stopped running last night are not anything that has been submitted to us. They have no possible place in the legitimate issues of this Tribunal, and we will get nowhere talking to Dr. Thoma about it. He thinks their philosophy is an issue.

What I think must be done here, if we are going to get this solved, is that the Tribunal—if I may make a suggestion, which I do with great deference; I may be a biased judge of what ought to be done; I never pretended to complete impartiality—that the Tribunal name a master to represent it in passing these things. We won’t finish this by discussion between Dr. Thoma and anybody I can name. My suggestion is that an official pass on these documents before they are translated. If the master finds a doubtful matter he can refer it back to you. We should not be in the position either of agreeing or of disagreeing with them in any final sense, of course. I realize it is too big a burden to put on the Tribunal to pass on these papers in advance and too big a burden on the United States to keep printing them. Paper is a scarce commodity today. Over 25,000 sheets have gone into the printing of a book that has been rejected. I think there is no possible way except that a lawyer with some idea of relevance and irrelevance represents this Tribunal in passing on these things in advance, rather than leaving it to counsel.

I would not even venture to sit down with Dr. Thoma, because we start from totally different viewpoints. He wants to justify anti-Semitism. I think it is not an issue here. It is the murder of Jews, of human beings, that is an issue here, not whether the Jewish race is or is not liked by the Germans. We do not care about that. It is a matter of settling these issues.

COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U.S.S.R.): With the Tribunal’s permission, I would like to add a few words to what Mr. Jackson has said.

I do not wish to criticize the counsel either, but the Tribunal has already said that there may possibly be a mistake. And I would like to draw the attention of the Tribunal to the fact that this mistake took place too often. I will permit myself to remind you about the documents in connection with the Versailles Treaty, which were rejected by the Tribunal in the most decided manner as not relevant; the Tribunal will remember also that a considerable amount of time was spent in listening to the reading of the documents presented by Dr. Stahmer and Dr. Horn. And I would like to remind the Tribunal about another fact, when another decision of the Tribunal was violated. Perhaps it was done by mistake; perhaps not. It took place when one of the documents which was presented by Dr. Seidl was published in the papers before it was accepted by the Tribunal as evidence. And it seems to me that it would be very useful if the Tribunal could, for the purpose of saving time, guarantee more effectively that the rules set out by the Tribunal should be obeyed, not only by the Prosecution, who always follow them carefully, but also by the Defense Counsel.

THE PRESIDENT: Yes, Dr. Thoma?

DR. THOMA: I am very much disconcerted by the reproach that I have not followed the instructions of the Tribunal. During discussions regarding which documents were admissible, I explained in detail just which philosophical works I want to quote from and why. It has been stated during the case for the Prosecution, that Rosenberg invented his philosophy for the purpose of aggressive war and for the committing of war crimes, _et cetera_. I considered it my duty to prove that this so-called national...

THE PRESIDENT: Will you tell the Tribunal where the Prosecution states that he invented his philosophy, whether in the Indictment or in the presentation?

DR. THOMA: I can prove it. It appears in the Churchill speech; and also in the speech by Justice Jackson there are similar expressions that Rosenberg’s philosophy had led to that.

THE PRESIDENT: You say it appears in Churchill’s speech?

DR. THOMA: Yes.

THE PRESIDENT: What have we got to do with that? I asked you whether the Prosecution alleged it in the Indictment or alleged it in the course of the presentation of the Prosecution, and you answer me that Mr. Churchill...

DR. THOMA: No, it is not Churchill, but rather Mr. Justice Jackson. In his presentation he said things, the sense of which was about the same. Consequently I felt that it was my duty to present to the Tribunal that philosophy which, before Rosenberg, raised similar arguments and which is indeed the philosophy of the entire world.

Regarding the presentation of the document book, the following happened: The Translation Division asked me to submit my document book without delay, as they had time at the moment to deal with it before it was handed to the Tribunal. So the Translation Division actually received this document earlier than the Tribunal. But the Tribunal in their resolution of 8 March 1946 had expressly given me permission to use quotations from these philosophical works; they refused me only the anti-Semitic works of Goldstein, Elbogen, and Homan-Harling. Consequently I immediately informed the Tribunal that documents were contained in my document book which had not been granted me.

And now, Your Honors, something of great importance: I have just ascertained that the quotation which Mr. Justice Jackson has just read comes from a French research scholar, Mr. Larouche.

Secondly, I have marked with red pencil those passages in my document book which were to be translated. The passage quoted by Mr. Justice Jackson was not marked in red and was not meant to be included in the document book. This is a regrettable error.

Thirdly, I should like to refer to the fact—my attention has just been called to this—that the passage reads literally, “Rosenberg developed the philosophical technique of the conspiracy and thus created an educational system for an aggressive war.” That was the expression in Mr. Justice Jackson’s presentation. I therefore felt justified in pointing out that this entire philosophy was already in the air and was a philosophical necessity which had to make its appearance. I therefore believe that I have cleared myself of the accusation of not having obeyed the ruling of the Tribunal.

THE PRESIDENT: Well, Dr. Thoma, were these documents sent to the pressroom or were they sent to the translation department?

DR. THOMA: In my opinion, they were sent to the Translation Division, since this department had told me that they had time at the moment, but expected a terrible rush soon. I had my document ready and I gave it to the Translation Division.

THE PRESIDENT: Mr. Justice Jackson stated apparently that they had been sent to the pressroom and were being disseminated to the public in that way, but on the outside of each document book there is this notice that they are not to be publicized until they are presented before the Tribunal in open court and then only that portion actually submitted as evidence. Therefore, any documents which are sent to the translation room are not disseminated, or ought not to be disseminated to the press and ought not to be publicized until they are presented before this Tribunal.

There seem to be a number of misunderstandings about this which seem to have arisen principally from the fact that you submitted your documents to the translation department before they had been submitted to the Tribunal, and therefore some of them got translated which were subsequently denied by the Tribunal. Is that right?

DR. THOMA: No, Your Honors, that is not right. First of all, this was actually a matter of internal procedure in the various offices of the Translation Division. I gave the Translation Division this document book because they asked me to do so, and then...

THE PRESIDENT: I did not say who had asked whom. I said that the translation department got the documents for translation. They received them before they were submitted to the Tribunal, and, in consequence, they translated certain documents which were subsequently denied by the Tribunal.

DR. THOMA: The only rejected works were, as is known, the three anti-Semitic works. That these documents from the courtroom reached the press I naturally did not know. I was merely trying to lighten the work of the Translation Division. I subsequently informed the General Secretary that I had submitted the document book and I referred him to it. The quotations from my philosophical works, however, were granted to me later. I want to point out again that I was always of the opinion that this was an entirely internal matter and that these documents could by no means reach the press. I was not informed about that. I am very well aware that quotations not read in court are not supposed to reach the press. I have adhered to that rule. Nothing has as yet been stated in court and therefore it should not reach the press.

THE PRESIDENT: As you no doubt know, the first granting of documents when they are applied for is expressly provisional, and afterwards you have to submit your documents in open court, as Dr. Horn did, and then the Tribunal rules upon their admissibility; and this other rule was introduced for the purpose of preventing undue translation. It was decided then that after the Tribunal had given its provisional ruling as to what was provisionally relevant, you should then submit the passages you wanted to quote, to the Prosecution Counsel to give them an opportunity to object, so that the translation department should not be unduly burdened. That, as you have explained and as Sir David Maxwell-Fyfe has said, was not carried out in your case, partly possibly, because, as you say, the Translation Division was prepared to undertake certain work. Therefore, documents were submitted to them which the Tribunal subsequently ruled to be inadmissible.

MR. JUSTICE JACKSON: May I correct something which has led to misunderstanding? I did not mean to say that counsel had sent the documents to the press in the sense of a newspaper press. They were sent to the press, the printing press. They were, of course, printed. The 260 copies we were ordered to print contained the usual release notice that they were not to be released until used. They have not reached the press, and I did not mean to say that they had been sent to the newspaper press; they were sent to our printing press.

THE PRESIDENT: Yes, Dr. Dix?

DR. DIX: Your Honors, before a resolution is made to the matter under discussion, I should like to make just a few remarks, not referring to the case of Rosenberg but to the Defense in general. Very serious accusations against the entire Defense have been raised. The expression was used that the Prosecution was not the press agent of the Defense. The accusation was raised that the Defense were trying to make propaganda, and then these accusations reached their peak in the most serious charge which one can possibly make in reference to a participant in a trial, that of contempt of Court.

In the name of all Defense Counsel I oppose these heavy accusations with the best and strongest argument possible, that of an absolutely clean and pure conscience in this respect. Anyone who has listened to the debate of the last 30 minutes must have recognized that the differences of opinion, which have cropped up here and on which the Tribunal will now have to announce a decision, are due again to misunderstandings which have occurred in this courtroom.

Mr. Justice Jackson has generously made it clear that he was not talking about the newspaper press when he said “press,” but about the printing press. My colleague Dr. Thoma has stated that the only reason why these documents went to the Translation Division, was the fact that the Translation Division, very understandingly and reasonably from their point of view, had said, “We do not have very much work at the moment. Please let us have it, and we can start to translate it.” I believe that we could avoid all these difficulties if we mutually agree that both parties, the Prosecution and the Defense, are working with good will and loyalty, and that the thought of deliberately disregarding the rulings of the Tribunal is far from us. Errors and mistakes can always happen. May I just remind you that this leakage of news to the press, that some announcements were released to the press before they were actually the subject of proceedings here in court, that that was something that happened quite frequently at the beginning of the Trial. I do not want to mention examples since the Tribunal knows that it was not the Defense. I do not know who it was; at any rate it was not the Defense. But I make no charges. Things like that do happen, and such an apparatus as this Trial must have a breaking-in period. There was no ill will at that time either. But I remind you that it was we, the Defense—I was the spokesman—who quite energetically supported the ruling that only such matters should reach the press as had been introduced into the record here in the public sessions, and that it was after that that the Tribunal passed its ruling. Previously it had been different.

I never considered that an insult, but rather merely the God-given dependence of human beings. For instance, it was impossible for me to get the Charter, the basis of our Trial, at the beginning of the Trial, but eventually it was graciously placed at my disposal by the press.

Thus whenever so complicated an apparatus is set in motion, there are naturally many errors and mistakes. But we have now already begun with Sir David to deal with questions of documents in the most practical manner possible. As long as we had only the German text, we conferred with the Prosecution in order to find out what passages the Prosecution believe they can object to. There were technical difficulties, linguistic difficulties, as long as we had only the German text and the Prosecutors spoke other languages. I spoke to the Prosecution, and we realized the problem confronting the other partners. But that, too, could be solved with good will; when necessary we used an interpreter. Thus it was an excellent and a practical method, first, for saving the Translation Division unnecessary work and, secondly, for saving the Tribunal unnecessary decisions. And it was working beautifully; it had a good start. I want to claim for the Defense—and I am sure that Sir David will not contradict me—that this was really our idea as well as the practice to co-operate in coming to an unofficial agreement beforehand by conferring with the Prosecution.

The Defense in this Trial are in a very difficult position. I think every one of you will admit that human ability and an almost exceptional degree of political tact is required in order to defend in this Trial without ever making some small mistake. At any rate, I, for myself, do not claim that I am absolutely sure of myself in this respect or that I will not perhaps commit some small faux pas. We find ourselves in a very difficult situation, difficult as far as the world is concerned, difficult as far as the Tribunal are concerned, and difficult as far as the German public is concerned.

May I urge Mr. Justice Jackson to appreciate our difficult task and not to raise such accusations as those which, unfortunately, we often have to read in the German press. We cannot always, when we are attacked in newspaper articles in which unjust accusations are raised against us, run to the Tribunal and say, “Please help us.” The Tribunal have more important tasks than that of continuously protecting the Defense.

However, as to the particular accusation that National Socialist propaganda or that anti-Semitic propaganda is being made here, I think I can say, with a clear conscience, that none of the Defense Counsel, no matter what his own philosophy or what his political views in the past may have been, has ever dreamed of trying to use this courtroom to make ideological propaganda for the dead—I emphasize the word “dead”—world of the Third Reich. That would not only be wrong; it would be worse than a wrong; I might say, using Talleyrand’s words, that it would be unbearable stupidity to do a thing like that.

But, just because we are being attacked and because we cannot defend ourselves, and because we cannot decently ask the Tribunal to protect us against every accusation, I am asking Mr. Justice Jackson to clear the atmosphere somewhat and to state to us that these serious accusations—contempt of Court, anti-Semitic propaganda, or National Socialist propaganda, and so forth—were not really meant to be raised seriously.