the position correctly in paragraphs six and seven of his affidavit. I will summarize it for you and believe me I will be most pleased to read anything of which you have any doubt. He puts it in this way. That in November, 1932 you thought that the general situation and the Nazi Party, in particular, could be controlled if the President gave you the power to make decrees under Article 48 and you had the support of the Reichswehr and the police and at that time General von Schleicher disgreed because he thought that the Reichswehr was not capable of keeping order in Germany. Is that right? graph of the constitution but constitutes a breach of the constitution. Otherwise it is correct. control, is that what you mean?
A Yes. As I have said here on the first of December he gave this assignment to me. after you had failed to get Hitler into your government, you desired to rule by decree and by keeping control with the Reichswehr and General von Schleicher said that it could not be done?
A No, that is not true. After President von Hindenburg had decided that he did not want to break the constitution he appointed General von Schleicher Reichschancellor. At that time Mr. von Schleicher wanted to create a majority by splitting the party and , of course, I supported that attempt of Mr. von Schleicher.
Q Just in case it is any mistake of mine may I just give you Meissner's own words, It is paragraph 5, page 44 of the document book 11A. I think, defendant, it would be convenient for you to follow it if you do not mind so that there is no possibility of mistake.
Q It is paragraph 5 of Herr Meissner's statement.
"Papen's re-appointment as Chancellor by President Hindenburg would have been probable if he had been prepared to take up an open fight against the National Socialists, which would have involved the threat or use of force.
Almosttup to the time of his resignation, Papen and some of the other ministers agreed on the necessity for pressing the fight against Nazis by employing all the resources of the State and relying on Article 48 of the Constitution, even if this might lead to armed conflict. Other ministers, however, believed that such a course would lead to civil war.
"The decision was provided by Schleicher, who in earlier times had recommended energetic action against the National socialists even if this meant the use of police and army. Now, in the decisive cabinet meeting, he abandoned this idea and declared himself for an understanding with Hitler."
Is that correct?
A In part it is correct, and it in part it is not correct.
A My re-appointment as Chancellor by Hindenburg, as Mr. Meissner says, would have been possible if I had been ready to wage an open battle against the Nazis. That is completely false historically. On 1 December I suggested to von Hindenburg to violate the constitution and wage open battle against the Nazi Party. Mr. von Schleicher contradicted that. That is the historical truth. graph 6 of the same document, about the second sentence: it begins :
"When it became clear that Hitler was not willing to enter Schleicher's cabinet and that Schleicher on his part was unable to split the NationalSocialist Party, as he had hoped to do with the help of Gregor-Strasser, the policy for which Schleicher had been appointed Chancellor was shipwrecked. Schleicher was aware that Hitler was particularly embittered against him because of his attempt to break up the Party, and would never agree to cooperate with him. So now he had changed his mind and decided to fight against the Nazis--which meant that he now wanted to pursue the policy which he had sharply opposed a few weeks before, when Papen had suggested it."
Is that right ?
Q Now, you see-- I want to get this position quite cleqr. You have told us that you had approached Hitler first in August; before you approached Hitler you had already legalized the position of the SA and the SS, which had been made illegal by Chancellor Bruening. You did that on 14 June, didn't you ? SA, the terror of the streets ? came about. The reason was to bring Hitler and his party to tolerate my cabinet. The second reason was that the prohibition against these formations was one-sided, if the Socialists' and communists' fighting formations were not also prohibited.
government, and get control of Prussia, and the Prussian police under your own hand ? of Prussia and the Prussian police under your own hands, had you not ?
A I did not have the Prussian police in my hands. The Reich Commissar for Prussia, whom I had appointed--a very moderate man-- now governed the police. to dictate all lines of broad policy, and the Commissar for Prussia and every other Minister had to take his broad policy from you; wasn't that right ?
AAfter I had appointed a commissar. I had the right to determine the general lines of policy for Prussia. made at Essan in November 1933, where you speak about this time.
SIR DAVID MAXWELL FIVE : It is Document Book 11, page 54, and it is page 47 of the German document book. BY SIR DAVID MAXWELL FYFE :
Q Now, you see the introductory words :
"Ever since Providence called upon me to become the pioneer of the national resurrection and the rebirth of our homeland, I have tried to support with all my strength the work of the National Socialist movement and its leader."
Is that true ?
Q I just asked you if it is true. I may come back to it again.
" Just as I at the time of taking over the chancellorship--" That is you taking over the chancellorship--'have advocated to pave the way to power for the young, fighting liberation movement."
fighting liberation movement to legalize the SA and to turn out the moderate government in Prussia and centralize the control of the police? Tell the Tribunal how you had paved the way to pow er for the young, fighting liberation movement, if it was not by doing that.
A Yes, I will say that very exactly . The program of the National Socialist arty provided for the liberation of Germany from the discriminations which had been imposed upon us by the Versailles Treaty. I have spoken here in detail about this. I have explained what efforts I made to obtain the cooperation of the big powers in this connection. We wanted to become a big power, from being a secondrate nation. you every opportunity of repeating what you said on that point, but I do want you to answer my question. If I am wrong in what I have put to you as the two things you had done to pave the way, just tell us quite shortly what else had you done to pave the wa y for this fighting liberation movement? That is the question. What had you done? the end of January 1933 there was no other way out, I formed a coalition at Hindenburg's request with the National Socialist Party. essary for Germany? in the government, had 36.8 per cent of all German votes in the presidential election, that that man and his party had to be included in the responsible government work. his personality, aims and program, was essential for Germany at that time?
A I do not know how a party which controlled 36.8 per cent of all German votes could be dealt with.
Q Look at your own words in the next paragraph of that letter. You do not seem to refer to merely electoral success.
"The kind Lord has blessed Germany by giving it in times of deep distress a leader who will lead it through all diseases and weaknesses, through all crises and moments of danger with the assured instinct of a statesman into a happy future."
Thatwas, shall we say--we won't say extravagant, but, rather, strong language for an ex-cavalry officer to use of a political figure if he did not think or if he did not want other people to think that he firmly believed in him. Did you really mean what you are saying there?
A I may say the following. After I had formed the coalition with Hitler, I was convinced that he would keep this pact of coalition, and repeatedly--not only in this speech--I professed my allegiance to Hitler and to our joint program, and I have already told the Court precisely why I took his part in thisspeech. This was a question of stating before the whole world that Hitler's solemn undertaking to keep peace was meant weriously, which we all emphasized.
Q Well, now, I am not going to delay. You understand that what I am putting to you, defendant, is this: That during the early months of your chancellorship you took action and tried to get Hitler to come in with you. When he refused you for the second time, you then, according to Meissner, were prepared to use force against him. When that was refused to you through Schleicher, you resigned. When Schleicher took over and got into difficulties, you turned around to Hitler again. That is what I am putting to you, and it was at your request, was it not, that you and Hitler had the meeting at the house of Kurt von Schroeder on 4 January 1933?
A No, that is a completely false conception. Unfortunately, the Court did not permit me to tell of this meeting on 4 January. request that the meeting took place?
A Yes, I am of an entirely different opinion. This meeting took place at the-
THE PRESIDENT: Will you ask him to tell us about that meeting on 4 January?
SIR DAVID MAXWELL FYFE: Yes, certainly; I am going to deal with it.
BY SIR DAVID MAXWELL FYFE:
Q Well, now, do you say that Hitler asked for the meeting? I am suggesting to you, you see, that von Schroeder, who was the intermediary, says that you asked for the meeting. Do you disagree with that?
A Yes, I am of an entirely different opinion. What Mr. Schroeder says doesnot correspond to the facts.
DR. KUBUSCHOK: I object to the use of this Schroeder affidavit. The document was to be submitted by the Prosecution. I asked that the witness be called. The Court asked the Prosecution to bring the witness. The Prosecution did not call him. Now, in cross-examination, the affidavit is to be used. I do not believe that that is permissible. The decision of the Court would be crossed. The Court decided to use the witness. Now it is being used without the witness.
SIR DAVID MAXWELL FYFE: My Lord, it is quite true. I should submit that it is a different matter, using it in cross-examination, when Dr. Kubuschok has put it in, as part of his own evidence, evidence from Schulthess' Calendar of European History, an account of this very meeting, which you will find in Volume 1, page 27, of his document book.
If evidence of this kind has been put in a document book, surely, then, I am entitled to challenge that evidence in cross-examination by the affidavit of von Schroeder.
My Lord, I an sorry, I should have gone further. My friend has put in an actual statement from Baron von Schroeder, which appears on page 26. He says that, at the same time, Baron von Schroeder handed the following declaration to the County Bureau to correct the false press news. "The initiative for bringing about a discussion between former Reich Chancellor von Papen, as the representative of the widest national conservative circles, and Herr Hitler, as the sole leader of the National Socialist movement, emanated exclusively from me personally". von Schroeder has been put in, I am entitled to challenge that with another statement of von Schroeder.
DR. KUBUSCHOK: May I say something, Mr. President?
There are two entirely different things here. Sir David is referring to a document from Schulthess' Calendar of History. That is a joint communique of Papen and Schroeder, which was published in the papers at that time. I object, however, to an affidavit of the witness Schroeder, and I pointed it out at the time. The prosecution could see, at that time, that Schroeder was a suspected person under the indictment, and that he himself was concerned in the matter to such an extent that producing an affidavit would be possible only if we had an opportunity to question von Schroeder here. documents from a historical calendar of Schulthess. These docu ments,,in agreement with the prosecution, were accepted by the Court.
THE PRESIDENT: Sir David, can't you put the facts without relying on the document?
SIR DAVID MAXWELL FYFE: I can quite easily, My Lord; I will do that. BY SIR DAVID MAXWELL FYFE:
Q. At this meeting, defendant, didn't you suggest-- I art sorry, I apologize. I think we should have gotten the surroundings. First we will get where it was and who were there.
It was in Baron von Schroeder's house in Cologne, I think, or his flat in Cologne; isn't that right?
A. Yes, but no friend of mine.
Q. Now, the people who were in the house--and I will come to who were present at the meeting: Hitler's party was himself, the defendant Hess, Himmler, and Keppler, was it not?
A. That is possible, yes.
Q. Keppler is the gentleman of whom the Tribunal have heard as being in Vienna in March of 1938, isn't that so?
A. He was the man who was always in Hitler's entourage.
Q. Now, the actual discussion took place between you and Hitler, with von Schroeder present. Isn't that so?
A. No. Perhaps I may sketch this meeting to the court, according to their wish.
Q. Well, I think it is easier to put the facts to you. I will take them quite shortly. I am in the hands of the Tribunal.
Do you say that von Schroeder was not present?
A. Schroeder nay have been present at parts of the talk. I recall that in the main I talked to Hitler alone.
Q. The meeting started at about 11:30 in the morning, did it not? The meeting between you and Hitler?
A. Yes.
Q. And the first point that you raised was to explain to Hitler that although you had not been able to release the two Nazis who had been condemned for killing a Communist, you had tried to get President vonHindenburg to pardon them.
Isn't that right?
A. I recall that Hitler reproached me because of the death sentence against these National Socialists.
Q. And the second point that you raised as an explanation to Hitler was that it was not through any intrigue or machinations of yours that President von Hindenburg had refused to discuss with Hitler the question of Hitler being Chancellor. Wasn't that the second point, it wasn't you who had caused von Hindenburg to refuse the discussion?
A. Yes. I explained to him that my offer of the 13th of August, 1932, to him had been meant absolutely honestly.
THE PRESIDENT: I don't think that was an answer to your question.
BY SIR DAVID MAXWELL FYFE:
Q Didn't you explain to Hitler that it was not your fault that von Hindenburg had refused to discuss the question of making Hitler Chancellor in August of 1932-
Q When Hitler had met von Hindenburg?
A No, that is not right. According to the historical documents, Hitler had a talk on the 13th of August with von Hindenburg, and Hindenburg explained to him the reasons why he refused the Chancellorship for Hitler. the 4th of January, when you had that talk with von Hindenburg: "I want you to understand it wasn't my fault that von Hindenburg wasn't ready to discuss the question of you being Chancellor." Didn't you tell him that, that it wasn't your fault, that you thought von Hindenburg would have been ready?
A No, no; that is what Mr. von Schroeder says, but that is not right. Hindenburg and Hitler? If you don't accept what I suggest to you. What do you say? That is a matter of history.
Q No, no. What we want to know--if I may say so, with great respect to the Tribunal--is what you told Hitler on the 4th of January. What did you tell him, if you told him anything, about the position between President von Hindenburg and himself? about the course of the talk, I would have already explained that In the course of this talk I did nothing but call Hitler's attention to the fact of how necessary it was to reach an agreement with Mr. von Schleicher, how necessary it was to enter his government.
In other words, I continued my efforts, which I had made in 1932, to induce the Nazi Party to cooperate.
Hitler that he should go into a Schleicher Cabinet?
A On the contrary. I told him he should enter the Schleicher Cabinet.
Q That is what I put to you. I am suggesting that is entirely wrong. What you suggested to Hitler was that it would be a sound thing for the conservatives and nationalists, whose political views coincided with yours, to join with Hitler in forming a government, that you put to him what actually happened on the 30th of January, you suggested it to him at this meeting. Do you say that is untrue?
A Not one word is true; that is absolutely false. As proof of this, I state the following: Schleicher; that was on the 4th of January, in the afternoon, and he probably received it on the morning of the 5th. However, before Mr. von Schleicher received this letter of mine on the actual content of the talk, the morning papers of the 5th of January started a campaign against me, asserting that this talk with Schroeder contained disloyalty to Schleicher. I returned to Berlin and went to see von Schleicher immediately, and I explaine to him what the content of our talk had actually been. Mr. von Schleicher then published a communique on this subject.
Q But he wasn't the only person, you know, that published a communique. You and Hitler published a communique. suggestion from you was that you and Hitler would form a coalitio with the conservative forces behind you and the National Socialis forces behind Hitler. Now just look at the communique that you and Hitler issued.
SIR DAVID MAXWELL FYFE: We will give the defendant document 637. My Lord, this is a new document, which will become GB-496 BY SIR DAVID MAXWELL-FYFE:
Q Look at the foot of it, defendant, the end of the document:
"Adolf Hitler and Herr von Papen publish the following combined declaration:
'Against false deductions which are in many cases being circulated in the press regarding Adolf Hitler's meeting with the former Reich Chancellor von Papen, the undersigned declare that the conversation dealt exclusively with the possibility of creating a great national political United Front, and that in particular the opinions of both parties on the Reich Cabinet at present in power were not touched on at all within the framework of this general discussion."
Now, defendant, when you have been reminded of what you published yoursel* is it not correct what I have put to you, that you suggested to Hitler that you should form this coalition of conservatives and nationalists who agreed with you, and the Nazi Party under Hitler?
A No. This communique states two things: In the first place, I observe that the overthrowing the Schleicher cabinet or the replacing of it by another government, as the press asserts, was not discussed at all. Then I state that it is necessary to create "a great national political United Front". Mr. von Schleicher headed the same cabinet that I headed, with the same political forces. So if I celled on Hitler to enter this cabinet, then, that is exactly the same combination as if I had asked him to join my cabinet.
Q Defendant, I am not going to argue with you. If you say that that communique is your way of expressing that you had asked Hitler to take the Nazis into von Schleicher's government and that you had not discussed forming the coalition; if you say that that is what that communique expresses, I have no further questions, and I will passon to another point. I have made my suggestion, and I suggest the communique bears it out.
But now, let us come to the next action of yours. Do you deny that during January you were active in making contact with Hitler, and on Hitler's behalf with President von Hindenburg, in order to bring Hitler into the government? Or do you agree with that?
A That is true, and I will say in what respect. I had two official talks with Hindenburg.
On the 9th of January, when I returned to Berlin, I went from Reich Chancellor von Schleicher to Reich President von Hindenburg. Reich Chancellor von Schleicher, in the opinion that in the Schroeder talks I had been disloyal to him, had asked von Hindenburg not to receive me any more. I reported to von Hindenburg on the actual content of the Schroeder tall and after I had reached an agreement with von Schleicher, Hindenburg was also convinced that the whole thing had a big misunderstanding. talked to Hindenburg about these matters. Chancellery says about it, and see whether he con reinforce your memory. Would you look at Herr Meissner's affidavit, at the second part of Paragraph 6:
(A document was handed to the witness.)
SIR DAVID MAXWELL FYFE: My Lord, it is 11-A, Page 45, about seven lines from the foot of the page. BY SIR DAVID MAXWELL FYFE: second part, it begins:
"Schleicher first made these suggestions to Hindenburg in the middle of January . . .".
Then the next sentence is:
"In the meantime Papen had returned to Berlin, and through arrangements with Hindenburg's son, had several interviews with the President. When Schleieher renewed his demand for emergency powers, Hindenburg declared that he was unable to give him such a blank check and must reserve for himself decisions on every individual case. Schleieher, for his part, said that under these circumstances, he was unable to stay in government and tended his resignation on the 28th January 1933."
Then, Paragraph 7:
"In the middle of January, when Schleicher was first asking for emergency powers, Hindenburg was not aware of the contact between Papen and Hitler -particularly the meeting which had taken place in the house of the Cologne banker, Kurt von Schroeder. In the second part of January, Papen played an increasingly important role in the house of the Reich President, but in spite of Papen's persuasions, Hindenburg was extremely hesitant -- until the end of January -- to make Hitler Chancellor.
He wanted to have Papen as chancellor once more. Papen finally won him to Hitler with the argument that the representatives of the other right wing parties which could belong to the Government would re*---*ict Hitler's freedom of action. In addition Papen expressed his misgivings that, if the present opportunity should again be missed, a revolt of the National Socialists and civil war were likely."
Is that right?
DR. KUBUSCHOK: May I make a comment on the affidavit of Meissner? The case is similar to, but not quite the same as, the Schroeder case. The Meissner affidavit was not offered to the court during the proceedings. But during the prosecution's case it came to my knowledge that the Meissner affidavit was to be used. I talked to the prosecution and pointed out that I would not be satisfied with submitting the Meissner affidavit, but would insist on calling Meissner as a witness.
The reason is the same. The personality of the witness Meissner, who had a large part in these affairs, makes extreme caution advisable. The prosecution told me that they would not use the affidavit, and finally told me that they would not call Schroeder as a witness.
I had no reason to call the witness myself. Now I am in a position where in cross examination the affidavit is being employed without my having an opportunity to question the suspected witness Miessner before the court.
SIR DAVID MAXWELL FYFE: My Lord, concerning out position with regard to this affidavit, Major Barrington tells me that he did not have it when he presented the individual case against von Papen. I am using it now. If the Tribunal thinks there is sufficient divergence between what the witness accepts and the affidavit to justify it, I have not the slightest objection to Dr. Kubuschok's making application for Miessner to be cross examined.
THE PRESIDENT: What do you say to the allegation of Dr. Kubuschok that the prosecution says they were not going to use the affidavit?
SIR DAVID MAXWELL_FYFE: My Lord, I did not say that. Major Barrington who was with me, had no recollection of my saying that at all. Major Barrington certainly never said that. It was never our intention, because it clearly was a most important document for us to use.
THE PRESIDENT: What is the date of it?
SIR DAVID MAXWELL-FYFE: The 28th of November. We gave a copy to Dr. Kubuschok.
DR. KUBUSCHOK: Yes.
Mr. President, may I explain? An obligatory statement by the prosecution not to submit the affidavit and not to call the witness was not given. If an affidavit was used, I said I would call the witness. I asked the prosecution repeatedly, "Are you going to call the witness or not"?
They said, "No".
Then I said, "Then I have no interest in it. We will drop this whole subject. I will not call the witness."
THE PRESIDENT: The affidavit seems to have been made a long time ago.
SIR DAVID MAXWELL-FYFE: Yes, Mr. Lord.
THE PRESIDENT: Actually, it was almost as soon as the Tribunal began. I think that perhaps you ought to use the facts and not use the affidavit.
SIR DAVID MAXWELL-FYFE: My Lord, I am perfectly prepared to do whatever the Tribunal wants. It there is any question and Dr. Kubuschok wants Meissner for cross examination, as far as I am concerned, he can have him. I mean, I am in a slightly different position from that with respect to von Schroeder. As far as fairness is concerned, I want your lordship to understand that certainly none of my staff thought for a moment that the defense understood we were not going to use it, because we always intended to use it. We have a copy of this affidavit to the defense so that there would be ample notice of this affidavit.
DR. KUBUSCHOK: Yes; that was done, and I was grateful.
SIR DAVID MAXWELL FYFE: My Lord, I run really anxious not to occupy too much of the Tribunal's time.
I would rather go on and put the facts in and save any discussion about it.
A THE PRESIDENT: Very well, do that. BY SIR DAVID MAXWELL FYFE: with President von Hindenburg and then, I think, after the 18th of January, you had meetings with Hitler and after the 22nd of January, you had meetings with the defendant Goering, as he said in his evidence, isn't that so? the 22nd of January. that you began negotiations on the 18th but we won't quarrel about a day or two. The crucial meeting was the meeting which was arranged with Oskar von Hindenburg at the defendant von Ribbentrop's house, wasn't it?
A It was a preliminary talk; it was the first contact with the National Socialists, with Hitler, and with Goering. which lasted for about an hour, at that Meeting at von Ribbentrop's house; isn't that so?
A That is possible. I don't recall. come Chancellor in the new government and that he would bring into the government the defendant Frick as Minister of the Interior and the defendant Goering as Minister without portfolio and he, himself, would head the government as Chancellor?
A No; on the 22nd, we did not reach any agreement. hadn't it? began these talks after it was certain that Mr. von Schleicher could not form a government after the attempt of the split of the Nazi party had failed--that is very important.
Q Now, are you telling the Tribunal that at this time you did what you have agreed you hare done, to bring Hitler into power simply because he was head of the biggest party in the Reichstag or because you thought he was the most suitable man to be Chancellor of Germany at that date; which was your motive?
A My native was very simple. In the situation existing after the 23rd of January, there were only two possibilities, either to violate the constitution which would result in civil war or to form a government headed by Hitler I believe I explained that in great detail to the Court. had these contacts with Hitler. You have been Chancellor Of Germany yourself. At this time, did you think that Hitler personally and Hitler's aims and intentions and personality were a good thing for Germany to have as Chancellor? It is a perfectly simple question. I want a straight answer. Did you think it was a good thing to have Hitler as you knew him then, as Chancellor of Germany?
A Yes- what can I say? The coalition which I endeavored to form on behalf of the president was a coalition of necessity. There is no question of whether or not it was good or bad. We had to accept it.
Q Well, now, just let us see. I think you said that you were not certain that Hitler would eliminate opposition before he came into power. How long did it take you, after Hitler became Chancellor, to find out that his desire was to eliminate all opposition? speech to establish a joint program.
Q That was eighteen months later, on the 17th of June, 1934. Are you telling the Tribunal that it took you eighteen months to realize that Hitler wanted to break down the opposition?
Q Just let me remind you of one or two things. Do you remember Herr Ernst Heilmann who had been the leader of the Social Democrats in the Prussian Diet?
Q He was, I think, for ten years a member of the Prussian Diet with you.
He went into a concentration camp at once and was treated with the most terrible cruelty, wasn't he?
A I learned of that later, here. I did not know it at the time.
Q Are you telling the Tribunal that you didn't know in 1933 that Ernst Heilmann went into a concentration camp? Socialists, had been sent to concentration camps by the Gestapo. That, I knew.
Q Now, answer my question. Here was the leader of the Social Democrats in the Prussian Diet, a man who sat in parliament with you for ten years. Do you say that you didn't know that he had gone to a concentration camp?
A I do not recall, no. I believe I learned of it only here. winner of the Nobel Peace Prize, the author and journalist. Didn't you know that he had gone into a concentration camp?
A I recall Mr. Ossietski only as the publisher of a periodical; otherwise I know nothing about him.
Q You didn't knew that he was the 1936 winner of the Nobel Peace Prize, did you?
Q No, but you didn't know he won it later on? Didn't you know that he was put in prison?
Q I thought I might have connected his name with you. Let me take somebody else. Take Dr. Ernst Eckstein who had been a Reichstag Deputy, who was a well-known lawyer from Breslau. Didn't you know that he was put in a concentration camp?
A No, I didn't know Dr. Eckstein, unfortunately.
Q Or Dr. Joachim, the Social Democrat from Berlin. Did you know he was put in a concentration camp?
Q Well, now, apart from individuals, didn't you know that within a few months of Hitler becoming Chancellor, that hundreds, if not thousands, of Social Democrats and Communists went into a concentration camp?