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CAPT. SPRECHER: Fritzsche encouraged, affirmed, and glorified the policy of the Nazi conspirators in ruthlessly exploiting the occupied countries. Again I read an excerpt from his radio broadcast of the 9th of October 1941, found at Pages 2102 and 2103 of the BBC translation. I would like to cut it down, but it is one of those long German sentences that just cannot be broken down:

“Today we can only say: Blitzkrieg or not, this German thunderstorm has cleansed the atmosphere of Europe. Certainly it is quite true that the dangers threatening us were eliminated one after the other with lightning speed but in these lightning blows which shattered England’s allies on the continent, we saw not a proof of the weakness, but a proof of the strength and superiority of the Führer’s gift as a statesman and military leader; a proof of the German peoples’ might; we saw the proof that no opponent can rival the courage, discipline, and readiness for sacrifice displayed by the German soldier, and we are particularly grateful for these lightning, incomparable victories, because—as the Führer emphasized last Friday—they give us the possibility of embarking on the organization of Europe and on the lifting of the treasures”—I would like to repeat that—“lifting of the treasures of this old continent, already now in the middle of war, without its being necessary for millions and millions of German soldiers to be on guard, fighting day and night along this or that threatened frontier; and the possibilities of this continent are so rich that they suffice to supply all needs in peace or war.”

Concerning the exploitation of foreign countries, Fritzsche states himself, at Paragraph 39 of his affidavit:

“The utilization of the productive capacity of the occupied countries for the strengthening of the German war potential, I have openly and with praise pointed out, all the more so as the competent authorities put at my disposal much material, especially on the voluntary placement of manpower.”

Fritzsche was a credulous propagandist indeed if he gloriously praised the exploitation policy of the German Reich, chiefly or especially because the competent authorities gave him a sales talk on the voluntary placement of manpower.

I come now to Fritzsche as the high commander of the entire German radio system. Fritzsche continued as the head of the German Press Division until after the conspirators had begun the last of their aggressions. In November 1942, Goebbels created a new position, that of Plenipotentiary for the Political Organization of the Greater German Radio, a position which Fritzsche was the first and the last to hold. In Paragraph 36, Document Number 3469-PS, the Fritzsche affidavit, Fritzsche narrates how the entire German radio and television system was organized under his supervision. That is at Page 29 of your document book. He states:

“My office practically represented the high command of German radio.”

As special Plenipotentiary for the Political Organization of the Greater German Radio, Fritzsche issued orders to all the Reich propaganda offices by teletype. These were used first in conforming the entire radio apparatus of Germany to the desires of the conspirators.

Goebbels customarily held an 11 o’clock conference with his closest collaborators within the Propaganda Ministry. When both Goebbels and his undersecretary, Dr. Naumann, were absent, Goebbels, after 1943, entrusted Fritzsche with the holding of this 11 o’clock press conference.

In Document Number 3255-PS the Court will find Goebbels’ praise of Fritzsche’s broadcasts. This praise was given in Goebbels’ introduction to a book by Fritzsche called, War to the War Mongers. I would like to offer the quotation in evidence as Exhibit Number USA-724, from the Rundfunk Archiv, at Page 18 of Your Honors’ document book. This is Goebbels speaking:

“Nobody knows better than I how much work is involved in those broadcasts, how many times they were dictated within the last minutes to find some minutes later a willing ear by the whole nation.”

So we have it from Goebbels himself that the entire German nation was prepared to lend willing ears to Fritzsche, after he had made his reputation on the radio.

The rumor passed that Fritzsche was “His Master’s Voice” (Die Stimme seines Herrn). This is certainly borne out by Fritzsche’s functions. When Fritzsche spoke on the radio it was indeed plain to the German people that they were listening to the high command of the conspirators in this field.

Fritzsche is not being presented by the Prosecution as the type of conspirator who signed decrees or as the type of conspirator who sat in the inner councils planning all of the over-all grand strategy of these conspirators. The function of propaganda is, for the most part, apart from the field of such planning. The function of a propaganda agency is somewhat more analogous to an advertising agency or public relations department, the job of which is to sell the product and to win the market for the enterprise in question. Here the enterprise, we submit, was the Nazi conspiracy. In a conspiracy to commit fraud, the gifted salesman of the conspiratorial group is quite as essential and quite as culpable as the master planners, even though he may not have contributed substantially to the formulation of all the basic strategy, but rather contributed to the artful execution of this strategy.

In this case the Prosecution most emphatically contends that propaganda was a weapon of tremendous importance to this conspiracy. We further contend that the leading propagandists were major accomplices in this conspiracy, and further, that Fritzsche was a major propagandist.

When Fritzsche entered the Propaganda Ministry, the most fabulous “lie factory” of all time, and thus attached himself to this conspiracy, he did this with a more open mind than most of these conspirators who had committed themselves at an earlier date, before the seizure of power. He was in a particularly strategic position to observe the frauds committed upon the German people and upon the world by these conspirators.

The Tribunal will recall that in 1933, before Fritzsche took his party oath of unconditional obedience and subservience to the Führer and thus abdicated his moral responsibility to these conspirators, he had observed at first-hand the operations of the storm troopers and the Nazi race pattern in action. When, notwithstanding this, Fritzsche undertook to bring the German news agencies in their entirety within fascist control, he learned from the inside, from Goebbels’ own lips, much of the cynical intrigue and many of the bold lies against opposition groups within and without Germany. He observed, for example, the opposition journalists, a profession to which he had previously been attached, being forced out of existence, crushed to the ground, either absorbed or eliminated. He continued to support the conspiracy. He learned from day to day the art of intrigue and quackery in the process of perverting the German nation, and he grew in prestige and influence as he practiced this art.

The Tribunal will also recall that Fritzsche had said that his predecessor Berndt fell from the leadership of the German Press Division partly because he overplayed his hand by the successful but blunt and overdone manipulation of the Sudetenland propaganda. Fritzsche stepped into the gap which had been caused by the loss of confidence of both the editors and the German people, and Fritzsche did his job well.

No doubt Fritzsche was not as blunt as the man he succeeded; but Fritzsche’s relative shrewdness and subtlety, his very ability to be more assuring and “to find,” as Goebbels said, “the willing ears of the whole nation,” these things made him the more useful accomplice of these conspirators.

Nazi Germany and its press went into the actual phase of war operations with Fritzsche at the head of the particular propaganda instrument controlling the German press and German news, whether by the press or by radio. In 1942 when Fritzsche transferred from the field of the press to the field of radio, he was not removed for bungling but only because Goebbels then needed him most in the field of radio. Fritzsche is not in the dock as a free journalist, but as an efficient, controlled Nazi propagandist, a propagandist who helped substantially to tighten the Nazi stranglehold over the German people, a propagandist who made the excesses of these conspirators more palatable to the consciences of the German people themselves, a propagandist who cynically proclaimed the barbarous racialism which is at the very heart of this conspiracy, a propagandist who coldly goaded humble Germans to blind fury against people they were told by him were subhuman and guilty of all the suffering of Germany, suffering which indeed these Nazis themselves, had invited.

In conclusion, I wish to say only this. Without the propaganda apparatus of the Nazi State it is clear that the world, including Germany, would not have suffered the catastrophe of these years; and it is because of Fritzsche’s able role on behalf of the Nazi conspirators and their deceitful and barbarous practices in connection with the conspiracy that he is called to account before this International Tribunal.

SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): May it please the Tribunal, it was intended that the next presentation would be by Colonel Griffith-Jones in the case of the Defendant Hess. I understand that the Tribunal has in mind that it might be better if that were left for the moment; if so, Major Harcourt Barrington is prepared to make the presentation with regard to the Defendant Von Papen.

THE PRESIDENT: Yes. We understood that the Defendant Hess’s counsel could not be present today, and therefore it was better to go on with one of the others.

SIR DAVID MAXWELL-FYFE: If your Lordship pleases, then Major Harcourt Barrington will deal with the presentation against the Defendant Von Papen.

MAJOR J. HARCOURT BARRINGTON (Junior Counsel for the United Kingdom): My Lord, I understand that the court interpreters have not got the proper papers and document books up here yet, but they can get them in a very few minutes. Would your Lordship prefer that I should go on or wait until they have got them?

THE PRESIDENT: Very well. Go on then.

MAJOR BARRINGTON: May it please the Tribunal, it is my duty to present the case against the Defendant Von Papen. Before I begin I would like to say that the documents in the document books are arranged numerically and not in the order of presentation, and that the English document books are paged in red chalk at the bottom of the page.

THE PRESIDENT: Does that mean that the French and the Soviet are not?

MAJOR BARRINGTON: My Lord, we did not prepare French and Soviet document books.

THE PRESIDENT: Major Barrington, the French members of the Tribunal have no document books at all.

MAJOR BARRINGTON: My Lord, there should be a German document book for the French member. I understand it is now being fetched. Should I wait until it arrives?

THE PRESIDENT: I think you can go on.

MAJOR BARRINGTON: The Defendant Papen is charged primarily with the guilt of conspiracy, and the proof of this charge of conspiracy will emerge automatically from the proof of the four allegations specified in Appendix A of the Indictment. These are as follows:

(1) He promoted the accession of the Nazi conspirators to power.

(2) He participated in the consolidation of their control over Germany.

(3) He promoted the preparations for war.

(4) He participated in the political planning and preparation of the Nazi conspirators for wars of aggression, et cetera.

Broadly speaking, the case against Von Papen covers the period from the 1st of June 1932 to the conclusion of the Anschluss in March 1938.

So far in this Trial, almost the only evidence specifically implicating Von Papen has been evidence in regard to his activities in Austria. This evidence need only be summarized now. But if the case against Von Papen rested on Austria alone, the Prosecution would be in the position of relying on a period during which the essence of his task was studied plausibility and in which his whole purpose was to clothe his operations with a cloak of sincerity and innocent respectability. It is therefore desirable to put the evidence already given in its true perspective by showing in addition the active and prominent part he played for the Nazis before he went to Austria.

Papen himself claims to have rejected many times Hitler’s request that he should actually join the Nazi Party. Until 1938 this may indeed have been true, for he was shrewd enough to see the advantage of maintaining, at least outwardly, his personal independence. It will be my object to show that, despite his facade of independence, Papen was an ardent member of this conspiracy and, in spite of warnings and rebuffs, was unable to resist its fascination.

In the submission of the Prosecution, the key to Von Papen’s activities is that, although perhaps not a typical Nazi, he was an unscrupulous political opportunist and ready to fall in with the Nazis when it suited him. He was not unpracticed in duplicity and viewed with an apparent indifference the contradictions and betrayals which his duplicity inevitably involved. One of his chief weapons was fraudulent assurance.

Before dealing with the specific charges, I will refer to Document 2902-PS, which is on Page 38 of the English document book, and I put it in as Exhibit GB-233. This is Von Papen’s own signed statement showing his appointments. It is not in chronological order, but I will read the relevant parts as they come. I need not read the whole of it. The Tribunal will note that this statement is written by Dr. Kubuschok, Counsel for Von Papen, although it is signed by Von Papen himself. Paragraph 1:

“Von Papen many times rejected Hitler’s request to join the NSDAP. Hitler simply sent him the Golden Party Badge. In my opinion, legally speaking, he did not thereby become a member of the Party.”

Interposing there, My Lord, the fact that he was officially regarded as having become a member in 1938 will be shown by a document which I shall refer to later.

Going on to Paragraph 2:

“From 1933 to 1945 Von Papen was a member of the Reichstag.”

Paragraph 3:

“Von Papen was Reich Chancellor from the 1st of June 1932 to the 17th of November 1932. He carried on the duties of Reich Chancellor until his successor took office—until the 2d of December 1932.”

Paragraph 4:

“On the 30th of January 1933 Von Papen was appointed Vice Chancellor. From the 30th of June 1934”—which was the date of the Blood Purge—“he ceased to exercise official duties. On that day he was placed under arrest. Immediately after his release on the 3rd of July 1934 he went to the Reich Chancellery to hand in his resignation to Hitler.”

The rest of that paragraph I need not read. It is an argument which concerns the authenticity or otherwise of his signature as it appears in the Reichsgesetzblatt to certain decrees in August 1934. I am prepared to agree with his contention that his signature on those decrees may not have been correct and may have been a mistake. He admits holding office only to the 3rd of July 1934.

He was, as the Tribunal will also remember, in virtue of being Reich Chancellor, a member of the Reich Cabinet.

Going on to Paragraph 5:

“On the 13th of November 1933, Von Papen became Plenipotentiary for the Saar. This office was terminated under the same circumstances described under Paragraph 4.”

The rest of the document I need not read. It concerns his appointments to Vienna and Ankara, which are matters of history. He was appointed Minister to Vienna on the 26th of July 1934, and recalled on the 4th of February 1938, and he was Ambassador in Ankara from April 1939 until August 1944.

The first allegation against the Defendant Von Papen is that he used his personal influence to promote the accession of the Nazi conspirators to power. From the outset Von Papen was well aware of the Nazi program and Nazi methods. There can be no question of his having encouraged the Nazis through ignorance of these facts. The official NSDAP program was open and notorious; it had been published in Mein Kampf for many years; it had been published and republished in the Yearbook of the NSDAP and elsewhere. The Nazis made no secret of their intention to make it a fundamental law of the State. This has been dealt with in full at an earlier stage of the Trial.

During 1932 Von Papen as Reich Chancellor was in a particularly good position to understand the Nazi purpose and methods; and in fact, he publicly acknowledged the Nazi menace. Take, for instance, his Münster speech on the 28th of August 1932. This is Document 3314-PS, on Page 49 of the English document book, and I now put it in as Exhibit GB-234, and I quote two extracts at the top of the page:

“The licentiousness emanating from the appeal of the leader of the National Socialist movement does not comply very well with his claims to governmental power. . . . I do not concede him the right to regard only the minority following his banner as the German nation and to treat all other fellow countrymen as free game.”

Take also his Munich speech of the 13th of October 1932. That is on Page 50 of the English document book, Document Number 3317-PS, which I now put in as Exhibit GB-235, and I will simply read the last extract on the page:

“In the interest of the entire nation, we decline the claim to power by parties which want to bind their followers body and soul and which want to identify their party or movement with the German nation.”

I do not rely on these random extracts to show anything more than that he had, in 1932, clearly addressed his mind to the inherent lawlessness of the Nazi philosophy. Nevertheless, in his letter to Hitler of the 13 of November 1932, which I shall quote more fully later, he wrote of the Nazi movement as, I quote:

“. . . so great a national movement, the merits of which for people and country I have always recognized in spite of necessary criticisms . . . .”

So variable and so seemingly contradictory were Von Papen’s acts and utterances regarding the Nazis that it is not possible to present the picture of Papen’s part in this infamous enterprise unless one first reviews the steps by which he entered upon it. It then becomes clear that he threw himself, if not wholeheartedly, yet with cool and deliberate calculation, into the Nazi conspiracy.

I shall enumerate some of the principal steps by which Papen fell in with the Nazi conspiracy.

As a result of his first personal contact with Hitler, Von Papen as Chancellor rescinded, on the 14th of June 1932, the decree passed on the 13th of April 1932 for the dissolution of the Nazi para-military organizations, the SA and the SS. He thereby rendered the greatest possible service to the Nazi Party, inasmuch as it relied upon its para-military organizations to beat the German people into submission. The decree rescinding the dissolution of the SA and the SS is shown in Document D-631, on Page 64 of the document book; and I now put it in as Exhibit GB-236. It is an extract from the Reichsgesetzblatt, which was an omnibus decree. The relevant passage is in Paragraph 20:

“This order comes into operation from the day of announcement. It takes the place of the Decree of the Reich President for the Safeguarding of the State Authority of . . . .”—the date should be the 13th of April 1932.

THE PRESIDENT: Which page of the document book is it?

MAJOR BARRINGTON: I am sorry, My Lord; it is Page 64. And the date shown there should not be the 3rd of May 1932, it should be the 13th of April 1932. That was the decree which had previously dissolved the Nazi para-military organizations under the Government of Chancellor Brüning. At the bottom of the page the Tribunal will see the relevant parts of the decree of the 13th of April reproduced. At the beginning of Paragraph 1 of that decree it said:

“All organizations of a military nature of the German National Socialist Labor Party will be dissolved with immediate effect, particularly the SA and the SS.”

This rescission by Von Papen was done in pursuance of a bargain made with Hitler which is mentioned in a book called Dates from the History of the NSDAP by Dr. Hans Volz, a book published with the authority of the NSDAP. It is already an exhibit, Exhibit USA-592. The extract I want to quote is on Page 59 of the document book, and it is Document Number 3463-PS. I quote an extract from Page 41 of this little book:

“28th of May”—that was in 1932, of course—“In view of the imminent fall of Brüning, at a meeting between the former Deputy of the Prussian Center Party, Franz Von Papen, and the Führer in Berlin (first personal contact in spring 1932); the Führer agrees that a Papen cabinet should be tolerated by the NSDAP, provided that the prohibitions imposed on the SA, uniforms, and demonstrations be lifted and the Reichstag dissolved.”

It is difficult to imagine a less astute opening gambit for a man who was about to become Chancellor than to reinstate this sinister organization which had been suppressed by his predecessor. This action emphasizes the characteristic duplicity and insincerity of his public condemnations of the Nazis which I quoted a few minutes ago.

Eighteen months later he publicly boasted that at the time of taking over the chancellorship he had advocated paving the way to power for what he called the “young fighting liberation movement.” That will be shown in Document 3375-PS, which I shall introduce in a few minutes.

Another important step was when, on the 20th of July 1932, he accomplished his famous coup d’état in Prussia which removed the Braun-Severing Prussian Government and united the ruling power of the Reich and Prussia in his own hands as Reichskommissar for Prussia. This is now a matter of history. It is mentioned in Document D-632, which I now introduce as Exhibit GB-237. It is on Page 65 of the document book. This document is, I think, a semi-official biography in a series of public men.

Papen regarded this step, his coup d’état in Prussia, as a first step in the policy later pursued by Hitler of coordinating the states with the Reich, which will be shown in Document 3357-PS, which I shall come to later.

The next step, if the Tribunal will look at Document D-632, on Page 65 of the document book, the last four or five lines at the bottom of the page:

“The Reichstag elections of the 31st of July, which were the result of Von Papen’s disbandment of the Reichstag on the 4th of June”—which was made in pursuance of the bargain that I mentioned a few minutes ago—“strengthened enormously the NSDAP, so that Von Papen offered to the leader of the now strongest party his participation in the government as Vice Chancellor. Adolf Hitler rejected this offer on the 13th of August.

“The new Reichstag, which assembled on the 30th of August, was disbanded by the 12th of September. The new elections brought about a considerable loss to the NSDAP, but did not strengthen the Government parties, so that Papen’s Government retired on the 17th of November 1932 after unsuccessful negotiations with the Party leaders.”

My Lord, I shall wish to quote a few more extracts from that biography, but as it is a mere catalogue of events, perhaps Your Lordship would allow me to return to it at the appropriate time.

So far as those negotiations mentioned just now in the biography concern Hitler, they involved an exchange of letters in which Von Papen wrote to Hitler on the 13th of November 1932. That letter is Document D-633, on Page 68 of the English document book, and I now put it in as Exhibit GB-238. I propose to read a part of this letter, because it shows the positive efforts made by Papen to ally himself with the Nazis, even in face of further rebuffs from Hitler. I read the third paragraph. I should tell the Tribunal that there is some underlining in the English translation of that paragraph which does not occur in the German text:

“A new situation has arisen through the elections of November the 6th, and at the same time a new opportunity for a consolidation of all nationalist elements. The Reich President has instructed me to find out by conversations with the leaders of the individual parties concerned whether and how far they are ready to support the carrying out of the political and economic program on which the Reich Government has embarked. Although the National Socialist press has been writing that it is a naive attempt for Reich Chancellor Von Papen to try to confer with personalities representing the nationalist concentration, and that there can only be one answer, ‘No negotiations with Papen,’ I would consider it neglecting my duties, and I would be unable to justify it to my own conscience, if I did not approach you in the spirit of the order given to me. I am quite aware from the papers that you are maintaining your demands to be entrusted with the Chancellor’s Office, and I am equally aware of the continued existence of the reasons for the decision of August the 13th. I need not assure you again that I myself do not claim any personal consideration at all. All the same, I am of the opinion that the leader of so great a national movement, whose merits for people and country I have always recognized in spite of necessary criticism, should not refuse to enter into discussions on the situation and the decisions required with the presently leading and responsible German statesman. We must attempt to forget the bitterness of the elections and to place the cause of the country which we are mutually serving above all other considerations.”

Hitler replied on 16 November 1932 in a long letter, laying down terms which were evidently unacceptable to Von Papen, since he resigned the next day and was succeeded by Von Schleicher. That document is D-634, put in as part of Exhibit GB-238 as it is part of the same correspondence. I need not read from the letter itself.

Then came the meetings between Papen and Hitler in January 1933, in the houses of Von Schröder and of Ribbentrop, culminating in Von Schleicher being succeeded by Hitler as Reich Chancellor on 30 January 1933. Referring back again to the biography on Page 66 of the document book, there is an account of the meeting at Schröder’s house, the second paragraph on the page:

“The meeting with Hitler, which took place in the beginning of January 1933, in the house of the banker Baron Von Schröder in Cologne, is due to his initiative”—that means, of course Papen’s initiative—“although Von Schröder was the mediator. Both Von Papen and Hitler later made public statements about this meeting (press of 6 January 1933). After the rapid downfall of Von Schleicher on the 28th of January 1933, the Hitler-Von Papen-Hugenberg-Seldte Cabinet was formed on the 30th of January 1933 as a government of national solidarity. In this cabinet Von Papen held the office of Vice Chancellor and Reich Commissioner for Prussia.”

The meetings at Ribbentrop’s house, at which Papen was also present, have been mentioned by Sir David Maxwell-Fyfe (Document D-472, which was Exhibit GB-130).

I now wish to introduce into evidence an affidavit by Von Schröder, but I understand that Dr. Kubuschok wishes to take an objection to this. Perhaps before Dr. Kubuschok takes his objection it might help if I said, quite openly, that Schröder is now in custody, and according to my information he is at Frankfurt; so that physically he undoubtedly could be called. Perhaps I might also say at this moment that there would be no objection from the Prosecution’s point of view to interrogatories being administered to Von Schröder on the subject matter of this affidavit.

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): I object to the reading of the affidavit of Schröder. I know that in individual cases the Tribunal has permitted the reading of affidavits. This occurred under Article 19 of the Charter, which is based on the proposition that the Trial should be conducted as speedily as possible and that for this reason the Tribunal should order the rules of ordinary court procedure in that respect. Of decisive importance, therefore, is the speediness of the Trial. But in our case the reading of the affidavit cannot be approved for that reason.

Our case is quite analogous to the case that was decided on the 14th of December with regard to Kurt Von Schuschnigg’s affidavit. Schröder is in the vicinity. Schröder was apparently brought to the neighborhood of Nuremberg for the purposes of this Trial. The affidavit was taken down on 5 December. He could be brought here at any time. The reading of the affidavit would have the consequence that I would have to refer not only to him but also to several other witnesses, because Schröder describes a series of facts in his affidavit which in their entirety are not needed for the finding of a decision. However, once introduced into the Trial, they must also be discussed by the Defense in the pursuance of its duty.

The affidavit discusses internal political matters, using improper terms. For this reason misunderstandings would be brought into the Trial which could be obviated by the hearing of a witness I believe, therefore, that the oral testimony of a witness should be the only way in which Schröder’s testimony should be submitted to the Tribunal, since otherwise a large number of witnesses will have to be called along with the reading of Schröder’s affidavit and his personal interrogation.

THE PRESIDENT: Have you finished?

DR. KUBUSCHOK: Yes.

THE PRESIDENT: Do you wish to make any observation?

MAJOR BARRINGTON: Yes, I do, My Lord. The Tribunal has been asked to exclude this affidavit, using as a precedent the decision on Von Schuschnigg’s affidavit. I think I am correct in saying that Von Schuschnigg’s affidavit was excluded as an exception to the general rule on affidavits which the Tribunal laid down earlier the same day when Mr. Messersmith’s affidavit was accepted. Perhaps Your Lordship will allow me to read from the transcript the Tribunal’s decision on the affidavit of Messersmith.

THE PRESIDENT: Mr. Messersmith was in Mexico, was he not?

MAJOR BARRINGTON: That is so, My Lord; yes.

THE PRESIDENT: So that the difference between him and Schuschnigg in that regard was very considerable.

MAJOR BARRINGTON: In that regard, but what I was going to say was this, My Lord: In ruling on Messersmith’s affidavit Your Lordship said:

“In view of those provisions”—that is Article 19 of the Charter—“the Tribunal holds that affidavits can be presented and that in the present case it is a proper course. The question of the probative value of the affidavit as compared with the witness who has been cross-examined would, of course, be considered by the Tribunal, and if at a later stage the Tribunal thinks the presence of a witness is of extreme importance, the matter can be reconsidered.”

And Your Lordship added:

“If the Defense wish to put interrogatories to the witness, they will be at liberty to do so.”

Now in the afternoon of that day, when Schuschnigg’s affidavit came up . . .

THE PRESIDENT: Which day was this?

MAJOR BARRINGTON: This was the 28th of November, My Lord. It is on Page 473 (Volume II, Page 352) of the transcript, the Messersmith affidavit; and Page 523 (Volume II, Page 384) is the Schuschnigg affidavit.

Now, when the objection was taken to the Schuschnigg affidavit, the objection was put in these words:

“Today when the resolution was announced in respect of the use to be made of the written affidavit of Mr. Messersmith, the Court was of the opinion that in a case of very great importance possibly it would take a different view of the matter.”—And then defense counsel went on to say—“As it is a case of such an important witness, the principle of direct evidence must be adhered to.”

THE PRESIDENT: Have you a reference to a subsequent occasion on which we heard Mr. Justice Jackson upon this subject, when Mr. Justice Jackson submitted to us that on the strict interpretation of Article 19 we were bound to admit any evidence which we deemed to have probative value?

MAJOR BARRINGTON: My Lord, I haven’t got that reference.

THE PRESIDENT: Why don’t you call this witness?

MAJOR BARRINGTON: I say, quite frankly—and I was coming on to that—this witness is in a position of being an alleged co-conspirator, and I do not make any secret of the fact that for obvious reasons the Prosecution would not desire to call him as a witness, and I put this affidavit forward as an admission by a co-conspirator. I admit that it is not an admission made in pursuance of the conspiracy, but I submit that by technical rules of evidence, this affidavit may be accepted in evidence as an admission by a co-conspirator; and as I said before, there will be no objection to administering interrogatories on the subject matter of this affidavit, and indeed, the witness would be available to be called as a defense witness if required.

That is all I have to say on that, My Lord.

THE PRESIDENT: There would be no objection to bringing the witness here for the purpose of cross-examination upon the affidavit?

MAJOR BARRINGTON: I don’t think there could be any objection if it were confined to the subject matter of the affidavit. I would not like . . .

THE PRESIDENT: How could you object, for instance, to the defendant himself applying to call the witness?

MAJOR BARRINGTON: As I said, I don’t think there could be any objection to that, My Lord.

THE PRESIDENT: The result would be the same, wouldn’t it? If the witness were called for the purpose of cross-examination, then he could be asked other questions which were not arising out of the matter in the affidavit. If the defendant can call him as his own witness, there can be no objection to the cross-examination going outside the matter of the affidavit.

MAJOR BARRINGTON: Of course he couldn’t be cross-examined by the Prosecution in that event, My Lord.

THE PRESIDENT: You mean you would ask his questions in re-examination, but they would not take the form of cross-examination?

MAJOR BARRINGTON: That is what I mean, My Lord.

THE PRESIDENT: You mean that you would prefer that he should be called for the defendants rather than be cross-examined outside the subject matter of the affidavit?

MAJOR BARRINGTON: Yes.

THE PRESIDENT: Is there anything you wish to add or not?

MAJOR BARRINGTON: There is nothing I wish to add.

THE PRESIDENT: It is time for us to adjourn. We will consider the matter.