Now, if Dr. Dix will forgive me, and I am sure the fault was mine, I did not quite appreciate what he termed his subjective argument. But insofar as I did appreciate it, there seems to be a very good answer: that if he seeks to suggest that a defendant's guilt may be less because he, that defendant, believed that the treaty was bad, that is essentially a matter which can be judged by the Tribunal who will hear that defendant and appreciate and evaluate his point .of view. It really does not help in deciding whether the Defendant Hess acted because he thought that the Treaty of Versailles was a bad treaty, to know what the editor of the Observer, which is a Sunday paper in England, expressed as his views some twenty years ago, or the Manchester Guardian or indeed, with all respect to them, what distinguished statesmen have said in writing their reminiscences years after a matter occurred. The subjective point is-this.
is my submission-an important point in deciding on evidence. The subjective point can be answered by the defendant himself, and the view of the defendant which the Tribunal will receive.
Now, Dr. Horn has opened up a much wider question, and one which I submit is entirely irrelevant and beyond the scope of these proceedings.
He wishes the Tribunal to try whether the Treaty of Versailles was signed under duress. Well, that, of course, would involve the whole consideration of the Government of the German Republic, the Position of the plenipotentiaries, and the legal position of the persons who negotiated the treaty.
The answer to that is that this Tribunal is concerned with certain quite clearly stated offenses, fully particularized, which occurred at the time that is stated in the Indictment; and all the evidence that is given as to the actions of the pre-Nazi German Government, and indeed of the Nazi Government, shows that for years Versailles was accepted as the legal and actual basis on which they must work, and various different methods were adopted in order to try to secure changes of the treaty, and I need not go into, with the Tribunal, the whole frame work of the Locarno Treaties, recognizing Versailles, which were signed in 1925, and which were treated as existing and in operation by the Nazi Government itself.
With that, these actual fads, it would, in my submission, be completely remote, irrelevant, and contrary to the terms of the Charter, for this Tribunal to go into an inquiry as to whether the Treaty of Versailles was signed under duress.
As I gathered, Dr. Horn was not so much interested in the economic clauses and their rightness or wrongness; but I should respectfully remind the Tribunal that that is a matter which is before them at the moment-that here we have, as I have pointed out before and I do not want to repeat myself-a number of opinions expressed by people of varying eminence and with varying degrees of responsibility at the time that they expressed them. And while strongly maintaining the position which I have endeavored to express with regard to the treaty, I do equally impress my second point: That to accept as matters of evidence statements which in the main are made from a polemical standpoint, either in answer to an attack or in an attack with background of the politics of the state in which they were made, is simply a misuse of the term "evidence". That is not evidence of any kind, and I equally-not equally because the first point is one of primary importance, which I respectfully urge to the Tribunal-but I also suggest that to tender in evidence matters of that kind is a misuse of the term "evidence," that they are matters of argument which an advocate may adopt if the argument is a relevant one, but they should not be received in evidence by the Tribunal for that reason.
THE TRIBUNAL (Mr. Francis Biddle, Member for the United States): Sir David, is there anything in the Versailles Treaty that either calls for disarmament by the signatories other than Germany or which looks to such 'disarmament; and, if there is, could you give us the reference to it?
SIR DAVID MAXWELL-FYFE: Yes, it is the preamble to the Military Clauses. That is the point which is usually relied on. It is about four lines at the beginning of the Military Clauses, and, in quite general terms, it looks to a general disarmament after Germany has disarmed. Of course, the position was that-I think I have got the dates right-disarmament was accepted. Whether, in view of the evidence in this case, it should have been accepted does not matter; it was accepted in 1927. After that, you may remember, there were a number of disarmament conferences which examined that question, and eventually in 1933 Germany left the then existing disarmament conference. Now, I am trying to be entirely objective. I do not want to put the Prosecution view or the Defense view, but that is the position.
THE TRIBUNAL (Mr. Biddle): I am not quite clear. When you say "accepted," you mean that the extent of the disarmament called for had been accepted by Germany?
SIR DAVID MAXWELL-FYFE: Yes, the other way around: that Germany's response to the demand of Versailles was accepted by the Allies in 1927, and the Disarmament Co-on which had been in Germany then left Germany under, I think, a French General Denoue.
THE TRIBUNAL (Mr. Biddle): Then, what I understand you to argue is that nothing contained in this folder has anything to do with that possible issue.
SIR DAVID MAXWELL-FYFE: No, no.
THE TRIBUNAL (Mr. Biddle): That is the point.
SIR DAVID MAXWELL-FYFE: It is not on that issue. I mean we will deal with that issue when we come to it. I rather thought from some words that Dr. Stahmer dropped that that would be one of the points which we should meet in the general argument on law which will be presented, which the Defense Counsel.
. .
DR. SEIDL: I believe that Sir David is under a slight misconception. In Book 3 of the-document book for the Defendant Hess there are also a number of citations of foreign statesmen that refer to this military clause in the Versailles Treaty and in which it is stated that Germany fulfilled her obligations in the Versailles Treaty, but that the reciprocal obligations in, it for the opposite side were not fulfilled.
SIR DAVID MAXWELL-FYFE: Well, I am sorry. I did not remember any. I have read it through, and there may be some collateral matters dealing with that, but-and I do not think that I am doing Dr. Seidl's great industry in collecting these matters an injustice in saying that if they do exist they are collateral and the main point of?this is an attack on the political and economic clauses of the treaty. I hope that I have done him justice. I certainly intended to do so. That is the impression made on me.
THE PRESIDENT: The Tribunal will adjourn.
[The Tribunal recessed until 1400 hours.]
Afternoon Session
MARSHAL: If it please the Tribunal, may I report that the Defendant Streicher will be absent from this session of Court.
THE PRESIDENT: The Tribunal rules that evidence as to the injustice of the Versailles Treaty or whether it was made under duress is inadmissible, and it therefore rejects Volume 3 of the documents on behalf of the Defendant Hess.
DR. SEIDL: Mr. President, Your Honors. Since Volume 3 of the document book for the Defendant Rudolf Hess is not admissible as documentary evidence, I am, so far as the submission of documents is concerned, at the end of my submission of evidence. Now, we are further concerned only with the affidavit of Ambassador Gaus, which I have already submitted, and I ask you not to decide on the admissibility of this document until I have had opportunity to present arguments on the relevance of it and of the secret treaty. But I should like to point out that with this affidavit only the facts and the contents of this secret treaty are to be proved; and therefore I shall read only excerpts from it, so that other events and the history prior to the treaty are not to be demonstrated by me.
THE PRESIDENT: Dr. Seidl, we understand that this affidavit of the witness Gaus is now being translated and is going to be submitted to the various prosecutors. The? will then inform us of their position, and we shall be able to see whether it is admissible or not, and the Prosecution will likewise be able to tell us whether they want to have the Ambassador here for the purpose of cross-examining