THE PRESIDENT: Even so, Sir David, in your submission, ought we to accept the opinion of an expert on such a point?
SIR DAVID MAXWELL-FYFE: No, Your Honor. We do not at all. I am afraid that my second remark really applied to the order of the Führer. That might be used as a background or it might be used for purposes of mitigation or explanation of how a thing took place, but I respectfully agree that the expert’s opinion on state laws cannot be used with regard to the jurisdiction of the Tribunal. Of course, the law of any other state may be a question of fact as far as the Tribunal is concerned just as it would be a question of fact in an English court: “What is the law of another state?” As I say, I want to reserve emphatically the position of Article 8 with regard to these two documents.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: Now, Documents 10 and 11 deal with rearmament in other countries. I do not want to prevent the Defense using illustrations, but again I reserve the position most emphatically that rearmament in other countries cannot be an excuse for aggressive war and would be irrelevant on that point.
Now, 15 and 16 refer to books by Major General Fuller and Major General Temperley, who are both ex-officers, who were journalists during this period. As far as any question of fact that is stated in these books, if Dr. Nelte will let us know what the passage is, we shall see whether we could admit it, but the general views of Major General Fuller and Major General Temperley we would submit to be irrelevant.
Then, 19, 20, and 21 are books about Austria. Again the Prosecution reserves the position that the earlier state of opinion in Austria with regard to an Anschluss is irrelevant when considering the question of the aggressive action in breach of the Treaty of 1936 which took place in 1938.
I think, My Lord, that I have now dealt with all the documents and, as I say, they fall into these four groups; with regard to three of which there is nothing really between us in principle, and with regard to the fourth, the Prosecution wants to reserve these various points which I have mentioned. Again I want to make clear that the Prosecution does not object to Dr. Nelte’s obtaining any of these books for the purpose of preparing his case, but we want them to make clear at the earliest opportunity what their position is with regard to their use.
DR. NELTE: With respect to the first three categories, the Prosecution agrees with me that I can confine myself to the last category which begins with Documents 1 and 2. One of the fundamental questions of this Trial, which at first glance appears a purely legal problem, is the question of the so-called Führer state (Führerstaat) and Führer order (Führerbefehl). This question has, however, important actual significance here at this Trial, also of a factual importance. For instance, the Defendant Keitel, as a result of his particular position, was to the utmost degree affected by this Führer state principle and acted accordingly as he was continuously in personal contact with the incarnation of this principle, namely, Hitler. It is not as if Article 8 of the Charter remained unaffected by it. It will, however, so I assume, be possible to prove that Article 8 of the Charter is not applicable here.
As to the Führer Order Number 1, Document Number 2, the Tribunal itself will, upon hearing the order, be able to judge whether it bears any relevance. This order, Führer Order Number 1, from Keitel Document Book Number 1, reads:
“a) No one is to have any knowledge of secret matters which do not fall within his sphere.