Nuremberg and Other Trials
by Herbert Wechsler
A Train of Powder. By Rebecca West. Viking. 310 pp. $3.75.

This book is a collection of six of the best of Miss West’s postwar essays. Four of the papers appeared in the New Yorker: “Greenhouse with Cyclamens I,” a report from Nuremberg on the trial of the Nazi leaders; “Opera in Greenville,” an assessment of the trial of the white taxi drivers charged with murder for the lynching of a Negro; “Mr. Setty and Mr. Hume,” the story of a British murder trial in which the defendant was proved to have dropped the dismembered body of the victim from an airplane but could not, upon the evidence, have been the perpetrator of the killing as the prosecution charged; “The Better Mousetrap,” an account of the trial and conviction of William Marshall, a British Foreign Office employee, for giving secret information to a secretary of the Russian Embassy. The two additions, “Greenhouse with Cyclamens II” and “III,” are both concerned with Germany; neither has been published here before. The first is a reexamination of the German situation at the time of the Berlin blockade and air-lift; the second is a reassessment of the Nuremberg trial, as of 1954, provoked by publication of Sword in the Scales, a criticism of the trial by Hans Fritzsche, Goebbels’ radio chief, who like Von Papen and Schacht was acquitted by the International Tribunal.

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The writing represents some of the best reporting of our time. It is, of course, reporting of a very special kind, concerned less with the narration of events, although the narrative is there, than with the full appraisal of their human meaning. The author’s method makes immense demands not only on her sensitivities, but also on her subject matter. Nuremberg, the German recovery, the Greenville trial were great events by any measure. They call for an interpretative chronicle of large dimensions; there is no pretentiousness in dealing with them on such terms. I cannot feel that this is true of Mr. Hume’s involvement with the law or even Mr. Marshall’s. These stories are well told and are not without their interest, but the accompanying flights of interpretative fancy seem for the most part rather forced.

For anyone concerned with Nuremberg and Germany, Miss West’s three “Greenhouse” papers ought to be required reading. We are indebted for the title of the series to a one-legged gardener in Nuremberg who labored with utter concentration to raise potted cyclamens to sell to the Allied personnel who had so little else to buy. This capacity for single-minded escape into work Miss West submits as central to an understanding of much German history. It played its part in making Hitler and the Nazis possible; it also guaranteed survival in the postwar years, and led to the present recovery. But while it is a quality that can raise much more than flowers, and can even build cathedrals, it is not one that puts a moral harness on power. What is lacking, as the author puts it, is a faith that binds “wealth and power to the service of sanity and life.”

Neither Nuremberg nor occupation policy operated in Miss West’s opinion to infuse or promote such faith in Germany. The occupation, indeed, often worked precisely in reverse, as in the case of the dismantling program and Allied sanction of the dumping of German minorities, like that of the Sudetenland, into West Germany. Still, German productivity made possible assimilation of the expellees and refugees, relieving “the Allies of so much of their guilt” and illustrating once again “that history takes no care to point a moral.” More important, Communist obtuseness and brutality stimulated heroic resistance in Berlin and the Eastern Zone. The Russians by their bad example thus were able to provide the kind of object lesson that can work a moral transformation. “The resistance of Berlin,” Miss West wrote in 1949, “began as a soliloquy, but it must end as a dialogue. It would spread into a debate.”

The reader will be most impressed, I think, by the ambivalence of Miss West’s commentary on the Nuremberg Trial and the variation in her emphases in 1946 and 1954. Writing in 1946, Miss West conveyed as no one else quite did what Germany was like at that time, with thousands of her dead still buried in the stinking ruins; what it was like to be a member of the homesick prosecution, of the defense, of the Tribunal; what human sense one made of the defendants in the dock and of their confrontation with the record of their deeds; how one reacted to the judgment and its miserable execution. That “there had to be a trial,” she wrote, “cannot be doubted. It was not only that common sense could predict that if the Nazis were allowed to go free the Germans would not have believed in the genuineness of the Allies’ expressed disapproval of them, and that the good Germans would have been cast down in spirit, while the bad Germans would have wondered how long they need wait for the fun and jobbery to start again. It was that, there in Germany, there was a call for punishment. This is something that no one who was not there in 1946 will ever know. . . .

This is I think the central, solid fact in all the controversy about Nuremberg. Public assumption of responsibility for judgment and for punishment was plainly the most civilized of any possible responses to the demand for retribution. If the trial did nothing else, it stayed the hand of private violence against those deemed responsible for all the desolation, conscripting reason to the task of guiding punishment by broad criteria of culpability and justice, making it possible to judge the enemy by standards we would accept for ourselves. Thus when the Tribunal refused to impose a punishment on Doenitz for submarine attacks without warning on merchant vessels because, as Admiral Nimitz deposed, we had followed the same practice ourselves in the Pacific, Miss West rightly says that this “nostra culpa of the conquerors might well be considered the most important thing that happened at Nuremberg.” But, she adds ruefully, “it evoked no response at the time, and it has been forgotten.”

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Writing in 1954, Miss West still affirms that “the world was under a necessity to find some way of punishing the Nazi leaders,” but she feels that the main value of the trial was the “service rendered to history” in the verification of the largely documentary case offered by the prosecution. “Though the printed record of the truth is hidden from the general reader, its existence preserves him from much mischievous special pleading.” Her report serves, indeed, to demonstrate the value of the record, for provoked as she was to write by Fritzsche’s book, she turns to the record of the trial to refute his deliberate insinuation that a film showing bags of gold teeth and jewelry snatched from victims of the crematories and deposited in the Reichsbank had been faked by the Allies. The truth was that it never had been claimed that the bags were found in the Reichsbank vaults. They were photographed there after their return to those vaults from the salt mines where they had been hidden by the Frankfurt Reichsbank office.

Beyond the uses of the record, however—and such uses surely must be deemed an incidental benefit of the trial rather than a justification for the infliction of punishment—Miss West now thinks that Nuremberg “must be admitted as a betrayal of the hopes that it engendered. Its makers devised it as well as the times allowed. Conducted by officials sick with the weariness left by a great war, attended by only a handful of spectators, inadequately reported, constantly misinterpreted, it was an unshapely event, a defective composition, stamping no clear image on the mind of the people it had been designed to impress. It was one of the events which do not become an experience.” More than this, it is “an ugly focus of infection. To discuss it with any knowledge of what actually happened during the case is as sure a way of earning unpopularity as to talk of American affairs in England with an understanding of the American Constitution.”

I should be surprised if this were a judicious estimate of public understanding and evaluation of the trial in 1954, though differences of view persist, of course, and do seem capable of generating deep emotion. What is more surprising, however, is that, although Miss West herself rejects the usual attacks upon the legal and moral bases of the trial, she lends a highly sympathetic ear to Fritzsche’s criticisms of the trial procedure—which, as she puts it, “did not impress Fritzsche and his fellow prisoners, it revolted them; and, indeed, it revolted many Germans who saw the trial or read the transcripts even when they were strongly anti-Nazi.” These are harsh words when one considers what the alleged grounds of this imputed revulsion are.

One ground is that the defendants were per-permitted to testify in their own defense, taking the oath of witnesses, whereas the accused in a German court is not on oath when he is interrogated by the judge. Now whether our system or the German is the fairer to defendants may well be an arguable question. But what is beyond argument is that no defendant at Nuremberg was forced to testify, and that when all but Hess availed themselves of the right to do so, none objected to the oath. Fritzsche himself, on at least two occasions, reiterated his oath to emphasize his statements.

A second ground is that the defendants were imprisoned during trial. But it is surely fanciful to think that prisoners of war held to answer upon charges of a capital offense could be at large during their trial, not to speak of the fact that their enlargement would have jeopardized their safety. Nor is there any basis for Miss West’s suggestion that pre-Nazi German law in any relevant respect “treated detained persons with greater consideration” than does English or American.

The third ground, which Miss West terms “more disquieting,” is that the German defense lawyers “were slow in understanding the English and American theory of the function of the prosecutor,” failing to realize, as Fritzsche puts it, that an attack on the prosecutor is not an attack on the bench but “was considered perfectly legitimate, since it was aimed only at their opponent in this species of legal duel.” As to this, it is quite true that the trial procedure gave more scope to counsel than the German, French, or Russian procedure does. But that the German lawyers did not quickly grasp this scope and use it to the full advantage of their clients is wholly false, as Fritzsche’s own superbly handled and successful defense illustrates. Five years before Miss West took up this point, Dr. Helmuth Dix of Frankfurt, writing of some of the later trials, expressed this judgment;

But of great—and for the defense frequently very favorable—significance before the Tribunal were above all the far-reaching powers of the representatives of the prosecution and the defense in the interrogation of witnesses which under Anglo-Saxon law rests almost totally in their hands. In these trials, in which the judges were confronted with personalities and conditions of a foreign country, the interrogation of the defendants as witnesses of the defense especially formed not only good professional training for the counsel but also a moral and intellectual probation and, for a judicious tribunal, an excellent means of exploring the truth.¹

So far as I know, this appraisal comes much closer to expressing both professional and informed German views than Fritzsche’s lamentations to which Miss West has given her endorsement. Whatever problems Nuremberg presents—either in retrospect or prospect—one may be confident that they do not inhere in the trial procedure.

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If Miss West’s Nuremberg interpretations have their doubtful sides, her account of the lynching trial in Greenville, N.C., appears to me without a flaw. It is, moreover, of special interest now when so much sentiment has been aroused by the acquittal of the two defendants charged with murdering young Till in Mississippi. So long as justice is foredoomed to falter in such cases, yielding partly to a tolerance of violence by some of the community, partly to the solidarity that hardens before criticism or intrusion from outside, there is enormous value in obtaining and preserving such a full report of the proceedings.

On this report, the obstacles to a successful prosecution were substantial in the Greenville situation. The taxi drivers charged with the lynching believed that their victim had murdered one among their number who by all accounts had been a worthy man; violent crimes against the drivers had been common in the past and prosecuted ineffectively; and there were weaknesses in the incriminating evidence against the thirty-one defendants, consisting mainly of the unsigned statements some of them had given F.B.I. agents, statements that were admissible only against the person making them and not against the others whom they named. There is a sense, therefore, in which the acquittals are less noteworthy than the fact that indictments were returned, that they were prosecuted fairly and courageously by counsel designated by the state attorney general at the suggestion of the governor, and tried before a court in which the judge made every effort to uphold the law. Less noteworthy, that is, except for two matters which Miss West rightly deems to be of critical importance: one of the few prosecution witnesses, a taxi-driver who declined to join the lynching party, was set upon with violence and threatened; when he failed to obtain the arrest of his alleged assailants he quite understandably left town. Worse than this, in the summations at the trial two of the defense attorneys came as near as one can go to invoking racial and sectional hostility as an overt excuse for murder. It should discourage the simplistic to be told that one of these attorneys was the labor lawyer of the town, regarded as a “liberal” both locally and in the North.

We must be grateful that Miss West does not attempt to frame a program for surmounting the imposing problem that the Greenville case presents. She is wise enough to understand that trial by jury and local responsibility for law enforcement preclude any easy remedies. She is also wise enough to see that such an effort as this local prosecution has a measure of success despite its failure, for at the trial “wickedness itself had been aware of the slowing of its pulse.” The pulse would be still slower if Miss West took on more of these assignments.

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¹ Nuremberg: German Views of the War Trials, edited by Wilbourn E. Benton and Georg Grimm; Southern Methodist University Press, 1955, pp. 175-9.

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