Appendix II - The Berne Trials

Leslie Fry

Waters Flowing Eastward

" A lawyer, who assisted at the two trials, published in the review Hammer of December, 1937, a statement according to which the Judge (of the Lower Court) was in debt to a Jew at the time of the trial. This very serious allegation has never to my knowledge been denied. The Neue Berner Zeitung of October 29, 1937, formulated a not less serious complaint against the same Judge, who was obliged by his superiors to take an action against the paper. At the time of writing the action is not yet over. It would seem that the Judge was hardly the proper man to decide such a delicate question.

" It must be remarked also that, contrary to what appeared in many newspapers, the Court of Appeal found that, in spite of the prescriptions of the law, the reports of certain depositions had been drawn up by the private reporters of the Jewish plaintiffs. ' The proceedings as carried out in the Lower Court were not in accordance with custom and law. .. . The manner of drawing up the reports was in contradiction with the binding prescriptions of the law (Art. 92 and 215 Str. V).'2

" That seems clear and definite. Besides, the reports had not been read to the accused and had not been signed, as the law prescribes. In addition, witnesses for the defence had not been convoked and the Judge (of the Lower Court) had accepted from the plaintiffs, as coming from Moscow, photographs which had been insufficiently legalized as well as faulty translations of Russian documents. Is it astonishing then that the accused were condemned by the Lower Court and that the Jews rejoiced? The proof that the Protocols were a forgery had been furnished at last.

" But they had to change their tune. The Bernese Court of Appeal quashed the judgment of the Lower Court. The Higher Court found fault with the setting-up of a commission of experts to examine the question of the authenticity of the Protocols, since the authenticity or non-authenticity of the Protocols did not concern the Court. Moreover, the Court of Appeal severely criticized the choice of the experts, especially the selection of the third. ' If we leave out of account the completely unnecessary expense of the other judgments, in the circumstances, this would have been satisfactory, provided that the third expert selected had been completely impartial and unprejudiced. C. A. Loosli, however, had already, in 1937, published a pamphlet entitled Die Schlimmen Juden, in which he had characterized the Protocols as a recklessly malevolent fabrication and had heaped scorn on them as a forgery, in a manner that was purely polemical and absolutely unscientific. The form that Loosli's judgment in the matter would take was, therefore, capable of being to a large degree calculated in advance, so that he did not enjoy the requisite confidence of all parties'.3. The Court then drew the obvious conclusion: ' Such a mode of appointing an expert is not up to standard.'

" It will be enough to mention one fact in order to justify this criticism of the expert, Loosli. A few pages back I showed that the testimony of Radziwill was valueless, since it has been proved that the Protocols had already been published in 1903. Loosli wanted, nevertheless, to make use of Radziwill's testimony in his professional report of October, 1934. To get out of the difficulty, he simply changed the date of Radziwill's testimony from 1903 to 1895.

" The result of the second trial was never in doubt. The accused (Fischer and Schnell) were acquitted, and one of them had to pay 100 francs costs out of a total of about 28,000 francs. Here it is interesting to note that the whole Jewish Press took good care not to mention that this slight penalty had nothing to do with the Protocols. You will remember what I said at the beginning, namely, that the Jews had included other publications in their action. The 100 francs costs were imposed on Mr. T. Fischer because of the article entitled Shweizermadchen hiite dich vor schandenden Juden.

" A more disastrous result for the Jews could hardly be imagined. And what made it harder for them to bear was the fact that the Bernese Higher Court alluded to a judgment of the Federal Court, in which it was stated that the Swiss Law does not forbid and ' could not forbid journalists to express even very advanced opinions on the Jewish question, however painful these expressions of opinion might be for the Israelites.'

" The Jews however are already ' putting across ' their own version of the trial. The Jewish Daily Post of April 28, 1935, wrote that the first trial had shown " the success that could be achieved by means of good Jewish organization ". This excellent organization was ready to go into action after the disaster of the second trial, as a couple of examples will show.

" The Jewish Chronicle of November 5, 1937, wrote that the Court of Appeal had declared the Protocols a forgery and had held that they must be regarded as trashy literature. The same review asserted that the Court found that the falsity of the Protocols had been proved. In reality the Court of Appeal had declared that the authenticity of the Protocols had not been proved, which does not mean that their falsity had been proved. The Higher Tribunal added that the Lower Court should not have entered upon that question at all. ' To enter upon an expert examination of that question and carry it out was altogether superfluous '.*. The statement of the Jewish Chronicle must be stigmatized as contrary to the truth.

" The Revue de Geneve (Jewish Review of Geneva), in its issue of November 1937, and the Journal des Nations, in its issue of November 3, 1937, were nearer the truth and sinned only by omission. They wrote that " the proofs of the authenticity of the Protocols had not been furnished," but they left out that the Lower Court had been blamed for having raised the question of authenticity, as that question did not concern it.

" It is a universally admitted principle of historical criticism that when a document has been discovered, that document must be held to be authentic so long as its lack of authenticity, in other words, its falsity, has not been proved. This has always been the rule in regard to historical criticism. When it is stated that proof of the authenticity of the Protocols has not been furnished, the cart is put before the horse. It is for the Jews to prove that the Protocols constitute a forgery, and we know that all the attempts to prove this have been lamentable failures. What is more, it is known that the Provisional [Russian] Government of Prince Lwow, Freemason, handed over to the Jew Winawer, all the documents concerning the Protocols that were to be found in the Russian Home Office or at the Police Headquarters. If a proof or even a shadow of a proof, of the falsity of the Protocols had been found amongst these documents, the Jews would have published it immediately.

" I do not intend to weary my readers with the account of other misrepresentations and skilfully concocted affirmations similar to those I have mentioned. It is a pity that writers, whose good faith cannot be called in question, take their information from such dubious sources. They make the mistake of not subjecting those sources to the severe criticism indispensable in a matter that aroused so much passionate feeling, and they neglect to consult the official documents. They thus contribute to get the false Jewish version accepted. They consider that they are acting charitably in defending unfortunate victims of persecution and calumny, while in reality they are working for the triumph of the Jews.

" A Belgian religious wrote a short time ago that the decision of the Higher Cantonal Court confirmed the judgment of the Lower Court magistrate with regard to the falsity of the Protocols. The same author also asserted that the Court declared the Protocols to be ' a document written in bad faith, a malignant and poisonous forgery'.5 The Reverend Father is wrong. It was not the Court, but the barristers for the Jews who attacked the Protocols as the vilest product of the printing press ever published in Switzerland. I have carefully perused the 53 folio pages of the judgment and I can affirm that the Court nowhere declared the Protocols to be ' a document written in bad faith, a malignant and poisonous forgery.' That statement is absolutely opposed to the truth.

" The Court certainly made use of some very severe epithets, such as ' stupid Jew-baiting,' ' attempt to defame the Jews as a body,' but these were employed with reference to the article Shweizermadchen hiite dich vor schandenden Juden, which had nothing to do with the Protocols, but which the Jews had cleverly included in their case.

" The Court declared that the Protocols were ' shoddy or trashy literature in the aesthetic and literary.. . sense.' With that judgment we are in complete agreement. What remains to be determined is who is the author of this ' trashy literature.' On that point the Court declared itself incompetent."

1. Extract from Les Protocols des Sages de Sion constituent-ils un faux by H. de Vries de Heekelingen (Printed at Lausanne, 1938). In May 1935, the Judge of the Lower Court of the Swiss Canton of Berne, Meyer, gave judgment in the action taken by the Swiss Jewish Association and the Jewish Community of Berne against Theodore Fischer and Silvio Schnell concerning the Protocols and other publications. An appeal was lodged by Fischer and Schnell against the judgment, and the Court of Appeal or Higher Court of Berne gave its decision in October, 1937.

2. M. de Vries de Heekelingen here quotes the German text of the Judgment.

3. M. de Vries de Heekelingen again quotes from the German text of the High Court's decision.

4. M. de Vries de Heekelingen again quotes from the German text of the High Court's decision.

5. Article in La Nouvelle Revue tHeologique (January, 1938, p. 57) by the R. Pere Pierre Charles, S.J.

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