prudence that is entirely cut off from realities could attempt to play articles of law off against the realities of life and to ignore the constitutional change which had taken place. And for the same reason one's arguments are misguided if one ignores how the institution of government laws, i.e., of cabinet laws, was later changed by custom into one of several forms in which the Fuehrer legislated. At the base of every state order, as of any order whatsoever, there lie habit and custom. From the time when Hitler became head of the state, practice quickly led to Hitler standing both before the hierarchy and before the whole people as the undisputed and undisputable possessor of all competence. The result of the development was at any rate that Hitler became the supreme legislator as well as the supreme author of individual orders. It was not least of all under the impression of the surprising successes, or what were considered successes in Germany and abroad, above all during the course of this war, that he became this. Perhaps the German people is even though with great differences between North and South, West and East-particularly easily subjected to actual power, particularly easily led by orders, particularly used to the idea of a superior. Thus the whole process may have been made easier. Finally the only thing that was not quite clear was Hitler's relationship to the judiciary. for, even in Hitler-Germany, it was not possible to kill the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the wide masses in their everyday life. Up to the highest group of party officialsthis has been shown by some of the speeches by the then Reich Justice Leader, the defendant Dr. Frank, presented here-there was resistance, which was actually not very successful, when justice in civil and ordinary criminal cases was also to be forced into the "sic volo sic jubeo" of the one man. But: apart from the judiciary, which was actually also tottering, absolute monocracy was complete. The Reichstag's pompous declaration about Hitler's legal position, dated the 26 April 19429 was actually only the statement of what had become practice long before.

The Fuehrer's orders were law already a considerable time before this second World War.

In this state order of his, the German Reich was treated as a partner by the other states, and this in the whole field of politics. In this connection I do not wish to stress the way (so impressive to the German people and so fatal to all opposition) in which this took place in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he 79 Cf. Text in App. I under C (Exhibit 42).

ordered Germans to the Nurnberg party rally in the case of his state shows. I should like rather only to point out that the governments of the greatest nations in the world considered the word of this "almighty" man the final decision, incontestably valid for every German and based their decisions on major questions on the fact that Hitler's order was incontestably valid. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Neville Chamberlain, after the Munich conference, displayed the famous peace paper when he landed at Croydon. This fact was adhered to when people went to war against the Reich as the barbarous despotism of this one man.

No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever increasing number of people at home and abroad. But that does not in any way alter the fact that it existed, not lastly because of the recognition from abroad and because of its effectiveness, which caused a British Prime Minister to make the now world-famous statement at a critical period, that democracies need two years longer than the totalitarian governments to attain a certain goal. Only one who has lived as if expelled from among his own people, amid blindly believing masses who idolized this man as infallible, knows how firmly Hitler's power was anchored in the anonymous and innumerable following who believed him capable only of doing what was good and right. They did not know him personally, he was for them what propaganda made of him, but this he was so uncompromisingly that everybody who saw him from close to and saw otherwise, know clearly that resistance was absolutely useless and, in the eyes of other people, was not even martyrdom. Would it therefore not be a self-contradictory proceeding if both the following assertions were to be realized at the same time in the rules of this trial?

1. The Reich was the despotism of this one man, and for this very reason a danger to the world.

2. Every functionary had the right-in fact the duty-to examine the orders of this man and to obey or not obey them according to the result of this examination.

The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could not be illegal at all, with one exception which will be discussed later-an exception which, if carefully examined, is seen to be only an apparent one-namely with the exception of those cases in which the monocrat placed himself-according to the indisputable values of our times-outside every human order,

and in which a real question of right or wrong was not put at all and thus a real examination was not demanded.

Hitler's will was the ultimate authority for their considerations on what to do and what not to do. The Fuehrer's order cut off every discussion. Therefore: A person who, as a functionary of the hierarchy refers to an order of the Fuehrer's, is not trying to provide a ground for being exempted from punishment for an illegal action, but he denies the assertion that his conduct is illegal; for the order which he complied with was legally unassailable.

Only a person who has understood this can have a conception of the difficult inner struggles which so many German officials had to fight out in these years in face of many a decree or resolution of Hitler's. For them such cases were not a question of a conflict between right and wrong: disputes about legality sank into insignificance. For them the problem was one of legitimacy. As time went on, human and divine law opposed each other ever more strongly and more frequently.

Therefore, whatever the Charter understands by the orders which it sets aside as a ground for exemption from punishment, can the Fuehrer's order be meant by this? Can it come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had developed, a constitution which had been explicitly or implicitly recognized by the community of states? Many Germans did not like Hitler's position of power from the very beginning, and to many Germans who welcomed it at first because they yearned for clear and quick decisions, it later became a horror. But that does not in any way alter the following fact: must not those people who did their duty in this hierarchy; willingly or unwillingly, in accordance with this constitution, feel that an injustice was being done to them if they were sentenced because of a deed or an omission which was ordered by the Fuehrer?

A community of states could refuse to accept or tolerate as members such states as have a despotic constitution. But up to now this has not been the case. If it is to be different in the future, the non-despotic powers must take the necessary steps to prevent any member of the family of states turning into a despotic power and to prevent any despotic power entering the family circle from outside. Today people are realizing more and more clearly that this is the crux of our question. The circumstances must be very special if a modern people lets itself be governed despotically, even if it is as well disciplined as the German people. But as soon as such circumstances do exist, there are no internal

counter-measures left. Then only the outside world can help. But if, instead of this, the outside world recognizes this constitution, it is impossible to see where successful internal resistance can come from. In pointing to these special circumstances and to the recognition by the outside world, we draw attention to facts, for the existence of which no German was, in our case, responsible, but which cannot be ignored when one asks how all this was possible.

But certain further facts must also be drawn attention to, without a knowledge of which one cannot fully grasp the fact that Hitler's absolute monocracy was able to get such a terribly firm hold. Hitler combined in his person all the powers of issuing legislative and administrative orders on the highest level, orders which could not be questioned and were absolutely valid; but immediately below him the power of the state was divided up into a vast mass of spheres of competence. But the dividing lines between these spheres were not always sharply drawn. In the modern state, particularly in the major states of a technical era, this cannot be avoided. But the tendency to exaggerate questions of competence is certainly no less marked in Germany than in any other country. This facilitated the erection of dividing lines between the departments. Every department watched jealously to see that no other one trespassed into its field. It everywhere suspected tendencies of other departments to expand; considering the great mass of tasks which the so-called "totalitarian" state had heaped upon itself, cases where two or three departments were competent for the same matter could not be avoided. Conflicts between departments were inevitable. If a conspiracy existed, as the Indictment assumes, the conspirators were remarkably incompetent organizers. Instead of cooperating and going through thick and thin together, they fought each other. Instead of a conspiracy we rather have a discordance.

The history of the jealousy and mistrust between the powerful persons under Hitler has still to be written. And let us now remember that in the relations between all departments, and within each department, people surrounded themselves with ever increasing secrecy; between departments and within the departments, between ranks and within the various ranks, more and more matters were classed as "secret". Never before has there been so much "public life", i.e, non-private life, in Germany as under Hitler; but also never before was public life so screened from the people, above all from the individual members of the hierarchy themselves, as under Hitler.

The one supreme will became, quite simply, technically indis

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pensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders from other functionaries only needed to refer to an order of the Fuehrer's to get his way. For this reason many, very many, among those Germans who felt Hitler's regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene: for what would happen when this connecting link disappeared? It was a vicious circle.

I repeat: An order of the Fuehrer's was binding-and indeed legally binding-on the person to whom it was given, even if the directive was contrary to international law or to other traditional values. But was there really no dividing line? During the first period at any rate-i.e. just as the time when the foundations of power were being laid, at the time when the monocratic constitution was being developed step by step-Hitler's followers amongst the people saw in their Fuehrer a man close to the people, a selfless, almost superhumanly intuitive and clear thinking pilot, believed only the best of him and only had one worry; whether he was also choosing the right men as his assistant and whether he was always aware of what they were doing. The tremendous power, the unlimited authority, were given to this Hitler. As in every state it also included harsh orders. But it was never intended as authority to be inhuman. Here lies the dividing line. But this line has at no time and nowhere been quite clearly drawn. Today the German people are completely disrupted in their opinions, feelings and intentions; but they are probably in agreement on one thing, with very few exceptions: they would not wish to draw this line with less severity as accusers than other peoples do towards their leaders. Beyond that line, Hitler's order constituted no legal justification. But it must not be forgotten that this line is not only vague by nature, but follows a different course in peace to what it does in wartime, when so many values are changed, and when men of all nations, especially in our days. take pride in deeds which would horrify them at any other time And the decision to wage war does not in itself overstep that line in spite of its tremendous consequences. Not in any nation in the world.

Hitler himself, at any rate, did not recognize this dividing line of inhumanity, of non-humanity, as a limit of obedience in hi relations with his subordinates, and here also opposition would have been considered a crime punishable by death in the eyes and for the decisions of this man with limitless power who controlle an irresistible machine. What should a man who received an or