make it possible to give a reliable opinion of his personality. This knowledge is absolutely necessary if the Tribunal is to come to a decision, which is not only in harmony with objective law but which also renders the maximum of justice to the individuality of the perpetrator.

I do not consider it necessary, after the accused was heard so exhaustively on all particulars, to deal with every question to which he has already given the requisite explanation. In view of this I shall limit the defense to the following statements:

Preliminary History

We are in a transitory period of history of the greatest significance. An age is coming to an end which has been less known for its concept of order than for its concept of liberty. This striving for liberty released tremendous forces-so gigantic that in the end it was impossible to master them. The tremendous progress this era has unquestionably brought about in scientific and technical spheres we have dearly paid for with the shattering of all human order and the loss of peace in the entire world. So far the profound reasons for such a disastrous development have hardly been discussed in this court. But in order to rightly understand the grave crimes and confusion which are indicted here it is imperative to throw some light on the historical background.

The French chief prosecutor has already pointed out that the roots of National Socialism are to be found in a period far removed from us. He goes back even right to the beginning of the last century. He sees the first step to a leading astray of the German character in Fichtes "Reden an die deutsche Nation".

"Fichte preached the doctrine of Pan-Germanism" he says, insofar as he wanted to see the world planned and organized by others, just as he himself saw it and would have liked it to be shaped. I cannot understand how this should express more than the universal human desire to take part in the shaping of a common destiny. Only the methods of such attempts to participate may at times be justly criticized. A Swiss assertion, which also perceives in Fichte the cause of Germany's going astray, seems to me to be clarifying in this respect. It does not, however, accuse him of Pan-Germanism, that is, of the will to subjugate foreign peoples, but rather reproaches him for having attempted at all to unite the Germans into one nation. It contends that this was an inadmissible attempt to imitate the French and British, whereas it would have been more suited to the German character to remain a nation made up of different peoples. For only as such could it have continued its historical mission to remain the nucleus of a European federation.

empire which as living space today comprise more than one half of the surface of the entire world.

The theory of war as a crime created by Grotius, the teacher of international law, quoted by the prosecution failed because it was incompatible with the dynamic power of this time. It embodies as we know only an attempt to keep alive through secular arguments the aforementioned concept of Christian warfare. One cannot, however, derive justice from nature alone. It knows no other measure than brute force. It actually always decides in favor of the stronger. Considered from a metaphysical standpoint, justice can be defined as an independent force, set above natural impulse. Therefore the theory of Grotius necessarily petered out in the 18th century as thinking in a purely worldly sense it could not find a criterion for a just war.

From this time on the search for true justice stirs the world. All socialist theories are only attempts of solving this problem. After having been disappointed by the doctrines of too much liberty, mankind once again seeks security and order. Some wish to return to the Christian truth of God while others want to go forward in order to solve the problem through human intellect eventually. The National Socialists, whose most revolutionary leaders wanted to go further backwards and at the same time forward to a selfdeification of life in a biological political sense, have been conquered and eliminated. Yet a solution of the problems of world order has hitherto not been found. The victorious powers intend to come close to it, however, by drawing a line between themselves and the vanquished through a common indictment and punishment of the same as criminals.

Fundamentals of Law

From whence will they take the standard by which to decide about justice and injustice in a legal sense? Insofar as such standards exist by international law, valid up to now, further statements are not required. That a special court for the trial was created by the Charter of this tribunal I also do not object to. I must, however, vigorously protest against its use, insofar as it is meant to create a new material law, by threatening punishment for crimes which, at the time of their perpetration, at least as far as individuals are concerned, did not carry any punishment.

Can one expect, that hereafter punishment will be recognized as just, if the culprit was never aware of it, because at the time he was not threatened with such punishment, and he believed to be able to derive the authorization for his way of acting solely from the political aims pursued? What does a reference to the ethical laws help, if such must be first found again? According to Justice

Jackson's opinion, however, the Nazi Government never from the start was the representative of a legitimate state which had pursued the legitimate aims of a member of the international community. Only from such an attitude can the indictment for conspiracy be understood which is to be discussed later. In fact this (indictment) is far ahead of its time as is the whole way of argumentation by Justice Jackson. Because internationally recognized standards-outside the positive international law-by which the legitimacy of states and of their aims could have been judged did not exist, just as little as an international community as such. Slogans about the legitimacy of one's own and of the illegitimacy of foreign aspirations served only the formation of political fronts just as the efforts to brand political adversaries as disturbers of the peace. In any case they did, indeed, not create law.

Justice Jackson declared justly, that it would have been possible for the conquerors to deal with the conquered as they saw fit. But, said he, non-discriminatory executions or without a final establishment of guilt would be a breach of promise given repeatedly. For this reason he himself proposed judicial proceedings which would have to differ from the ordinary criminal proceeding by not admitting the usual tactics of obstruction and delay by the defendants. But an establishment of guilt should be made, based on a just and fair trial. If the defendants were the first leaders of a conquered nation which had to answer before the law they were also the first ones to whom the opportunity was given to defend their lives "in the name of justice".

If this sentence is to have a meaning then it must be of signification for interpretation of the Charter. Because it would not be reasonable that the court were obliged to stand exclusively by the Charter without taking into consideration international law recognized hitherto and convictions of others with regard to law. In that case the judgment would rather become a pure dictate of force to appeal against which "in the name of justice" would make no sense.

The Charter may therefore be applied by the court only insofar as its decrees are justifiable before the conscience not only formally but also materially. The Charter itself says that nobody may be excused for a violation of its decrees by hiding behind an order of his government or of a superior. In that case it must apply this, its own logic also to itself by allowing the judge to examine the congruence of its prescripts with the general principles of just ways of thought. For a judge, after all, is far more free and independent from the law maker than a subaltern from his superior or a subject from his dictator.

Nulla poena sine lege praevia

Then there is another question, whether really decrees of the Charter are so much in opposition to the previous and ordinary state of law especially to the fundamental ideas of all rules of law that the court cannot acknowledge them as right or apply them. Practically the most serious problem consists thereby in the decision what should have precedence in the case of conflict, the Charter or the legal maxim "Nulla poena sine lege praevia".

One has tried to justify the exceptional case of disregarding this rule in this given instant with the highly political character of the trial. Such a justification, however, cannot possibly be recognized. The political significance of this trial shows itself otherwise by its consequences near and far, but not yet in the very procedure by influencing the legal norms to be applied. A judge should administer law but not deal in politics. He is called upon still less, to rectify mistakes made by the politicians. Punishment, the establishment of which in due time was neglected, may only be decreed by him on the strength of a subsequent law, if he would do this also in other cases, but not only as an exception to please the politicians. Because, as a principle the maxim of the division of power is supposed to be maintained. By this principle Montesquieu divided the originally united power of the absolute King into legislative, administrative and judiciary. The three different forms of expression of state domination were, having equal rank, to be in equilibruim and so to aid in controlling one another. This system of division of powers characterizes the modern constitutional state. In a slightly strained way one may define the field of activities and competency of the three different forms of expression of sovereign authority in stating that the legislature has to deal with the future, administration with the present, and judiciary with the past.

The legislature sets the standards to which life is to conform. From time to time these must be changed and put in accord with the changed way of living. But till then they remain valid.

Insofar as a mere establishment of norms of life is not sufficient it will be formed, case by case, by the administration. The administration itself is bound by certain norms, but on principle has free play within the lawful bounds of its good judgment so as to be able to respond to the daily changing needs. For it, just as for the lawmaking politician, the idea of serving a purpose is decisive.

The judge on the other hand may not decide according to the usefulness but shall decide according to the law. In general it is not his task to create, but to judge. He has to judge the actions after they were committed and the conditions after they have arisen, whether and in how much they corresponded to the stand