unlawful means." Similar definitions always keep occurring. Two points are characteristic: "Agreement" and "Common plan.” Agreement means an explicit or tacit understanding. If some persons pursue the same end independently of one another, then there is no conspiracy. It is accordingly not enough that the plan is common to all of them, they must have knowledge of this community and every one must voluntarily accept the plan as his own. The very expression "to conspire" involves that everyone contributes knowingly and willingly. A person under duress is no conspirator, duress does not produce agreement, at the utmost in purely external assistance. For instance, if somebody imposes his will on another, then there is no conspiracy. A conspiracy with a dictator at its head is a contradiction in itself. A dictator does not enter into a conspiracy with his followers, he does not make any agreement with them, he just dictates.

Knowledge and will of the conspirators are aimed at a common project. The contents of such a plan can be very different. In English law, for instance, conspiracies are known for committing murder, fraud, blackmail, false accusation, certain economic delicts (Stephen, Digest of criminal law, 6th vol., p. 39, 70, 113, 124, 137, 192, 305, 390). In all these cases conspiracy is treated as a crime by itself (sui generis) and, therefore, the conspirators are punishable for conspiracy regardless of the fact whether a murder; a fraud or even a mere attempt at such crimes has been committed. According to German terminology we would say: conspiracy is one of the cases, where even preparation of a crime is punishable. Such cases are known to German criminal law. The partner in an agreement for committing a crime against life is punishable. According to Art. 49b he is punishable for a "crime of preparing any killing" even if the intended action has not taken place. In a certain sense par. 129 can also be applied here. Partnership in an association pursuing certain aims hostile to the state is punishable, again independently of the fact, whether a crime has actually been committed. But if it comes to an action, everybody is charged with his own culpability in this action. If it happens that the individual conspirator is guilty neither as the perpetrator nor as an abettor nor as an accessory of the actual crime, then he can be charged with partnership in an association hostile to the state but not with such a crime.

The prosecutors in this trial are going further. They want to punish, under certain circumstances, the conspirators for individual actions they do not participate in. To take the most significant example, they want to charge a conspirator even with those crimes which were committed prior to his entering the conspiracy.

Article 6 of the Charter says that all conspirators are co-responsible for any action committed by any one of the co-conspirators "in execution of such a plan". These are the decisive words for the interpretation.

In my opinion, the meaning of these words is as follows: The other conspirators are co-responsible for any actions of their comrades which form part of the common plan, or which they therefore have helped think out or have willed or have at least accepted. A few examples:

a. A, B, C, D commit a concerted house-breaking in a villa. They happen to find a girl in the house, and A rapes her. B, C, D cannot be charged for this rape. The reason is that A did not do so, when committing the crime, "in execution of the plan" but if anything, at the "occasion of execution of the plan". The point at issue is not the execution, but merely the occasion arising while executing the plan. This opinion, which should not be disputed, is of importance, as it makes it clear that there cannot be any question of responsibility for all the actions of the partners to the conspiracy.

b. While exploring the villa, B and C come to fight about some piece of plunder, and B knocks down C. This action too was not committed "in execution of the plan", but was foreign to it. A and D are not responsible for this "excess".

c. While exploring the villa, the burglars are detected by the owner. D shoots him. Now the issue depends on the special circumstances of the case. Let us, for instance, go back to the example, quoted by Mr. Justice Jackson, of the three robbers, one of which kills the victim. Considering the nature of American gangsterism, it would appear quite normal that the individual gangsters concerned bore in mind the possibility of such an occurrence, and were quite prepared to approve of it. If this is the case, they are responsible for the killing, as accessories or assistants, also according to our opinion. In such a case, there would be no objection to Mr. Justice Jackson's solution. But if the case is different, if the fatal issue had not been foreseen by the others, could not even perhaps be foreseen-e.g., if they took it for granted that the inhabitants of the house were away from home-then there is no responsibility of the co-conspirators. They are responsible only for acts belonging to the "execution of the plan", and such a common plan includes only what has been foreseen, from the beginning, and approved. Other ways of execution are alien to the plan. Mr. Justice Jackson's argumentation is fallacious in so far as he derives a common principle from a decision which clearly and obviously happens to apply to the "normal case" of his paradigm of the robbers, and can hardly be applied to any other case. As the case stands, co-responsibility

Quite besides this legal consideration, Hitler's environment did, in fact, by no means appear as a community of conspirators, as considered by the prosecution, and that before the hearing of evidence. Apart from a small party clan, he was surrounded by an atmosphere of distrust. He trusted neither the "defeatist club" of his ministers nor his "generals". Such was already the case before the war, and what his surroundings looked like during the war has been shown by witnesses with great impressiveness. A cunning system of secrecy ensured that plans and aims of the Fuehrer's remained unknown to his collaborators as long as at all possible, so that his most intimate assistants time and again were taken by surprise by the events, and, in fact, were shocked to learn some of them at the present trial only. This system of secrecy also ensured an isolation of his individual collaborators, as one hand was not allowed to know what the other did. Does this look like a conspiracy? In fact, Hitler complained at times that the generals were "conspiring" against him, and used, strangely, this very word while speaking of those who to-day are charged with having conspired with him. The evidence repeatedly mentions conspirations, but conspirations against Hitler.

From a purely psychological point of view, it is, to say the least, highly improbable that the score of survivors of the Third Reich picked out and put into the dock by the prosecution have ever formed a gang of conspirators in the sense of the indictment. Any homogeneity is lacking in this group of people as to outlook, background, education, social position and function, and part of the defendants only met in the dock.

The prosecution considers the party with its organizations as the nucleus, around which the conspiracy formed. We should, however, in this connection too, consider the different individual attitude. Some of the defendants have not been party members at all, or, at any rate, not for a long time, and but few of them have played an important part in the party. Some held top positions in the party and its organizations and devoted their entire activity to the aims of these organizations, while others did everything in their power to eliminate from their sphere of activity any influence of party and SS.

The foundation of the NSDAP took place in a period of utter powerlessness of the state and of general war-weariness of the people at a time when, truly, no intelligent person thought of a second war or, even less, about a war of aggression.

But were any of the defendants aims unattainable without war? Surely, the wishful dream of every true German was the union of all adjoining German territory with the Reich. This applied to