DR. DIX: Mr. President, Gentlemen of the Tribunal. A mere glance at the dock reveals the singularity of Schacht’s case and the story of his imprisonment and defense. There in the dock sit Kaltenbrunner and Schacht. Whatever the powers of the Defendant Kaltenbrunner may have been, he was in any case Chief of the Reich Security Main Office. Until those May days of 1945, Schacht was a prisoner of the Reich Security Main Office in various concentration camps. It is surely a rare and grotesque picture to see jailor and prisoner sharing a bench in the dock. At the very start of the Trial this remarkable picture alone must have given cause for reflection to all those participating in the Trial: judges, prosecutors, and defense counsel alike.
Schacht was banished to a concentration camp on the order of Hitler, as has been established here. The charge against him was high treason against the Hitler regime. The judicial authority, the Peoples’ Court, headed by that bloodthirsty judge, Freisler, would have convicted him, had not his imprisonment turned into detention by the victorious Allied Powers. Since the summer of 1944 I was assigned to defend Schacht before Adolf Hitler’s Peoples’ Court; in the summer of 1945 I was asked to conduct his defense before the International Military Tribunal. This, too, is in itself a self-contradictory state of affairs. This, too, compels all those participating in the Trial to reflect on the personality of Schacht. One involuntarily recalls the fate of Seneca; Nero, as a counterpart to Hitler, put Seneca on trial for revolutionary activities. After the death of Nero, Seneca was charged with complicity in Nero’s misgovernment and cruelties, in short, with conspiring with Nero. A certain wry humor is not lacking in the fact that Seneca was then declared a pagan saint by early Christianity as early as the fourth century. Although Schacht does not indulge in such expectations, this historical precedent nevertheless forces us to remain always conscious of the fact that the sentence to be pronounced by this High Court will also have to be justified before the judgment seat of history.
The picture of the Third Reich has been revealed to the Tribunal in a thorough and careful presentation of evidence. It is a picture with a great deal of background. An opportunity was given to depict this background also, as far as it was possible within the limits of such a thorough-going investigation entailing a judicial presentation of evidence which, to be sure, though thorough enough, was nevertheless concluded as soon as possible according to the requirements of the Charter.
In order to learn what it was like under Hitler in German countries, there is still enough which has been left to the intuition of the Court. It is not possible, and never will be possible, to understand Hitler Germany from a constitutional point of view, according to the scholarly conceptions and views of people with a legal mind. As a scholarly topic, “The Constitution under Adolf Hitler” is a lucus a non lucendo. Mark my words, “The Constitution”—that is, the reduction of the Hitler State to a legal system, and not the attempt as made in the final plea by Jahrreiss, to explain the tyranny of a despot under the aspect of legal research. A scientific sociology of the Third Reich would, although feasible, be very difficult and therefore has not yet appeared.
Only very few Germans living in Germany knew the conditions and the distribution of power within those circles of people who were seemingly or actually called upon to contribute their share toward the formation of a political will. Most Germans will be surprised when this picture is unveiled. How much less possible was it for a foreigner to form a correct judgment of the constitutional, sociological, and inner political conditions of Hitler Germany at the time when the Indictment was presented. But a correct judgment of these things was the prerequisite for an Indictment correctly founded in both fact and law.
I am of the opinion that the members of the Prosecution were thereby confronted with a task which defied solution. I am furthermore of the opinion that the Prosecution would never have presented their criminal charges against the defendants under the count of a conspiracy if they had been able to see the distribution of political power in Hitler Germany in the same way as this may perhaps be today possible, although with great difficulty, for an intelligent, politically gifted observer and listener at this Trial.
A conspiracy within the meaning of the Indictment was, as a practical matter, not possible in Adolf Hitler’s Third Reich, as my colleagues have already pointed out. The only thing possible in the Third Reich was a conspiracy by the opposition against Adolf Hitler and the regime. Several such conspiracies were formed, as was here proven. The relationship between conspirators is somewhat different than that between an accomplice and the chief perpetrator. The part to be played by the individual conspirator in the execution of the common plan may vary. Some, or a single one, of the conspirators may hold a leading position within the conspiracy. At all times, however, co-operation is necessary. Common usage of the term in itself precludes speaking of a conspiracy when only one commands and all the others are merely executive agents.
I am, therefore, of the opinion that that which was defined as a crime here in this hall can never constitute the elements of a conspiracy according to criminal law. Other legal factors which might enter into the question are of no interest to me as defense counsel for the Defendant Schacht, because no criminal charge whatsoever can be brought against Schacht personally, as an individual, and without connecting him with deeds of others—in other words merely on the basis of his own actions. Schacht himself desired only the permissible and the beneficial, and his actions served these intentions. To the extent that he erred politically, he is in all candor prepared for the verdict of history. Yet even the greatest dynamics of international law cannot penalize political error. If it did this the profession of the statesman and politician would become impossible. World history is more affected by mistakes and errors than by correct perceptions. According to Lessing’s wise words, the perception of absolute truth is God’s privilege. There remains for man as his greatest blessing only the quest for truth. Nescis, mi fili, quanta stultitia mundus regitur, as old Axel Oxenstierna once said, and he was probably right.
Schacht declared here that he felt that he had been most grossly deceived by Adolf Hitler. He thereby admitted that certain of his decisions and actions had been wrong. The Prosecution disputes Schacht’s good faith and imputes to him the dolus of having deliberately worked for a war of aggression as Adolf Hitler’s financial agent, thereby becoming by implication criminally responsible, from the point of view of the conspiracy, for all the cruelties and atrocities which were committed by others during this war. The Prosecution itself was not able to produce any direct proof of these allegations. They attempted to do so first by means of alleged documentary evidence in the form of misinterpreted statements by Schacht, torn from their context. For this the Prosecution referred to witnesses who could not be made available for examination before this Court because some of them were absent and some had died. I recall, for example, the affidavits of Messersmith and Fuller, and Dodd’s diary notes. Their lack of value as evidence was clearly set forth to the Tribunal by Schacht during his examination. In the interest of saving time I do not wish to repeat things which have already been said, and which surely must still be within the recollection of the Court.
The Prosecution further attempted to base its charges on actions of Schacht which had been established beyond reasonable doubt. All these arguments of the Prosecution are mistaken conclusions from allegedly incriminating circumstances. I shall confine myself to an enumeration of the most essential wrong conclusions. The others either result from these directly or by analogy.