Conscience of the Community

One of the greatest living U.S. lawyers, Henry L. Stimson, this week published in the January issue of Foreign Affairs a defense of the Nurnberg verdicts.* It was not, of course, the last word, but it was authoritative (Stimson had been Secretary of War when the trials were planned), and it was written in language non-lawyers could understand.

"International law," said Stimson, "is not a body of authoritative codes or statutes; it is the gradual expression, case by case, of the moral judgments of the civilized world. As such, it corresponds precisely to the common law of Anglo-American tradition. . . .

"It is clear that until quite recently any legal judgment against a warmaker would have been absurd. Throughout the centuries the choice between war and peace remained entirely in the hands of each sovereign state and neither the law nor the ordinary conscience of humanity ventured to deny that right. For the loser in a war, punishment was certain. But this was not a matter of law; it was simply a matter of course." In the wake of World War I, however, he continued, repeated efforts were made to outlaw war, "reaching their climax in the Kellogg-Briand Pact of 1928, in which 63 nations, including Germany, renounced aggressive warfare. During that period the whole world was one, [ but ] we lacked the courage to enforce the authoritative decision. . . . We did not reach the second half of the question: What will you do to an aggressor when you catch him? That answer escaped us for it implied a duty to catch the criminal, and such a chase meant war. . . .

"What has been done at Nuernberg . . . is a new judicial process but it is not ex post facto law. It is the enforcement of a moral judgment which dates back a generation. It is a growth in the application of law that any student of our common law should recognize as natural and proper, for it is just in this manner that the common law grew up. All case law grows by new decisions, and where those decisions match the conscience of the community, they are law as truly as the law of murder. . . .

"I feel only pity," concluded Stimson, "for the casuist who would dismiss the Nazi leaders because 'they were not warned it was a crime.' They were warned and they sneered contempt. Our shame is that their contempt was so nearly justified, not that we have in the end made good our warning."

The key phrase in Stimson's argument seemed to be "the conscience of the community." Did this conscience, in fact, match Nuernberg's law? The existence of treaties did not prove that the answer was yes. Convincing proof would come only if nations behaved consistently in accordance with the principles of conscience which Nuernberg assumed.

-The three that were acquitted all face trial in a few weeks by German Spruchkammern (lower courts). Franz von Papen and Hans Fritsche are in Nuernberg. Ailing Hjalmar Schacht is in a Stuttgart hospital, to which he was taken last fortnight, handcuffed, and screaming for an immediate trial. Life imprisonment was apparently agreeing with convicted Rudolf Hess. From Nuernberg last week, came news that his shattered nerves were returning to normal, his stomach aches disappearing.

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