It would be difficult to draw an act that would more definitely condemn the organizations with which we are dealing here than this German Criminal Code of 1871. I recall to your attention that it condemns organizations in which obedience to unknown superiors or unconditional obedience to known superiors is pledged. It is exactly the sort of danger and menace with which we are dealing.
Under the Empire various Polish national unions were the subject of criminal prosecutions. Under the Republic, in 1927 and 1928, judgments held criminal the entire Communist Party of Germany. In 1922 and 1928, judgments of the courts ran against the political leadership corps of the Communist Party, which included all of its so-called body of functionaries. This body of functionaries in that organization corresponded somewhat in their powers to the Leadership Corps of the Nazi Party, which we have accused here. The judgment against the Communist Party rendered by the German courts included every cashier, every employee, every delivery boy and messenger, and every district leader. In 1930 a judgment of criminality against what was called “The Union of Red Front Fighters” of the Communist Party made no distinction between leaders and ordinary members.
Most significant of all is the fact that on the 30th of May 1924 judgment of the German courts was rendered that the whole Nazi Party was a criminal organization. Evidently there was a lack of courage to enforce that judgment, or we might not have been here. This decision referred not only to the Leadership Corps, which we are indicting here, but to all other members as well. The whole rise of the Nazi Party to power was in the shadow of this judgment of illegality by the German courts themselves.
The German courts, in dealing with criminal organizations, proceeded on the theory that all members were held together by a common plan in which each one participated, even though at different levels. Moreover, fundamental principles of responsibility of members as stated by the German Supreme Court are strikingly like the principles that govern our Anglo-American law of conspiracy. Among the statements by the German courts are these:
That it is a matter of indifference whether all the members pursued the forbidden aims. It is enough if a part exercised the forbidden activity.
And again, that it is a matter of indifference whether the members of the group or association agree with the aims, tasks, means of working, and means of fighting.
And again, that the real attitude of mind of the participants is a matter of indifference. Even if they had the intention of not participating in criminal efforts, or hindering them, this cannot eliminate their responsibility from real membership.
Organizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies, and their criminality is judged by application of conspiracy principles. The reason why they are offensive to law-governed people has been succinctly stated by an American legal authority as follows, and I quote from Miller on Criminal Law:
“The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of the people.”
The Charter in Article 6 provides that: