I talked personally about two weeks ago to an SA man and asked him whether, following the notice of the Court, he had reported here for interrogation. He declared that he saw no reason for doing that, because in the meantime he had been elected and approved as community councillor.
The regulations of Law Number 30, regarding the application of the German community order of 20 December 1945, namely, Articles 36 and 37, which show that SA men are eligible for election, also confirm the fact, which is known in Germany, but apparently not in foreign countries, that an ordinary Party member had—only by comparison, naturally—a more active political position than the completely uninfluential SA member. Whoever was a Party member before 1937 cannot vote, and whoever at any time was a Party member cannot be elected.
A comparison of Party members, who are not indicted here, and SA members, who are indicted here, shows the following facts:
If at the time of National Socialism one was politically incriminated or suspected one could, without difficulty, become an SA member but under no circumstances a Party member, because in regard to Party membership—and even ordinary Party membership—much higher political qualifications were required than in the case of SA members. There were certainly many SA members who joined this organization only to escape to some extent the persecution they had to expect because of their incriminating political record in the past.
May it please the Tribunal, I have tried by means of these examples to show the extraordinary danger existing in the particular case of the SA, if all its members, including its millions of ordinary SA men, are legally declared criminals by the Tribunal. I am sorry I cannot share the opinion expressed yesterday by Justice Jackson that the verdict sought from this Court would be a purely declaratory one with no penalties involved. On the contrary I know that hundreds and thousands of SA members, who were simple followers and were not even Party members, have been dismissed from their positions, and their future and their existence will depend on the verdict of this Court. A declaratory judgment of this Court is sufficient to make them outlaws and to exclude them from positions and professions in the future. Therefore the members of the SA are correct in pointing out that they are denied the right of judicial hearing. There is no direct evidence and no direct trial. A court does not decide the fate of lifeless creatures of the law or formal organizations that have long since ceased to exist; it passes judgment on living human beings, and no court should forego the opportunity of seeing in person those whom it is trying. A good judge is always a good psychologist and soon can tell what kind of person is on trial—whether he is a criminal or somebody who has been deceived and misled.
No law on earth since time immemorial ever allowed the passing of judgment against an organization instead of against its single members. The laws and precedents quoted yesterday by the Prosecution regarding criminal gangs and conspiracy certainly recognize to a large extent the collective responsibility for acts of accomplices, but two requirements must be fulfilled there too: Firstly, the member must know that he is party to a criminal conspiracy or criminal association; secondly, the indictment is not directed against the conspiracy as such, and the conspiracy will not be judged, but the persons of the individual participants. It is the conviction of the Defense that the Charter did not intend to stand in contradiction to these legal principles of all states.
The late President Roosevelt, whom Justice Jackson named the spiritual father of the Charter, has in his great speeches, particularly in those of 25 October 1941 and 7 October 1942, stated clearly that the leaders and instigators shall be called to account. Permit me, Mr. President, to read two sentences from the speech by President Roosevelt taken from the official collection, Speeches and Essays by President Roosevelt, published on order of the government of the United States.
I quote from the speech of 25 October 1941:
“Civilized peoples long ago adopted the basic principle that no man should be punished for the deed of another.”
The second quotation is from the speech of President Roosevelt on 7 October 1942, and I quote: