“HEAR, YE TOWNSFOLK, HONEST MEN”
It is ten o’clock in the morning in Kronenberg, and, in the Courthouse just below the Castle, the three members of the——th District Court of Hesse have ascended the bench to pronounce judgment Except for the defendants and their counsel and a few close relatives of some of the defendants, the courtroom is almost empty, for the fact is that there is not much interest in the pending case in Kronenberg.
Kronenberg is a quiet town. It is one of the quiet old “picture-book towns,” of which there are (or were) so very many in Germany. Most of them are partly destroyed now, some of them wholly. But old Kronenberg is (as it always has been in the wars) but lightly scarred. And, like all lightly scarred towns now, Kronenberg’s prewar population is almost doubled, and around the railroad station and along the lowland of the Werne there are shacks and hovels which are not seen in picture-books.
Kronenberg must be excused for not keeping up its picture-book appearance. You see, there are no tourists now. (Who would come to Germany?) And the Kronenbergers—even those who had savings have just been wiped out by the currency stabilization—are preoccupied with staying alive. The town is shabby, very shabby, and the weeds are head-high in the lot where the synagogue stood, and the iron fence, which still surrounds the lot, is rusted.
But the ruins of the war are few in Kronenberg. Two or three times sorties of planes crisscrossed the town in the night and burned a dozen houses down and fired into the streets; that was all, in quiet little old nonindustrial Kronenberg, except for the day that the bombers, apparently aiming at the railroad station, set fire to the University Eye Clinic a mile away from the station and burned up fifty-three blind-folded patients.
Still, one doesn’t measure the damage entirely in ruins; one measures it, too, in years of air-raid alarms, night after night; in the price of unpasteurized milk; in the bundle of kindling that costs a day’s work to buy and is gone in an hour. The Kronenbergers are tired people, too tired to climb the Castle hill to the Courthouse to hear all about it all over again.
The three judges sit silent until the Katherine bell, the Parish bell, and the Town Hall rooster have given their dissynchronous notice that it is ten o’clock; then the senior judge, having first exchanged nods with his colleagues to his right and left, begins to read the decision:
“This is the first case arising from the synagogue arson of November 9,1938, to be decided under the full jurisdiction of the German Courts. The previous cases were adjudicated in de-Nazification proceedings under the United States High Command for the Occupation of Germany….
“Every defendant in this case, as in all preceding cases, has argued that he was acting under superior orders. The doctrine was asserted by the International Military Tribunal at Nuremberg that superior orders do not constitute a defense of a crime against humanity. This doctrine is not clear to this court. Citizens must obey the law and the officers of the law, or anarchy will rule. And yet, no man should commit an offense against humanity. Here we have an apparent contradiction.
“But in the instant case, the truth of the charges does not require clarification of this doctrine or resolution of the apparent contradiction. We may, therefore, proceed to a finding.
“In this case we do not know who gave the original orders or whether original orders were given. We know that in one night, November 9, 1938, five hundred and eighty-six synagogues were destroyed in Germany, and the Court takes judicial notice of this fact which led to the disgrace of the German nation and a tragic misunderstanding of the German character everywhere in the world.
“In the instant case, there is testimony, which the Court does not exclude, that the synagogue was on fire many minutes, or even hours, before any of the defendants in this or in previous cases approached the scene of the crime. It seems likely that this was true and unlikely now that any more of the offenders will ever be identified. Official and unofficial records of all kinds which might have been relevant appear for the most part to have been destroyed before, during, or at the end of the war.
“But the charges here, of breach of the peace by a public mob and of criminal arson, do not require us to answer the many questions which will probably remain unanswered to the end of time. Under the statutes, participation is culpable, and, if the Court may revert to the claim of superior orders, it may be said that evidence of willingness, or even of eagerness, to carry out such orders has been considered. Such willingness and eagerness have, in some instances, been found….
“In the days preceding the crime, it had to be expected, and was in general expected, that in case of the death of the wounded Diplomatic Counselor vom Rath in Paris, there would be violent measures taken against the Jews. The widely prevailing, artificially fostered tension pressed for release. Against the threatening danger stood such institutions for the usual preservation of public order as, for example, the police, who were themselves either anti-Semitically inclined or stood aside inactive.
“It has been established that there were no police at the scene of the crime; why, we do not know judicially. Under these circumstances it was to be expected that a group of persons, even of two men, would run into no resistance worth mentioning, especially when these persons were garbed in the SA uniform. The smallest group could pose a threat to public peace. They could reckon with the fact that their measures were approved in the highest official places, and the institutions responsible for the preservation of public order would not unsheathe their weapons.
“In assigning the punishment, the Court has considered, as favorable to leniency, the fact that the defendants have never been convicted of any crime except those arising from their political activity. They did not belong to the ‘criminal class.’ They had been good citizens and, as far as the record is before us, honorable men. Political passion made criminals of them. As members of the Party and of the SA they were overcome by year-in-year-out propaganda. Their educational level is not high, although all of them are fully literate and all of them had religious training in school in their childhood. This is said here because they seemed to take no responsible position as individuals toward the problem of respect for human beings who believed other than they did.
“The crime was committed at a time when the leadership of the State would not punish such assaults against unpopular persons or groups or their property and in this sense favored and even urged such assault. In addition, many of the highest officials of the State competed with one another, in the interest of their own political popularity, in the most violent denunciations of such persons or groups, thus arousing the passions of ordinary citizens who look to their public officials for counsel and direction.
“Certain facts, however, argue against leniency in the instant case….
“Nearly all the defendants in all the cases arising from this criminal act have denounced one another (and accused one another of denouncing them in order to exculpate themselves or gain an advantage). This has not been a spectacle of which Germans may be proud. And it has had the effect on this Court and, apparently, on others, of destroying the weight of all denunciations and counterdenunciations.
“In addition, nearly all the defendants, caught in multifarious self-contradictions, have said that they cannot remember what they said in earlier proceedings, or that the events at issue occurred too long ago for them to be sure of anything, or that too many things more important in their lives have happened since. The witness Karl-Heinz Schwenke, former SA Sturmführer, brought here from prison, where he is serving a three-year sentence for his part in the arson, has made a particularly unhappy spectacle of himself in this respect. His claim that he is an old man and cannot remember clearly would, if it were taken seriously, invalidate his repeated assertion that he should be regarded as a man of honor because he is a Christian and has applied for readmission into the Evangelical Church, which he left during National Socialism. If, at sixty-eight and, apparently, in good health, he is too old to take responsibility for his past acts, he may be equally too old to know what a Christian is….
“It is true that, in the fortunes of politics and war subsequent to November 9, 1938, all the defendants in this and the other cases arising from this criminal arson have suffered loss of property, liberty, or health, or all three. But so have those of their fellow-citizens who committed no crime, including those of Jewish ancestry or faith. If this Court could turn history back, it would, and so, undoubtedly, would the defendants; but it cannot and they cannot.
“Still, the punishment of these defendants will not restore the property rights that were lost, the human rights that were lost, the lives that were afterward lost, and the abandonment by many of our people, including the defendants, of their honor and humanity, which led to the loss of these other values and shamed our German nation and our German civilization….
“Since the principal perpetrator (in so far as we have evidence), the former Sturmführer Schwenke, was sentenced to three years upon conviction of this crime, the present defendants, whose roles were subsidiary to his, should receive lesser sentences. The Court therefore….”