The German Classics of the Nineteenth and Twentieth Centuries, Volume 10

It was for long incomprehensible to me how the public prosecutor could use such words as instigation to hatred and contempt in this connection. In the end I have been able to explain this fact to myself only on this one supposition. The public prosecutor must have endeavored in reading this address, to put himself in the place of a working man and has then come to feel that he would in such a case be moved to hatred.

The public prosecutor, then, is sensible that he would hate.

Now, Gentlemen, I might say that this would be attributable to the peculiarity of his temperament, and that he had no call to generalize and go beyond that. But I will lend a hand to the public prosecutor in this perplexity. I will bring the charge against myself in a more telling form than he has been able to do. I will formulate it as the facts of the case require that it must be formulated if it is to be preferred at all. And in so doing, the more pointedly I may be able to bring to light the essential nature of the charge, the more utterly shall I annihilate it.

This is what the public prosecutor should have said:

It is true this address held by Lassalle appeals to the intellect of the auditors, not to their practical impulses or their emotions. It is accordingly true also that this address does not come within the sphere of competence of the penal code.

But in a person endowed with the normal complement of human sensibility, cognition, will and emotion are not so many insulated pigeonholes which stand in no relation to one another. Whenever the one compartment is full it flows over into the next. Will and emotion are servants of the intellect and are controlled by it.

Lassalle, it is true, has not a word to say of hatred and contempt; he is simply occupied with a theoretical exposition of how certain arrangements, for instance, the three-class suffrage, is pernicious. I am unable to confute this teaching. But I have this to say with respect to the organic unity of human nature, that if the doctrine is true then it follows that every normally constituted working man must come to hate and distrust not only these arrangements and institutions but also those who profit by them.

Such is the logical framework on which this indictment must proceed. This is the line of argument which avowedly or not, by logical necessity comes to expression in this indictment.

It is not I, but the public prosecutor speaking from the eminence of his curule chair, who proclaims to the working classes the awful doctrine: You must hate and distrust.

It is not for me, it is for the public prosecutor to square himself with the bourgeoisie.

But what is my answer to the public prosecutor and his indictment which charges me with his own offense?

My answer is a four-fold one:

In the first place a full recognition of the inadequacy or the viciousness of a given institution must arouse in any person of normal sensibility an enduring purpose to change such an institution, if possible, and the arousing of such an undying purpose in my hearers has necessarily been the aim of my scientific investigation, as it necessarily is the end of all scientific work. But such a purpose, so long as it does not utter itself in an illegal manner, is absolutely unconstrained by law. The like is true of all effort to arouse such a purpose, so long as it does not resort to illegal means. But such a purpose to amend the shortcomings of any established arrangement, is by no means the same thing as hatred and contempt of the arrangement in question; since these shortcomings are a matter of historical growth, of historical necessity; since, indeed, they may even be, in effect, a factor in the work of liberation, and a factor of the gravest consequence and of the most beneficial effect for cultural growth. Further reasons to the like effect have already been recited and I will not take up your time with their repetition and further development. Here, then, is the first hiatus in the public prosecutor's argument.

In the second place, if it actually follows in any given case that hatred and contempt is, for a normally constituted human being, the necessary consequence of a scientific knowledge of the facts, such hatred and contempt could by no means be laid under penalties by the legislator.

Whatever institution is so vicious that knowledge of it necessarily excites hatred and contempt, that institution should be hated and despised.

The legislator lays penalties upon such hatred and contempt as are but the effects produced by blind emotions and passions. But he has not imposed penalties upon human reason and the moral constitution of man. He consequently does not impose penalties upon hatred and contempt which are the necessary outcome of these two features of human nature. The public prosecutor construes section 100 to the effect that the legislator has therein intended to prohibit the use of reason and proscribe the moral nature of man. But such a purpose has not entered the thoughts of the law-giver. No court will put such a construction upon the law as to make the legislator the avowed enemy of intelligence and science,—and here come into bearing again all the arguments of my defense directed to Article 20 of the Constitution. The only meaning of these arguments in this connection is that even if science and its teaching were not by Article 20 of the Constitution exempt from the application of the criminal code, still section 100, except it be construed to intend the utter destruction of human nature, cannot be leveled against such hatred and contempt as is the necessary outcome of scientific knowledge.

In the third place, hatred and contempt of a given institutional arrangement or expedient is by no means the same thing as hatred and contempt of those persons who profit by the arrangement in question; whereas section 100 deals only with hatred of persons,—so that we have here the third break in the public prosecutor's argument, and it is a veritable saltomortale.

In the fourth place I have to present an argument of fact. The prosecutor's argument presents the most remarkable quid pro quo57 that has ever come to light in a legal discussion. The point which I here touch upon constitutes the transition to the second part of my argument, showing that all proof touching the second condition to be fulfilled by the indictment is wanting; viz.: that even if there were ground for speaking of hatred and contempt in this connection, it is still quite plain that there has been no instigation to hatred or contempt of those against whom I am charged with having incited to hatred and contempt.

As to this second part of the indictment: I am accused of instigating the unpropertied classes to hatred and contempt of the propertied classes.

"By this presentation," says the indictment, "working men will plainly be incited to hatred and contempt of the bourgeoisie, that is to say, the unpropertied classes will be inflamed against the propertied classes." And after having in this way, quietly and by subreption, introduced this its definition of the term "bourgeoisie," the indictment goes on to formulate its final charge as follows:

"It is accordingly charged that the above named citizen, F.L., (1), by his lecture etc., and (2) by publishing the pamphlet containing this same lecture, has publicly instigated the unpropertied classes of the State's subjects to hatred and contempt of the propertied classes."

It is true, in my address I speak of the "bourgeoisie." But what is my definition of this term? It will be sufficient to cite a single passage which contains the definition of "bourgeoisie" as used by me in this pamphlet. This will show what an incomprehensible, unheard-of, uncharacterisable quid pro quo the public prosecutor has attempted to impute to me in charging me with instigating the unpropertied classes to hatred and contempt of the propertied classes.

On page 20 of this pamphlet is the following passage, quoted literally:

"I have now reached the point, Gentlemen, where it becomes necessary that, in order to avoid a possible gross misapprehension of what I have to say, I explain what I mean by the term 'bourgeoisie' or 'great bourgeoisie,' as the designation of a political party—that I define what the word 'bourgeoisie' means in my use of it.

"The word 'bourgeoisie' might be translated into German by the term Bürgertum (citizenship, or the body of citizens). But that is not the meaning actually attached to the word. We are all citizens—workingmen, petty burghers, commercial aristocracy and all the rest alike. On the other hand the word 'bourgeoisie' has, in the course of historical development, come to designate a particular political bias and movement which I will now go on to characterize.

"At the time of the French Revolution, and, indeed, even yet, that entire body of subjects which is not of noble birth, was roughly divided into two sub-classes: First the class comprising those persons who, wholly or chiefly, get their income from their own labor and are without capital, or are, at the most, possessed of but a moderate capital which affords them the means of carrying on some employment from which they and their families derive their subsistence. This class comprises the workingmen, the lower middle classes (Kleinbürger), the citizen class and also the body of the peasants. The second class is made up of those persons who have the disposal of a large property, of a large capital, and who are producers or receivers of income on the basis of their possession of capital. These latter might be called the great burghers or commoners, or the capitalist gentry. But such a great burgher or capitalist gentleman, is not by reason of that fact a bourgeois. No commoner has any objection to raise because a nobleman in the bosom of his family finds comfort in his pedigree and in his lands. But when, on the other hand, this nobleman insists on making such pedigree or such landed property the basis of a peculiar importance and prerogative in the State, when he insists on making them a ground for controlling public policy, then the commoner takes offense at the nobleman and calls him a feudalist.

"The case is entirely similar as regards the distinctions in respect of property within the body of commoners.

"That the capitalist gentleman in his chamber takes pleasure in the high degree of comfort and the great advantage which large wealth confers upon its possessor,—nothing can be more natural, simpler or more legitimate than that he should do so."

Incidentally, then, Gentlemen, so far am I in this pamphlet from instigating the unpropertied classes to hatred and contempt of the wealthy, that, on the contrary, I expressly declare myself for the legitimacy of such property. I explicitly declare that the satisfaction taken in the advantages and amenities which flow from such wealth are the most natural and legitimate things in the world.

Let me now go on with the definition referred to:

"The workingmen and the lower middle class, that is to say the class without capital, may be wholly justified in demanding that those by whose hands all that wealth which is the pride of our civilization is produced, whose hands have brought forth all these products without which society could not live for a single day—it may well be demanded that these should be secured an ample and unfailing income, and thereby be given an opportunity for some intellectual development, and that they be by this means put in the way of a truly human manner of life. But, while I am free to say that the working classes are fairly within their rights in making these demands of the State, and to stand out stiffly for their demands as being the essential purpose for which the State exists, yet the workingman must never allow himself to forget that all property that has once been acquired and is legally held must be considered lawful and inviolable."

Such, then, is the manner and degree of my instigation of the unpropertied class to hatred and distrust that I incontinently preach to them the inviolability and sacredness of all property acquired by the wealthy classes, and exhort them to respect it.

But I go on to say:

"In case the man of means is not content with the material amenities of large wealth, but insists that possession of wealth, of capital, be made the basis of a control to be exercised over the State, a condition of participation in the direction of public policy and of the direction of public affairs, then and only then does the man of means become a bourgeois; then does he make the fact of property a legal ground of political power; then does he stand forth as representative of a privileged class aiming to put the imprint of its prerogative upon all social features and institutions, just as truly as the nobility of the Middle Ages did with respect to the basis of their privilege, landed property."

Accordingly, in my use of the term, as I have explicitly and painstakingly defined it, the man of means, the man of the upper-middle class, is a bourgeois in case he proceeds to set up the essentially harmless and inoffensive fact of his large property as a legal condition of participation in the direction of public affairs; in short, when he proceeds to set up the ownership of capital as a legal and political prerogative, and so abolishes the equality of the propertied and the unpropertied classes before the law, and thereby infringes upon the liberty and further growth of the people, in the interest of accumulated wealth and continued upper-class mastery. Only under these circumstances, as I particularly point out, does the bourgeoisie become a privileged class, which it otherwise, in spite of all inequality of wealth, is not.

In my pamphlet I point out how all this has its effect through the census rating whereby admission to a share in the direction of public policy, through eligibility to any legislative body, is so limited by property qualifications as to make the possession of capital a prerequisite. I point out further that this effect follows equally whether the property qualification is open and above-board or under-hand, and finally that the existing three-class system of elections, dating back to 1849, amounts to such an under-hand, disguised property rating.

The point at which the pamphlet strikes, therefore, albeit in a purely theoretical way, is the three-class system of elections. It makes no attack upon the propertied classes, whose accumulated wealth, on the contrary, I am repeatedly at pains to define as wholly incontestable, inoffensive, inviolable and perfectly lawful.

This three-class system of elections is one of our political institutions.

Now, this being the case, why has not the public prosecutor indicted me under section 101 of the criminal code, "for having exposed the measures of the State to hatred and to contempt?" To be sure, if the prosecutor had chosen to make this charge, I should have known how to answer him. To go into this matter today would be superfluous, for I am not accused of this offense, and my defense would be drawn out endlessly if I were to defend myself against charges that have never been brought against me.

But why, among all impossible charges, does the public prosecutor choose to bring precisely the most impossible? Why does he make this substitution as to the point of my attack? I point out that the three-class system of elections is an injustice because it makes an essentially innocent difference in wealth a legal qualification for participation in the direction of public affairs; whereupon this envenomed accusation is brought against me that I have instigated the unpropertied classes to hatred and contempt of the propertied.

Is there, then, no remedy, Gentlemen, against such a public defamation of one's name and fame?

Can we say that among us the introduction, of the three-class system of elections is to be laid at the door of the propertied classes or the commonalty? Something of that kind might be said of the French bourgeoisie. In France the property qualification and rating was introduced as long ago as the revolutionary Assemblée Constituante. But the like has not been done by the German.

When the Prussian bourgeoisie came into power through the March revolution of 1848 it introduced universal and equal suffrage by the law of the 8th of April, 1848. The German bourgeoisie at St. Paul's Church, Frankfort, enacted universal equal suffrage.

The three-class system of elections which we now have, was arbitrarily imposed, imposed by the government.

Now, why does the public prosecutor shelter the government behind the backs of the Prussian bourgeoisie? A tout seigneur tout honneur!58

It is the Prussian government, not the propertied classes, that must for all time and in the eyes of all people bear the responsibility of this arbitrarily imposed three-class system of elections.

But, whatever may have been the reasons which decided the public prosecutor to make this very singular substitution of grievances in his indictment—and we may perhaps presently come to find out what his reasons were—at any rate, this second ground of the indictment also fails. There has been no incitement against the propertied classes of the community; there has been no instigation against those against whom I am accused of instigating to hatred and contempt.

The third ground on which the indictment is brought, the charge of having endangered the public peace, fails likewise.

As to this third count:

Section 100 says: "Any person who endangers the public peace by publicly inciting the subjects of the State to hatred or to contempt of one another is to be punished."

Now, when the State speaks of the public peace it cannot be taken to mean peace of mind, for the State is not a pietistic overseer concerned about the subjects' peace of mind and the general sphere of spiritual edification. What it looks to is the peace of the streets. This is made quite plain by the phrase, "public peace."

The like is plain from all principles of law. Subjective states of mind do not concern the State; it is concerned with overt actions alone. It has, accordingly, no concern with hatred and contempt or with instigation thereto in so far as they are a matter of subjective sensibility only; but such instigation is subject to penalties only in case it is of such a nature as to lead to overt action. This is very patently indicated by the legislator in making use of the expression, "Any person who endangers public peace." The legislator says not any one who "disturbs," but any one who "endangers." If, in the contemplation of the law, any incitement whatever to hatred and contempt were punishable; if, in the contemplation of the law, the public peace were to be "endangered" through the mere incitement to such subjective sentiments; then the law would necessarily have said: any person who disturbs the public peace by inciting. If such had been the phrasing of the law, then it might perhaps be held that such disturbance always follows when instigation to hatred and contempt is made.

"Endanger" means to bring about the possibility of a disturbance, and by his choice of this term, therefore, the legislator has shown us that in speaking of the public peace he has not in mind a harmony of sentiments—which in the case contemplated must already have been disturbed, not simply endangered—but the peace of the streets. He has shown that he does not consider that a disturbance of the public peace necessarily has arisen in case of incitement to subjective sentiments of hatred and contempt. Consequently not every case of such incitement is held to be punishable, but only those cases in which the peace of the streets is in danger of being disturbed. In other words the penalty follows only when the incitement to hatred and contempt attains such a pitch as to become dangerous, that is to say, liable to result in overt unlawful acts. Section 100 is accordingly not to be taken to say that any person who incites to hatred and contempt endangers the public peace and is therefore subject to punishment. Such an interpretation would be wholly fallacious, on juridical as well as on grammatical grounds. Its meaning is that any person who puts the public peace in jeopardy through inciting to hatred and contempt—that is to say in case the incitement is of such a nature that it necessarily carries danger to the public peace—such a person is subject to the penalties of this law. In making use of the term "endanger," therefore, the law defines the crime of incitement to this effect, that it must be incitement of such a kind that it at least may lead to overt action—to the endangering of the peace of the streets—otherwise it is not punishable.

To show how far my action falls short of this third criterion, how little the alleged instigation is of the kind which might, even conceivably, lead to tangible action in the way of endangering the political peace, the peace of the public highways—to this end let me simply point out that in this address I am occupied with a discussion of periods of historical development of secular duration, and at the close I make the explicit statement that in the advance of a historical dawning one or two decades count but as a single hour in the revolution of a natural day.

So that we have here to do with an indictment which meets the requirements of the law at not a single point; whereas in order to an adequate charge, the several counts should concur, should combine and bear one another out.

It has frequently happened that indictments have been made in which some one count has not been well taken. But an indictment of which not even a single count proves to come within the contemplation of the law,—such an indictment deserves a special, and in every sense of the word a peculiar, place on honor in the temple of jurisprudence.

However, audiatur et altera pars.59 Let us take one last look at the motivation which the indictment offers. In so doing it is possible that we shall find that in what I have been saying I have, by some highly ingenious artifice of exposition, succeeded in concealing the legally offensive features of my action; or on the other hand it may turn out that the totally nugatory character of this indictment will by this means be brought out in even more startling fashion than has yet appeared.

There is one sentence in this indictment which serves as underpinning to the whole structure. This sentence may, therefore, be expected to be of selected timber. The preamble of the document says: "The leading ideas of this address are as follows:—" and then, having given an ostensible resumé of these ideas, it goes on to the following effect: "By these expositions, and by the frequently recurring allusions to an imminent social revolution, the workingmen will manifestly be provoked to hatred and contempt of the bourgeoisie; that is to say, the unpropertied classes will be stirred up against the propertied, whereby the public peace will be endangered, particularly since the address contains a direct appeal to make the mastery of the working class over the other classes of society the end of their endeavors, to be pursued with the most ardent and consuming passion."

This is the only passage in the document that is of the nature of a legal motivation. Let us look more closely into this sentence. This is a sentence which might give the asthma to a person with weak lungs, and it is so constructed as to hide its total lack of substance from any superficial view under a shimmering verbiage and a confusion of ideas. If you will look more closely into this passage, Gentlemen, you will be astonished at the quantity of juristic monstrosities, absurdities, misstatements and misconstructions of fact which it contains.

Now, whereby, according to this passage, have I accomplished my alleged incitement to hatred and contempt? "By these expositions," says the document. That is to say by a purely theoretical, purely objective exposition of historical events; by what the indictment itself designates as the exposition of my leading ideas; by nothing else, therefore, than the scientific doctrine simply. It is by this means that I am alleged to have incited to hatred and contempt. The indictment may shift and turn as it likes; it cannot escape the avowal that its accusation runs against nothing else than purely scientific arguments,—against science and its teaching.

But the passage goes on to add an "and." By these expositions and by the frequently recurring allusions to an imminent social revolution is the instigation alleged to have been effected.