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_.[58] 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.
What are these allusions to an imminent social revolution? Where are
they to be found? Why does not the public prosecutor cite them? I call
upon him to do so. But he cannot cite them. There is no passage in
this pamphlet which will bear out his insinuations on this point.
It is true, throughout this pamphlet I make frequent use of the words
"revolutionary" and "revolution;" although I do not speak of an
"imminent social revolution," as the public prosecutor alleges. What
I speak of is a social revolution which supervened in February, 1848.
But with this word, "revolution," the public prosecutor hopes to crush
me. For he, taking the word in its narrower legal sense alone, cannot
read this word, "revolution," without conjuring up before his fancy
the brandishing of pitchforks. But such is not the meaning of the word
in its scientific use, and the consistent use of the term in my
pamphlet might have apprised the public prosecutor of the fact that
the term is there employed in its alternative, scientific
signification. So, for instance, I speak of the development of the
territorial principality as a "revolutionary" phenomenon.
And so again, on the other hand, I expressly declare that the peasant
wars, which, assuredly, were sufficiently garnished with violence and
bloodshed,--I declare these wars to have been a movement which was
revolutionary only in the imagination of those who participated in
them, whereas they were in reality not a revolutionary, but a
reactionary movement.
The progress of industry which took place in the sixteenth century, on
the contrary, I repeatedly and constantly characterize as a "really
and veritably revolutionary fact" (page 7), although no sword was
drawn on its account. Likewise I characterize (page 7) the invention
of the spinning jenny in 1775 as a radical and effectual revolution.
Is this an abuse of language, or am I hereby introducing a novel use
of words in making use of the term "revolution" in this sense,--in
that I apply it to peaceful developments and deny it to sanguinary
disturbances!
The elder Schelling says (_Untersuchungen über das Wesen der
menschlichen Freiheit_, Vol. VII, p. 351): "The happy thought of
making freedom the all in all of Philosophy has not only made the
human intellect free as regards its own motives and effected a greater
change in this science in all directions than any earlier revolution,"
etc. The elder Schelling, at least, does not, like the public
prosecutor's fancy, see pitchforks flashing before his eyes at the
sound of the word "revolution." Applying the word, as he does, to the
effects wrought by a philosophical principle, he takes it, as I do, in
a sense which has no relation whatever to physical violence.
What, then, is the scientific meaning of this word "revolution," and
how does revolution differ from reform? Revolution means
transmutation, and a revolution is, accordingly, accomplished
whenever, by whatever means, with or without shock or violence, an
entirely new principle is substituted for what is already in effect. A
reform, on the other hand, is effected in case the existing situation
is maintained in point of principle, but with a more humane, more
consequent or juster working out of this principle. Here, again, it is
not a question of the means. A reform may be effected by means of
insurrection and bloodshed, and a revolution may be carried out in
piping times of peace. The peasant wars were an attempt at compelling
a reform by force of arms. The development of industry was a
full-blown revolution, accomplished in the most peaceable manner; for
in this latter case an entirely new and novel principle was put in the
place of the previously existing state of affairs. Both these ideas
are developed at length and with great pains in the pamphlet under
consideration.
How comes it that the public prosecutor alone has failed to understand
me? Why is all this unintelligible to him alone, when every workingman
understands it?
Now, even suppose that I had spoken of an "imminent social
revolution," as in point of fact I did not; would I, therefore,
necessarily have been talking of pitchforks and bayonets?
Professor Huber is a thoroughly conservative man, a strenuous
royalist, a man who, on the adoption of the constitution of 1850,
voluntarily resigned the professor's chair which he held in the
University of Berlin, because, if I am rightly informed, he had
scruples about subscribing to it; but at the same time he is a man who
is with the deepest affection devoted to the welfare of the working
classes, who has given the most painstaking study to their development
and has written most excellent works upon that subject, particularly
upon the history of industrial corporations or labor organizations.
After having shown that the labor organizations of England, France,
and Germany already have in hand a capital of fifty million thalers,
Professor Huber says in this latest work (_Concordia_, p. 24):
"Under these circumstances and under the influences herein at work,
and in view of the historical facts above indicated in outline, it is
to be hoped that I need enter no disclaimer against Utopian daydreams
of a universal millenium when I say that not only is a very substantial
reform of the existing political conditions of the factory population
practicable in such a measure as to bring about an elevation of their
entire social and economic situation, but such a reform is to be looked
for as in the natural course of things the assured outcome of the
growth of labor organizations."
Here we have a prediction of a thoroughgoing social transmutation
spoken of as the assured outcome of the labor-organization movement
working out its effects simply within the lines of the peaceable and
conventional course of things. But how if I, with all the stronger
reason, had spoken of a prospective social change that might be
expected to result from the combined force of the two factors,
organized labor and universal suffrage?
But how can I be held accountable for the public prosecutor's literary
limitations? for his lack of acquaintance with what is going on all
around us in modern times and what science has already accepted and
made a matter of record? Am I the scientific whipping-boy of the
public prosecutor? If that were the case, the punishment which it
would be for you, Mr. President and Gentlemen of the Court, to mete
out to me would be something stupendous. But all that apart, how can
an allusion to an imminent social revolution, even to a pitchfork
revolution, constitute an instigation to hatred and contempt of the
bourgeoisie? And this is, after all, what the public prosecutor must
be held to allege in the passage cited, and this in fact is what he
does allege. Hatred and contempt can be aroused against any man only
by his own acts and their publicity. But how can anything done by
Peter excite the hatred and contempt of Paul? If any one were to tell
us: "The workingmen are going to get up a social revolution," how
could that remark arouse hatred and contempt of the bourgeoisie? The
passage in question, then, shows itself to have been one that makes no
sense, either in point of grammar or in point of logic. It is not only
untrue with a threefold untruth, but it is contradictory and
meaningless. At least it is quite unintelligible to me.
I have as great difficulty in understanding the public prosecutor's
language as he has in understanding mine. The Greeks were in the habit
of calling any one _barbaros_ (a barbarian) who did not understand the
current speech. So the public prosecutor and I are both barbarians,
the one to the other.
But this passage in the indictment which I have been analyzing brings
up a third point at which I am alleged to have been guilty of inciting
to hatred and contempt of the bourgeoisie. This is introduced with the
word "particularly." The exposition and the allusions above spoken of
are alleged to have incited to hatred and contempt, "particularly
because the address contains a direct appeal to make the mastery of
the working classes over the other classes of society the end of their
endeavors, to be pursued with the most ardent and consuming passion."
Suppose that such were the case; an exhortation addressed to a given
class of society to pursue the vain ambition of a mastery over the
other classes would be worthy of all reprobation, but it would still
be legally permissible unless it urged to criminal acts. Every class
in society is at liberty to strive for the control of the State, so
long as it does not seek to realize its end by unlawful means. No
political purpose is punishable, the means employed alone are. Now,
the character of this prosecution, as a prosecution directed against a
political bias, appears plainly and should be manifest to every one in
every line of the indictment, in that it constantly charges incitement
to the seeking of certain ends; it never attempts to show that
criminal means have been employed, or that I have, in my address,
urged the employment of such means. But even if I had been guilty of
urging the working classes to resort to criminal means for gaining
control over the other classes of society, then I could only have been
indicted under Article 61,[59] or some other article of the criminal
code, but never under Article 100, or as having offended against that
article by an instigation of the workingmen to hatred and contempt;
for such an exhortation addressed to the working classes to make
themselves masters of the other classes of society must have incited
the workingmen to political ambition, but by no means to hatred and
contempt of any third party. This ambition on the part of the
workingmen could, of course, not have been fathered upon the
bourgeoisie; and since responsibility for it could not have been put
upon them, hatred and contempt of them could not have been aroused by
the fact of such an ambition. It therefore appears again that this
passage is quite devoid of grammatical and logical content. But upon
what ground has the public prosecutor read into my address an
exhortation urging to the pursuit of "mastery on the part of the
workingmen over the other classes of society?"
All that I have to say in my pamphlet bearing on this head is that it
is the destiny of the historical epoch beginning with February, 1848,
to install the ethical principle of the working classes as the
dominant principle of society, to make it the guiding principle of the
State; the nature of this principle is expounded in my pamphlet, and I
have already restated it in outline in the introductory part of my
speech.
I repeatedly and explicitly express myself to the same effect. So I
say (page 31) that, as in 1789 the revolution was a revolution of the
third estate, so in this later case it was a revolution of the fourth
estate, "which now seeks to erect its principle into the dominant
principle of society and to permeate all institutions with it." Or
again
(page 32): "Whoever, therefore, appeals to the principle of the
working class as the dominant principle of society;" and, further, on
the same page: "We have now to examine, in three several hearings,
this principle of the working class as the dominant principle of
society." And (page 33): "Perhaps the idea of making the principle of
the lowest class of society the dominant principle of the State and of
society may seem to be a dangerous idea." I, then, proceed to develop,
from page 39 onward, the difference between the ethical and political
principle of the bourgeoisie and the ethical and political principle
of the working class, and conclude on page 42 with the words: "This,
then, is it, Gentlemen, that is to be characterized as the political
principle of the working class," etc.
And because I present an exalted ethical principle, the noblest
ethical principle which my intelligence is capable of grasping, the
noblest ethical principle yet achieved by political philosophy,
because I proclaim this as destined to become the guiding principle of
the present period of history; because of this and because I bring
evidence to show that this principle, as being the expression of the
natural instinct due to the economic situation of the working classes,
is properly to be designated as the principle of the working
classes,--this is what the public prosecutor has construed into an
atrocious crime, and has accused me of urging the working classes to
aim at making their own class the masters of the other classes of
society.
The public prosecutor appears to believe that I aspire to see the
propertied classes reduced to servitude under the working classes,
that I would invert history and make the landed gentry and the
manufacturers the servants of the workingmen.
But however widely we may differ in the use of language, however much
we may mutually be barbarians to one another, could such a
misapprehension, or anything approaching it, be at all possible?
I develop (page 32) my view, explicitly and in detail, to the effect
that this is precisely the characteristic mark of the fourth estate,
that its principle contains no ground of discrimination, whether in
point of fact or in point of law, such as could be erected into a
domineering prerogative and applied to reconstruct the institutions of
society to that end. The words I use are as follows (page 32):
"Laborers we all are, in so far as we are willing to make ourselves
useful to human society in any way whatever. This fourth estate, in
the recesses of whose heart there lies no germ of a new and further
development of privilege, is therefore a term coincident with the
human race. Its concerns are, therefore, in truth the concerns of
mankind as a whole; its freedom is the freedom of mankind itself; its
sovereignty is the sovereignty of all men." And I thereupon go on to
say: "Therefore, whoever appeals to the principle of the working class
as the dominant principle of society, in the sense in which I have
presented this idea,--his cry is not a cry designed to divide the
classes of society," etc. And while I, with all my heart and soul, am
making an appeal for the termination of all class rule and all class
antagonism, the public prosecutor charges me with inciting the
laborers to establish class rule over the propertied classes. I ask
again: How is such an astonishing misunderstanding to be explained?
Permit me once again, to quote the father against the son:
"The medium," says Schelling (Vol. I, p. 243, _Abhandlungen zur
Erläuterung des Idealismus der Wissenschaftslehre_)--"The medium
whereby intellects understand one another is not the circumambient
atmosphere, but the joint and common freedom whose movements penetrate
to the innermost recesses of the soul. A human spirit not consciously
replete with freedom is excluded from all spiritual communion, not only
with others but even with himself. No wonder, therefore, that he
remains incomprehensible to himself as well as to others, and wearies
himself in his pitiable solitude with empty words which stir no friendly
response whether in his own or in another's breast. To be unintelligible
to such an unfortunate is a credit and an honor before God and man."
So says Schelling, the father.
Gentlemen, I have now reached the close of my argument. It were
bootless to ask whether this charge could possibly have any weight
with you, Mr. President and Gentlemen of the Court. But there was
probably another design at the root of the prosecution. The political
struggle between the bourgeoisie and the government has lately shown
some slight signs of life. It has, not improbably, been thought that
under these circumstances a prosecution for incitement of the
unpropertied classes to hatred and contempt of the propertied classes
would create an effective diversion; it was probably hoped that even
if such an accusation were dismissed by you, still--you remember the
ancient adage: _calumniare audacter, semper aliquit haeret_[60]--it
would serve as a wet towel to bind about the slightly-inflamed
countenance of our bourgeoisie,--and so, with this in view, Gentlemen,
I was selected as the scapegoat to be driven out into the wilderness.
But even this design, Gentlemen, will fail.
It will fail shamefully through the mere reading of my pamphlet, which
I most particularly commend to the bourgeoisie. It will fail before
the force of my own voice; and precisely with this in view I felt
called on to go so extensively into the facts of the case in my
defense. We are all, bourgeoisie and laborers, members of one people,
and we stand firmly together against our oppressors.
Let me now close. Upon a man who, as I have presented the matter to
you, has devoted his life under the motto, "Science and the
Workingmen," even a sentence which may meet him on the way will make
no other impression beyond that made upon a chemist by the breaking of
a retort used by him in his scientific experiments. With a momentary
knitting of the brow and a reflection on the physical properties of
matter, as soon as the accident is remedied he goes on with his
experiments and his investigation as before.
But I appeal to you that for the sake of the nation and its honor, for
the sake of science and its dignity, for the sake of the country and
its liberty under the law, for the sake of your own memory as history
shall preserve it, Mr. President and Gentlemen of the Court, acquit
me.
FOOTNOTES: