Even this one exception, alone would suffice to set the indictment aside; viz., that no objection is taken to any given passage in which the specified offense is alleged to occur; so that the prosecution proceeds wholely on an allegation of bias, and in the baldest manner. The indictment runs against a bias; that is all. But a bias is not actionable.
But I am not to be permitted to dispose of my defense in so easy a manner. The accusation of having endeavored to incite the poor to hatred of the rich is an accusation of such a kind that, apart from all question of punishment, it is likely to injure any citizen's name and fame. This accusation is of such character that, even if it is formally disproven on legal ground, it may still leave the accused an object of suspicion. You will, accordingly, Mr. President and Gentlemen of the Court, take it simply as evidence of the respect I bear you when I now go on to clear my honor in your sight, with the same solicitude as that with which I have defended my freedom. To this end it is necessary for me to present the grounds of fact, as painstakingly as I have presented the grounds of law, on which this accusation is to be quashed, and you will, therefore, I am sure, hear me with the same forbearance if this second part of my defense turns out to be but little briefer than the first.
I am accused of having violated Section 100 of the penal code. This section reads as follows: "Any person who endangers or jeopardizes the public peace by publicly inciting the subjects of the State to hatred or to contempt of one another, is liable to punishment by a fine of not less than 20 and not more than 200 thalers, or by imprisonment of not less than one month and not more than two years."
This section of the law specifies three different conditions, which must be found to concur if it is to be applicable.
I. There must be incitement to hatred or to contempt;
II. This incitement must be directed to the detriment of given classes of the subjects of the State, and I am accordingly accused by the public prosecutor of having incited the class of the unpropertied against the class of the propertied;
III. This incitement must be of such a nature as to endanger the public peace.
These three conditions must concur, must combine, if the section of the law is to apply,—and not one of these conditions occurs.
As to I. There must be incitement to hatred and contempt; there can in the case before you be no question of this point, and for several reasons.
1. The offense specified in Section 100 cannot be committed except there be an intention to incite to hatred and contempt. A contingent incitement to hatred and contempt, an incitement by inadvertence, is in this case not conceivable. If such a contingent incitement, an unintended incitement to hatred and contempt, were conceivable, what would not the consequences be? We have, all of us, for instance, recently read certain speeches delivered in the upper house, which have, we will say, filled me,—and not me alone, Gentlemen, but along with me a very large part of the nation—with hatred and contempt to the point of distraction. Does it follow that the public prosecutor could take action against the speakers in question? He is not competent to do so, even aside from the political prerogative of the speakers, for, although such has been the effect of these speeches, the purpose of these gentlemen was assuredly not to stir up hatred and contempt. But it is equally true that no one can deny that the purpose of my address was to impart knowledge. The most that the public prosecutor can allege is that it was a matter of indifference to me if the knowledge imparted stirred up hatred and contempt,—an allegation without significance, since there is no such thing as an incitement to hatred and contempt by inadvertence.