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.