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.