Making of a German Constitution : a Slow Revolution

Toward a German Nation • 87The good Tarquin King, Servius Tullius, later instituted the census by granting thelaborers bonitary ownership of the patricians’ lands, and this, according to Vico, wasthe first agrarian law in the world. When Brutus drove out the tyrannical Tarquinsand restored the Roman Republic to its original principles, the plebeians suffered apolitical setback, when he established the two consuls as aristocratic kings. ‘In thisway,’ Vico wrote, ‘Brutus re-established the partricians’ liberty from tyrannical rulers,but not the plebeians liberty from the patricians.’ 192 When the patricians beganto ignore the agrarian law in practice, the plebeians created the two tribunes of thepeople, to defend their bonitary ownership of the fields and set out to acquire theright of civil ownership from the patricians.The patricians, however, continued to reclaim the fields despite the fact that theplebeians had cultivated them. Lacking any civil process for pressing their ownclaims, the tribunes of the people demanded passage of the Twelve Tables, whichVico emphasized ‘only resolved this issue and no other’. 193 It only granted the plebeiansquiritary (citizen rights of ownership over their fields). They soon realized that,despite this limited right, ‘they still could not bequeath the fields to their relations’,a vital right which hinged on marriage. The plebeians ‘could neither make intestatebequests, since without celebrating solemn marriages, they had none of the relationsthrough which legitimate succession could pass,’ and ‘nor could they dispose offields by testament,’ because this meant that ‘they lacked the rights of citizenship’. 194As a result, they asserted ‘their claim to share in patricians’ concubium (right to solemnizedmarriages)’, the greatest of which was the auspices, ‘the great source of allRoman law, both public and private’. 195 In obtaining the concubium, the plebeianseffectively secured rights of citizenship. More legal concessions followed: ‘The plebeianssecured from the patricians all those rights of private law which depended onthe auspices: paternal authority, direct heirs, paternal kinsmen, and clan kinships.’ 196By virtue of these rights, they secured the rights to legitimate successions, testamentsand guardianships. It was only after securing their private rights that ‘they claimedthose rights of public law dependent on the auspices, first securing access to theconsulship, with its attendant right to imperium or military command, and then topriesthoods and pontificates, with their attendant knowledge of the laws’. 197 With thePublian and Poetelian laws, the plebeian laws became universally binding on all Romans,securing their superior position over the patriciate. As Vico wrote, ‘in this way,the Roman Republic had naturally become a government of popular liberty’. 198Several elements of Vico’s philological treatment of Roman constitutional developmentwere of immeasurable importance to the growth of constitutional transformationthought in nineteenth-century German political theory. First, he offered a historythat revealed to Germans that plebeians had gradually obtained their right to full citizenship.It was ‘with steady steps,’ he emphasized, that ‘the tribunes advanced theirpower to make laws’. 199 Second, the identification of civil marriage as the basis forobtaining full citizenship and private property rights exercised a formative influencein shaping the inverted direction of German constitutional development. It also led to