Making of a German Constitution : a Slow Revolution

102 • The Making of a German ConstitutionCicero’s legal defence of the actor, Q. Roscius, in a case with C. Fannius Chareainvolving money claims. The article represented an attempt to recover legal procedurefrom the era of the Roman Republic. Unterholzner was interested, specifically,to understand in what type of civil matters the ‘Collegium von Geschworenen’(collegium of jurors) served. 15 Savigny’s ‘Beytrag zur Geschichte der RömischenTestamente’ was marked by his concern to recover the laws governing last wills andtestaments from the Republic, which had been changed by the corpus iuris civilis.During the ‘time of the Republic’, there had been ‘two different forms of written privatewills, both fully valid, so that one had a choice (Wahl) between both’. 16 This libertyof choice between a ‘civil will with Mancipation’ and ‘the praetorian will withseven witnesses and seven seals,’ was no longer possible under the ‘Justinian law,’and choice was lost when only the form of Manicipation was recognized. 17 In thesecond volume, Unterholzner offered an article on the Twelve Tables. 18 Göschen’s‘Einige Bemerkungen in Beziehung auf das ältere Recht der Freylassungen bey denRömern’ (1817) was interested to delineate the ancient law covering release fromcustody on bail. 19In 1817, Savigny reported Barthold Niebuhr’s discovery of the Institutes of Gaiusin Verona, and published a fragment of the letter from Niebuhr regarding his find. 20He offered thankful praise to the man, who had done ‘brilliant service for the historicalbasis of our science’. 21 In the same volume, Niebuhr also offered an articleabout his discovery. 22 In, yet, another article in 1817, he published the full text of hisoriginal letter to Savigny. 23 The importance of the discovery of the Institutes of Gaiuscannot be emphasized enough. It came close to doubling what was then known aboutRoman law. In contrast to the sources of Roman law prior to this discovery, what theInstitutes of Gaius offered was history. For the first time, it was actually possible forscholars to research the constitutional and legal history from the era of the Republic.In addition, it was a source of knowledge on key areas of Roman public and privatelaw, including the legal status of persons, property rights and contracts. Finally, itwas an invaluable source of information about Roman legal procedures, and therewas very little information on this subject prior to Niebuhr’s find. 24 The discovery ofthe Institutes of Gaius ensured that the historical approach to Roman law, on a socialscientific basis, would continue to flourish in German universities.In fact, it was the historian, Niebuhr, who offered the suitable, social scientificinterpretation of Roman political and constitutional history that would support constitutionaltransformation. As he wrote in the Preface to the 1826 edition of his RömischeGeschichte (1811), he had been languishing in Rome and suffering fromwriter’s block, until ‘the point on which an inquiry hinged would come forward intoclear light while I was conversing with Savigny’. 25 The Preface also offers an importantwindow into the social and political world that Niebuhr’s Römische Geschichtespoke to. ‘The history of Rome’, he opened, ‘was treated, during the first two centuriesafter the revival of letters, with the same prostration of understanding and judgementto the written letter that had been handed down, and with the same fearfulness