Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 105reached that centuries were needed before it could again make its way against windand tide into the harbour where after that royal legislation it was lying’. 45 Even afterthe expulsion of the Tarquins, the patricians contrived to prevent a restoration of theplebeians’ civil rights for centuries. 46The classic struggle for constitutional transformation in his account, thus, emergesas that of the plebeians striving for civil equality with the patricians that began afterthe establishment, by Brutus, of what was an exclusive republic. This story, whichemphasized multiple legal rogations in the transformation of the Roman constitution,was told and retold in his lectures at both the universities of Berlin and Bonn. In thisway, it left a paradigmatic imprint on the minds of those who would effect politicalrevision, in the second half of the century.The violent opposition of the patricians notwithstanding, constitutional transformationbegan with the establishment of the tribune plebes. 47 Although the powers ofthe Tribunes were in the beginning ‘very slender and modest; they were partly of anegative character, and partly administrative in a limited way, but not at all legislative’,and, Niebuhr wrote, ‘their power was a seed from which a tree was destinedto grow up one day to overshadow the others’. 48 This overshadowing began with thePublilian law. ‘The great importance of the Publilian law,’ Niebuhr told his studentsat the University of Berlin, ‘is that the Tribunes now obtained the initiative; until thenit had been quite in the power of the Senate and the patricians either to allow a legislativeproposal to be discussed or to prevent it.’ 49 ‘There were points which urgentlyrequired a change’, he continued, ‘and, without the Publilian rogation would neverhave been discussed in a constitutional way.’ 50 It was a law, however, that ‘could notremain without consequences destructive of internal quiet’. 51 Nevertheless, the violenceplebeians experienced at the hands of patricians, which prevented them fromvoting, resulted in the lex Junia, which declared such activity treasonous against thecommonality. 52 The agrarian laws also led to the redistribution of public lands to theplebeians.The capstone in the process of constitutional transformation was the lex Terentilianor Terentilian rogation. As Niebuhr first broached the significance of this rogation,he stated that the ‘legislations of antiquity embraced not only civil and criminallaws and the mode of procedure, but also the political laws and regulations of a temporarynature’. 53 ‘It was the avowed object of the legislation’, as he emphasized tohis students, ‘to abolish the differences between the two estates, to modify the constitutionso as to make them as much as possible one united whole, and lastly to effecta limitation on the consular imperium.’ 54 The result of the rogation was, ultimately,a civil code commission composed of both patricians and plebeians to draft the newlaw, and, as Niebuhr pointed out, ‘besides the task of establishing a general law, thecommissioners had to settle the constitution on the principle that the two estates wereto be put on a footing of equality’. 55This is of vital significance to this account of modern constitutional transformationin Germany and the development of transformationist political thought. While