Making of a German Constitution : a Slow Revolution

112 • The Making of a German Constitutionaddition to his Rechtsalterthümer, which was one of the most influential legal worksof the early period, Jacob published several articles in German legal journals, andhis Weisthümer (1840–1842) supplied a history of legal precedents and findings oflaw by the Schöffengerichte, which liberals held up as paragons of German liberty.Increasingly, following Jacob’s legal writings, precedents, maxims and principlesfrom what became known as an ancient free epoch were linked to contemporary folkcustoms and also deemed a prescriptive basis of German liberties. Liberals respectedand looked to Jacob, not only for his work on German folklore and the history ofGerman language, but for his contribution to German legal history. Indeed, he waselected president of both Germanisten conferences that were held in Lübeck andFrankfurt in 1846 and 1847, respectively.In the first edition of the ZGR, along with articles by Eichhorn and others, Grimmpublished an article which introduced the idea of a Lebendigkeit (organic relationship)between the common folklore alive amongst the people in the German countrysideand ancient German liberties. 78 In ‘Ueber eine eigene altgermanische Weise derMordsühne’ (1815), Jacob’s discussion of ancient German customs (altgermanischeWeisen) was his first attempt to offer a statement on prescriptive German rights.Using common folklore and language as his sources, he argued for the prescriptiveright of persons to tort claims in instances of loss or damage to private property. Agood example of this is his Tale of Otr.According to an old wise tale, the farmer Hreidmar lived with his three sons, Fahnir, Otr,Regin and his two daughters, Lyngheid and Lohnheid. As his name already implied, Otrtransformed himself into an Otter and dashed into a stream to catch fish. One day whileOtr sat on the bank of the stream, eating a salmon in just a blink of an eye, from up theroad along came three hunters (Asen) named Loki, Odin and Hönir. Spying the contentOtter, Loki took and cast a stone, killing the resting Otter. Very pleased with his kill,he skinned the animal and carried on. Oh! But much to their surprise the next morning,they found it necessary to make an urgent trip to Hreidmar’s house and without knowinganything about Otr’s close relatives. Soon after they arrived, Hreidmar and his sons recognizedthe skin and laid hands on the young hunter, desiring an answer for the murderof their loved one, Otr. 79According to Jacob’s account, Hreidmar and his sons detained Loki, while his fellowhunters secured gold to cover the loss of Otr. And so it followed ‘in the poetic language’,he wrote, the terms Ottersgeltung and Asennothgeld. Accordingly, Jacob arguedthat lutra and lytra could be translated as Otter and when joined to the termlytrum, one found the root of the legal concept of Lösegeld (money damages for tortclaims).As Murray Peppard writes, the Grimm brothers’ interest in German folklore wasdriven by the belief that they contained remnants of ancient German law and liberties.80 These notions had been given social scientific legitimacy by Vico’s Scienza