Making of a German Constitution : a Slow Revolution

116 • The Making of a German Constitutionund gebildete Bürger (1824) declared: ‘All rights of governance have the origin inthe whole body of the people (Gesamtkörper des Volkes) and the government [haspower] only through and for the people.’ 102 Karl Rotteck’s Lehrbuch des Vernunftrechts(1840) instructed that the difference between despotism and a republic wasthe ‘private will of the ruler, in contrast to the rule of the collective will of the communityof the members of the state’. 103 He also urged that: ‘The aim of a republic isthe rule of the true totality of wills,’ and, ‘in so far as a constitution is crafted for therealization of this basic idea, it is republican and the State a true free State.’ 104In legal discourse, the making of this constitution involved not only a theoreticalreconstitution of the monarch into a civil servant, but the leveling of relationshipsby awarding rights to the bourgeois commonality. Jacob’s system, which followedhis lengthy legal philology, was divided into six books. Book 1, Stand, identified andtreated the five social groupings. In Book 2, Haushalt, Jacob examined family lawand all familial relationships. Books 3 and 4, Eigenthum and Gedinge, focused onrights of private property. In Book 5, Verbrechen, Jacob explored customary criminallaw amongst the ancient Germans, and, finally, in Book 6, Gericht, he offered a treatmentof the customary basis of the courts and court procedures.Rechtsalterthümer began by identifying five social groupings amongst the ancientGermans: rulers (Herrschende), the nobility (Der Edle), the free (Der Freie), slaves(Knechte) and foreigners (Der Fremde). The usage of the term Herrschende, ratherthan Könige, reflected his attempt to reconstitute monarchs as civil servants, and thisposed a fundamental challenge to the legitimacy of personal rule in Central Europe.In Jacob’s account, the spirit and constitution of the ancestors seemed to boldly objectto the existing political conditions: ‘Kings could choose dukes not only come fromthe nobility, but also from amongst the free people.’ 105 Moreover, ‘the king could behereditary or elected’. 106 Citing Wilken’s Handbuch der deutschen historie (1810),Grimm proclaimed: ‘After the time of the Frankish kings, Deutschland became aWahlreich and was no longer ruled by [Frankish] sons.’ 107 ‘The vote [for the ruler]took place in a common people’s assembly (allgemeiner volksversammlung)’, and‘since the time of Otto III, the German kaiser was elected on German soil in Frankfurtam Main’. 108 ‘Elections’, Grimm suggested, ‘were held only in the instances wherethe line became extinct or if the ruler was incompetent.’ 109 Here, Jacob cited amongstother sketchy sources, Beowulf on the Anglo-Saxons: ‘The Saegeâtas voted, after thefall of the young king, Beowulf to the throne.’ 110 The ‘incompetence ( Untüchtigkeit)of kings’, he wrote, meant ‘not only criminal conduct or absence from his administrativeduties’, but could also result from ‘losing wars (kriegsunglück) or starvation[amongst the people]’. 111 To support his finding, in a footnote, he offered an excerptfrom Paulus’s seventeenth-century piece, Diaconus historia gentis Langobardorumbei Muratori scriptores I: ‘sed cum Adaloaldus eversa mente insaniret (insanity), deregno ejectus est (ejected from rule).’ 112 In this way, he created a prescriptive right toimpeachment, which clearly objected to existing conditions.