Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 117Whether or not a ruler was hereditary or elected, he was still bound by law and certainobligations to the people. The chief obligation, naturally, was to uphold the sovereigntyand free liberties of the people, the allegiance to which he demonstrated insymbolic acts. At the beginning of a ruler’s government, the people had to recognizehim and vowed their loyalty, but this loyalty was conditioned on his adhering to andupholding their laws. Citing Heliand poema saxonicum, Giesebrecht’s Gregorius vonTours zehn bücher fränkischer geschichte and Tacitus’ Germania, Jacob explainedin symbolic terms: ‘The new king, whether elected or hereditary, was elevated ona shield so that everyone could behold him as he was carried three times aroundthe assembled people, who acknowledged him and gave their approval though handshakes.’113 ‘The first business of new kings was to ride around the empire’, and onthis trip, Grimm continued, he would ‘state the rights and peaces of the people’. 114 Hecited a poem from his own Weisthümer as evidence of this tradition: ‘The Lord shallconfirm to everyone the liberty of the people.’ 115 ‘In every community’, he wrote, ‘aspecial court was held’, and ‘the king confirmed the liberty of the people.’ 116Significant political suggestions were contained in the Herrschende, which involvedthe decentring authority away from the bureaucratic state by reinforcingthe regional and customary rights, indeed, the prescriptive rights of the people. Thereconstitution of the monarch as a ruler was part and parcel of liberal efforts toreconstitute the state as a mythical, juristic person, the Gesammtkörper of its members.According to Pölitz, the ‘ruler is not a physical person like in a monarchy, buta moral (mythical) person, whose sovereignty is not personal, but given authorityto administer the State’. 117 The head of state, thus, was limited in the exercise ofauthority, first and foremost, by the sworn duty to uphold the rights of people. In hissystem, Jacob emphasized that the ruler was required to address the ‘people’s assemblies(volksversammlungen)’, and, citing Pertz, he detailed that these regularly heldassemblies met two or three times a year, in spring and autumn. 118As seen in Rechtsaltherthümer, Privatrechts-Staatslehre was focused on dismantlingthe Ständestaat by leveling distinctions and awarding noble status and privilegesto the bürgerliche commonalty, and here Niebuhr’s account of the plebeian’spath to civil equality must have offered a powerful example. Jacob collapsed socialdistinctions between the three groups at the top of ancient German society. In hischapters on ‘Der Edele’ and ‘Der Freie’, Grimm redeveloped the concept of nobility,first, by emphasizing immediate parentage rather than age-old lineage. He openedhis chapter on the nobility with a philological treatment of the two terms, and, here,he chose to use the term Edel rather than Adel. The term Adel was weighted withtraditional conceptions of an hereditary aristocracy, but Edel, by contrast, referredto personal nobility and nobility based on virtue. ‘Ennoblement’, he added in a footnote,‘was synonymous with liberty.’ 119 Amongst other authors, he cited the Frenchwriter Méon’s Fabliaux et Contes (1808), whose definition revolved around ‘gentixet bien enparentés’. 120 Jacob chose the word ‘wohlgeboren’, which merely translates