Making of a German Constitution : a Slow Revolution

118 • The Making of a German Constitutionin today’s English into well-born. Nevertheless, there was more political symbolismattached to this term than may be immediately apparent. ‘Wohl’ was weighted withliberal conceptions of the state; the Gemeinwohl referred to the public good or commongood of the Gemeinwesen. Wohlgeboren, therefore, did not impart a traditionalconception of the nobility, but a rethinking that associated status with good citizenshipor worthiness. Although the nobility possessed privileges, Jacob argued that‘the free and the nobility have all essential rights in common and in this way areequal’. 121There can be no doubt that the free were, in fact, a metaphor for the nineteenthcenturyBürgerthum, and, once Jacob had leveled distinctions between the nobilityand the bourgeoisie, he leveled all further hierarchies. ‘The King’, accordingly, ‘waselected from the nobility ... and therefore, the nobles were of equal birth (ebenbürtig)with him.’ 122 It was in the chapter on Der Freie where Jacob drew down any furtherdistinctions and where a theoretical ascendance of the bourgeoisie was most evident.He opened the chapter with the bold assertions that: ‘The free are the main part andpower of the whole people; they themselves emerged as the source of the nobility.’ 123From here, he deconstructed the distinction between king and people. The title Karl,accordingly, had originally referred to the Stammherr of the free families. Hence,he argued that the words for king, namely Kral, Krol and Karolus, in the Slaviclanguages, Charlemagne in French and Karl der Große in German, referred to theleader of freemen rather than to a king in the traditional sense. 124 The ruler’s socialstation had been reconfigured, and he suddenly appeared as no higher or lower on thesocial scale than the people whose interests he was elected to look after.The rest of his chapter on Der Freie offered nothing less than a declaration of prescriptivebourgeois liberties, which found both symbolic and real expression. ‘Theoutward symbol of freemen is long, curly hair,’ while criminals and slaves ‘mustwear their hair short’ and are prohibited from washing it. This was a right reservedfor freemen. 125 High on the list of liberties was freedom of movement: ‘Every freemanhad the right to go, unhindered, where ever he wanted.’ 126 ‘Every freeman’, asJacob wrote, ‘carried a weapon.’ 127 The right to bear arms, however, was contingenton the ability and willingness to defend the nation. 128 In times of peace, the freeman’sprimary public obligation was to serve as jurors and lay judges. 129 The right to privateproperty, as it had in Eichhorn’s system, also emerged as the most critical right of all.‘Every free property owner’, and only property owners, as Jacob emphasized, ‘hadhis part in the public power and the capacity for all rights.’ 130Despite the theoretical leveling of sociopolitical distinctions at the top of society,the imagined Gemeinwesen was based on exclusive participation. Indeed, Grimmhad already instructed in his section on rulers that ‘strict voting law (strenges wahlrecht)’limited participation in public elections. 131 German civic participation wasconceived, not only as masculine, but was developed around the principal of legalpersonality, as I have mentioned. The standard for majority was not age, ‘but theouter powerful appearance of the body’s mass’. 132 A boy became a man when he