Making of a German Constitution : a Slow Revolution

Undermining Absolutism • 139in mind that as male participation increased, female participation was pushed intodecline.The drive for procedural reform, nevertheless, was an attack on patrimonial justiceand demand for the leveling of distinctions between the hereditary nobility and thebourgeoisie in the German lands. Noble privileges, as Bush notes, ‘could be undonewithout formal abolition, usually when rendered meaningless ... through being awardedto the commonality’. 50 Judicial indemnities safeguarded nobles from normal court procedures,and also awarded them use of procedures that were closed to commoners. 51German nobles possessed the right to trial by public tribunal. This form of processwas designed to protect hereditary nobles from private and arbitrary court decisions,in effect, the very arbitrary and secret decision making that ordinary Germans faced inlegal cases. Nobles were further absolved from appearing in lower courts. 52 Seigniorialrights in Saxony, for example, allowed for Patrimonialgerichte (patrimonial courts),where landlords personally controlled the administering of justice to tenants. In lightof noble judicial privileges, procedural reform was more than a call for the rights ofpersons. It also housed an attack on the judicial indemnities of the nobility as well asthe social and political inequality those privileges represented.Jacob’s system was the only one that addressed the constitution of the courts and,in such a way, that his discussion was also a metaphor for Germany’s many princelycourts.. Book 6, Gericht, closed Rechtsalterthümer and was one of the longest sections.Courts, Jacob wrote in his opening paragraph, had their origin in the public forum ofthe peoples’ assemblies: ‘The combined freie männer formed the core of the courts.’ 53Confirming the original free constitution of the Germans, he drove home the point thatany authority a judge exercised was only secondary and given authority. Opening hissection on Gerichtsleute, he underscored this point, writing: ‘All judicial authority wasexercised by the association of free men (genoßenschaft freier männer) under the presidencyof an elected or hereditary leader.’ 54 Jacob then moved forward to offer a lengthytreatment of the courts, replete with his usual philological analysis and sinnliche element.Just before launching into his ode to ancient German liberty, however, the othershoe fell: ‘Frauen amongst all German peoples are banned from the court.’ 55 With thematter of the place of women out of the way, Jacob focused on the free constitution ofthe courts.The constitution of the courts is another area in which scholars have drawn apolitical divide between those who supported the Geschworenengericht (jury court)or the Schöffengericht (court with lay judges or mixed court). In 1798, the Frenchintroduced the jury trial for criminal cases in the occupied Rhineland, and it is truethat there were those in the German legal world who initially rejected the jury trialsystem. Feuerbach’s Betrachtungen über das Geschworenengericht, which was publishedin 1813, is an example. 56 However, this should be considered against the visceralhatred of the imposition of French law on German soil, discussed in the secondchapter. Feuerbach was a reformer, as I have shown, and it was more likely that herejected the jury court because it arrived in the form of the French legal imposition.