Making of a German Constitution : a Slow Revolution

140 • The Making of a German ConstitutionAlthough scholars have continued to suggest that the Schöffengericht ‘wasscarcely mentioned in the literature before 1848’, it, in fact, figured in the Privatrechts-Staatslehre I have identified here. 57 Examinations of the Schöffengericht appeared inthe studies of the various regional and local legal histories. This trend was begunby Eichhorn’s series, ‘Ueber den Ursprung der städtischen Verfassung in Deutschland’,published in the early ZGR editions. 58 Another example is August Reyscher’sVollständige, historisch und kritisch bearbeitete Sammlung der württembergischenGesetze (1828), and here he also weighed in for the cause of procedural reform. 59Grimm attached considerable political symbolism to Schöffen decisions, as I mentionedin the last chapter. He also discussed the distinctions and similarities betweenthe roles of Schöffen (lay judges) and Geschworene (jurors). Both systems had theirorigin in the common source of the public assemblies of German people, althoughthe jury system developed in England and France, where the system of lay judgeswas common to the German lands. The key distinction was that jurors were onlycompetent to ‘decide on truth’, facts of the case, while lay judges could also decidequestions of law. 60 Here, Jacob cited Rogge’s Das Gerichtswesen der Germanen(1820), Maurer’s Geschichte des Altgermanischen Gerichtsverfahrens (1824) andSavigny’s discussion in Geschichte des römischen Rechts.In fact, court procedure was amongst the most prominent subjects of Germanistscholarship. Jacob Grimm’s three-volume work, Weisthümer (1840–1842) took upthe question of procedure. In it he examined a collection of decisions handed downby the Schöffen, and it stood as one of the seminal studies on the Schöffengericht. 61The point of his analysis was to create prescriptive legitimacy for the judicial arrangementsliberals planned to effect through constitutional transformation. At thesame time, it embodied the rejection of patrimonial justice and demand for the extensionof judicial privileges to the commonality. This included the reinstitution ofSchöffengericht, which scholars of German law located in the free municipal constitutions.Without a doubt, however, Mittermaier was the most prolific writer onprocedure, specifically criminal procedure in the early nineteenth century. As earlyas 1820, he wrote his comparative study of common German, Prussian and Frenchcivil procedure. 62 He wrote countless articles on the jury system for the KritischeZeitschrift für Rechtswissenschaft he founded with Zachariä. Indeed, he was theleading proponent of the institution of the jury court system in German-speakingEurope. 63By the time of the 1830 revolutions, procedural reform was amongst the mostprominent demands of German liberals, and they continued to press for this in localassemblies even after the revolutions waned. Mittermaier published two politicaltreatises calling for procedural reform. Ueber die Bestimmungen einer zweckmässigenGerichtsverfassung und Processordnung was published in 1831, and his Diekünftige Stellung des Advokatenstandes in 1832. 64 Heinrich von Gagern called forprocedural reform in the Hessian Landtag. 65 Georg Beseler, the most vocal proponentof the ‘people’s law’, advocated, consistently, in the 1830s, in favor of trial by