Making of a German Constitution : a Slow Revolution

Undermining Absolutism • 141jury and lay judges, both of which he argued were in existence amongst the ancientGermans. In his early polemic against Roman law, he argued that German law hadevolved naturally through the involvement of the people in government and thecourts. 66 Free and equal Germans had built a system where assemblies and court procedureswere public. 67 ‘The people were the only source of law’, and ‘judges alongwith lay judges ... constituted living control of the justice system’. 68The history of legal reform in Hanover, where procedural reform made its firstbreakthrough, offers a classic example of the up and down course of constitutionaltransformation. As I mentioned earlier, following the 1830 revolutions a constitutionwas promulgated in 1833. A representative assembly, the Landtag, was the main fruitof the Staatsgrundgesetze. It was composed of an upper and a lower house, and, importantly,had legislative competency. In 1837, however, the Duke of Cumberland,Ernst August succeeded to the throne. August was no supporter of constitutionalism,and his first major act was to declare the Staatsgrundgesetze of 1833 invalid. Giventhe concern that liberals expressed about the position of women in society, it is worthnoting that August’s succession occurred only because Hanover law barred Victoriafrom ascending to the throne because of her gender. For the first time in 123 yearsthe crowns of Hanover and Great Britain were separated, and, paradoxically, liberalsprobably would have secured the political reforms they desired if Victoria hadbecome queen.The Germanist, Dahlmann, well known later for his Die Politik (1835), had playeda major role in drafting the Staatsgrundgesetze, and it was his disciple, Gervinus,who wrote the protest treatise. They were joined in this effort by five other Göttingenprofessors, Jacob and Wilhelm Grimm, Wilhelm Albrecht, Wilhelm Weber andHeinrich Ewald. All seven were dismissed from the university and banished fromthe state of Hanover in 1837. This was the infamous Göttingen Seven affair whichattracted liberal attention throughout German-speaking Europe. It was in the wakeof this incident, as I mentioned earlier, that Savigny secured new appointments forJacob and Wilhelm Grimm at the University of Berlin.During the six years of its duration, the Landtag passed three groundbreakingpieces of legislation. These were the Zivilprozeßordnung, the Polizeistrafgesetzbuchand the Gewerbe-ordnung. 69 This early Zivilprozeßordnung for Hanover was codraftedby Wilhelm Planck. 70 Planck was a Germanist and was widely respected forhis research on procedural legal history. Planck’s role in drafting the first HanoverZivilprozeßordnung is significant, because his only child was Gottlieb Planck, the fatherof the BGB. In any event and despite these early legislative advances, the appealto the German Confederation to save the Staatsgrundgesetze failed. Ernst Augustresponded by employing the rhetoric of customary law constitutionalism to install anew constitution suited to his illiberal aims. This was the Landesverfassungsgesetzeof 1840. It forestalled further constitutional transformation by abrogating the legislativepower of the Landtag’s two chambers and most of the legislation it had passed.This also shows how Central European monarchs were capable of appropriating