Making of a German Constitution : a Slow Revolution

142 • The Making of a German Constitutionconstitutional transformation and employing lawmaking for their own purposes. TheLandtag, in fact, did not regain its critical power to legislate until 1848.This political demand for procedural reform was not a demand for either theGeschworenengericht or the Schöffengericht, but both forms, the former for seriouscriminal cases and the latter in lighter cases. During the Lübeck Germanistentagof 1847, members of a procedural reform commission that included Beseler, Dahlmann,Welcker and Mittermaier discussed the merits of the Geschworenengerichtin comparative perspective to English, French and American models along with theSchöffengericht. They emphasized, more than anything, the need for public and oralcourt proceedings to protect ordinary citizens from arbitrary and private judgements. 71Wilhelm Planck was also present to make the case for procedural reform. Procedurallegislation was, therefore, a fixed element of the liberal political platform well before1848, and the decision to actively push again for procedural reform had already beenmade. Lawyers, even at the local level, increasingly demanded Schöffen, jury trials,and that court procedures be conducted directly, orally and publicly, instead of insecret. They demanded the right of citizens to legal representation by counsel of theirchoosing and the right of litigating parties to control the evidence. 72Accordingly, while scholars have expressed surprise at the speed with which thecommittees of the Frankfurt Parliament were able to draft legal measures, in fact,this is explained by the fact that a robust Privatrechts-Staatslehre had been producedfor nearly half a century and by the earlier procedural reforms in Hanover. 73 The keyprovisions of the constitutional document of 1849 were, in reality, reflections, notonly of the systems produced by Eichhorn, Grimm, Mittermaier, Beseler and others,but the abrogated legal reforms of the 1830s. In addition to these important sources,there was a tremendous body of both book and article literature or more accuratelydata for a German system that they were able to draw on. What is more, the majorgoals had already been hammered out at the Germanisten conferences of 1846 and1847. Finally, most of the participants from the various conferences held in theseyears emerged as leading deputies at Paulskirche in 1848 and major players on thevarious committees.The constitutional document of 1849, therefore, should also be seen as a reflectionof the momentum that the programmatic approach to sociopolitical revisionhad gained in Central Europe, since Savigny’s call for the vaterländischesRecht. The document itself only consolidated the systems and data that had beenproduced by legal scholars since the 1820s, and there were several constitutionsand attempted legal reforms available by 1848 that they could use as models. Theconstitutional document of 1849 offers an indication that subsequent legislationwould be seen as an organic part of a constitution itself. With regard to proceduralreform, Article 128 read:A special law shall be promulgated to regulate the institution and organization of theReich Court, its procedures and the implementation of its decisions and rulings. To thislaw shall also be reserved the regulation of whether and in which cases a verdict of the