Making of a German Constitution : a Slow Revolution

144 • The Making of a German Constitutionthe judiciary independence and dividing the courts into regional and local courts. 80This provision, as well as others, had been expressed in the constitutional documentof 1849. Its Article 175 stated: ‘The courts shall exercise their judicial powersindependently.’ 81 At the same time, the Gerichtsverfassung dismantled Saxony’s judicialbureaucracy by abolishing, altogether, the old Patrimonialgerichte (patrimonialcourts). 82 In this way, it annulled an important seigniorial privilege and vestedcitizens with the basic right to a hearing before an impartial judiciary. Again, provisionsfor the abolition of patrimonial courts were contained in the 1849 constitutiondocument. Article 174 stated: ‘All jurisdiction emanates from the State. There shallbe no patrimonial courts’. 83Following the introduction of the Gerichtsverfassung, the Strafprozeßordnung(1855) was introduced in Saxony, which secured more basic rights for ordinarycitizens. Like Hanover’s procedural legislation, it made trial procedure public andoral, and it awarded citizens the right to independent counsel. 84 Courts became thecentre of adjudication and, increasingly, safeguarded common men against arbitraryjustice in criminal cases. In addition, the institution of the Kollegialgericht (panelof judges) offered a safeguard against arbitrary judgement. 85 While I have only discussedthe procedural reforms in Hanover and Saxony, procedural legislation wasalso enacted in Oldenburg (1857), Baden (1862), Württemberg (1868) and Bavaria(1869). From 1850 onward, the number of lay judges, jury courts, commercial courtsand trade tribunals increased steadily in Central Europe. 86The aim of procedural legislation was to subject the whole society to the samelaws and to draw down any legal distinctions between the bourgeoisie and hereditaryaristocracy. In addition to delineating court procedures, procedural codes organizedthe court system, the constitution of which was crucial to the ability of liberalsto implement and enforce legislative revolution and liberal rule in their envisionedGemeinwesen. Procedural reform also increased the number of courts. In this manner,it expanded the reach and the authority of a new apparatus of liberal socialcontrol. It gave liberals the means to secure that the people’s behavior conformedto liberal sociopolitical standards and gave them the means to exert disciplinarycontrol in the case of infraction. This expanding arm of the emerging civil society,increasingly, exerted control over ordinary private matters, such as the registrationof births, deaths and marital relations. Every individual increasingly fell within theliberal state’s purview and within reach of its disciplinary authority. The courts andlaws increasingly replaced the old structures and slowly emerged as the institutionalbackbone of private and public life.The New PeriodicalsA strong indicator of the advance of constitutional transformation was not only thefounding of new law journals, but the changing nature of these journals. Where the