Making of a German Constitution : a Slow Revolution

64 • The Making of a German ConstitutionSavigny was born, was an expanding economic centre and home to a wealthy classof international merchants.Whereas educational, cultural and social demands in Prussia and Austria continuedto be eclipsed by the drive for Machtstaat, conditions on the ground werevery different in the small Rhenish principalities. 41 Here, I would argue, traditionsof municipal jurisdiction continued, and the intimate scale of government demandedattention to local needs. On the eve of revolution in France, as Tim Blanning writes,it was already a region with princes promoting economic advancement as well associal reforms. 42 Policies of secularization decreased ecclesiastical influence even inthe Catholic regions. Ecclesiastical property was diverted to endow new universities,and the progressive educational climate was evident in the scientific curricula. Reformextended to primary and secondary schools as well. 43 Social reforms producedorphanages, geriatric homes, asylums and a more humane criminal system. 44 A growingcivic consciousness sustained a sense of progressive activism, leading to the riseof reading clubs, Masonic lodges and other private associations promoting reform. 45Rhinelanders continued to be active in the local law (Gemeinde- und Stadt recht) oftheir communities in this period. Territorial law (Landrecht) and the Roman lawbasedius commune (gemeines Recht) had effect only on a subsidiary basis. Thesewere laws of last resort in cases where there were no provisions in the urban or townlaws. The tradition of municipal jurisdiction, therefore, remained intact. As Blanningalso points out, the resolution of disputes hinged on the interpretation of autonomousmunicipal charters and customs. 46 As changing economic and social conditions raisednew legal questions, particularly relative to inheritance, marital property and privateproperty rights, lower magistrates were able to make adjustments. As farm womenin Neckarhausen increasingly produced cash crops and contributed greater wealthto the family purse, David Sabean shows that local courts ‘shifted the way they relatedto the family’, increasingly, ‘allying with whichever spouse seemed to be themost effective commodity producer’. 47 While some aspects of the societal stressesthat produced the French Revolution in 1789 were also present in Central Europe,a crucial difference between France and the German lands, as David Blackbournwrites, was the fact that German peasants had greater access to legal remedies. 48 In amanner that was tangible to ordinary Germans, local measures and judicial practicemay have offered a greater feeling of participation than existed in France. This, alongwith the duality of law tradition, meant that there were viable alternatives to violencein the German states, and this may offer a better explanation as to why Germanydidn’t erupt in violent revolution rather than any notion of bourgeois failure.In addition to the tradition of municipal jurisdiction, with the Rhenish provincesto the west and Hanau to its east, Frankfurt was in the centre of a Huguenot communityrich in the monarchomach constitutional and resistance theory that grew upduring the religious wars. Johannes Althusius, Clemens Timpler and Johann HeinrichAlsted, as discussed in the last chapter, developed a strong German monarchomachtheory in the seventeenth century that emphasized the legitimate consent of the