THE �FORESTS OF GERMANY’
It is noteworthy that in the field of constitutional law the nineÂteenth century witnessed a comparable debate — in Germany, England and the United States — on the merits of the anÂcient Germans as the founders of modern political freedoms.
Numerous authors traced parliamentary liberalism back to the celebrated forets de Germanie (to use the famous expression in Montesquieu’s Esprit des lois, book xi, chapter. 6): the freedoms of modern constitutions originated with the Germanic nations of the early Middle Ages, especially the Anglo-Saxons. By contrast, Roman law, absolutism and centralization were depicted as the arch-enemies, nor could the Roman Church and its papal cenÂtralism count on any sympathy from Protestant legal historians. The German idea that â€?in such forests liberty was nurtured’ found a favourable response in nineteenth-century England, particularly in the last third, when it was advocated by such faÂmous medievalists as W. Stubbs, J. R. Green and E. A. Freeman. Already in 1870 Stubbs had found the roots of the English conÂstitution â€?in Germany’, a thesis he elaborated in the first volume of his Constitutional history of England (ι 874). England, he found, was the purest example of Germanic attitudes, characterized by freedom and self-government, which had been weakened but not extinguished by Norman rule. In the romantic Short history of the English people of 1874 Green situated the origins of the English constitution in Lower Germany, between the Elbe, the Ems and the Rhine, and he too found in Anglo-Saxon England the purest Teutonic organization, untainted by Roman influÂence. Freeman, in his History of the Norman conquest of England, of 1867, waxed positively lyrical in the description of the effects of primeval Germanic democracy (which he thought he had seen in action during a visit to Switzerland). This successor of Stubbs in the University of Oxford saw the Germanic compoÂnent as predominant, not only in the Anglo-Saxon period but throughout English history. He was particularly fond of the â€?selfÂgoverning Teutonic community’ in the ancient Marken. There was a real Anglo-German alliance in the struggle against the idea of the leading impact of Roman law on Europe. American historians took the theme a logical step forward. Since their free institutions had English roots, their Constitution was also bound to reflect the Teutonic past. This was indeed the idea deÂfended by the American historian Herbert Baxter Adams, who had studied in Germany, in a lecture to the Harvard Historical Society on â€?The Germanic origin of New England towns’, in 1881,11 whose conclusions seemed natural to many listeners and probably reflected the communis opinio at the time. They were in any case echoed by such leading jurists as Melville M. Bigelow, James Barr Ames and Oliver Wendell Holmes.12