Parliaments, Estates and Representation

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Great Britain and the Norwegian constitution of 1814 David Redvaldsen To cite this article: David Redvaldsen (2014) Great Britain and the Norwegian constitution of 1814, Parliaments, Estates and Representation, 34:2, 182-202, DOI: 10.1080/02606755.2014.946828 To link to this article: http://dx.doi.org/10.1080/02606755.2014.946828

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Great Britain and the Norwegian constitution of 1814 DAVID REDVALDSEN JOINT WINNER OF THE 2014 EMILE LOUSSE PRIZE

SUMMARY By the 1814 Treaty of Kiel, Norway was detached from Denmark and was to be given to Sweden. Prince Christian Frederik, heir to the Danish throne, was the Viceroy of Norway in 1814. He refused to accept the Treaty, and decided instead to establish Norway as an independent kingdom under his rule. To legitimize his claim, he called for elections to a constitutional assembly. This assembly began on 10 April 1814. The constitution which it approved was inspired by numerous sources. This article investigates the British influences upon it. It also considers how Britain’s stance in the international diplomacy of the day affected the outcome. Norway did indeed enter a forced union with Sweden, but with its constitution almost intact. This constitution was underpinned by the separation of powers, which its originators associated with Britain, and was known to them from books by Charles-Louis de Secondat, Baron de la Bre`de et de Montesquieu (1689–1755) and Jean-Louis de Lolme (1740–1806). Many members of the assembly had knowledge of British politics, especially the vocal Count Wedel-Jarlsberg and Captain Peter Motzfeldt. Three draft constitutions manifested important British influences. The approved constitution also contained crucial borrowings from Britain, particularly on civil rights. The Norwegian political system scarcely resembled Britain’s at that time, especially since the separation of powers was interpreted differently. Nevertheless, some aspects of parliamentary procedure derived from the British model.

By the Union of Kalmar, established in 1397, the three Scandinavian kingdoms of Denmark, Norway and Sweden chose a single ruler in the person of Erik of Pomerania.1 The Swedes, however, were only intermittently part of it, and in 1523 they left permanently when they elected Gustav Vasa as their king.2 In 1536 King David Redvaldsen, independent scholar

Parliaments, Estates & Representation 34, November 2014. Published for the International Commission for the History of Representative & Parliamentary Institutions by Routledge/Taylor & Francis. # 2014 International Commission for the History of Representative and Parliamentary Institutions/Commission Internationale pour l’Histoire des Assemble´es d’ E´tats. http://dx.doi.org/10.1080/02606755.2014.946828

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Christian III of the union integrated Norway into Denmark; henceforth she would not be a kingdom but a province.3 Denmark sided with France in the Napoleonic Wars after Britain had bombarded Copenhagen in 1807. By the Treaty of Kiel, signed on 14 January 1814, Denmark was forced to cede Norway to Sweden, which had fought alongside the Allies (Britain, Russia, Prussia and Austria). The Norwegian Viceroy Prince Christian Frederik was the heir to the Danish throne of his cousin Frederik VI. He disobeyed his liege’s orders to appoint commissioners to oversee the transfer of the fortresses to Sweden, and for himself to return to Denmark.4 Instead, he decided to make himself King of Norway, leading an uprising against the envisaged union with Sweden. After a meeting with Norwegian notables on 16 February that year, he decided to allow elections to a constitutional assembly, to begin in the town of Eidsvoll on 10 April. On 17 May 1814 he was elected king by the assembly, which had finished writing a constitution the day before. This marked the rebirth of a nation. The constitution is thus of equal symbolic value to the Norwegians as the Declaration of Independence (1776) is to the Americans. The constitution was held up by Enlightenment thought and a reforming zeal against the absolute monarchy, which Denmark had introduced in 1660 when the succession to the throne was made hereditary in the family of Frederik III. As such, it shared its origins with other products of revolutionary fervour. It is accepted that the American Declaration of Independence, the American constitution (1789), the French constitution of 1791 and later French revolutionary constitutions were important influences.5 Research for this article has verified that the Swedish constitution of 1809 had purchase with the Assemblymen.6 Because the separation of powers, traditionally associated with Britain, was an important principle in the Norwegian constitution, it is clear that the British model also had an impact. Indeed, in 1881 the Faculty of Law at the University of Oslo, when it was called upon to consider the question of whether the king’s veto was absolute or suspensive on amendments to the constitution, declared that the Norwegian constitution was written ‘according to the principle of equilibrium modelled on the English constitution as represented by Montesquieu and de Lolme’.7 But because the British constitution is an unwritten one, and because it has made its mark on so many other

1 H. Gustafsson, ‘A State That Failed? On the Union of Kalmar, Especially Its Dissolution’, Scandinavian Journal of History (SJH) 31, (2006), p. 207. 2 Gustafsson, ‘Union of Kalmar’, p. 211. 3 Gustafsson, ‘Union of Kalmar’, p. 214. 4 A. Olafsen (ed.), Kong Christian Frederiks Dagbok. Fra hans ophold i Norge i 1814 (Kristiania, 1914), p. 6. Entry for 24 January 1814. 5 I.B. Østbø, Storting og regjering (Oslo, 2001), p. 47. C.J. Hambro, ‘Stortinget og ytringsfriheten’, in Det norske Storting gjennom 150 a˚r, 4 vols (Oslo, 1964), vol. IV, p. 1. 6 As claimed by Bredo Morgenstierne, Engelsk parlamentarisme. Dens vekst og hovedlinjer (Kristiania, 1916), p. 5; Østbø, Storting, p. 47 and by C. Brinchmann and A. Daae, Norges Storting 1814–1914. En illustreret beretning om Stortingets tilblivelse, utvikling og arbeide gjennom hundreaaret med henved tre hundrede biografier og portrætter (Kristiania, 1914), p. 8 as an influence on Assemblyman and draft constitution writer Nicolai Wergeland. 7 E. Holmøyvik, Maktfordeling og 1814 (Bergen, 2012), p. 502.

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constitutions (which in turn influenced the Norwegian constitution),8 its significance runs the risk of being obscured. This article investigates what part Britain as a state, British law and British traditions played on the Norwegian constitution. It is theoretically grounded in the field of transfer history originated by Michel Espagne and Michael Werner. This especially covers products of the mind and culture, which are independent of obvious interaction such as war. As Espagne points out, it was in the 1860s that the German university system had a profound impact on its French counterpart, not after 1870 when Germany had invaded.9 Britain played a preponderant part in the events of 1814 in Norway, second only to Sweden. From a British perspective it is interesting to see whether Westminster politics, often hailed as taking place in the ‘Mother of Parliaments’, extends its reach also beyond the Commonwealth, where there is no shared history of colonialism or strong ties of language. From a Norwegian perspective the relevance of this article lies partly in its focus on a single country as an influence. Work has already been done by others considering the influence of multiple countries on the text of the constitution, especially the American and French revolutionary traditions. A recent book has in any case called for further research on relations between Britain and Norway in a variety of fields.10 British influences on the Norwegian constitution are to be found under two main headings: (1) her part in the power politics that led Sweden to accepting a Norwegian constitution at all or the actually existing constitution of May 1814, modified to be usable in the union in November; (2) the footprint of British thought and British traditions on the text of the document. Although the rubric (1) cannot be considered exhaustively here, it is important in delineating the entirety of Britain’s impact. Her role depends on the extent to which Sweden was willing to grant Norway a constitution, allowing her to be a separate nation. There are some indications that Sweden was inclined to do so. Unlike Denmark, she was a constitutional state through her 1809 settlement. Count Wedel-Jarlsberg was a Norwegian landowner who had vast interests in timber. In the latter years of the Danish union he advocated and worked for its dissolution, to be replaced by a more equal union with Sweden. Carl Johan, formerly Jean-Baptiste Bernadotte, was a French marshal who had defected to the Allies in the Napoleonic Wars. He had been elected heir to the throne of Sweden in 1810. In April 1813 he wrote to Wedel-Jarlsberg that when the proposed Swedish– Norwegian union came about, Norway would become a separate kingdom. She would have a separate government, be allowed to write her own constitution and the King of Sweden would reside in that country for three months every year.11 In July 1813 Sweden made a proclamation to the Norwegian people in which she said that they would be allowed to make a constitution.12 8

Morgenstierne, Engelsk parlamentarisme, p. 1. M. Espagne, Les Transferts culturels franco-allemands (Paris, 1999), p. 2. 10 H.Ø. Pharo and P. Salmon, ‘Introduction’, in H.Ø. Pharo and P. Salmon (eds), Britain and Norway: Special Relationships (Oslo, 2012), p. 12. 11 A. Bergsga˚rd, A˚ret 1814, 2 vols (Oslo, 1943– 45), vol I, p. 67. 12 Probably written by Carl Johan. See Udtog af Christianias Avis for 9de Julii 1813, indeholdende en i Norge indsendt Svensk Proclamation samt en Oversættelse af Svenske Aviser, begge Dele med Norske Anmærkninger (Copenhagen, 1813), pp. 7– 8. 9

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THE EVENTS OF 1814

In January 1814 the Treaty of Kiel ended the war between Sweden and Denmark. Clause 10 of the Treaty handed Norway over to Sweden in return for an indemnity payable to Denmark.13 Clause 5 stipulated that Norway’s rights, liberties, privileges and existing laws should be safeguarded. The Allies acted as guarantors, but Colin Lucas does not think that Britain was responsible for the inclusion of clause 5.14 This did not in any case guarantee Norway a constitution, since she had been governed by absolute monarchs in Copenhagen. On the other hand, Knut Mykland writes that Britain repeatedly told Sweden during negotiations with her in 1812 that she must come to terms with the Norwegians. Although the extant documents do not prove this, it is therefore likely that these demands carried weight during the negotiations leading to the Treaty of Kiel.15 When Norway actually had approved a constitution in May 1814, Sweden did not accept it as a basis for negotiations. Lacking the support of Britain and with war looming, it became clear to Christian Frederik that he could not continue as ruler. On 13 July 1814 he offered to accept the union of Sweden and Norway in return for the King of Sweden’s approving the constitution, and for the Allies to guarantee the settlement.16 This was summarily rejected by Sweden.17 War broke out on 26 July. On 13 August the Swedes, who held the military advantage, proposed an armistice which Christian Frederik accepted. Carl Johan would now allow the constitution to stand, and this became the basis for the Convention of Moss the next day.18 Why this volte-face? The Allies had not reacted well to the outbreak of hostilities. Carl Johan had noticed that Britain was unwilling to lend him ships for troop transports and took the hint. If the issue was not settled quickly, it might be taken out of his hands and put to the Congress of Vienna, which was due to meet later that year.19 Carl Johan certainly had no affection for the constitution, as especially his first decade of kingship was characterized by attempts to circumvent it and to amalgamate his two realms.20 Was it thus Britain which persuaded him to bite the bullet? Sweden had promised Britain to treat Norway liberally.21 Charles James Hamilton of the British Foreign Office explained to Christian Frederik’s emissary Carsten Anker that if the viceroy departed, Britain would facilitate good terms for Norway within the Swedish 13

London, The National Archives, Foreign Office and predecessor, FO 73/90, fols 90r and 91r. C. Lucas, ‘Great Britain and the Union of Norway and Sweden’, SJH 15, (1990), p. 276. 15 K. Mykland, ‘4. November – nederlag og seire’ (originally published 1964), in S. Supphelen (ed.), Studier i norsk historie omkring 1814. Ein nasjon stig fram (no place of publication, 1983), p. 244. 16 Oslo, Riksarkivet, Christian Frederiks arkiv, RA/EA-5938/F/Fb/L0208. Christian Frederik to Carl XIII of Sweden 13 July 1814. 17 Christian Frederiks arkiv, RA/EA-5938/F/Fb/L0208. Steigentesch, Orloff, Forster, Martens to Christian Frederik 25 July 1814. 18 L.R. Langslet, Christian Frederik. Konge av Norge (1814), Konge av Danmark (1839–48), 2 vols (no place of publication, 1998–99), vol. I, pp. 177–8. 19 Langslet, Christian Frederik, vol. I, pp. 178–9. 20 J.A. Seip, Utsikt over Norges historie, 2 vols (Oslo, 1974–81), vol. I, p. 73f. 21 H. Koht, ‘Det store i 1814’ (originally published 1914), in Supphelen (ed.), Studier i norsk, p. 273. 14

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union.22 The evidence seems to suggest that it was Carl Johan’s dependence on the Allies which secured the outcome. General Orloff, the Russian commissioner in the conversations in Christiania, strongly discouraged an immediate Swedish attack on Norway on 28 June.23 This background role did not make up the entirety of Britain’s contribution on the diplomatic front. It was abundantly clear to Christian Frederik that for his project of making Norway an independent kingdom to succeed, he needed the benign assistance of Britain.24 When he opened the constitutional assembly at Eidsvoll on 11 April, he mentioned especially that ‘the English flag has again been seen and joyfully received in Norwegian harbours’.25 This implied that Britain’s blockade was in the process of being lifted, and probably that she was the most important power. Christian Frederik’s right-hand man Carsten Anker was dispatched to Britain. His task was to deliver letters to the Prince Regent, Lord Castlereagh and the Duke of Gloucester, the viceroy’s kinsman. Letters to the other powers were not personally delivered. When Anker departed on 28 February, Christian Frederik observed: ‘Il est charge´ de faire un recit vray de tout ce qui c’est passe´ ici et de conclure avec la Grande Bretagne un traite d’amitie et d’alliance. Il ne peut pas assez dire a quel point il m’est essentiel de jouir d’une bonne intelligence avec cette puissance.’26 Later, anxious owing to not hearing from Anker during the assembly, Christian Frederik sent another envoy to Britain: Major-General Peter Anker, brother of Carsten.27 Although the mails were slow and travelling likewise, Anker reached London on 24 March 1814. His meeting with the prime minister, Lord Liverpool, two days later, was not a success for the Norwegian cause. The conversation lasted just under half an hour, but was interrupted by the delivery of dispatches to Lord Liverpool which he read at once.28 The prime minister gave the consistent reply that Britain must remain true to her obligations to the other Allies, which of course included Sweden. On 4 April Anker had a much more amiable conversation with the Duke of Gloucester, and delivered Christian Frederik’s letter to him.29 The duke later recommended Anker to Lord Grenville and voted in favour of the Norwegian cause in the House of Lords.30 Lord Grey, later the reforming prime minister, had called for a motion on Norway to be debated in the upper house when Anker, through the intermediary 22 C.J. Anker (ed.), Christian Frederik og Carsten Ankers Brevveksling 1814 samt Uddrag af deres Breve fra 1801– 13 og fra 1815– 17 (Christiania, 1901), p. 202. Letter of 11 April 1814. 23 L.K. Daa, K. Magnus Falsen, Et Bidrag til Norges Konstitutions Historie (Christiania, 1860), p. 52. 24 H. Koht, ‘Trongen til demokrati i 1814’ (originally published 1947), in Supphelen (ed.), Studier i norsk, p. 151. E. Fure, Eidsvoll 1814. Hvordan grunnloven ble til (no place of publication, 1989), p. 11. 25 A. Olafsen, K. Birch-Reichenwald and T.C. Jæger (eds), Riksforsamlingens forhandlinger, 4 vols (Kristiania, 1914–18), vol. I, p. 2. 26 Olafsen (ed.), Dagbok, p. 37. Entry for 28 February 1814. 27 Olafsen (ed.), Dagbok, p. 51. Entry for 2 April 1814. 28 Christian Frederiks arkiv, RA/EA-5938/F/Fc/L0216/0015. Carsten Anker to Christian Frederik 11 April 1814, fol. 7. 29 Christian Frederiks arkiv, RA/EA-5938/F/Fc/L0216/0015. Carsten Anker to Christian Frederik 11 April 1814, fol. 16. 30 Anker (ed.), Brevveksling, p. 262.

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Samuel Whitbread MP, made contact with him.31 The earl asked Anker many questions and took advice from him.32 He had been an opponent of the treaty with Sweden which the House of Lords had ratified the previous year.33 Now he called for an address to the Prince Regent contesting the blockade of Norway, and also gave his support for Norwegian independence.34 The motion was rejected by 115 votes to 34.35 Thereupon, 11 lords entered a protest in the Journals. Two days later, on 12 May, Charles Williams Wynn MP proposed a motion that all hostile British intervention (such as the blockade or support for Sweden) against ‘a people struggling for the sacred right of national independence’ should end.36 Of two future prime ministers, Lord John Russell spoke in favour, George Canning against.37 The motion was defeated by 229 to 71 votes.38 It was entirely predictable. Christian Frederik’s arguments were that the Danish king, by renouncing sovereignty of Norway, had released his subjects in that country from their oath of loyalty to him,39 that Britain’s treaty with Sweden distinctly allowed the wishes of the Norwegians to be heard40 and that an independent Norway would enter into the closest relations with Britain, especially in trade.41 He also pointed to the rights of nations.42 These Britain had said she had fought for during her wars against France.43 Up against these arguments stood the fact that Britain had signed the Treaty of Kiel, and also in her treaty with Sweden the year before had allowed Norway to become Swedish.44 Unlike most sovereigns in Europe, by the law of 1660 the Danish king was an absolute monarch, and there could therefore be no question of his right to cede any part of his realm.45 If the court at Copenhagen was privy to Christian Frederik’s actions, it was acting with great duplicity. If not, it was an act of usurpation on the part of the prince.46 Realpolitik and the sanctity of 31

Anker (ed.), Brevveksling, p. 236. Anker (ed.), Brevveksling, p. 237. 33 Parliamentary Papers, 10 May 1814, House of Lords debates (H.L.), series 1, vol. 27, Earl Grey’s motion for an address to the Prince Regent respecting the blockade of Norway, column 769. 34 H.L., column 782. 35 H.L., column 808. 36 Parliamentary Papers, 12 May 1814, House of Commons debates (H.C.), series 1, vol. 27, The blockade of Norway, column 842. 37 H.C., cc. 862, 850. 38 H.C., column 864. 39 Christian Frederiks arkiv. RA/EA-5938/F/Fb/L0208. Proclamation of 19 February 1814. 40 Christian Frederiks arkiv, RA/EA-5938/F/Fb/L0208. Christian Frederik to Prince Regent 22 February 1814. 41 Anker (ed.), Brevveksling, p. 10. 42 Christian Frederiks arkiv, RA/EA-5938/F/Fb/L0208. Christian Frederik to Duke of Gloucester 22 February 1814. 43 Parl. Papers, 10 May 1814, H.L., dissentient protest, column 808. 44 Parl. Papers, 10 May 1814, H.L., column 802. Speech by Lord Liverpool. 45 H.L., cc. 798– 9. 46 H.L., column 800. Britain sometimes suspected the King of Denmark was complicit in Christian Frederik’s actions. Foreign Office and predecessor: FO 38/16. Letters from Sir Charles Gordon to Edward Cooke 9 April 1814, 1 June 1814. FO 73/90. Letters from Edward Thornton to Castlereagh 3 March 1814, fols 158v, 160v, 9 March 1814, fols 201, 202. 32

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treaties meant that there was no room for Norwegian independence at this juncture. It was a fait accompli that she should come under Sweden and perhaps a benefit to her since she would thereby join a constitutional state.47 Since Christian Frederik needed the support of Britain for his sovereignty to be affirmed, he realized his kingship must come to an end. He did, however, have a back-up plan in case full Norwegian independence could not be achieved: Si toute l’Europe se reunit contre la Norwegue pour l’ecraser, alors le moyen de se defendre en desespe`rre´ [sic] resterait encore, et en tout cas ce serait a` la Die`te de decider du sort du Royaume si un accord avec la Suede sous la mediation de l’Angleterre devenait necessaire; en ce cas la constitution serait toujours maintenu et defendue et si je ne pouvais plus faire du bien ici, je retournerais en Dannemarc comble´ de gloire & c.48

It was on 6 June, upon meeting the British envoy John Philip Morier, that reality was brought home to him.49 This act of sending an envoy to Norway before Augustus Forster arrived in the country on 30 June in the company of representatives of the other Allies, indicates that Britain took a greater interest in the situation than Russia, Austria and Prussia.50 It is likely that she was the keenest of the four Allies in putting pressure on Sweden, because it was originally Russia which had promised Norway to Sweden (in 1812, as compensation for the loss of Finland to her). Britain was also a constitutional state, unlike Russia. However, Britain remained true to her treaty obligations and to the other Allies. She did not lift the blockade of Norway until the Convention of Moss.51 The embargos of 1808 – 09 and 1813 – 14 had caused a great deal of misery to the Norwegians.52 On 19 October 1814 the new parliament met for the first time to ratify the union with Sweden. A committee set up to enquire into the state of the realm, led by the Anglophile Captain Peter Motzfeldt, reported that a continuation of the war was ‘by no means encouraging’.53 The next day parliament ratified the union by a vote of 73 to 5, though most of the affirmative votes stipulated conditions.54 Four of the votes against came from the representatives from Bergen, the only ones to meet with a mandate to keep Norway independent.55 Carl Johan had expected parliament to simply amend the constitution so that it could function under the new conditions. Instead, it was reinforced in certain respects, guaranteeing Norway a modus vivendi in the undesired union.56 The most important issues 47

H.L., column 799. Speech by Lord Liverpool. Olafsen (ed), Dagbok, p. 51. Entry for 1 April 1814. 49 Olafsen (ed.), Dagbok, pp. 87–8. Entry for 6 June 1814. 50 Olafsen (ed.), Dagbok, p. 100. Entry for 30 June 1814. 51 Lucas, ‘Great Britain’, p. 276. 52 R. Berg, ‘Norwegian Attitudes Towards the British 1814–1914’, in Pharo and Salmon (eds), Britain and Norway, p. 25. 53 J. Aall, Erindringer som Bidrag til Norges Historie fra 1800 til 1815. Anden Udgave i eet Bind udgivet med nogle Rettelser og Tillæg af Christian C.A. Lange (Christiania, 1859), p. 540. 54 H. Sande (ed.), Prost Fredrik Schmidts Dagbøger (Copenhagen, 1868), pp. 225–6. 55 O. Vasstveit, ‘Bergensrepresentantene og det bundne mandat pa˚ det overordentlige Storting 1814’, Historisk Tidsskrift (HT) 62, (1983), p. 203. 56 D.C. Pugh, ‘Norway and Sweden in 1814: The Security Issue’, SJH 15, (1980), p. 126. 48

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related to the military and to the right of naturalization. Motzfeldt proposed that the Norwegian army could not be increased or decreased without the consent of parliament. (This was an established principle in Britain’s parliament.) Moreover, in peacetime, no Swedish troops could be stationed in Norway or Norwegian troops in Sweden.57 He also suggested that the right of naturalizing aliens should be in the hands of parliament, not the monarch.58 The first of these measures was of course designed to prevent the use of force against the Norwegian population. The second made it harder to create a new Swedish ruling class in Norway, as the constitution limited civil service positions to Norwegian citizens. The constitution had, for other reasons, disallowed the creation of new titles of nobility. Both measures were adopted. Thus Motzfeldt was among the most effective representatives in amending the constitution, and he was a channel for British influence, as we shall see. Norway progressed greatly as a nation in 1814 and that year is considered the annus mirabilis in her history. The constitution is still in force, and after full independence was achieved in 1905, the amendments required by the union were discarded. BRITISH INFLUENCES ON THE NORWEGIAN CONSTITUTION

The separation of the powers is a notion which contemporary thought associated above all with Britain. Because the Norwegian constitution applied this principle, it was easy for observers to register the British inspiration. In 1817 the journal Den Norske Tilskuer published an article entitled ‘Reflections on the Kingdom of Norway’s Constitution’ (Betragtninger over Kongeriget Norges Constitution).59 The writer, not introduced and only given as Buchholtz, thus claimed the constitution was modelled on Britain’s.60 A footnote by the translator or an editor asserted that Buchholtz’s notion was only true to the extent that the American constitution, the real model for Norway, was derived from the British. Since one of the journal’s editors was Christian Magnus Falsen, known as the ‘father of the constitution’, it is probable that the footnote was written by him.61 Falsen, a notary, had coauthored the most important constitutional draft with the grammar school teacher Johan Gunder Adler, which was used as the blueprint for the actual constitution.62 He had also acted as president of the constitutional assembly and worked in the vital constitutional committee. In any case, both the article itself and this footnote contain claims that are common currency. This confirms that there was some British influence. But how far did it go? The approach of this article is not to compare against other possible influences to arrive 57

Sande (ed.), Dagbøger, p. 236. Sande (ed.), Dagbøger, p. 23. 59 Holmøyvik, Maktfordeling, p. 525. 60 Den Norske Tilskuer No. 8–9, Torsdagen den 17de April 1817, pp. 59– 60. From his other writings on legal matters in the same journal, it seems possible that the author may have been Alexander August von Buchholtz, a German jurist. If so, these writings form part of his juvenilia. 61 W.R. Shaffer, Politics, Parties, and Parliaments. Political Change in Norway (Columbus, OH, 1998), p. 27. 62 Daa, Falsen, p. 23. 58

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at a share. Instead it will note borrowings and similarities which will show what the British influence was. Since Magna Carta (1215), the Petition of Rights (1628), the Habeas Corpus Act (1640) and the Bill of Rights (1689) predate all written constitutions, if a principle is included in one of these, it may be regarded as essentially English and, by extension, British. An example would be trial by jury, dating back to 1215 in England. A second methodological point concerns how borrowings are adopted by modification in another country. Theorists of transfer history point out that this process is the passage of one code into another.63 This is metaphorical translation. Even with literal translation, a term in one language does not exactly correspond to its equivalent in another. To use Michel Espagne’s example: ein Jakobiner in Germany in the 1790s does not exactly correspond to un jacobin in France in the same period.64 Therefore the reception of an idea in another country may give it a different meaning to what it has in the original context. This applies particularly to the balance theory here. And in connection with this, it is worth bearing in mind that English did not hold the same status in Norway in 1814 as it does today. It was primarily through two books in French that British institutions and traditions were known to the Norwegians, namely Baron de Montesquieu’s L’Esprit de lois (1748), where chapter 6 of book II was devoted to British conditions, and Jean-Louis de Lolme’s Constitution de l’Angleterre (1771).65 This is what Espagne calls les transferts culturels triangulaires, which logically requires a double translation process. There were at least three channels of influence through which knowledge of British institutions and laws became available to the assembly. The first was fellow delegates who were willing to impart inside knowledge of Britain. This may have happened formally or informally. The clergyman Fredrik Schmidt noted in his diary for 10 April, the date when the assembly began: ‘At 7 o’clock we went home, smoked our pipe with a cup of tea and when Falsen soon after arrived, parts of his constitution were gone through and discussed. The introduction is well written and the best of the French constitution from 91, as well as the North American and British constitutions have been used.’66 At other times, the reference to Britain could be formal. Another clergyman, Hans Jacob Stabel, argued against easy naturalization of aliens by noting inter alia how pride in being born British had made that nation glorious and brave.67 British parliamentarianism exerted a pull on educated Norwegians in general.68 Early on it was debated whether the assembly should be disbanded after it had approved a constitution and elected a king. The votes for and against were exactly equal (55 each). No provision had been made for such an eventuality. ‘Then a cry sounded from all directions: “The President decides!”’69 The Assemblymen remembered, according to the 63

Espagne, Les Transferts, p. 8. Espagne, Les Transferts, p. 5. 65 Holmøyvik, Maktfordeling, p. 54. 66 Sande (ed.), Dagbøger, p. 150. 67 Riksforsamlingens forhandlinger, vol. I, p. 206. 68 R.E. Lindgren, Norway– Sweden. Union, Disunion, and Scandinavian Integration (Westport, CT, 1979), p. 58. 69 H. Wergeland, Norges Konstitutions Historie, 3 vols (Kristiania, 1841–43), vol. II, p. 69. 64

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historian Wergeland, that the Speaker of the British Parliament was authorized to resolve a tied vote. The second channel was the draft constitutions collected in volume III of the proceedings of the assembly. Other such drafts existed which were not included, but the ones which made it into the volume were either read aloud to the assembly or made available for the delegates to study themselves. The 112 delegates were mostly well educated. Fifty-seven of them were civil or military officials, the class which had the most education, and in the vital constitutional committee of 15 they numbered as many as 13.70 (The two who were not officials, iron manufacturer Jacob Aall and Wedel-Jarlsberg, were also graduates.) Eighteen of the entire assembly were merchants or traders, a class which had leanings towards Britain.71 As noted by contemporary observer A.A. Feldborg: ‘The merchants of Norway pass two, three, or even more years of their youth in England for the purpose of acquiring that knowledge of her language and customs which is absolutely necessary for the proper management of trade, of which the greatest part is carried on with England directly, or through her medium.’72 The third channel of influence was English newspapers. Fredrik Schmidt notes in his diary for 14 April that The Times and some Swedish and Danish newspapers were laid out in the Assembly Hall for the delegates.73 On 24 April the diary states that he read ‘an old English newspaper’.74 Later, while modifying the constitution in parliament, he read a copy of Courier de Londres in the home of a friend.75 Jacob Aall also kept a diary of his time at Eidsvoll.76 His record shows that he read the Morning Post at least once, and he makes reference to English newspapers on 29 April and 1 May.77 Two members of the constitutional committee had an especial knowledge of British society. Both of them were among the most active and influential in the assembly, and later in parliament when the constitution was modified to permit the union with Sweden. Herman Wedel-Jarlsberg had grown up in London, where his father was the Danish ambassador.78 He modelled his oratory on what he knew about the British parliament.79 Peter Motzfeldt had learnt about British institutions while a prisoner of war in Reading for 18 months between 1807 and 1809.80 As noted earlier, he was known for his Anglophilia, despite the involuntary nature of his association with Britain. 70 S. Dyrvik and O. Feldbæk, Mellom brødre 1780– 1830. Aschehougs Norgeshistorie vol. VII (Oslo, 1996), p. 153. 71 Fure, Eidsvoll 1814, p. 11. Bergsga˚rd, 1814, vol. I, p. 36. 72 A.A. Feldborg, Cursory Remarks on the Meditated Attack on Norway Comprising Strictures on Madame de Stae¨l Holstein ‘Appeal to the Nations of Europe:’ with Some Historical and Statistical Fragments Relating to Norway. 3rd edn (London, 1813), p. 23. 73 Sande (ed.), Dagbøger, p. 154. 74 Sande (ed.), Dagbøger, p. 166. 75 Sande (ed.), Dagbøger, p. 232. 76 Aall, Erindringer, p. 383. 77 Aall, Erindringer, p. 371, p. 422, p. 423. 78 K. Mykland, ‘Grunnlovens far og kongemaktens forsvarer’ (originally published 1964), in Supphelen (ed.), Studier i norsk, p. 184. 79 Aall, Erindringer, p. 397. 80 S. Steen, ‘Mennene pa˚ Eidsvoll’ (originally published 1951), in Supphelen (ed.), Studier i norsk, p. 158.

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Wedel-Jarlsberg was similar to a ‘liberal English gentleman’.81 He was the leader of the Unionist party at Eidsvoll, the 30 or so men who desired union with Sweden. There was a partly British orientation to this: such a union would mean peace with Britain and trade with her.82 As a timber merchant this was important to him.83 The count would only contemplate Norwegian independence if this was guaranteed by Britain.84 Jacob Aall, who shared Wedel-Jarlsberg’s outlook, described him thus: In particular he was well acquainted with the higher branches of government, which he partly knew through experience, as a member of the previous government commission, partly he had from childhood studied the norms of English statesmanship. With regard to the executive power’s rights, and its relations to the legislative power, as well as the organization of the state in its higher forms, Wedel’s counsel and voice was the most important. Each one of the paragraphs in the constitution, which related to this case, was by him meticulously debated, and most decisions of this kind were due to his diligence.85

Captain Motzfeldt belonged to the larger Independence party numbering about 80. They wished to see a Norwegian state ruled by Christian Frederik as king. Motzfeldt openly recommended British parliamentary practice,86 and he held considered views about how this example was to be accommodated within a Norwegian setting. Thus, he actually rejected Adler’s and Falsen’s concept of a division of the legislature into two houses, but suggested that the same purpose could be served by three readings of the same bill, as in Britain.87 Aall’s record of events had this to say about the captain: ‘Motzfeldt was also numbered among the committee’s most active members. He knew the English constitution very well, was a zealous defender of the rights of the people, and examined with perspicacity and factual knowledge those sentences which the committee deliberated.’88 A third member of the constitutional assembly who is known to have been aware of British institutions was Captain Ole Elias Holck, representing the Bergen Infantry Regiment.89 Unlike Wedel-Jarlsberg and Motzfeldt, he was not especially Anglophile. Basing his views on a study of Danish, Swedish and English history, he came to the conclusion that the British example was ‘the least suited to Norway’.90 There are no references to the British constitution in the minuted proceedings of the assembly. The index lists one reference, but that is in fact to a curious 81 K. Tønnesson, ‘The Norwegian Constitution of 17 May 1814 – International Influences and Models’, Parliaments, Estates & Representation 21, (2001), p. 177. 82 Lindgren, Norway–Sweden, p. 11. 83 Pugh, ‘Norway and Sweden’, p. 123. 84 Seip, Utsikt, vol. I, p. 31. 85 Aall, Erindringer, p. 403. 86 Wergeland, Norges Konstitutions, vol. III, p. 91. 87 Aall, Erindringer, p. 432. This rule is also in Adler-Falsen’s proposed constitution. See Riksforsamlingens forhandlinger, vol. III, p. 25. 88 Aall, Erindringer, p. 404. 89 K. Mykland, ‘En Eidsvollmann og to “grunnlovsutkast”’, HT 59, (1980), p. 75. 90 Mykland, ‘En Eidsvollsmann’, p. 78, p. 79.

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anonymous document received by Falsen at Eidsvoll, which was published in volume I of the proceedings. Entitled ‘A little political thingummy!’ (Lidet politiskt Ruskunsnusk!), it recommended that a country where there were many nobles, even enlightened wealthy nobles, would do well to accept the principles of the British constitution.91 This was not an accurate description of Norway at all, but the tract was taken surprisingly seriously.92 Although this was the only reference to the British constitution on record, by comparison, there were none to the American, three to the French, one to the Swiss and seven to the Swedish constitution.93 This cannot be an apportioning of influence, since American statute and principles are widely acknowledged to have been crucial. THE CONSTITUTIONAL DRAFTS

It is when one turns to volume III of the proceedings, containing draft constitutions delivered or sent to Eidsvoll, that Britain receives her dues as an influence. Twelve of these are included in the volume. We also know that Jacob Aall wrote one, which came to light long after 1814.94 Other delegates who also wrote proposed constitutions were: Falsen, the philosopher Professor Niels Treschow, the classicist Professor Georg Sverdrup, the military official Christopher Anker Bergh, the notary Arnoldus von Westen Sylow Koren, the clergyman Nicolai Wergeland and, probably, the town recorder Christian Hersleb Horneman.95 The tally of known drafts is now near 30. However, on the question of impact on the approved constitution, the ones which were not available at Eidsvoll must by definition be subsidiary. For the present purposes, it is enough to study the ‘official’ drafts. Based on a reading of the ‘official’ proposed constitutions, the ones that show the most British influence are, in ascending order: 3. that of Adler and Falsen, 2. that of war commissioner Wincents Lassen Sebbelow and 1. that of Count Holstein-Holsteinborg, a Danish aristocrat.96 Adler’s and Falsen’s draft, considered to have had the greatest impact of all as mentioned earlier, does not immediately betray its elements of British inspiration. Christian Frederik made the observation that Falsen had not emphasized habeas corpus enough.97 But the whole preamble to this particular piece of work, concerning the division of powers, was based on de Lolme’s Constitution de l’Angleterre. In several places whole chunks of text have been lifted verbatim from that book.98 Its contents were also closer to the British constitution than was the actual, approved constitution. Its division of the 91

Riksforsamlingens forhandlinger, vol. I, p. 171, p. 173. See Aall, Erindringer, p. 425 who opines that it contained many elements of interest. 93 Riksforsamlingens forhandlinger, vol. IV, p. 95. 94 Seip, Utsikt, vol. I, p. 39. 95 S. Steen, ‘Et nytt Grunnlovsutkast fra 1814’, HT 44, (1965), p. 28. 96 We also know that Professor Schlegel, a Danish jurist, had a good understanding of the British constitution. He had discussed it in his work Naturretten (Natural Law), but his own constitutional draft for Norway was short and was not read aloud at Eidsvoll. E. Holmøyvik, ‘Maktfordeling under eineveldetJ.F.W. Schlegel og Eidsvollgrunnloven’, in O. Mestad (ed.), Frihetens forskole. Professor Schlegel og Eidsvollmennenes læretid i København (Oslo, 2013), p. 265, p. 277f. 97 Riksforsamlingens forhandlinger, vol. III, p. 250. 98 N. Ho¨jer, Norska Grundlagen och dess ka¨llor (Stockholm, 1882), p. 23. 92

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parliament into chambers was stricter, there was provision for trial by jury, the double jeopardy rule applied and legislation on riots had to be read aloud before using military force against an insurrection.99 The British influences are much more apparent in the proposals of Sebbelow. Early in the document he playfully quotes Alexander Pope: ‘Of forms of government let fools contest, Whatewer [sic] best is govern’d, is the best.’100 Sebbelow, however, was no fool, and he mentions among his influences Henning Arnisæus, Piccart, Dio Cassius, Friedrich Gronovius, Spanheim, Hobbes, Locke, Struvius, Grotius, Pufendorf and Montesquieu.101 Only two of these were English, and Sebbelow was a true European with knowledge of many countries. This does not detract from his obvious admiration of Britain. She is ‘the mightiest realm in the world’.102 Sebbelow refers to Britain on freedom of the press, where he quotes the relevant law in English.103 He approves that her monarch, like the Swedish, cannot compel his subjects to pay taxes without their consent. This extends even to war, for here the burden is divided between the king, who makes war and peace, and parliament, which is in control of the wherewithal required to continue hostilities.104 He urges the inclusion of habeas corpus in the Norwegian constitution. It was an important principle, not diminished by the fact that it had been violated in many European countries, including in Britain ‘so proud of her liberties’.105 He also agreed with the British principle that civil servants must be held accountable for their actions as state officials. This was a safeguard against the tyranny that sometimes arose from the exercise of state duties, which had been denounced by the English king and his people.106 The king himself, however, should not be held accountable for anything, only his ministers. This was necessitated, Sebbelow wrote, by the British constitution and English history. The first contained the same principle, while the English civil war and subsequent execution of King Charles I produced a suitably horrible admonition of the contrary. Sebbelow was also aware of other non-commendable British practice. He said there was excessive proof of English people selling their votes for money or in return for being treated.107 This point was heeded in the actual Eidsvoll constitution, where it is laid down that anyone buying or selling votes loses the right to cast them.108 Sebbelow’s concerns: freedom of the press, habeas corpus, the responsibility of civil servants and ministers, while the king is immune from prosecution, were all incorporated into the Norwegian constitution.

99

Riksforsamlingens forhandlinger, vol. III, p. 12, p. 38, p. 48. Only the last point was implemented. Riksforsamlingens forhandlinger, vol. III, p. 171. 101 Riksforsamlingens forhandlinger, vol. III, pp. 165– 6. 102 Riksforsamlingens forhandlinger, vol. III, p. 193. 103 Riksforsamlingens forhandlinger, vol. III, p. 186. 104 Riksforsamlingens forhandlinger, vol. III, pp. 193– 4. 105 Riksforsamlingens forhandlinger, vol. III, p. 183. 106 Riksforsamlingens forhandlinger, vol. III, p. 184. 107 Riksforsamlingens forhandlinger, vol. III, p. 167. 108 A. Kaartvedt, Det norske Storting gjennom 150 a˚r, vol. I, p. 108. 100

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The draft constitution which by far shows the greatest British influence is that of Holstein-Holsteinborg. As a Dane he did not take part in the deliberations at Eidsvoll, but he was sufficiently interested in the Norwegian cause to travel there in his own boat, loaded with grain for distribution, arriving in mid or late October.109 His constitution preceded him by six months. In January 1814 he had also written a draft constitution for Denmark, a country that was not going through a liberal transformation.110 Holstein-Holsteinborg was a learned man able to furnish examples from both classical and modern European statecraft. His most pronounced paradigm was undoubtedly Britain. This was a matter of which he was aware. In the conclusion to his document, he wrote: ‘It will scarcely be doubted, that the here described constitution for the most part resembles the English, and where reigns greater liberty, more noble self-confidence, more general prosperity?’111 The main British derivation lies in the balance of powers, which Holstein-Holsteinborg, like other observers, found in Montesquieu and de Lolme. As a true believer in political equilibrium, Holstein-Holsteinborg was in favour of the royal veto.112 He thought it should be wrapped up in polite language, such as in England le roi s’avisera.113 He was not, however, in favour of separate legislative chambers based on estates, believing that all citizens had the same interests and that such a division would counteract liberty.114 Instead, the count suggested the procedure which actually came to pass, namely that parliament itself should elect the most able among its membership, ‘about 20 to 40 to make up a Senate or a Chamber of Laws’, which would then have a veto on the bills parliament had passed.115 At Eidsvoll it was decided that parliament would have 75 to 100 members and that one quarter of them would make up the upper division.116 Holstein-Holsteinborg lauded the example of Britain, where ‘the King can do no wrong’, which also became part of the Norwegian constitution.117 The theory of the separation of the powers meant that the executive branch, the legislative branch and the judicial branch would be independent of each other. Thus the monarch must not interfere in the judicial process, which he said was firmly entrenched in the Magna Carta, the Habeas Corpus Act and the Bill of Rights.118 As an example of the evils which flowed from breaching this principle, he gave that of the trial of Mary, Queen of Scots, where Queen Elizabeth I sought to have her rival sentenced to death. He recommended the practice of choosing 12 jurors from among the active citizenry of each constituency to serve for one year. Or alternatively, as in England, the king’s bailiff might choose the 109

Olafsen (ed.), Dagbok, p. 127. Entry for 14– 26 October 1814. R. Glenthøj, ‘Enevelde under afvikling. Schlegel og tidens opfattelse af kongemakt og konstitution’, in Mestad (ed.), Frihetens forskole, p. 85. 111 Riksforsamlingens forhandlinger, vol. III, p. 146. 112 Holmøyvik, Maktfordeling, p. 363. 113 Riksforsamlingens forhandlinger, vol. III, p. 116. 114 Holmøyvik, Maktfordeling, p. 334. 115 Riksforsamlingens forhandlinger, vol. III, p. 111. 116 Brinchmann and Daae, Norges Storting, p. 97. 117 Riksforsamlingens forhandlinger, vol. III, p. 120. 118 Riksforsamlingens forhandlinger, vol. III, p. 124. 110

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12 jurors from the constituency, which the count considered the second-best option.119 While jurors were only in use in England for criminal trials, he saw no reason why they should not pronounce judgment in civil matters too.120 The Norwegian constitution, however, did not enshrine the right of an individual to be judged by his equals. This became a contentious issue in 1857, when parliament passed a bill introducing juries for criminal trials, which was then vetoed.121 Holstein-Holsteinborg advised that judgment should be in accordance with the spirit of the law, not always its letter.122 This is a practice for which English common law gives scope, although the count knew of sad examples from Britain where the opposite had been true. On the weighty matter of press freedom, he believed its attainment in law in England in 1694 was late. Nevertheless, she had become more free a state than others where only lip service was paid to this freedom.123 It was the securest fortress for the citizen’s political and civil rights.124 The rights of the individual were a vital duty of government, so the constitution must have rules regarding these. The most illustrious had been attained in England, the count said, and were included in the following statute: (1) the Magna Carta, (2) the Petition of Rights, (3) the Habeas Corpus Act and (4) the Bill of Rights.125 Holstein-Holsteinborg had detailed knowledge of these, derived not only from de Lolme, but also Hume’s History of England and Allgemeine Weltgeschichte von Schro¨kh.126 He devoted three tightly argued pages out of a total of about 37 to describing this fundamental legislation. The implicit message is clearly that the Norwegian people should enjoy the same rights: freedom from arbitrary laws, free passage for merchants, no confiscation of farmers’ tools, trial by a jury of equals (from Magna Carta),127 freedom from taxes and loans without parliament’s consent, freedom from compulsory quartering, no military justice for civilians (from the Petition of Rights),128 freedom from arbitrary arrest, the granting of bail, no forced transportation overseas and the safety of the double jeopardy rule (from the Habeas Corpus Act),129 the free election of parliamentarians, that the king could not grant immunity from the laws, no arbitrary dismissal of civil servants, no confiscation of property before judgment, no large standing army and no restrictions on the freedom of the press (from the Bill of Rights).130 These, at least, were the count’s interpretation of the various acts.

119

Riksforsamlingens forhandlinger, vol. III, p. 125. Riksforsamlingens forhandlinger, vol. III, pp. 125– 6. 121 Ø. Sørensen, Kampen om Norges sjel. Norsk idehistorie vol. III (no place or date of publication), p. 283. 122 Riksforsamlingens forhandlinger, vol. III, p. 126. 123 Riksforsamlingens forhandlinger, vol. III, p. 132. 124 Carsten Anker agreed. He nevertheless saw it as a necessary evil, and claimed that it was daily misused in Britain. Anker (ed.), Brevveksling, pp. 374–5. Letter written 26 September 1814. 125 Riksforsamlingens forhandlinger, vol. III, pp. 134– 6. 126 Riksforsamlingens forhandlinger, vol. III, pp. 135– 6. 127 Riksforsamlingens forhandlinger, vol. III, p. 134. 128 Riksforsamlingens forhandlinger, vol. III, p. 135. 129 Riksforsamlingens forhandlinger, vol. III, p. 135. 130 Riksforsamlingens forhandlinger, vol. III, p. 136. 120

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Some of these rights Holstein-Holsteinborg explicitly wrote into his draft constitution. For instance, paragraph 28 promised that no civilian must undergo military justice.131 The latter law became paragraph 27 in the actual constitution, and it was noted in its acceptance that it accorded with English law.132 As for military service, he did not think this issue a matter for the constitution, but quoted the British rule that the king must maintain an army no larger than what parliament each year decides.133 There was one important difference compared to Britain, which even today is seen as a characteristic of Norway, and which was also written into the actual constitution. Paragraph 29 of his draft stated that no hereditary titles, honours or sinecures with a guaranteed income irrespective of whether the position was exercised well, must be bestowed.134 The constitutional assembly banned new hereditary titles, but left the issue of already existing honours to future parliaments. Holstein-Holsteinborg also referred to British exemplars when discussing his proposed paragraph 4 about the right to property.135 He wrote that English law (and North American) forbade the confiscation of private property for public use, except with the consent of parliament and due compensation. Holstein-Holsteinborg gave two more deliberations on English law, namely the Navigation Acts and rules on petition and voting.136 He suggested that laws governing shipping are not inappropriate for a constitution, but did not state plainly whether he sought similar protection of Norwegian shipping. When the Navigation Acts were repealed in 1849, the result was great opportunities for the Norwegian merchant fleet in British ports.137 With regard to voting, Holstein-Holsteinborg suggested that voting by proxy be disallowed and that no person may vote in more than one place.138 This was in conscious contrast to Britain, where voting by proxy was accepted in parliament and the plural vote existed until 1948. Holstein-Holsteinborg was overwhelmingly guided by British law and traditions. His ideas certainly had impact on the actual constitution, although what was implemented was not always in consonance with British practice. The election of a second, revising chamber by the members of the first was, until 2009, a defining aspect of the Norwegian system. Adler and Falsen had suggested the American system of electing representatives to the upper house for six years and then replenishing one third of it every two years.139 Holstein-Holsteinborg also had his way on the franchise being given to all men above 25 with property, which again differed from the more restrictive British system. Jointly with other authors, and the input of the delegates at Eidsvoll, the count nevertheless succeeded in transferring 131

Riksforsamlingens forhandlinger, vol. III, p. 138. Fure, Eidsvoll 1814, p. 153. 133 Riksforsamlingens forhandlinger, vol. III, pp. 138–9. 134 Riksforsamlingens forhandlinger, vol. III, p. 139. 135 Riksforsamlingens forhandlinger, vol. III, p. 140. 136 Riksforsamlingens forhandlinger, vol. III, p. 141, p. 144. 137 E. Merok and E. Ekberg, ‘Partners in World Trade, Anglo-Norwegian Shipping Networks, 1855– 1905’, in Pharo and Salmon, Britain and Norway, p. 73. 138 Riksforsamlingens forhandlinger, vol. III, p. 144. 139 Riksforsamlingens forhandlinger, vol. III, p. 29. 132

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significant civil rights which originated in Britain to Norway. These included rights over property, no taxation without consent, freedom from military justice for civilians, habeas corpus, freedom of the press and, in the November revision, the consent of parliament being required for a standing army. Table 1 summarizes British influence on the three draft constitutions and the actual constitution of 1814. The below table is an interpretation. For instance, in the actual constitution the king could make his children immune to prosecution, or allow a trial to go ahead, a paragraph to which Wedel-Jarlsberg objected.140 Nevertheless, the king could not arbitrarily make anyone immune to the law and all persons were subject to it, therefore we have ticked the box for ‘no immunity from laws to be granted’. It is also a question of interpretation when one of the older principles, such as farmers’ rights not to be deprived of their tools, was not explicitly mentioned. We judged that this followed from more general principles, such as no arbitrary confiscation. In general terms, the table shows a significant impact of British law on the Norwegian constitution. COMPARISON OF THE BRITISH AND NORWEGIAN CONSTITUTIONS

What about the whole British constitution? The principles that the king can do no wrong, that he could dissolve parliament, that he must be a Protestant and, to a limited extent, that the second chamber acted as the highest court in the land, were implemented also in the Norwegian constitution. Parliamentary government on British lines was not introduced in Norway until 1884, and the interpretation in the constitution was that the executive branch of the state and the legislative branch needed to be separate.141 This could nevertheless be seen as a transfer, only ‘encoded’ differently. To this day, Norwegian cabinet ministers must vacate their seats in parliament while serving, and non-parliamentarians may be appointed to government. While the British royal veto is theoretically absolute,142 the Norwegian royal veto is only suspensive. The third time a law is passed in parliament, the monarch is duty bound to sanction it. The suspensive veto was a French influence from her 1791 constitution, for which Falsen acted as the spokesman.143 This was also the case for the Norwegian system of indirect elections, whereby voters only chose electors who then picked parliamentarians. The Norwegian constitution allowed for parliament to meet every third year, and it is possible that the English Triennial Act of 1694 served as a model here.144 But unlike Britain, where in practice parliament met every year so that the king could maintain a standing army, yearly parliaments were not introduced in Norway until 1869 and then by law, not custom.145 The Norwegian constitution specified that the 140

Wergeland, Norges Konstitutions, vol. III, p. 18. Ø. Bratberg and T. Nordby, ‘Britisk og norsk parlamentarisme. Grunnleggende prinsipper, likhetstrekk og aktuelle utfordringer’, in Ø. Bratberg and K.M. Haugevik (eds), Det glemte partnerskapet. Norge og Storbritannia i et nytt a˚rhundre (Oslo, 2012), p. 17. 142 It was last used by Queen Anne in 1708. Bratberg and Nordby, ’Britisk og norsk’, p. 18. 143 Daa, Falsen, p. 23. 144 Ho¨jer, Norska Grunnlagen, p. 85. 145 Brinchmann and Daae, Norges Storting, p. 114. 141

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Table 1. CIVIL RIGHTS IN THE PROPOSED AND ACTUAL CONSTITUTIONS

Civil right No arbitrary taxation of merchants Right of entry and exit for merchants Farmers not to be deprived of tools Trial by jury No taxation without parliamentary consent No compulsory quartering No military justice for civilians Habeas corpus No compulsory transportation abroad The double jeopardy rule Free election of parliamentarians Freedom of speech in parliament No immunity from laws to be granted No arbitrary dismissal of officials No confiscation before trial Restrictions on standing army Freedom of the press

Adler and Falsen

Sebbelow

HolsteinHolsteinborg

X

X

Norwegian constitution 1814 X

X

X

X X

X

X X

X

X

X

X X

X

X X

X

X X

X X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

November version

X

X

X

X

countryside should always elect twice as many parliamentarians as the cities.146 According to Nils Ho¨jer, this principle derives from Scotland, where, until the Reform Act of 1832, the counties had twice as many MPs as the burghs (30 against 15).147 Since it was Motzfeldt who had proposed this arrangement in a memo of 8 May, Scotland is indeed the likely source of this provision. An obvious difference between the British and Norwegian constitutions is the weak division of chambers in the latter. Nor is there any aristocratic element, as Norway had only 12 noble families in 1814 and it was felt that the creation of new peerages would interfere with the sovereignty of the people. Parliament was 146

T. Greve, Det norske Storting gjennom 150 a˚r, vol. III, p. 15. Ho¨jer, Norska Grunnlagen, p. 118. And see E.J. Evans, The Great Reform Act of 1832 (London, 1994), p. 71. 147

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given the name Storting (Great Assembly) at Eidsvoll, consisting of the Odelsting (three quarters of representatives) and the upper division of the Lagting (one quarter of representatives). It was intended that the upper chamber should consist of the more skilled and experienced parliamentarians. Since both chambers needed to pass a law before its being presented for royal assent, parliamentary procedure was similar in nature to the British. The Odelsting had the right to impeach ministers and governments, replicating the powers of the House of Commons. Such cases were ultimately decided by a combination of the Lagting and the Supreme Court.148 This matches the powers of the British House of Lords, which is both the upper chamber of parliament and was, until recently, the supreme court of the realm.149 But the division of parliament in Norway was made less absolute by the passing of an amendment to the draft constitution at Eidsvoll, allowing a bill to be passed with a two-thirds majority of the entire parliament if the upper chamber rejected it.150 Also, the Norwegian parliament met as a whole to consider the budget and financial matters,151 which was the preserve of the House of Commons alone in Britain. The Norwegian political system received a larger democratic element, lack of an aristocratic element and a weaker monarchical element than the British.152 The basic laws of the land were similar. CONCLUSION

The purpose of this article was to illuminate what effect Britain as a state, British law and British traditions had on the Norwegian constitution of 1814. Britain had a role in securing the maintenance of the constitution after it had been approved at Eidsvoll on 17 May 1814. It was her idea, and that of the Allies, that the diet should be recalled to allow Christian Frederik to renounce his kingship. Through this device the constitutional forms of the document itself were preserved. Sweden was eventually forced to honour her word to Britain, that the wishes of the Norwegians should be heard. Sweden could not ignore the close Allied interest displayed and Allied mediation. The British navy was blockading the Norwegian coastline, which meant that she was close at hand. In terms of the intellectual and legal influences, it has been shown that two of the most active Assemblymen and, later, parliamentarians, Wedel-Jarlsberg and 148 Cf. Bagehot’s contention that there are two supreme courts in England: the judicial committee of the Privy Council and the judicial committee of the House of Lords. W. Bagehot, The English Constitution. Edited with an Introduction and Notes by Miles Taylor (Oxford, 2001), p. 96. 149 Holmøyvik, Maktfordeling, p. 137. 150 Thus parliament became a hybrid of a unicameral and bicameral system. D.R. Matthews and H. Valen, Parliamentary Representation. The Case of the Norwegian Storting (Columbus, OH, 1999), p. vii. When this amendment was passed, Assemblyman Major Sibbern wrote: ‘May God help us if this is subject to the criticism of an Englishman, since we have probably not committed a greater inconsistency in the constitution.’ Fure, Eidsvoll 1814, p. 212. 151 J.A. Storing, ‘Unique Features of the Norwegian Storting’, Western Political Quarterly 16, (1963), p. 161. 152 Calculations show that about 45 per cent of men above 25 received the vote in Norway in 1814. See S. Kuhnle, ‘Stemmeretten i 1814. Beregninger over antall stemmerettskvalifiserte etter Grunnloven’, HT 51, (1972), pp. 373– 90. In 1831, thus before the Reform Act the following year, an estimated 12.7 per cent of adult males in England and Wales could vote. Evans, Reform Act, p. 75.

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Motzfeldt, were inspired by British examples.153 Although Nils Ho¨jer viewed Wincents Sebbelow’s draft constitution as having had only a little impact,154 on the principles we have adduced there was a reasonable match with the actual constitution. It showed clear British inspiration, within his wide, learned European outlook. Count Holstein-Holsteinborg was equally learned, and inspired by a British paradigm to an even greater extent. From afar, he succeeded in framing important parts of the Norwegian constitution, such as the nature of parliament and the suffrage. While Falsen was a spokesman for revolutionary French and American political thinking, the very influential draft constitution he wrote with Adler had a preamble where the British constitution served as the model. All the drafts and the actual constitution preserved that mystique of monarchy which is so central to the British constitution, according to Walter Bagehot, but which did not exist or was extinguished by the revolutionary tradition.155 Much of the revolutionary practice was, in any case, reiteration of examples which had been fought for and implemented in England at an earlier stage. It was largely in terms of civil rights that the Norwegian constitution was inspired by the British. The British political system was hardly recognizable in the institutions which resulted in Norway. Parliament was independent of the government and had only a weak division into chambers, parliamentarians were in practice appointed since votes did not count directly towards representation, and there was no recognition of a ‘government side’ and an ‘opposition’. Against the theoretical case which has been advanced so far, in practice the monarchy was actually a more powerful force in Norway.156 While the political system thus differed, the Assemblymen had often been conscious of British examples while deliberating. Britain had a significant, but not overwhelming, influence on the Norwegian constitution. Her inspiration did not end in 1814, because during the nineteenth century Norway implemented reforms making its system more like that existing in Britain. Annual parliaments were introduced in 1869, parliamentary sovereignty eventually became reality in 1884, governments began to be formed by political parties, the powers of the monarchy dwindled by convention. Direct elections were introduced in 1905. In smaller matters too, Britain continued to provide an example to be followed: the first attempt to form a party system happened through political clubs,157 politicians of varying tendencies liked to quote John 153 Though Motzfeldt, surprisingly, given the tenor of what has been adduced above, suggested a compromise whereby parliament would initially only have influence on legislation, and not actually pass and repeal laws until a commission had worked out a statute book for the kingdom. We should not discount the influence of Danish absolutism on the mind-set of its subjects, even those who had wider horizons. P. Ørebech, ‘1814, rettsstat og demokrati’, HT 61, (1982), p. 47, p. 48; P. Maurseth, ‘Embetsmannsstat og rettsstat. Teorien om “politikkens opphevelse” og politisk handling i tia˚rene etter 1814’, HT 60, (1981), p. 169. 154 Ho¨jer, Norska Grundlagen, p. 20. 155 Bagehot, English Constitution, p. 6. 156 In the period 1815– 42, the Norwegian monarch vetoed 49 out of 327 bills presented to him for sanction. P. Maurseth, Sentraladministrasjonens historie, 5 vols (Oslo, 1979–80), vol. I, p. 359. 157 Seip, Utsikt, vol. II, p. 104f.

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David Redvaldsen

Stuart Mill158 and a section of the Conservatives even tried to establish a second house of parliament.159 NOTES ON CONTRIBUTOR David Redvaldsen was Lecturer in Social Science at Finnmark University College, Norway, 2008–11; and Teaching Fellow and Teaching Assistant in History at University College London, 2011–12. He is the author of The Labour Party in Britain and Norway. Elections and the Pursuit of Power Between the World Wars (London, 2011). He also guest-edited Moving the Social. Journal of Social History and the History of Social Movements 48, (2012), which was a special issue about social movements in the Nordic countries since 1900. In 2009 he acted as Visiting Lecturer in Scandinavian History at the Azerbaijan University of Languages, Baku. Redvaldsen holds a doctorate in History from University College London.

158 A. Kaartvedt, Høyres historie, 3 vols (Oslo, 1984), vol. I, p. 135, p. 162. J. Nerbøvik, Antiparlamentariske straumdrag i Noreg 1905– 1914. Ein studie i motvilje (Oslo, 1969), p. 68f., p. 87. A.-L. Seip, ‘Tokammerhøyre foran forfatningskampen i 1870-a˚rene. En politisk gruppe pa˚ jakt etter lederskap og tilhengere’, HT 52, (1973), p. 155. 159 See Seip, ‘Tokammerhøyre’, pp. 138–57.