1. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Constitution Making Process and Content in 1814 Ola Mestad Professor dr. juris Chair of the Norwegian Research Committee for the Constitution Bicentennial The Norwegian Constitution at 200 Years II Târgovite, 1 – 4 August 2014

2. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Chronology of 1814 14 January Treaty of Kiel 16 Feb Meeting of high ranking men at Eidsvoll 10 April – 20 MayThe Constitutional Assembly at Eidsvoll 17 May - The Constitution adopted –Prince Christian Frederik offered the Norwegian Crown End July / Early August Swedish-Norwegian War 14 August The Moss Convention on armistice 7 Oct - 26 Nov The extraordinary Storting 4 Nov Carl 13 of Sweden elected King of Norway

3. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The peoples’s Oath of Independence After the Meeting of high ranking men at Eidsvoll 16 – 17 February All priests were instructed to make people in Church swear an oath to Norwegian independence –”with life and blood’” Part of the instructions sent out by Christian Frederik on 19 April What was the idea of such an oath?

4. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO International Relations - Britain In Christian Frederik’s strategy, Britain was the most important power to convince He sent his close associate Carsten Anker to London Anker talked to the government and the opposition –But met many difficulties The discussion in Parliament 10 May 1814 Lord Grey’s speech (from the opposition) The government held on to its treaty obligations

5. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Elections to the Constitutional Assembly Three types of communities would elect representatives The counties –3 representatives each –At least one peasant from each county The cities and towns –According to population The army and the navy –One high officer and one private from each regiment No one from Northern Norway made it to Eidsvoll

6. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Preparations of Drafts Several more or less complete drafts were prepared The most important one by Christian Magnus Falsen and Johan Gunder Adler –Built on international examples, especially the United States Christian Frederik also asked some men to prepare drafts Public competition for drafts –No success

7. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Constitutional Assembly at Eidsvoll 10 April – 20 May Civil servants, city burghers, farmers, military –The Regent Christian Frederik present at Eidsvoll most of the time, but not participating in the meetings The Constitution Committtee wrote the main principles and the final drafts Christian Magnus Falsen was the leader of the committee and partly president of the assembly Formation of the Constitution a collective process –The adopted Constitution more radical taht any of the drafts Strong disagreements on several issues

8. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO

9. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The 11 main principles: State organisation 1. «Norway shall be a limited and inheritable Monarchy; it shall be a free, independent and inseparable realm, and the regent shall be titled King» 2 and 3. The people shall exercise the legislative and tax power through its representatives. 4 and 5. The regent shall have the right to declare war and enter into peace, and the right to give pardon 6. The judicial power shall be separate from the legislative and the executive

10. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The 11main principles (cont’d): Freedom and equality 7. Freedom of printing 8. «The evangelic Lutheran religion shall remain the religion of the State and the Regent. All religious sects are free to exercise their religion; however Jews are still denied access to the realm.» 9. No new restrictions on freedom of trade and industry 10. Ban on future nobility 11. General conscription

11. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Question of Union with Sweden The Independence Party (Or the Danish party?) The Swedish Party (Or the realist party?) Could Norway survive on its own? Without accept from Britain and/or Russia? Sweden’s propaganda war –In Norway –Abroad

12. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO State Organisation Sec. 1 Independence Freedom Limited and hereditary monarchy

13. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Structure of the Constitution Five parts: A Of the form of Government and the Religion Bof the Executive Power, the King and the Royal Family C Of Burgership and the Legislative Power D Of the Judicial Power E General Rules

14. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Stortinget the central body Legislation, Sec. 49 and 75 –The King suspensive veto, only, Sec. 79 Taxation, Sec. 75 Control rights over the executive, Sec. 75 Ordinary Parliament sessions only every third year, Sec. 68

15. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Constitutional amendmendts No royal veto power, Sec. 110 Parliament has full control over the Constitution Special amendment procedures 2/3 majority and election between proposal and voting What does this mean? The parliament will always win in the end

16. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Organisation of the Parliament The Adler/Falsen draft –American model with two chambers, separate elections and different qualifications –Veto power against one another Constitutional Committee –One election and the two chambers in legislative matters, established with a separate vote within the parliament –Veto power against one another The Constitutional Assembly short-circuited it –If the two chambers disagree, they should meet in plenary cession and decide by 2/3 majority

17. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Voting rights in Parliament elections Wide voting rights, Sec. 50 –Civil servants, city burghers, land owning farmers, tenant farmers »1821, also reindeer herding Samis included Comprised 40-45% of men above 25 years of age –The percentage fell through the 19 th Century because increased population of industrial workers and dependent land workers Indirect elections Was this democratic? General suffrage for men 1898, women 1913

18. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The role of the King The executive power –The initiative in the State –Inheritance rights based on Danish rules, then Swedish rules from November 1814 The rule of the Church, Sec. 15 and 16 The right to declare war and enter into treaties, Sec. 26 The relationship between the King and the government changes over time –The government becomes more independent, then dependent on the Parliament

19. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Courts: Supreme Court and Impeachment Court Impeachment process based on American Model Sec. 87 Supreme Court with general competence, Sec. 89 and 91

20. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Some Civil Rights Sec. 96 and 99. Priciple of legality and ban on imprisonment unless it follows from the law Sec. 97 No retroactive legislation Sec. 105 No expropriation without compensation Se. 100 Freedom of the press (expression)

21. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Odal law – A Norwegian Speciality Sec. 107 One of the farmers’ most important issues in 1814 Part of egalitarianism?

22. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Characteristics of the Constitution A moderate revolutionary Constitution The revolutionary period 1776 – 4 June 1814 Separation of powers subordinated to popular sovereignty –The myth about Rousseau –The myth about Montesquieu The main principles: Freedom – equality - and security The Swedish Norwegian Union reinforced the Constitution –Sweden’s accept of the Constitution in the Convention of Moss 14 August 1814