1 In 1814, representatives of Norwegian society met at Eidsvoll outside the main city of Norway, Christiania (present day Oslo) to draw up a new constitution. There were representatives from different social strata in the Norwegian society: farmers, burghers, the military, and civil servants. Thirty-seven of the 112 representatives were farmers. [1] Norwegian farmers did not have an official political position in the Danish-Norwegian absolute state; it was not self-evident that they would be represented at the Constitutional Assembly, even though almost 90 per cent of the population lived in the countryside. [2]

2 In the new constitution, farmers who possessed or leased taxable property were given the chance to vote. In this article, I will investigate Norwegian allodial rights as a political idea and as a motive behind the decision to enfranchise the farmers. In treating the latter aspect the Norwegian founding father Christian Magnus Falsen will be my most important example. The franchise was probably the most extensive in Europe after the fall of Napoleon, giving the right to vote to between 30-40 per cent of the adult male population. [3] As in the French and American constitutions, the right to vote depended on property qualification, and only tax paying citizens should have a say in public affairs. In Norway, both freeholders and tenants paid tax on land, and had done so for centuries.

3 The elite in particular tended to believe that allodial rights, which applied to freeholder farms, were an important part of Norwegian farmers’ identity, thus ensuring what was considered to be a particularly strong spirit of freedom and sense of equality. The allodial right [4] – odelsrett in Norwegian – was a right of repurchase, which allowed inheritors of a former owner to repurchase farmland, depending on certain rules, at a fixed price. This right applied after a given number of years of possession and the farmer would then obtain allodial rights and become an odelsbonde (bonde = farmer). Together with primogeniture, it prevented the dissolution of the farmers’ estates. This right was an old legal institution, and had its roots in premedieval times. [5] Similar principles of repurchase and inheritance of farmland can be found for example in some regions of Northern France, however, they were primarily applied to aristocracy and feudal rule; therefore they were mostly repealed by the end of the 18^th century. [6]

4 In Norway, the allodial right continued to exist as a vital judicial element, although it several times came under attacks threatening its abolition. At Eidsvoll in 1814, it was guaranteed by the new constitution. Freeholders with allodial rights were an increasing part of the farming population in this period, approaching 60 per cent at the time. [7] Accordingly, tenants became fewer, and later in the 19^th century nearly all farmers became freeholders, consequently with allodial rights.

5 In the period of the late 18^th century, the Norwegian and Danish elite had, on the one hand, developed a rather idealized picture of the Norwegian farmer: he was proud, sturdy and tough, and upheld the legacy of Norwegian medieval culture, when Norway was an independent kingdom. Ludvig Holberg wrote in 1729, “the allodial farmer is like a nobleman in miniature.” [8] In 1782, the Danish historian Thyge Rothe wrote that the allodial right was the foundation of freedom for people in Norway. [9] It was also believed that, thanks to this right, Norway had only a handful of large estates. Furthermore, instances that might bear any resemblance to feudalism had always been few and far between. The elite also believed the farmers had a special devotion for the fatherland and loyalty to the king, and would defend their country more eagerly than farmers who lived under feudal rule.

6 Some Norwegian historians have supported this idea about the Norwegian farmer and have considered the creation of a relatively democratic Norwegian state in 1814 as a consequence of what they saw as a democratic spirit. [10] The opponents of this view think this image only was a cultural construction with no political consequence as such. [11] More recently, historians have tended to look at the farmers of this period as a political force in the making, with a heritage of influence on the local level but not yet in full bloom. [12] At the time, “democracy” still reflected the Athenian version and was not an idea that was accepted as an ideal form of government. The delegates at Eidsvoll used the terms ‘natural law’ and ‘people’s customary law’ to describe the ideas of their time. [13] The term ‘democracy’ was later applied to events of 1814, and the process of democratisation can arguably be said to have been initiated by these events. The institution of wider franchise and political rights and the break from an autocratic past can be considered as distinctive democratic features, [14] even though the franchise was still restricted to a limited number of people, and there was no political party system.

7 At the time, the allodial right was a controversial topic and civil servants did not take a uniform stand on this topic. The 18^th century was a period with increased focus on agriculture in the Danish-Norwegian kingdom, and many saw this right as an obstacle to the desired increase in production and population. Another line of argument was based on the new ideas of liberalism. Many considered the allodial right as an unwarranted infringement on the principle of private property. They also emphasized that when freedom of trade was applied to land as well it would increase the earnings of enterprising farmers. Conversely, the fear of losing one’s farm in lawsuits from holders of allodial rights would make farmers neglect their newly acquired land. Another major problem was the many lawsuits caused by unclear legal practices that became a strain on the legal system. [15]

8 For those in favour of the law, there were both social and political arguments. They believed that the allodial right averted family disputes and kept the farmland together in profitable holdings. In addition, there was the aforementioned ideological argument, the idea of the free and proud farmer who would willingly defend his nation and his king in war. After the Napoleonic wars, the strenuous task of military service was a heavy burden on the landed community and it was vital that this system worked smoothly. Civil servants also emphasized that abolition would lead to displeasure among the farmers, and that even though the allodial right had some flaws, the positive effects outweighed the negative ones. In 1758, an anonymous proposal argued for repeal of the allodial right. This resulted in an investigation on how civil servants viewed the law. Of seventeen statements, nine were against it, and the rest stated a need for a clearer law which would result in fewer lawsuits. [16]

9 We know of two serious propositions for abolition coming from farmers: one in 1769 and one in 1787. The last one argued that the allodial right created uncertainty for those who bought farm land, and this motion resulted in a larger investigation of farmers’ notions towards the law. This investigation concluded that in areas with a high proportion of freeholders, there was also strong support of the right, whereas in areas with fewer freeholders support was dwindling. Approximately 60 per cent of Norwegian farmers supported it, the rest either opposing it or being indifferent. [17]

10 This meant that the continued existence of the allodial right could not be taken for granted. There was strong opposition, and during the last years of the 18^th century the government was increasingly leaning towards repeal. In 1811, there came what was at the time seen as a coup de grace to the allodial right, [18] from the hands of the Norwegian born Lord Chief Justice of the Supreme Court in Copenhagen, Christian Colbjørnsen. His main objection to the present legislation was that it permitted speculation on transactions of farms. [19] The most important of a series of limitations in the new regulation was that the allodial right henceforth had to be agreed upon between the parties of a property transaction, and many saw this as a de facto repeal. [20]

11 Three years after 1811, the events at Eidsvoll halted the tendency towards repeal. Two themes will be examined here: the decision to have an extensive franchise and the strengthening of the allodial right. I will also discuss what relationship there may have been between these two decisions. In 1814, the Constitutional Committee at Eidsvoll received several proposals for a new constitution. These can roughly be seen as belonging to one of two traditions, either the paternalistic tradition of the absolute monarchy of Denmark-Norway or the liberal European and American tradition. Proposals in the first tradition were mainly supported by farmers and petty burghers who wanted a strong monarch and a consultative national assembly based on a wide franchise. The other, supported by state officials and rich merchants, wanted a national assembly with independent power. These groups were in favour of a narrow franchise, mainly for the elite of the Norwegian society. [21] One of these was Christian Magnus Falsen.

12 Christian Magnus Falsen was Norwegian born of Danish descent: his father was from a Danish noble family which had been stationed in Norway for the last two generations, and his mother was from a Norwegian merchant family. [22] He was educated as a lawyer and he became a strong supporter of the Danish-Norwegian absolutist state and therefore also a supporter of Christian Frederic. In 1814, he was only 32 years of age, and had lived in Norway since 1808 while working as a district judge in the eastern part of Norway.

13 While growing up in Norway, he learned to respect the Norwegian farmer and he also gained an admiration for Norwegian medieval history, where he thought to find traces of democracy. Like Thyge Rothe, he believed that the allodial right constituted the foundation for these traces, making allodial farmers an important element in his vision of a medieval “democratic” state. The interest for democracy can also be found in Falsen’s first manuscript, called “The History of the Athenians,” and it is believed that it was their democratic constitution that attracted him to the topic. [23] Einar Østvedt, Falsen’s biographer, states that even if it is not possible to be certain of his political opinion from these notes, it shows a particular interest in the Athenian republic. [24]

14 With Johan Gunder Adler, in 1814 Falsen delivered a draft for a Norwegian constitution – influenced by previous constitutions in Europe and America – which is believed to be the most significant of the drafts at Eidsvoll. The introduction stated that:

In the later years, systems of representations have found a means to give all the people part in the legislation, […], without the dangers and inconveniences caused in the old days by the lack of enlightenment of the masses and by the skills of the demagogues. [25]

15 The people would exercise its part by free elections of its representatives who could act on their behalf. But only those who were citizens in a full sense should have these rights, and only the most able of these should be eligible to the representative body. [26]

16 Thus, Falsen wanted a narrow definition of the franchise and a parliament with extensive powers. The proposition therefore states that in the countryside, all men eligible to vote had to own land of certain value. This not only excluded three out of four freeholders from the franchise, but also all of the tenants, who constituted around 40 per cent of all farmers. [27] For potential electors to the legislative body, the property requirement was four times higher than for voters. [28]

17 As the leader of the Constitutional Committee at Eidsvoll, Falsen argued for this rather restricted franchise, but the general opinion of the assembly was against him. In his last proposal, the property requirements were diminished, but this proposal was also rejected. Falsen also had to let go of the condition that only freeholders should be able to vote. The farmer Teis Lundegaard summed up the resistance against this condition in a peremptory statement: “It is not the property, but the man who is to be heard at the Storting!” [29] In Norway, both farmers and tenants paid taxes, and tenants were in most cases regarded as equal to freeholders in rights and standings. The assembly ended up granting the franchise to tenants as well as freeholders. This debate indicates how important it was for the farmer delegates to secure the presence of farmers at the future Storting – the Norwegian parliament – and thereby have access to the king and the executive power. The constitutional debate resulted in a decision to give the country a national assembly with independent powers – as many of the civil servants wanted, and a wide franchise – as many of the farmers wanted.

18 This meant that the constitution gave the right to vote to all men over 25 years of age who had lived in the state the past five years and fitted into one of the three following categories: 1) Those who were or had been civil servants, 2) People of the countryside who owned a tax registered farm (cottagers were excluded) or had rented one for more than five years, 3) Townspeople who were either licensed merchants or artisans, or owned real estate of a value of at least 300 riksbankdaler in silver. [30] Due to the distribution of representatives the cities, with only 1/10 of the population, obtained 1/3 of the representatives. [31]

19 How could the civil servants and the rest of the elite accept these wide electoral rights? One reason was believed to be an intense nationalistic and radical euphoria at Eidsvoll. Other explanations might be that the “Independence party,” of which Falsen was a prominent leader, needed the support of the farmers to obtain their main goal – to keep Norway out of a union with Sweden and elect the Danish heir apparent Christian Frederic as the new Norwegian king. The civil servants expected the farmers to vote according to old paternal patterns and follow their lead. They also believed that the farmers would accept guidance when the farmers eventually got elected to the Storting. [32] It can also be argued that Falsen wanted to limit the impact of the civil servants on the government and tried to modify their influence at the Storting as well. [33] It has also been claimed that by having wide franchise, the farmers would reduce the impact of the merchant elite at the Storting. The merchant elite dominated the other faction at Eidsvoll, the “Union party,” which believed that a union with Sweden was unavoidable. [34] The conclusion must be that civil servants believed they could have a parliament with extensive powers and that they would be able to control the farmers through paternal tradition at the Storting in the same time. The civil servants at Eidsvoll did not think the farmers were able to take part in state affairs at this point.

20 So how is the allodial right involved? The right was not mentioned in Adler’s and Falsen’s constitutional draft. One reason for this might be that the draft contains only public law, not civil law, and that it concentrates upon the more universal right of ownership. This did not prevent it from being a topic at Eidsvoll. Two drafts were delivered that directly elaborated on the allodial right. These drafts defend it, and want it restored to the previous legislation before 1811. [35] There were also other references to the right, and these argue in different directions; some see it as a wrecker of families, others as an important part of farmers’ cultural heritage. The representatives Nicolai Wergeland, Lauritz Weidemann and the farmer Anders Lysgaard had implemented the allodial right in their constitutional drafts, all being promoters of it. [36] On the other hand, Christian Frederic stated, according to the representative Wilhem Frimann Koren Christie, that “they should support it, even if its advantages were only superstition.” [37]

21 It has been said that without the resolution of the allodial right, the farmers would not have achieved anything at Eidsvoll. Some historians have also conveyed the impression that all the farmers at Eidsvoll were firm supporters of it. [38] I believe these to be biased conclusions. As we have seen, a lot of farmers throughout the country did not support the law and wanted a more liberal, market-oriented solution, where they could sell and buy their land in an unrestricted manner without fear of tiresome lawsuits. In 1818, the farmer Jacob Hoel actually delivered a proposal for abrogation at the Storting. [39]

22 About the debate, Nicolai Wergeland wrote: “There seems to be no other case, where there are so drastically different views, as about the allodial right…” [40] He also replied that it seemed like the dearest defenders were from the western and northern (he must mean Trøndelag) parts of the country, while the strongest attacks came from the eastern part of Norway. In contrast, the ironworks owner Jacob Aall stated in his memoirs that the case did not offer any disagreement. [41] Both of these men were considered members of the “Union party” at Eidsvoll. What Falsen said about the allodial right at Eidsvoll is not known, but given his previous readings of the enthusiastic Thyge Rothe and given Falsen’s own work on the subject later, it seems safe to assume that he worked to get the paragraph into the final constitution. [42]

23 In January 1815, nine months after the events at Eidsvoll, Falsen printed a pamphlet about the Norwegian allodial right, “The Norwegian Allodial Right with respect to the National Constitution,” [43] where he underlines his view on the ancient Norwegian law. He emphasises that the allodial right gave the holders a right to participate in legislation. Falsen saw the medieval Norwegian kingdom as a constitutional monarchy where the legislative power was kept by the people. [44] In Falsen’s view, this had prevented the creation of large estates. This would have fostered an aristocracy as in other European countries, whereby the farmers’ political influence had been reduced. [45] He did not want simply the juridical consolidation of a law whose sole relevance was agricultural. He wanted to show that behind this law was an idea of political equality – which in the next instance was a foundation for the Norwegian constitution. He argued that giving the vote to landowning farmers of a certain wealth would be desirable as it would prevent the formation of an aristocracy. He believed that political equality would occur when property was equally divided, and all were equal in opportunity and value. [46] He also said, regarding the present state, that if the farms were too small, the freeholders would loose interest in the state’s welfare. [47]

24 So in what way was the allodial right important for the decisions about electoral rights in 1814? Was it only a rhetorical argument? Or did it elaborate on the idea that the Norwegian farmer had a certain kind of old Norse independence which could be developed into a kind of statesmanship over time? The thought that a certain amount of property was essential to secure a proper interest in state affairs would explain why Falsen did not promote a universal suffrage for farmers. One can also assume that he did not believe all farmers to be ready for political responsibility, and he wanted the most able to gain experience. Gradually, the class of farmers as a whole would be prepared for greater political tasks on a national level.

25 Thus, even if the allodial right did not become an important principle in the development of electoral rights, it was an aspect of this. The right was a significant element in the image of the proud Norwegian farmer because a freeholder almost automatically was defined as an allodial farmer. When one sees Falsen’s arguments in January 1815, it seems evident that this was an element in his evaluation, even though he initially wanted a more limited franchise. By giving the farmers franchise, but abolishing the allodial right, it would reduce the significance of the Norwegian farmer. This would then undermine electoral rights on a whole. Neglecting the allodial right could lead to rule by an aristocracy instead of a monarchy based on popular participation.

26 Even though the Union party also seems to have been in favour of the allodial right, I believe it was more important for Falsen and the Independence party, as they needed the support of the farmers at Eidsvoll. As the Independence party with Falsen in the front position was setting the tone, the allodial right became so important that another outcome would have been unthinkable. If one concludes that the idea of the allodial farmer was only a cultural construction, one has to bear in mind that even as such it was an important part of the political reality at Eidsvoll. Though they did not consider the farmers ready for political participation on a whole, they still thought them mature enough to vote, and it is my view that a part of that conviction rested on the allodial right and its alleged significance to the farmers’ democratic mind.

27 A union with Sweden became unavoidable in the end, but the new constitution survived. In the end of 1814 and early 1815, voting assemblies for the first ordinary Storting were carried out throughout the country and one can witness the first appalled reactions from the elites concerning the effects of the generous franchise. It soon became evident that several farmers would be elected to the first ordinary session in parliament. The expectation that the farmers would vote according to paternal patterns proved wrong. The farmers did vote for their local civil servant, but also for local highly respected farmers. The result was convincing: of the 87 representatives at the Storting in 1815, 29 were farmers. [48]

28 Falsen was also elected to the Storting in 1815, and it was generally believed that he would become a leader for the farmers. This did not happen – instead his romantic notions of Norwegian farmers were destroyed. He saw the farmers as slow and dumb-witted without any political acumen. In 1820, he proposed a curtailment of the franchise where there should be elected no more than one farmer from each county. He also tried to reintroduce the two-chamber system from his initial constitutional draft from 1814. He wanted to create a genuine upper chamber in the Storting, having separate elections and denying access to farmers. This proposition was turned down in 1824. Falsen had squandered his political capital by receiving the position of Attorney General of Norway in 1822, and was now believed to be an advocate for the politics of King Charles XIV John. [49]