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NORTH AMERICAN REVIEW. .
NEW SERIES, NO. XXXVI.
ART. I.—Danmarks og Hertugdommenes Statsret med stadigt
Hensyn til dens ældere horfatning ved Joh. FRED. WIL
HELM SCHLEGEL, &c. The Present Public Law of Denmark, and of the Duchies, in
Connexion with its Past State. By J. F. W. SCHLEGEL, Counsellor of Conferences, Doctor and Professor of Law in the Royal University of Copenhagen, Assessor to the Supreme Court, Knight of Dannebrog, &c. Vol. I. pp. 498. Copenhagen, 1827.
The countries which compose the present dominions of the Danish monarchy, are an interesting object of attention in many points of view. This is a part of the northern hive, from whence issued forth those swarms of barbarians that subverted the Roman empire, and infused a fresh portion of vigor into the exhausted races of the South. Here are emphatically gentis cunabula nostra. From these regions came the AngloSaxons, the Danes, and the Normans, by whom England was successively conquered, and repeopled after the extirpation of the original inhabitants, and from whom we derive our language, our laws, and whatever it is that peculiarly distinguishes us from other races of men.
The various fortunes of the different states of modern Europe which were built up on the ruins of the Roman empire form a singularly attractive subject of speculation to the political inquirer. They were all free in their primitive institutions and manners, and it is a wonder how such brave men were graduVOL. XXVII.NO. 61.
ally fashioned to bow their necks to the double yoke of feudal and ecclesiastical tyranny. But the various mutations through which they have passed, until they have reached that condition of society in which we see the present kingdoms of Europe, deserve a still more scrutinizing examination. In some, the aristocracy triumphed over both the crown and the people. In others, the rights of every order were absorbed in the dazzling brilliance of the crown; whilst few had the wisdom or the good fortune to find refuge under the shadow of constitutional freedom. Take again that remarkable state which was founded, not by the rude invaders of the North, but by fugitives from the catastrophe of the falling Empire, on the sand-banks formed in the lagunes at the mouths of the Po, whence the proud mistress of the Adriatic raised her lofty turrets, and survived for so many ages every other dorninion. For three centuries she retained her democratical form of government. The Doges, with almost sovereign authority, succeeded, and these again were stripped of almost all but nominal power, by an aristocracy the most jealous, crafty, cruel, and despotic that the world has yet seen.
The political revolutions of Denmark may be said to have taken an opposite direction. Like the other Scandinavian and Gothic kingdoms of Europe, the monarchy was originally elective, or rather the hereditary principle was so imperfectly established, that it may be said rather to have had reference to a dynasty, than to have indicated by any constant rule the individual who was to succeed to the vacant throne.* ders of the state were gradually formed, in the progress of society, with distinct political rights; the clergy, the nobility, the burghers of the towns, and the peasantry. Each of these orders had a right to be represented in the States General of the kingdom. Written constitution there was none; but on the accession to the throne of Christopher the Second, whose despotic inclinations were suspected by his subjects, the first capitulation was drawn up in 1320, to the faithful observance of which his successors were compelled to take a solemn oath, before they were crowned, or acknowledged as kings. The last capitulation was that signed by Frederic the Third, in 1648, which
* This elective quality of the crown, as well as its independence of the Papal See, is expressed with some energy by king Waldemar the Third, in his answer to the Pope's nuncio, who claimed an authority over him, according to the extravagant pretensions of the church of Rome in that age.
• Naturam habemus a Deo, regnum a subditis, religionem a Romanâ ecclesiâ ; quam si nobis invides, renuntiamus per presentes.
provided that the crown should for ever be elective, and restrained the royal prerogative within still narrower bounds. As the clergy and the nobility, who possessed all the little learning of the age, drew up these capitulations, they were naturally more careful to insert such conditions as favored their own pretensions, than mindful of the rights and privileges of the other orders. The Reformation came, and with it a correspondent depression of ecclesiastical influence. The Protestant religion was declared to be the established religion of the state, but the clergy, no longer supported by the power of Rome, fell back into the second rank among the orders of the kingdom. The nobles, who now occupied the first rank, greedily seized upon the property of the church, which according to a resolution of the diet of Copenhagen ought to have been annexed to the domains of the crown, excepting so much as might be required for the support of the Protestant worship, of the public schools, and other charitable institutions. The peasants had already been deprived of their personal liberty in Zealand, and the adjacent islands. The nobles compelled the greater part of those in Jutland and Fionia to surrender their proprietary interests and consent to become their vassals and tenants.
Thus they revenged upon this oppressed class the share it had taken in the insurrection in favor of the dethroned king Christian the Second, and abused for this purpose their power as intendants of the bailiwicks and administrators of the royal domains. The diets of the kingdom were rarely convoked, and the peasantry still more rarely summoned to attend them, though their right to be represented in these national assemblies was never formally questioned. Instead of the regular diets, were substituted convocations of the senators and nobility called Herredage. The calamitous wars of Frederic the Third had fully exposed those defects in the constitution of the government, which the heroic character and splendid abilities of Christian the Fourth had, to a certain degree, concealed from view. In fact, the nobility gradually encroached both upon the crown and the commons, until the state became an unmitigated aristocracy, under the name of a kingdom, and with the forms of a monarchy, as Venice was, under the name and with the forms of a republic. The resentment and despair of the clergy and the commons, which were aggravated by the refusal of the nobility to bear their due proportion of the burthen of the new taxes required by the necessities of the state, found no other resource than the extreme one of rendering the government hereditary, and of conferring on the king the absolute powers of sovereignty. Lord Molesworth reproaches the Danes with the levity, which thus threw away, in a single day, the liberties of themselves and their posterity; and with that bitter spirit of sarcasm which pervades his work, he compares them to the Cappadocians of old. And the authors of the Voyage de Deux Français, consider the Lex Regia as the very essence of despotism, and yet they very sagely conclude that the Danes have never had occasion to repent this surrender of their liberties! The truth is, they had no liberties to surrender; the burghers and the clergy were both oppressed by the nobles, and the peasantry were abject slaves, glebæ adscripti ; it was only the feudal aristocracy who lost by the revolution of 1660.
Although the Danish literature is rich in treatises on the civil and criminal jurisprudence of the country, a work upon the public law of Denmark was still wanting. Foreign inquirers who sought for information respecting the political institutions of this kingdom, had recourse to the work of Lord Molesworth, entitled . An Account of Denmark as it was in the Year 1692,' which bears too many marks of prejudice and passion, to be entitled to implicit confidence. Professor Schlegel has convicted his Lordship of gross inadvertence, at least, in very generously conferring upon the crown of Denmark the sovereignty of the Shetland Islands, although they had been in
possession of the Scottish king about a century and a half before he wrote. It is true they did once belong to Norway, and were pledged to Scotland ; and the Danish government has often sought in vain to redeem them. Professor Schlegel concludes, that a writer so ignorant of the geography and history of his own country, or so careless as to his facts, cannot be entitled to much weight when he speaks of a foreign country. Yet a writer in the English Critical Review for 1826 (pp. 364– 367), relies upon Lord Molesworth as an authentic and conclusive authority upon the subject of Denmark, praises his sagacity and information, and crowns his eulogium by vaunting the impartiality of the noble author, which a Dane very naturally takes for irony.
Professor Schlegel, the author of the work now before us,
is already known to the literary and political world by his controversy with Dr Croke, relating to the celebrated judgment of Sir William Scott in 1799, on the case of the Swedish convoy
He is also the author of several treatises on the municipal law and legal antiquities of his own country, and on subjects of general legislation, which, as they were published in German and Danish, are comparatively unknown except in the north of Europe. He has rendered an essential service to the public, by the present work, which contains a valuable body of information respecting the political law of Denmark, a subject very little understood in other countries. He has thrown upon it all the lights which could be derived from history, and has been careful to connect the present with the past by reverting to the primitive origin of institutions which have been gradually modified by time and circumstances, and which are much more complicated in their structure than is generally imagined.
The two first chapters of this volume treat of the Danish state in general, and of its civil and ecclesiastical independence. The author shows that the political maxim of the unity and indivisibility of the monarchy had been adopted as a part of the fundamental laws of the kingdom, as early as the reign of Gorm the Old in the tenth century. He strongly maintains the doctrine of its perpetual independence of the empire, and of the papal see. The territories now belonging to the Danish crown are, the kingdom of Denmark, and the Duchies of Sleswig, Holstein, and Lauenburg ; Iceland, Greenland, and the Ferroe Isles ; St Croix and St Thomas in the West Indies, and Tranquebar, with some other small possessions, in the East Indies. The Duchies are held in a different capacity from the crown of Denmark. They were fiefs of the empire, and each has its own peculiar constitution and system of internal administration. The duchy of Lauenburg is a recent acquisition. It belonged to Hanover, by whom it was ceded to Prussia, in exchange for other territories on the left bank of the Elbe, and again ceded by Prussia to Denmark in exchange for Swedish Pomerania, which Denmark had received from Sweden, as a partial compensation for the loss of Norway. In his quality of Duke of Holstein, the king of Denmark had a seat in the college of princes of the empire, and in the assemblies of the circle of Lower Saxony ; is a member of the present Germanic confederation ; has one of the seventeen votes in the smaller chamber of the diet at Frankfort; and contributes a contingent of 3,600 troops to the army of the confederation.