Paper invited for the International Conference:
Freedom of Expression, Censorship, Libraries, Riga, Latvia, October 14-17 1998

Ole Christiansen,
National Record Offices, Copenhagen, Denmark

The purpose of this paper is to provide an overview of the early history of freedom of expression in Denmark. Principal emphasis is placed on the difficult conditions of freedom of expression under Absolutism, which extended from 1661 to 1848. The period from the invention of the printing press and the situation immediately after the fall of Absolutism, however, are also included. The presentation is based primarily upon legislation and various individual cases of which the most important will be described in more detail.

I. Preface

Freedom of expression is one of the classic human rights. Ever since the Enlightenment, freedom of expression has been indispensable to the development of a free society, and in modern times it has virtually become a condition of life because of the enormous need for know-how. For us librarians, freedom of expression is also of professional relevance, as the diffusion of information without freedom of expression is an obscure project.

In discussing freedom of expression, it is important to make clear that we are speaking of a compromise between various considerations; thus freedom of expression normally excludes censorship but is subject to considerations of public order and the sanctity of private life.

Furthermore, freedom of expression is of a formal nature; an author, for instance, has no guarantee that he can find a publisher who will publish his writings, or that his book in any case can be borrowed at the local library.

Before the actual presentation, it should be noted that one can be distracted by various Danish terms and special conditions; ultimately, however, freedom of expression is an over-national phenomenon.

II. Introduction

Around 1450 Johann Gutenberg invented the printing press in Mainz. In Denmark, this advance, together with the founding of Copenhagen University in 1479 and the general social and cultural development, created the preconditions for the diffusion of books and other publications. The first printed book was produced in 1482 and the first actual publishing house established in 1493.

Soon after this, however, the Catholic Church felt itself compelled to limit freedom of expression. Laymen were forbidden to read the Bible, and in order to ensure enforcement, it was further forbidden, in 1524, to import the Bible and translated it into Danish; a similar fate befell many of the Lutheran treatises.

The Reformation in 1536 strengthened the monarchy, as it was viewed by Luther as directly derived from God and could therefore take over the church lands. Moreover, Christian III was a devout Lutheran and as elected king dependent on the nobility. The new Lutheran clergy sought to prevent Catholic agitation, and the nobles, because of their privileges, had reason to fear the emerging bourgeoisie. Under these circumstances, a decision of censorship was issued in Christian III's Church Ordinance from 1537, whereby it was normally the Theological Faculty of Copenhagen University which was the censorship authority. The actual censorship was exercised according to various discretionary - often political - considerations.

From this period we can cite six cases: one case ended with the recalling of the publication (1594); one clergyman and two professors were discharged (1607-1614); one graduate was sentenced to exile for life and one professor received life in prison (1614-1620). Of these cases, five were prosecuted by the Crown while one was a civil defamation case.

During this period, Danish literature was very limited. Protests from authors and printers were ignored by the authorities. The population was still too unenlightened to be able to demand freedom of expression.

III. Early Absolutism

Following the peace with Sweden in 1600, an Assembly of the Estates of the Realm took place in Copenhagen. Here began a political process whereby Frederik III was supported by the burghers and clergy against the nobility, and which formally led to the introduction of Absolutist rule in 1661. The monarchy was strengthened and the burghers also achieved certain largely formal improvements, while the nobility effectively lost the greater part of their political and economic privileges.

The Absolutist regime's first law on censorship was the regulation of 6 May 1667. It upheld the order of the Church Ordinance, by which censorship authority was delegated to Copenhagen University.

The concentration of power in the person of the king strengthened the tendency toward juridical unity in the entire kingdom. On 15 April 1683 Christian V signed the Danish Law, a comprehensive Statute Book, which represented a break with the regional juridical variations of earlier times. In Danish Law it was expressly forbidden to criticize the king, the government and Absolutism, while the situation was also maintained regarding censorship.

Following the introduction of Absolutism, the newspapers were excepted from general censorship by Copenhagen University and placed under the German Chancellery [1]. The time cannot be ascertained precisely, but none of the aforementioned laws contain regulations regarding newspaper censorship. The transformation had been implemented because the German Chancellery had been regarded as better suited, as the relationship to foreign states was also the focus of censorship protection. With the rescript of 15 January 1701, however, newspaper censorship was placed under the Danish Chancellery. This time the transformation was implemented because it was desired to tighten the practice due to the special difficulties brought on by the Great Nordic War.

From this period, four cases can be cited: one case ended with pardon (1681); one professor was discharged (1666); one case was settled with a fine of 22.000 rd. [2] (1682); and one author was sentenced to three weeks imprisonment (1682). Of these cases, three were prosecuted by the Crown, of which one was appealed by the private party, while one was a civil defamation case.

Furthermore, we may cite the spectacular case against the author Holberg. In 1719 Holberg avoided censorship of his satirical heroic poem Peder Paars. This led the nobleman Rostgaard, owner of the island of Anholt, to complain to the king because a part of the story in the poem referred to this island. In 1730 the complaint was rejected, and Holberg subsequently also managed to avoid sanctions in another similar case.

The introduction of Absolutism itself did not lead to any immediate intensification of censorship, even though the government fully acknowledged the power of the written word. In 1666 the Mercurius, a monthly periodical of verse, began to appear with royal support. The purpose, beyond general information, was to glorify Absolutism.

IIII. The Enlightenment

The Enlightenment was greatly significant in the development of freedom of expression in Denmark.

The first sign of change was the rescript of 12 February 1734, which transferred newspaper censorship from the Danish Chancellery to the postal authorities. Hereby the government acknowledged a new and more pragmatic view of the press. Subsequently, with the rescripts of 11 May 1742 and 21 February 1744, exceptions were made from newspaper censorship. The direct cause was the desire to support the Danish newspapers in competition with the foreign press.

The usurper to the throne, Struensee, who was influenced by the ideals of the Enlightenment, sought rapid reforms in order to win the people's support and thereby consolidate his political position. With this intention in mind, Struensee succeeded in persuading Christian VII to dissolve censorship with the rescript of 14 September 1770. Paradoxically, freedom of expression also led to public criticism of Struensee and his reforms, and Struensee soon found himself forced to emphasize the prohibition on criticizing the king, the government and Absolutism.

After Struensee's fall in 1772, cabinet secretary Höegh-Guldberg became the leading member of the new regency, and as such, he conducted a reactionary policy. However, with the assumption of power by Prince Frederik in 1784, a new reformist circle came to power, its leader being the foreign minister Bernstorff. The French Revolution in 1789 did not weaken this government's positive attitude toward freedom of expression. With the public notice of 4 December 1790 the legal position for people such as authors and printers improved, inasmuch as all cases concerning freedom of expression were now to be decided by the courts. This determination was also well in keeping with Justice Minister Stampe's attempt to ensure the independence of the judiciary as developed by Montesquieu in his doctrine of division of powers.

Freedom of expression, however, was still used for public criticism. In addition, in 1798, Russia demanded that Denmark should join the coalition against France, when it was especially significant that the Russian government mistrusted the Danish press. In this situation, freedom of expression was restricted by the regulation of 17 September 1799, which with a degree of irony was called the Print Freedom Regulation. That it was especially the press which the government sought to restrict could be seen from sections 26 and 27, by which printers who printed treatises up to 24 pages had to deliver one copy to the police prior to publication. The police were thereby to assess whether there was a basis for an indictment, and if so bring the case before the Danish Chancellery with the effect that the publication was suspended and the remaining copies confiscated. The Danish Chancellery would finally determine whether the publication could again be permitted and the remaining copies released, or whether the case should be brought before the court. In the beginning the order was administered in such a way that examination by the police first took place when the manuscript was printed and distribution had begun.

From this period, we can identify 10 cases; six cases ended with fines from 100 to 300 rd. [2] (1774-1794); one author was sentenced to 14 days imprisonment (1772), and another was sentenced to loss of honor and estate and life imprisonment (1773), which after six years was reduced to exile for life on the island of Bornholm, and two authors were sentenced to exile for life (1799-1800), of which one, however, was pardoned after 26 years. These cases were all prosecuted by the Crown, of which one also was appealed by the Crown. Furthermore, the government dismissed a judge and prohibited individual writings on political or religious grounds, including Goethe's novel Die Leiden des jungen Werthers.

The case against the author Heiberg will be described in more detail, as it had special importance. Heiberg was a declared opponent of Absolutism and, together with other like-minded citizens, he conducted significant publicistic activities. In 1799 his situation became critical because of some attacks on the royal court and the government. Heiberg was indicted according to Danish Law, but as the Print Freedom Regulation was issued before Heiberg was sentenced, he was sentenced to exile for life instead of the death penalty. For the liberals, Heiberg became a symbol of the suppressed freedom of expression under the Absolute monarchy.

After the Print Freedom Regulation, political debate was markedly reduced. In 1801, the jurist Örsted, without visible effect, attempted to assuage public opinion with the publication of the book Attempt at a Correct Interpretation and Judgement of the Print Freedom Regulation; however, the book was eventually to attain great importance. In his memoirs, Örsted subsequently remarked that the explanation of the lack of political debate should not be sought solely in the limitations on freedom of expression but also in several concrete events and cultural trends, such as Napoleon's coup d'etat in 1799, which put an end to freedom of expression in France, the Battle with England in 1801, which strengthened national feelings, as well as the coming of the Romantic era.

V. The Napoleonic Wars

After the English bombardment of Copenhagen and the loss of the fleet in 1807, Denmark abandoned its policy of neutrality and entered into an alliance with France.

The state of war meant that freedom of expression again came into focus. On 12 September 1808, the government granted a privilege on the publication of the newspaper Danske Statstidende, which was to receive news of foreign affairs from the Foreign Office and remain under its control. Danske Statstidende, which appeared from 1808 to 1831, was in fact a government organ with the task of managing the distribution of news of foreign affairs in accordance with official government policy.

In 1810, Frederik VI was passed over in the choice of successor to the Swedish throne. This circumstance possibly caused the king, on his own initiative, to have a new draft law on censorship formulated in which only privileged newspapers could carry news of foreign affairs. The privilege was to be conditional on censorship, and eventual questions on the revoking of the privilege could not be brought before the courts, but could only be determined by the Danish Chancellery. In the Danish Chancellery, the draft was taken under consideration and made more precise, so that censorship in Copenhagen was to be exercized by a civil servant among the police with special foreign policy qualifications, while censorship in the provinces would be carried out by the chiefs of police. In Copenhagen no overlap in personnel appeared in the police censorship of the privileged newspapers and the police examination of treatises up to 24 pages, whereas in the provinces, the chiefs of police were responsible for both censorship and examination. The new decree was published in the public notice of 2 October 1810. The more detailed conditions applying to the privilege, however, were not published! The only newspaper with news of foreign affairs not incorporated into the new regulation was Danske Statstidende, which was instead to continue under the control of the Foreign Office. Despite several applications, only a few privileges were granted. In Copenhagen, two newspapers, Dagen and Nyeste Skilderi af Kjöbenhavn obtained privileges immediately, but already in 1815 the latter paper renounced its privilege. In 1831 Danske Statstidende ceased publication, only to resume again in 1833 under the name Berlingske Tidende, its Foreign Office control now replaced by a regular privilege. In 1843 Dagen ceased publication. In the provinces, nine papers in the larger towns immediately received privileges, and in 1831 another one obtained a privilege. It was characteristic of the regulation that none of the liberal newspapers at any time received a privilege.

After the Treaty of Kiel, in 1814, in which Frederik VI was forced to cede Norway, Denmark was accepted into the coalition against France. As a sign of the gravity of the situation, including the relations with the new allies, further regulations of the press were contained in the public notice of 13 May the same year. The previous practice, whereby treatises up to 24 pages could be published before the police had examined them, was made more restrictive, so that the examination now had to be completed before an eventual publication could take place. In reality, censorship was hereby reintroduced for treatises of maximum 24 pages, as the effect is the same whether a manuscript's printing or a printed paper's publication is prohibited. In time several editors chose to submit the manuscripts to voluntary censorship, as it was cheaper to insert corrections in a manuscript than to have the entire print run confiscated.

From this period, 14 cases can be cited; two cases ended in release (1805); one printer lost his privilege (1805); nine cases were decided with fines from 50 to 1000 rd. [2] (1800-1809); and one author and one editor were sentenced to 14 days imprisonment (1805-1807). Among these cases, eight were prosecuted by the Crown, of which four were also appealed by the Crown, while six were civil defamation cases. Furthermore, in certain individual cases the government issued warnings.

Even though the Napoleonic wars appear to have set freedom of expression back to the time before Struensee, the actual situation was quite different. For instance, the courts - on Örsted´s initiative - began to apply a more tolerant practice.

VI. The Liberal Public

The July Revolution of 1830 showed the renewed strength of the burghers, not only in France but also throughout Europe.

In Denmark the government promised in 1831 that two advisory Assemblies of the Estates would be established, one for the islands (Zealand, Funen) and one for the mainland (Jutland). The two regulations of 15 May 1834, which regulated the new order more closely, each contained a decision about publicity, in which the negotiations of the Assemblies of the Estates were to be published in excerpt in the magazine established for this purpose, Staendertidende. Just prior to the first meeting of the islands' assembly in 1835, the liberal newspaper Kjöbenhavnsposten published an article in which estate representatives were encouraged to compensate for the lack of full publicity by going directly to the press. An appeal from Copenhagen containing 1227 signatures also called for complete publicity. In reaction, the government, in the circular of 26 September the same year, prohibited newspapers and other publications from bringing news of the negotiations before they had been published in the Staendertidende. The situation led the islands' assembly, by a vote of 36 for to 30 against, to appeal to the king that the negotiations ought normally to be public. Nevertheless, the government generally maintained the order, but in 1843 the prohibition was set aside by the court, because the circular as an administrative prescription had not been published!

In 1834 the liberal newspaper Faedrelandet published three articles about the Assemblies of the Estates and the doctrine of division of powers. This caused the government to bring litigation against the editor, David, and to investigate how something similar could be prevented in the future. As protest against further attacks on freedom of expression, Professor Schouw took the initiative to an appeal to Frederik VI, which was signed by 572 well-known personalities and delivered on 21 February 1835. Just five days later, the government's response lay in the form of the notorious rescript which has become known as "We alone know". It has been discussed whether the rescript was issued on Frederik VI's own initiative, or whether it in reality was Chancellery President Stemann from the Danish Chancellery who stood behind it, but investigations have up to now not shown any clear result [3].

In 1840 Christian VIII ascended to the throne. As king he did not accept the liberals' demands for political freedom, but he was nevertheless positive toward reforms. Hence, after a proposal from Christian VIII, the government issued the public notice of 3 June 1846, in which cases concerning unprivileged newspapers which had nevertheless carried news of foreign affairs were to be subordinated to the regular courts, and the police examination had to be limited to treatises of a maximum of six pages. In practice, however, the liberalization had little significance, as the new judicial control was applied in only one case, and the unprivileged newspapers were normally no more than six pages.

Frederik VII succeeded to power in 1848. At this time the public's demand for greater freedom of expression had become so strong that even Stemann recognized the necessity of reforms. With the public notice of 24 January the same year, the government made a turnabout and dismissed all the unresolved cases - in reality, freedom of expression was now introduced.

From this period we can cite no fewer that 226 cases: 72 cases ended with acquittal (1826-1848) and one with pardon (1825-1827); five cases were decided as null and void (1832-1847) and 141 with fines from 20 to 12.000 rd. [2] (1817-1847); five editors and one estate representative were sentenced to from eight days to three months imprisonment (1841-1846), and one judge was discharged and sentenced to three years´ exile which, however, was mitigated to one year in prison (1824-1826). Among these cases, 176 were prosecuted by the Crown, of which 83 were also appealed by the Crown and nine by the private party, while 48 were civil defamation cases of which 20 were appealed. In addition, the government in about 95 cases imposed warnings and fines and acknowledged the police's confiscation's without bringing the charges before the courts. From 1846 this procedure, however, was no longer especially alarming as the editors from now on could demand cases concerning unprivileged newspapers which nevertheless had carried news of foreign affairs, brought up to the courts. Despite the growing number of cases, Frederik VI in several instances encouraged litigation, which often, however, was not implemented because of opposition by Örsted, who in the meantime had been appointed Minister of Justice. Christian VIII, in contrast, took the initiative to litigation in only one case. From time to time, however, the evaluations of the implicated authorities varied to such a degree that, as a result, the police in some cases received reprimands for not having intervened, while the Danish Chancellery in other cases released confiscated publications. The courts´ tendency to apply a more tolerant practice was finally also consolidated, although the Supreme Court was more restrictive than the lower courts.

The case in 1826 against the clergyman Grundtvig should be described in more detail, as it became specially significant. The year before, Professor Clausen had published the book The Church Constitution of Catholicism and Protestantism, Doctrine and Tradition, which was characterized by rationalism. This caused Grundtvig shortly after to publish The Reply of the Church, in which he strongly criticized Clausen's views. On this background, Clausen sued Grundtvig for libel. The court found that Grundtvig had presented improper assertions which, however, were not directly libellous, and the fixing of the sentence was null and void and a fine was imposed of 100 rd.; the lifelong censorship, which was an extra punishment for violation of the Print Freedom Regulation, was lifted in 1838.

The Church conflict inspired Örsted the same year to write the article Does the Constitution of the Danish Church Need Fundamental Change, which was interpreted as support for Clausen. Frederik VI criticized Örsted´s public participation in the Church conflict, as the article, contrary to its intentions, could be viewed as an expression of the government attitude. As a result, Örsted received a prohibition on continuing his writing, which was significant loss to juridical literature.

Furthermore, we may cite Captain Tscherning, who in several publications had criticized the army's organization and recommended general conscription. In 1833 he was sent on a five year study tour abroad, which in reality was a mild form of exile.

As indicated earlier, the liberal newspaper Faedrelandet had published three articles in 1834 about the Assemblies of the Estates and the doctrine of division of powers. This caused Frederik VI to ask the Danish Chancellery whether there was basis for a suit to be brought against the editor David. Stemann recommended that a charge should be brought on the basis of the Print Freedom Regulation's strongest sections, while Örsted and two ordinary members advised against litigation. Frederik VI decided on a compromise, and a charge was brought on the basis of the Print Freedom Regulation in general, which also opened the possibility for punishment according to milder sections. During the subsequent legal negotiations, Örsted´s book from 1801, Attempt at a Correct Interpretation and Judgment of the Print Freedom Regulation, was invoked in support of David. On 18 May 1835 David was acquitted in the lower court and on 2 December in the Supreme Court. Even though the decision was not unanimous, the acquittal was a great victory for the liberal press and a demonstration of the courts' genuine independence from the government. The case was not yet over, however, as David, who was also a professor, was discharged from the university the following year. Frederik VI would not accept direct challenges from civil servants.

Finally, we should cite the case of Lehmann, who was one of the liberal movement's most remarkable proponents. In 1842, the Supreme Court sentenced Lehmann to three months imprisonment because he, as a representative of the Estates, at an election meeting had made a speech critical of Absolutism. This case gave new impetus to the critique of the way in which the judges who were to judge in a concrete case were selected. In the lower court, two judges had voted to acquit Lehmann, while two others had found him guilty, whereupon the President of the Court had elected himself to give the final vote, and thereby ensured that Lehmann would be forced to pay a 500 rd. fine. Investigations of the composition of the collegium of judges, however, have not revealed any form of systematic manipulation, even though it is certain that some judges were more well-disposed to freedom of expression than others [4]. In this connection, it should also be remarked that in two similar cases Lehmann was later acquitted.

"We alone know" represented the culmination of the policy which had as its goal the limitation of freedom of expression. A direct result was the founding of the Print Freedom Society in 1835. Furthermore, at the end of the 1830s, the editors of the unprivileged newspapers ceased submitting the manuscripts to police examination prior to printing, whereupon the police could no longer carry out the corrections, but were compelled either to accept the printed newspapers in their entirety or proceed to confiscation. The press portended new times; the decisive moment was the February Revolution in France. On 22 March 1848 Frederik VII declared himself constitutional king - Absolutism had fallen.

VII. The Final Phase

After the fall of Absolutism, the March Ministry, a conservative/liberal government, complied with the public demand for freedom of expression in a provisional regulation of 24 March 1848. Police censorship and examination were hereby formally dissolved, which was in accordance with the actual situation as it had evolved since the change of succession.

Freedom of expression was finally adopted as a basic human right in the Constitution of 5 June 1849, section 91: "Everyone has the right to publicize in print their ideas, but under responsibility to the courts. Censorship and other preventive measures could in no way be introduced again".

Freedom of expression, however, could still give cause for debate. In 1850 the philosopher Kierkegaard wrote: "Inasmuch as one does not bear in mind forbidding a daily press to a certain degree, one should nevertheless consider setting a penalty for the crime of printing nonsense and attempting to drive society crazy!".

VIII. Conclusion

In general the situation under Absolutist rule was that in so far as the government could see an advantage in freedom of expression it was maintained, but when problems first appeared, due either to public criticism or to the relations with foreign states, restrictions were placed upon it. Nevertheless, at an early period there were persons both in the government and in the judiciary who respected freedom of expression. Constitutionally ensured freedom of expression could first be achieved, however, after the fall of the Absolutist monarchy. Ultimately, there existed a fundamental incompatibility between Absolutism and freedom of expression.

Notes

[1] Until 1864, Schleswig-Holstein partly belonged to the Danish Crown.

[2] In order to gain a more accurate understanding of the size of the fines, one can compare them with the daily wage of a labourer. In the entire period from 1660 to 1810, the wage for a day´s work was surprisingly constant, namely around 20 shillings (skilling). The Napoleonic wars and the bankruptcy of the state treasury in 1813, however, led to tremendous inflation, which brought the numerical value of a day's wage up to around 200 shillings. From 1820, the situation again stabilized, and a day's wages fell to a level of about 30 shillings, rising to about 50 shillings by 1850. Generally speaking, a day´s wages were highest in the summer, just as the labourers in Copenhagen had better daily wages than their colleagues in the provinces. During the entire Absolutist period, the currency system consisted of rigsdaler, mark and skilling. 1 rigsdaler = 6 mark and 1 mark = 16 skilling. That is, 1 rigsdaler corresponded to 96 shillings. Source: P. Thestrup, Mark og Skilling, Kroner og Öre (Copenhagen, 1991).

[3] Jörgensen, H.: Trykkefrihedsspörgsmaalet i Danmark, 1799-1848, p. 180-182.

[4] Jörgensen, H.: Trykkefrihedsspörgsmaalet i Danmark, 1799-1848, p. 223-226.

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