to the idea of the family state, there prevailed a governmental patriarchalism in which the 'initiative from below', the participation of the people in politics, was not desired, and the concern for the common good was the domain of the bureaucracy. Furthermore, at the apex of this family state there was no responsible head. The myth which made the Emperor a quasi-divine being prevented his carrying out the supreme political decision-making which the constitution clearly assigned to him. If the Emperor was to retain the halo of superhuman wisdom and sanctity, he could not be allowed to be dragged down into politics, into the arena of party strife and fallible decision. Therefore, the Japanese avoided asking political decisions from him and kept him away from governmental affairs. In this vacuum of decision-making in the constitutional system stepped anonymous rulers, those who in reality dominated the throne and made the will of the Emperor by deciding for him the selection of ministers and the policy of the Cabinet. Under Emperor Meiji it was the Genrō of the Restoration, in the final phase it was the military clique. Those real decision-makers behind the throne were men and power groups which stood outside the constitution and were, in the last resort, responsible to nobody. So the way was open to an abuse of the imperial power, and this abuse of the imperial power by uncontrolled power cliques perverted the whole structure of the Meiji Constitution.
The worst effect of the kokutai ideology was the extreme nationalism of the whole people. This ideology swelled the national self-conscience into belief in the divine mission of the Emperor and his people to govern the world. This religious nationalism became the life impulse of the new Japan and made the growth of a Christian humanistic idea of the state and of personal freedom impossible. A people indoctrinated in this ideology was bound to adhere with blind enthusiasm to whatever policy it seemed would enhance the national honour and greatness and could not bring forth any internal resistance against an even inhuman dictatorship which claimed to execute the national mission. This supernationalism of the kokutai ideology has been the ultimate and decisive cause preventing the actuation of the Meiji Constitution in the direction of the ever greater social freedom which Roesler had envisaged as the goal of the constitution. It finally rendered the constitution entirely meaningless and brought about the collapse of the state of the Meiji Constitution.
PART TWO
THE TEXT
OF THE
MEIJI CONSTITUTION
ACCOMPANIED
BY HERMANN ROESLER'S
COMMENTARIES
Roesler's Introductory Remarks*
In commenting on the draft of the Constitution of the Empire of Japan it may first be convenient to briefly inquire into the nature and object of a constitution. In a more general sense a constitution is a fundamental law by which a certain system of government is established. In that sense every people formed into a state must have a constitution, written or not written, because there can be no state without a chief who exercises, or commands to be exercised, the governmental powers according to certain principles of law, without a certain formation of public authorities, and without a certain legal condition of the people and certain legal relations between the chief of the state and his subjects. In that sense Japan was from immemorial times possessed of a constitution because it was governed by a hereditary Imperial dynasty; a jurisdictional and administrative system was organized throughout the country and the people were formed into a system of feudal orders which has lately been transformed into a system of social classes.
But in a more special and modern sense, a constitution is a fundamental law by which the subjects are admitted to the enjoyment of certain rights in respect of the government. A constitutional government is formed when the exercise of the governmental powers is to a certain extent controlled by, or brought under the influence of the people. It is opposed to an absolute government in which the people have no political rights, that is to say, no legal powers of controlling and influencing the acts of the government. As regularly the people at large cannot well be admitted to an interference into the exercise of governmental powers, a national representation is to be formed which is entrusted with the exercise of the political rights of the people inasmuch as an immediate concurrence with the government is concerned. Consequently the formation of a national representation for controlling and examining the acts of government is essential to a constitutional government, and in order to secure a lawful and beneficial concurrence of the sovereign power and of the national representation, a careful and exact determination of the rights and duties of both of them is required. Thus, in a constitutional government the working conditions and objects of the exercise of sovereign rights is in a certain degree not left to the free judgment of the chief of state but determined by law, and insofar the sovereign power is limited. A constitutional government may be, what is commonly, and especially in Germany, called either simply representative or parliamentary. A parliamentary government is that in which the balance of political power rests with the national representation, while in a representative government that balance rests with the chief of state, and consequently in a monarchy with the monarch. For Japan, by the present constitution, a representative, not parliamentary, system of government has been established; consequently the sovereign decision will, where no express provision is made to the contrary, be reserved to the Emperor. Thus the time-honored elements of the original Japanese constitution have been maintained, and the sacred Imperial Power, as it has been transmitted from ages immemorial by the glorious Imperial ancestors, has not radically been changed but only developed into a more convenient condition according to the requirements of the time. Also it appears wiser to let the constitutional system gradually develop, and not to overstep hastily, in pursuance of lofty theories, the necessary stages of progress; the much more so, as the parliamentary system, even in those countries where it has gone into practice, shows by no means an entirely satisfactory experience and is recently found more and more objectionable.
The general object of a constitution is to raise the people to a state of lawful liberty and to secure to the state more effectively the elements of power and civilization. No doubt the enjoyment of political rights, and the security of civil rights based thereon, strengthens the development of human forces, moral, intellectual and economical, and produces a stronger and firmer coherence of the national community, because the common exercise of political rights by the people fosters their national unity. A constitutional government therefore is favorable to the interests of civilization as well as to the national elevation of a people. Although the principles of constitutional government originate more in the West, and especially in the nations of the German race, yet they will be equally applicable to Asiatic nations as they are doubtless able to adopt the principles of Western government in general.
The most essential political right to be granted by a constitution is the right of voting the laws and the taxes. Without this power of self-assertion and self-protection of individual rights, especially of the right of property, by the people, there is no true constitution. The right of voting the laws and taxes is the constitutional center towards which all other political rights gravitate. So the institution of an independent judicature according to law; the respect of law and of individual rights by the administrative authorities; the responsibility of ministers; the exact delineation of the executive power; the acknowledgement of certain general rights of the subjects, as conditional of their personal liberty and of a higher state of civilization—these are, in general, the popular rights which shall be granted by the constitutional law. But this law has not only to define the rights, but also the duties of the people, as with respect to taxation, conscription, the financial requirements of the state and generally submission to every lawful and constitutional exercise of the sovereign power.
Although the constitutions of different countries must agree with regard to the main constitutional principles and objects, yet they differ greatly in particulars according to the national views, wants and history of each country. So also the Japanese Constitution has been modelled according to true constitutional principles which are recognized
