10 井上毅
11 See Suzuki, 'Hermann Roesler,' Monumenta Nipponica, IV, 443-453.
12 万世一系
13 See the juxtaposition of Roesler's draft and the promulgated constitution in Suzuki, 'Hermann Roesler.' Monumenta Nipponica, 1942, 349-382.
CHAPTER THREE
The ideas behind his Commentaries on the Meiji Constitution
In his Commentaries on the Constitution of the Empire of Japan Roesler has given us a compendium of his interpretation of the Meiji Constitution. They were probably written at the request of Itō Hirobumi, but were never published and it is difficult to determine whether they were ever even circulated among the officials for whom they were intended. The manuscript copy, written in Roesler's own hand, was preserved by Itō Miyoji14 and is now to be found in the National Diet Library in Tokyo. (It was Itō Miyoji who translated the introductory remarks and the first chapter of the Commentaries into Japanese and repeatedly revised his translation.)
At the top of the first page of the manuscript Roesler originally wrote the following head: 'Commentaries on the draft of the Constitution of the Empire of Japan'. At the bottom of the last page of the first chapter, the chapter on the Emperor, he wrote the date July 23, 1888. This part was written, therefore, at the time when consultations on the draft of the constitution were still going on in the Privy Council.
Roesler later changed several passages in this chapter to bring the commentary into accord with the now-published constitution. There are in the chapter numerous passages that are found more or less word for word in the memoranda which he drew up for the consultations of the Privy Council. The other chapters of the Commentaries were written after July 1888. At the bottom of the manuscript are written the words: 'The End, March 12, 1891'.
It is well known that the government in April 1889 published, under the name of Itō Hirobumi, its own commentary on the constitution, Dai Nippon teikoku kempō gikai.15 And in August of the same year, an English translation of it, made by Itō Miyoji, was published under the title Commentaries on the Constitution of the Empire of Japan. This Commentaries is not unrelated to the work of Roesler. The Kempō gikai was derived from an explanation of the draft constitution called Kempō setsumei16 written by Inoue Kowashi, and presented as reference material to the members of the Privy Council. The Kempō setsumei contained the constitutional doctrine which Inoue received from Roesler in the course of years, and in certain passages one perceives immediately the influence of Roesler's memoranda. It also contains historical material, especially with regard to the government of the Tennō of old Japan. The exposition of this material is exclusively the work of Inoue Kowashi who made an extensive study of the sources for that purpose. It is written with the aim of proving the continuity between the constitution and the tradition of the national policy, the kokutai,17 and represents an attempt to single out from tradition what should be considered as the historical and legal sources of the national ideology.
We can safely assume that Inoue knew that Roesler was at work upon a commentary to the constitution and he may even have used Roesler's first chapter in compiling his Kempō setsumei.
After the conclusion of the consultations of the Privy Council, Inoue revised his Kempō setsumei, then turned it over to Itō Hirobumi for corrections. A group of Japanese jurists was consulted, and the work was finally published under the name of Itō Hirobumi as a semiofficial commentary on the constitution by the government itself.
Except for the passages relating to the kokutai, the works of Inoue and of Roesler are in substantial agreement in their exegesis of the articles of the constitution. Roesler's Commentaries, however, is more detailed, more scientific, and more definite in the conclusions it draws from the principles of the constitution. Moreover, the emphasis of the two commentaries is quite different. Inoue considers it important to show the unity of the constitution with the historical kokutai, whereas Roesler ignores the specific kokutai of Inoue.
Roesler's commentary is a superb juridical interpretation of the constitution, written by a man more competent for the task than anyone else. Roesler attempts to explain the basic juridical principles of the constitution, and yet his work does not smack of juridical formalism. Roesler does not prescind from the political significance of the articles and takes pains to make clear the fundamental political philosophy therein contained. In his interpretation, Roesler does not try to hide his philosophy of law, a philosophy which the others who took part in the formation of the constitution probably did not fully share. I shall try to make these differences clear in my remarks on Roesler's commentary. Except for such points, the commentary reflects the political and juridical concepts that went into the making of the constitution. We cannot find expressed with the same clarity and the same compactness in any other document the principles which had guided the fathers of the constitution during the long period of preparatory studies.
The fundamental constitutional theory upon which Roesler's commentary is based is that of constitutional monarchism. Constitutional monarchism finds in this commentary a definitive expression such as is to be found to my knowledge nowhere else in the English language. The constitutional principles realized in the Meiji Constitution are set forth with great precision in the introductory remarks:
1 A constitutional government is formed when the exercise of governmental power 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 power to control and influence the acts of government . . . . The formation of a national representation for controlling and examining the acts of government is essential to a constitutional government.
2 A constitutional government may be . . . 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 monarch. For Japan, by the present constitution, a representative, not parliamentary, system has been established.
3 The most essential political right, to be granted by a constitution, is the right of voting on 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 on the laws and taxes is the constitutional center toward which all other political rights gravitate.
Roesler holds that by adopting the essential constitutional principles but upholding the sovereignty of the Emperor, '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, has not radically been changed but only developed into a more convenient condition according to the requirements of time.'
Does the constitution bear out this grand statement, which we find also in the Imperial Oath on the Constitution and in all official pronouncements on it at that time and later? In actual fact the synthesis between the traditional imperial principle and the modern constitutional principle was the fundamental problem which the framers of the constitution had to solve. Roesler's commentary gives us a deep insight into their conception of this synthesis.
A theory which joined the two elements to be synthesized into a rational whole was provided to the framers by the German conservative school of monarchical constitutional law. The basic conception of the constitutional position of the Emperor which Roesler in his memoranda and his commentary expounds derives from this school, of which the most representative thinker is Friedrich Julius Stahl.18 The 'monarchical principle', as understood by this school, means that all state power, legislative, executive, and judicative, is united in the monarch.
