stand, follow his draft. His commentaries go to considerable length in determining, as exactly as possible, the meaning and extension of these rights. How minutely, for instance, the conditions which justify the emergency legislation of Art. 8 are specified. (Text, pp. 79-80)
The very broad right of independent ordinances (Art. 9) is perhaps the most distinctive feature of the Constitution. Here the Meiji Constitution goes clearly beyond the Prussian Constitution. This article, on which extraordinary careful deliberations took place, is entirely the work of Roesler. The framers of the constitution were thoroughly acquainted with the existing literature on the right of ordinances, especially with the doctrine of the leading authority on this point, that is, of von Gneist. Roesler had competently expounded the theory of ordinance right and dispelled the qualms of Inoue as to whether so broadly conceived a right of ordinances would not conflict with the primary principle of constitutionalism. In his Commentaries he stresses that mere executive and police ordinances are not sufficient for an effective realization of government by the Emperor, that the government must be free to take measures for promoting the public good and that the limitation of this right would mean the supremacy of Parliament and the elimination of the independent imperial government power. (Text, p. 85) The Itō commentary follows very closely this line of reasoning by Roesler. I will explain, in the following chapter, the eminently modern meaning of this right according to Stein, Gneist and Roesler. It without doubt favored the growth and entrenchment of the bureaucracy in Japan. But one may doubt whether, without it, Japan would have advanced to the well-organized efficiency of a modern state.
Stressing the importance of the right of ordinances, Roesler is, however, much concerned with defining also the limits of this right in order to prevent any misuse of it. He thinks that the constitution does not lay down a clearly distinctive line between matters of law and matters of ordinances and that such a distinction is practically impossible. He asserts however that the rights and duties of the citizens in respect to general liberty and property have to be determined by law. The 'reservation of law' for these matters, considered to be the very essence of the liberal Rechtsstaat, is, therefore, fully admitted by him. He strongly criticizes the opinion that all matters on which no law exists may be settled by mere administrative regulations. He points out the tendency in the modern state to extend the sphere of rights, safeguarded by formal legislation, and to restrict the sphere of ordinances. He concludes that, in the last resort, the prevailing conscience of right is to be regarded as the norm for what is to be settled by law. (Text, pp. 164-5) Here, his opposition to mere legal formalism is clearly revealed; only a consideration of the subject matter and the living conscience of right can decide whether formal legislation is necessary or not.
Roesler's commentary on the constitutional position of the imperial military command is of extraordinary interest in view of the later development by which the military power became independent of the civic government. The Commentary distinguishes, following the established organization in modern states, between the military command and the civil administration of military affairs. (Text, pp. 93-8) Both powers are according to Roesler sovereign rights of the Emperor, not subject to interference by the legislative power. (Text, p. 94) Roesler shows himself fully aware of the political importance of these articles. (Text, p. 200) He holds that the exercise of the military command is exempted from the countersignature of a minister, but there is no suggestion that matters of military administration do not require it. The Itō commentary clearly states that it is necessary. In reality the countersignature in military administrative matters was not observed, a very fateful matter in which the constitution was circumvented.
The independence of the governmental power of the Emperor most strongly appears in the independent position of the ministers from Parliament. (Art. 55, pp. 194-200) The ministers are mere organs of the imperial executive power, so parliament has no decisive voice in the appointment and dismissal of the ministers, and they are individually, not collectively as a Cabinet, responsible to the Emperor alone. Roesler had already in 1881, at the time when the fundamental principle of the constitution had been fixed, pointed out that collective responsibility was hardly in accord with a monarchical executive power, since it implied the idea of a Cabinet standing on its own right. In his commentaries he says clearly and without reservation that there exists in the constitution no proper accountability on the part of the ministers. (Text, p. 198) The Itō commentary speaks, on account of the right of complaint of Parliament, of an indirect accountability of the ministers towards the people. As is well known, the famous constitutionalist Minobe construed, from the idea of Parliament, a strict responsibility of the ministers toward Parliament. It is obvious from the available material that this construction runs counter to the intentions of the framers of the constitution.
Roesler's conception of the rule of the Emperor meant that the Emperor was not only to reign, but to really rule. That is what the constitution wanted him to be. It clearly assigns to the Emperor the most important political decisions. The ministers by whom he exercises his rule were to be his responsible advisers only. (Text, p. 197)
The real rule which the constitution assigns to the Emperor was not a 'personal regime' at the arbitrary will of the monarch. Roesler was strongly opposed to such a personal regime. In a constitutional monarchy, the monarch exercises his governmental power on the advice of his ministers who by countersigning the act of government take the responsibility for it. By taking this responsibility, the minister is subjected to the examination and censure of the public, and he becomes, in a sense, responsible to the people. The necessity of countersignature is, therefore, an effective check against arbitrary and irresponsible acts of the Monarch and distinguishes substantially the constitutional rule of the monarch from a mere personal regime.
In his own draft of the constitution Roesler had made the stipulation: 'The Emperor presides over the Cabinet and decides its proposals.' This article was clearly intended to safeguard the governmental power of the Emperor against its usurpation by a Cabinet acting without the Emperor. The article was not adopted into the constitution because Itō and Inoue were not in favour of the direct governing of the Emperor. From their conception of the Emperor as a transcendent being it was important that he would not be involved in political decisions. He was to be above political decision making. From this arose the glaring disagreement between the constitution and reality over the real mode of government, a disagreement which lasted in Japan until the end of the war. According to the constitution the Emperor was the real political ruler. In reality, the Cabinet or a group behind the Cabinet made the decisions without the Emperor who was simply to sign the measures the Cabinet had decided on without his participation.
How different, in all probability, would have been the development of government in Japan if Roesler's provision for the supervision of the Cabinet by the Emperor would have been adopted. The Emperor, making real political decisions, would have been forced to become a political institution, acting publicly before the eyes of the people. He would have been called to display his real strength in the reality of political life. Instead of that he was enthroned completely outside the real political order as a numen, as a pure symbol of the divine order, and his divine authority was misused to sanction the selfish interests of the ruling power clique. The imperial rule became a mere cloak for the real locus of power.
A different question is whether the institution of the Emperor had the internal strength to become a beneficial political factor in the way that Roesler thought of it. In the light of the real development of the Emperor institution in modern Japan, one has to say: He assumed the possibility of this role too readily and did little to help its realization.
He was without doubt convinced that the Emperor's rule, if it was not to be a personal regime, had to rely consistently on a circle of trustworthy advisers. There is no indication that he did not approve of those political advisers whom the Emperor really followed. Those were the statesmen who had led the modernization of Japan, the Genrō of the Meiji state. He does not seem to have had the impression that they were a clan, the clique from Satsuma and Chōshū. They were in his eyes the elite of the nation, and the Emperor
