Constitutional Imperialism in Japan

Front matter

Proceedings of the Academy of Political Science in the City of New York

Constitutional Imperialism in Japan

by Ernest Wilson Clement

Preface

Preface

This pamphlet is an attempt to give a bird’s-eye view of the progress and position of constitutional government and representative institutions in Japan. It does not pretend to enter into a detailed discussion of the various questions which naturally arise; and yet it may serve as an introduction to a more thorough study. The Appendix contains the principal documents necessary for such a study. It may, indeed, seem that the Appendix is disproportionately large and that an operation should have been performed. But the material there reproduced is of such importance that it could not well have been omitted or abridged. If any desire a more detailed study of the subject of this pamphlet, they are referred to Uyehara’s Political Development of Japan, from which we have often quoted. We only hope that the brief study of this pamphlet may arouse a deep interest in more profound investigation.

Ernest Wilson Clement.

Tokyo, Japan, December 30, 1915.

Bibliography

Bibliography.

Clement, Political Parties in Japan, Political Science Quarterly, December, 1912.

Takenob(u) and Kawakami, Japan Year Book, Tokyo, 1912 and 1914.

Masaoka, Japan to America, Putnam, New York, 1914.

Pronunciation

Pronunciation of Japanese Words.

a like a in father

e like e in men

i like i in pin

o like o in pony

u like oo in book

ai as in aisle

ei as in weigh

{| | au | as o in bone

ō

|- |ū as oo in moon |}

i in the middle of a word and u in the middle or at the end of a word are sometimes almost inaudible.

The consonants are all sounded, as in English: g, however, has only the hard sound, as in give, although the nasal ng is often heard; ch and s are always soft, as in check and sin; and z before u has the sound of dz. In the case of double consonants, each one must be given its full sound.

There are as many syllables as vowels. There is practically no accent; but care must be taken to distinguish between o and ō, u and ū, of which the second is more prolonged than the first.

Be sure to avoid the flat sound of a, which is always pronounced ah.

Japanese words, especially names, should almost always be divided into syllables with a vowel at the end of each syllable. The principal exception is in the case of double consonants; there the syllabic division is made between the two consonants: n may also close a syllable.

Introduction

Introduction

T he Japanese Constitution was promulgated February 11, 1889; the first national election for members of the Lower House of the Imperial Diet was held on July 4, 1890; and the first session of the Japanese Diet was formally opened on November 29, 1890. According to the Preamble of the Constitution, the time of the opening of that first session was to be "the date when the present Constitution comes into force". Of course, that instrument was practically in force as soon as it was promulgated, because preparations were begun to carry out in detail its provisions, as well as the provisions of the Imperial House Law, the Ordinance concerning the House of Peers, the Law of the (Two) Houses, the Law of the Election of Members of the House of Representatives, and the Law of Finance,—all of which were promulgated in connection with the Constitution.

In any event (without trying to be too exact mathematically), it is perfectly proper to assume that, by 1915, twentyfive years of constitutional government in modern Japan have passed. This is, then, a suitable time to be "looking backward" over the quarter of a century, to attempt to portray the progress of constitutionalism in Japan, and to determine its present status. For this purpose, the heading "Constitutional Imperialism" has been adopted. It should be stated that there was a slight inclination to make the title "Imperialistic Constitutionalism." But as Imperialism was first chronologically and is still first theoretically and practically, with such modifications as have been introduced by the Constitution, it seemed more appropriate, from every point of view, to make "Constitutional" an adjective modifying "Imperialism".

This fact should be borne in mind by American readers, who must not expect to find, in the Japanese political system, such popular rights and privileges as they enjoy, or such as the English enjoy under a constitutional monarchy. It must be remembered that the Japanese constitution was framed principally from German models, as best suited to the conditions in Japan at that time. The American Republic and the British Empire were too radical in their political constitutions to be followed by a nation emerging from centuries of feudalism and absolute imperialism. The modifications of imperialism could not be too extreme or too sudden, but must be slight and gradual. The people as a whole must be educated up to the point where they could understand and appreciate, not only political rights and privileges, but also political duties and responsibilities. Fukuzawa, the great Commoner of Japan, once wrote as follows:

Owing to the peculiar customs which have for so long existed, we are not at all sensitive about our privileges and our rights.

The Japanese people needed to be gradually educated up to an appreciation of popular rights and duties. Thus the Constitution was to be, in a sense, the school-master to lead them to Constitutionalism.

Now, this subject of "Constitutional Imperialism in Japan" may be conveniently divided into the following topics:

1. | The Imperial Prerogative.

2. | The Privy Council.

3. | The "Elder Statesmen."

4. | The Cabinet.

5. | The Imperial Diet.

A. House of Peers.

B. House of Representatives.

6. | The Judiciary.

7. | The Rights and Duties of Subjects.

8. | Political Parties.

9. | Public Opinion.

10. | Conclusions.

Chapter 1

I. The Imperial Prerogative

The sovereignty of the Emperor is the fundamental principle of the Japanese Constitution. Article I reads as follows:

The Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal.

The late Prince Ito, the chief compiler of the Constitution, in his Commentaries on the Constitution of the Empire of Japan, says of this article:

It is meant that the Emperor on the Throne combines in Himself the sovereignty of the State and the government of the country and of His subjects.

The "divine right of kings" was carried to such an extreme in England that Charles I lost his head; but in Japan "the divine right of the Emperor" is acknowledged to a degree of which no Stuart ever even dreamed. Uyehara, in his Political Development of Japan sets forth that point very vividly: he asserts that the Emperor of Japan can use "more effectively than Louis XIV" the latter's famous expression, "L'Etat c'est moi," And then the Japanese writer sums up the status of the Emperor as follows:

He is to the Japanese mind the Supreme Being in the Cosmos of Japan, as God is in the Universe to the pantheistic philosopher. From him everything emanates; in him everything subsists; there is nothing on the soil of Japan existent independent of him. He is the sole owner of the Empire, the author of law, justice, privilege, and honor, and the symbol of the unity of the Japanese nation. He has no pope or archbishop to crown him at his accession. He is supreme in all temporal affairs of the State as well as in all spiritual matters, and he is the foundation of Japanese social and civic morality.

As a corollary of this fundamental principle, the Emperor is "sacred and inviolable."

Ito says: The Emperor is Heaven-descended, divine and sacred; He is preeminent above all His subjects. He must be reverenced and is inviolable. … Not only shall there be no irreverence for the Emperor's person, but also shall He not be made a topic of derogatory comment nor one of discussion.

It is really unthinkable that any Japanese Emperor could ever suffer the fate of Charles I of England. It was this idea of imperial sanctity that made the people discredit, at first, the report of the anarchist conspiracy of 1910. It must however be acknowledged, that even the Emperor is not always exempt from being the subject of discussion. And yet on the whole he is generally considered sacred, so that attempts to drag him into politics are resented. An apparent attempt to utilize for partisan purposes an imperial rescript by the new young Emperor is believed to have ruined Katsura's last ministry in 1913. And the failure of Saionji at that time to make the Seiyukai yield to what was said to be the imperial desire in that case is thought to have compelled him to give up the leadership of that party and retire to private life.

Dr. McLaren, in a lecture before the Asiatic Society of Japan, spoke as follows on this point:

The tremendous prestige of the Imperial name had been used continually for the defense of the Government. … The divine descent of the Monarch had been made to bear the whole burden of the oligarchical form of government. … The oligarchy and the monarchy had been merged into a single governing power, which continued to exist through the reverence of the people for the Throne."

This idea of the sacredness of the imperial name has given rise to some ridiculous instances of so-called lèse majesté. For instance, the Ministry was censured in 1893 "for its carelessness in maintaining the dignity of the crown." It happened that an English lawyer, counsel for the Japanese government, in a case before the English Consular Court at Yokohama, had used the name of the Emperor in his plea!

The Constitution further states positively that

The Emperor is the head of the Empire, combining in himself the rights of sovereignty and exercising them, according to the provisions of the present Constitution.

Ito, in his comments on this article, refers to the Emperor as

This Most Exalted Personage who thus holds in His hands, as it were, all the ramifying threads of the political life of the country, just as the brain, in the human body, is the primitive source of all mental activity manifested through the four limbs and the different parts of the body.

Not only does the Emperor thus exercise the executive power of the State, but, according to a specific article: "The Emperor exercises the legislative power with the consent of the Imperial Diet." And, as the Emperor, by Article VI, " gives sanction to laws and orders them to be promulgated and executed," it naturally and logically follows, according to Ito, that "He also possesses the power to refuse His sanction." On this point, Uyehara writes as follows:

The sanction of the Sovereign to a bill is the final point in Japanese legislation. The Emperor is absolutely free either to give or refuse sanction. Therefore, you may say that the Emperor has an absolute veto over all legislation. There is no constitutional way for the Diet to over-ride this veto of the Emperor."

Moreover, the imperial control of the legislative organ, the Imperial Diet, is seen in the fact that, by Article VII, "The Emperor convokes the Imperial Diet, opens, closes and prorogues it, and dissolves the House of Representatives."

The fact that the Constitution reserves to the Emperor cer- tain powers is not so different from the custom of conferring such "reserved rights" upon the executive in other countries as to require special comment. It is sufficient to call attention to Articles XI–XVI.

There is, however, one constitutional provision which requires special notice under this topic of "The Imperial Prerogative." The Constitution cannot be amended unless a project to that effect is submitted by imperial order to the Imperial Diet. Then, in neither House, can an amendment be debated unless two-thirds of its members are present; and no amendment can be passed unless two-thirds of the members present approve. Ito explains why the Diet cannot initiate an amendment by saying that "the right of making amendments to the Constitution must belong to the Emperor Himself, as He is the sole author of it." But just as the late Emperor, now known as Meiji Tenno, granted the Constitution in response to a desire or a demand, so doubtless any prudent emperor will heed public opinion with reference to amendments.

It may be said in general concerning the imperial authority in Japan that, while nominally and theoretically it is not limited, yet practically it is somewhat limited. Uyehara says: "Neither custom nor law, written or unwritten, nor the Constitution limits his ultimate sovereign power; He is the Supreme Lord and Absolute Master of the Empire."

Yet the Emperor does not interfere in the actual administration of affairs; he reigns but he does not rule. The late Emperor took a deep personal interest in the affairs of state, but never showed the slightest desire to exercise "personal rule." It is, therefore, not difficult for an emperor, unless he is a man of strong personality, to be at the same time an "absolute monarch" and an absolute figure-head. That was often the case in Old Japan; and it is not an impossibility even in New Japan. Uyehara affirms most positively that "it is not the personality of the Emperor ... upon which the strength and the value of the Japanese monarchy depend"; and he claims that it is "the unique history and tradition of the imperial throne"; but we make bold to say, even in opposition to a Japanese, that the personality of the sovereign is of special importance. It is possible that, in general, the imperial personality weighs more than the individual personality. But in the case of the late Emperor, Meiji Tenno, his own personality, in the sense of his individuality, was no small element in the loyalty and patriotism of thousands of his subjects. And it is not an invidious comparison to state that the feeling toward the present Emperor does not seem as yet to be the same as that toward his illustrious father, Mutsuhito the Great.

Chapter 2

II. The Privy Council

According to Ito’s Commentaries the Privy Council is “the highest body of the Emperor’s constitutional advisors,” as well as “the palladium of the Constitution and the law”; and its duty, according to the same authority, is “to be perfectly loyal and straight-forward in furnishing advice to the Emperor.” It is higher than the Cabinet, because its advice may be asked concerning the organization of a cabinet. Moreover, all the measures of a cabinet may be referred to it by the Emperor, either before they are presented to the Diet by the Cabinet, or after they have passed the Diet. The Privy Council is, therefore such an influential body that membership therein is accounted a very great honor. It must, however, be said with regret that occasionally the Privy Council has been found a convenient place in which to shelve a prominent man for whom some provision must be made. And the ministers of State who form the Cabinet have seats in the Privy Council ex officio and are just enough by themselves to constitute a quorum of ten members.

The Privy Council has a voice in giving advice to the Imperial Family Council concerning such important matters as changing the order of succession to the throne and the selection of a regent in case the Emperor is a minor. And the Privy Council may be particularly consulted by the Emperor in case of a political crisis. While the Cabinet is “a board of the chief executive officers”, the Privy Council is “a deliberative body consisting of the chief legal advisors of the Sovereign.” Ito suggests that “it will certainly prove an important piece of constitutional mechanism.” Indeed, the gradual evolution of the power of the Privy Council is a most noteworthy feature in the Japanese constitution. On the other hand, those who believe in popular institutions think that the Privy Council has “usurped” power and that its authority must be limited by reforms in its official organization.

It is scarcely necessary to give details of the organization of the Privy Council; but it may be well to reproduce the following articles of the imperial Ordinance of 1888, as amended in 1890:

Article II.—The Privy Council shall consist of one President, one Vice-President, twenty-five Councillors, one Chief Secretary and five Secretaries.

Article VI.—The Privy Council shall hold its meetings for the purpose of advising His Majesty the Emperor, and shall state its opinions with regard to the following matters:

1. Matters which come under its jurisdiction according to the Koshitsu Tempan (Law of the Houses).

2. Drafts and doubtful points relating to articles of the Constitution and to laws and ordinances dependent to the Constitution.

3. Proclamations of the law of siege provided for in Article XIV, and Imperial Ordinances mentioned in Articles VIII and LXII of the Constitution, as well as all other Imperial Ordinances of a restrictive character.

4. International treaties and pledges.

5. Matters relating to the amendment of the organization of the Privy Council and the rules for conducting business in the Privy Council.

6. Matters specially called for, besides those mentioned in the last paragraphs.

Article X, Paragraph 2.—The President shall cause the Chief Secretary to make explanations and shall afterwards allow the members to discuss matters freely, but no member can speak without obtaining the permission of the President, who may engage in all debates, and shall point out the questions to be decided, and require members to vote with regard to the same.

We also reproduce, from the original Ordinance of April 28, 1888, the following statement:

Article VIII.—Though the Privy Council is the Emperor’s highest resort of council, it shall not interfere with the Executive.

Chapter 3

III. The Elder Statesmen

A body of men known as Genro, which is freely translated into English by the term “Elder Statesmen”, must not be omitted from this discussion of “Constitutional Imperialism.” As a matter of fact, they are not mentioned in the Constitution; they are an extra-constitutional body; but they outrank every constitutional body except the Emperor and the Privy Council. They are a survival of feudalism; they are relics of history. To be more literal, they are the survivors of the great band of men who accomplished the Restoration of 1868, and reconstructed Japan during the marvelous years of the Meiji era. They deserve the greatest credit for making New Japan what she now is; they were statesmen of the highest ability: but they are considered to have outlived their usefulness; they are an anachronism. There are only three left since the death of Prince Ito, the most active and most eminent, and of Marquis Inouye; the survivors are Princes Yamagata and Oyama (who rarely acts) and Marquis Matsukata.

The Elder Statesmen have been the “Warwicks of Japan”, not in the sense of being king-makers but in that of being cabinet-makers. In fact they have not only made, but also unmade, cabinets. They have been the power behind and before the throne. They have invariably been consulted, unofficially of course, by the Emperor in all great political crises. But it certainly looks as if the days of that “august but obsolete” body are numbered. It is an open secret, that, while they recommended Count Okuma to the Emperor for the premiership in April, 1914, they did so, after the futile attempt to constitute a reactionary ministry under Viscount Kiyoura, merely because they found that they could no longer oppose the popular demand. Thus one result of the first quarter century of constitutionalism in Japan has been the almost complete elimination of this once strong extra-constitutional factor, which death will soon entirely eliminate.

Chapter 4

IV. The Cabinet

It is interesting to note that the Cabinet has no official standing in the Constitution. “Ministers of State” are merely mentioned and to that extent are recognized even in their official capacities; but the Cabinet as a body is not officially recognized. Of course, it may be taken for granted, that several ministers of State, of whom one is known as “Prime Minister,” would form an organization, called a “Ministry” or a “Cabinet.” Thus, indirectly, the Cabinet, as a constitutional organ, is recognized and must receive consideration. The ministers of State are the following: Minister President of State, Minister of Foreign Affairs, Minister of Home Affairs, Minister of Finance, Minister of War, Minister of the Navy, Minister of Justice, Minister of Education, Minister of Agriculture and Commerce, Minister of Communications, and Minister of the Imperial Household. But the last-mentioned is not a member of the Cabinet, which, when fully constituted, consists thus of ten members.

To elucidate what follows, we have prepared (see following page) a table of the Cabinets during the past twenty-five years or so. It should, however, be explained that the figures of duration cannot be given with absolute exactness, but are approximate; because, theoretically, each Cabinet holds over till its successor takes office, but practically gives up office at the time of resignation. However, the interim is generally only a few days and, at the longest, has been only one month.

The table of Cabinets shows that, in the first eight cases (with the exception of the Okuma-Itagaki Cabinet, which lasted only a few months), three of the Elder Statesmen (Yamagata, Matsukata and Ito) took turns as Premier and were in power (with other Elder Statesmen, like Inouye and Oyama, sometimes in the Cabinets with them) for about twelve years. Then for the next period of about twelve years, Katsura (Yamagata’s lieutenant) and Saionji (Ito’s lieutenant) held power alternately.

The table of Cabinets also shows that the average duration of the fourteen ministries that held office for a period of 24⅓ years (December 1889–March 1914) is almost twenty-one months. The average of the first eight Ministries, which covered eleven and one-half years, is a little over seventeen months; while the average of the last six Ministries, which covered almost thirteen years, is almost twenty-six months. It is interesting to note that the two unusually long terms were held by the first Ito and the first Katsura Ministries, which covered the periods respectively of the War with China (1894, 1895) and the Russo-Japanese War (1904, 1905), when political rivalries were temporarily buried. Moreover, Katsura holds two records—of both the longest and the shortest ministries.

Table of Cabinets.

Premier | Term of Office | |Years | |Months

| | Dec., | 1889–April, | 1891 | |1 | |5

May, | 1891–July, | 1891 | |1 | |3

Aug., | 1892–Aug., | 1896 | |4 | |1

Sept., | 1896–Dec., | 1897 | |1 | |4

Jan., | 1898–June, | 1808 | |0 | |6

June, | 1898–Oct., | 1898 | |0 | |4

Nov., | 1898–Sept., | 1900 | |1 | |11

Oct., | 1900–May, | 1901 | |0 | |8

June, | 1901–Jan., | 1906 | |4 | |7

Jan., | 1906–July, | 1908 | |2 | |6

July, | 1908–Aug., | 1911 | |3 | |2

Sept., | 1911–Dec., | 1912 | |1 | |4

Dec., | 1912–Feb., | 1913 | |0 | |2

Feb., | 1913–Mar., | 1914 | |1 | |1

Apr., | 1914–

As in England, any member of the Cabinet may be also a member of either House. And ministers who may not be members have, nevertheless, the right at any time to take seats (in a special place) and to speak in either House. They have also free access to committee rooms.

The Cabinet may be called the Emperor's executive organ. Ito says:

The Ministers of State are charged with the duty of giving advice to the Emperor; they are to serve as media through which the Imperial commands are conveyed, and are to execute administrative affairs.

Uyehara says that the Cabinet “is the channel and medium through which the Sovereign exercises his power.”

The principal question with reference to the Cabinet is that of its responsibility. The text of the Constitution is unfortunately (perhaps purposely?) indefinite; it reads as follows:

The respective Ministers of State shall give their advice to the Emperor and be responsible for it.

But Ito is more explicit in his Commentaries, where he uses the following expression:

The appointment and dismissal of them [Ministers] having been included by the Constitution in the sovereign power of the Emperor, it is only a legitimate consequence that the power of deciding as to the responsibility of Ministers is withheld from the Diet.

Ministers are directly responsible to the Emperor and indirectly so to the people.

It is the Sovereign and not the people that can decide as to the responsibility of Ministers.

As a matter of fact there can be no doubt that until somewhat recently it was acknowledged and accepted, in theory and in practice, that the Cabinet was responsible only to the Emperor. And yet, even as early as 1895, Ito himself made an informal alliance with the Liberal party; and Matsukata, who followed him, similarly obtained the support of the Progressive party.

The year 1898 witnessed an attempt, but a short-lived one, to establish a “party cabinet” under Okuma and Itagaki. Next, even the conservative Yamagata followed the plan of an entente cordiale with the predominant party (Liberal) in the Lower House. In 1900–1901, an Ito ministry was another abortive attempt to establish a “party cabinet” under the auspices of Ito’s newly organized party (Seiyukai). Later Saionji and Yamamoto made more serious and more successful attempts to carry on the administration in close connection with the dominant party (Seiyukai) in the Lower House. Finally, on Christmas Day, 1914, Okuma dissolved the House of Representatives and appealed to a general election, by which he obtained a large majority to back up his Ministry, which is at once a personal and a party cabinet. The old-style “transcendental cabinet” is no longer possible; a “party cabinet” is demanded by public opinion and is another of the results of the first quarter century of constitutionalism.

Chapter 5

V. The Imperial Diet

From the point of view of constitutionalism, the Japanese Imperial Diet should be one of the most important organs. But at the outset, Americans and British must be warned not to expect an institution like either the American Congress or the British Parliament. The Japanese national assembly is rather like the German institution and is, therefore, generally called the “Imperial Diet”. It is well known that German ideas of government were largely followed by Ito in drawing up the Japanese Constitution, because they seemed best fitted to Japanese Imperialism.

The Japanese Imperial Diet is bicameral: it consists of a House of Peers (Kizoku-in) and a House of Representatives (Shugi-in). The House of Peers is composed of a varying number of members (about 375),—part hereditary, part elective, and part appointive. The hereditary members are the imperial princes and the princes and marquises. The elective members are those chosen from among the counts, viscounts, and barons, and the highest taxpayers of each prefecture. The appointive members are those who are nominated by the Emperor “for meritorious services to the State and for erudition.” But the number of appointive members and of elective taxpayers “shall not exceed the number of the members having the title of nobility.” The hereditary members and the appointive members enjoy a life tenure; while the elective members serve for a term of seven years.

The membership of the House of Peers in the Thirty-sixth Session of the Imperial Diet was as follows:

The offices of president and vice-president of the House of Peers have been held by the following members:

Presidents. | Vice-Presidents.

1890–1891 | Count Ito | 1890–1891 | Count Higashikuze

1891–1896 | Marquis Hachisuka | 1891–1893 | Baron Hosowaka

1896–1903 | Prince Konoye | 1893–1894 | Marquis Saionji

1903– | Prince Tokugawa | 1894– | Marquis Kuroda

The House of Representatives consists of 381 members. Any “male Japanese subject who is not less than full thirty years of age shall be eligible for election,” except that certain persons laboring under mental or financial or civic disabilities can neither enjoy the franchise nor be eligible for election. Heads of noble families; men in the active service of the army or the navy; students; Shinto priests and ministers, priests and teachers of religion of all kinds; teachers of elementary schools; and certain Government officials and persons working for the Government under contract are likewise ineligible in either case.

Electors must possess the following qualifications:

1. Completion of the twenty-fifth year of age.

2. A permanent residence in the election district for not less than one year previous to the date of drawing up the electoral list.

3. Payment of direct national taxes to the amount of not less than ten yen.

It should be noted that, while an elector possesses the franchise five years before he is eligible for election, the candidate has the great advantage over the elector of not being limited by any residential or property qualifications.

The members of the House of Representatives are elected under the system of large electoral districts, and by single non-transferable votes. The ballot is secret. A city having a population of over 30,000 forms one electoral district, with one or two members, according to size. The three cities of Tokyo, Osaka and Kyoto form each one district, with eleven, six, and three members respectively. In all other cases, each prefecture forms one district, with from two to twelve members according to the population. There are special provisions for the Hokkaido on account of its large area and scattered population. There are many polling-places in each district.

The members of both Houses receive an annual allowance (2,000 yen) and traveling expenses, except those who are in the service of the Government. Of course, no one can be a member of both Houses at the same time.