Chapter XVI
THE CONSTITUTION IN THEORY AND IN PRACTICE
1893-1906
The "History of the Empire of Japan" was compiled in 1893, and it is needless to say that since that time the empire has experienced a remarkable development in all aspects of its national activity. The war with China occurred in 1894-1895, the North China campaign in 1900, and the great conflict with Russia in 1904-1905. Through these important events the Japanese nation has undergone an immense change in the last dozen years, in the position it occupies in the comity of nations, as well as in its attitude toward the rest of the world. The industrial and financial life of the people has also made a change hardly anticipated in 1893. Their normal national budget, aside from extraordinary war expenditures, has grown 260 per cent. as large as it then was, and their foreign trade in commodities alone has increased nearly fourfold. The state of internal politics also has taken an evolution correspondingly significant. With this last subject we shall begin our brief survey of Japan's national life during the thirteen years between 1893 and 1906.
Before entering into the narrative of the political life of recent Japan, it would be well to acquire a fuller view of the formal, or constitutional, side of that life. The reader will remember that the organization of the two political parties, the Jiyū-tō (1880) and the Kaishin-tō (1881), or, as generally translated, the Liberals and the Progressives, preceded the promulgation of the Constitution, which occurred in 1889. The latter was not granted by the government until the agitation of the parties for its speedy promulgation had run to a considerable height. From this fact, however, it does not follow, as has been asserted by some writers, that the Constitution was wrested by the enlightened nation from the hands of its reluctant ruler. Such a view is apt to be easily formed by the superficial observer, but hardly accords with the facts that stand recorded in history. The agitation of the parties may, to some extent, have caused the Constitution to appear at the particular time it did, but it is evident that the enlightenment had dawned earlier among the authorities than among the parties, for it was in 1867 that the famous Five-Article Oath was pronounced by the emperor, the first two articles of which read as follows: "Assemblies and councils shall be widely established, and all national affairs shall be decided by public discussion; the government and the people shall be of one mind and vigorously prosecute the policy of the nation." If these words may be proven not to imply exactly the future establishment of a regular system of national representation, no student will deny that their author sincerely entertained the desire of consulting by some effective means the intelligent section of the nation at every important step to be taken in the government of the country. Only a detailed knowledge of the modern constitutional form of government seems to have been lacking for the above desire to take a definite shape. Such knowledge was, however, soon acquired, as we are told by Itō himself, when the Japanese embassy, of which he was a member, visited the principal constitutional countries of Europe and America, and saw with their observant eyes and were convinced that the comparative progress of these nations and the relative backwardness of their own were in a large measure due to the presence in the former and absence in the latter of a regular constitutional machinery of government. The imperial oath preceded by at least ten years, and the journey of the embassy by seven years, the inauguration of party life in Japan. Nor should it be forgotten that, during the long centuries of its existence, the imperial house of Japan had seldom proved to be despotic, and, when its real authority was restored in 1867 from the hands of the feudal overlord, the movement had been started, not by a powerful imperial army, which did not exist, but by the combined strength of men rising from all ranks of the nation at large. While it is true that without the awakening of the nation the Constitution would never have seen light, it was more truly granted by the emperor and his advisers than wrested from them.
This fact, that the Constitution was granted by the emperor, may be said to be the keynote of that remarkable document. It was hardly the result of a compromise between the emperor and the nation. Still less did it delegate to the former a part of the sovereignty of the latter. The emperor, in the Japanese Constitution, assumes full sovereignty, and graciously associates with him representatives of the nation in the government of the country. The people are, therefore, not givers, but receivers, of certain rights, the concession of which, however, does not diminish the sovereignty vested in the emperor. This fundamental notion clearly characterizes from beginning to end this document of 1889, which, as we shall see later on, otherwise contains ambiguous and expansive passages at a few critical points. "The emperor is the head of the empire, combining in himself the rights of sovereignty, and exercises them according to the provisions of the present Constitution." (Article IV.) Whence does he derive his power? He is "sacred and inviolable" (Article III.), as he is—says Itō, the framer and commentator of the Constitution—Heaven-descended, divine, and sacred, and, though he indeed has to pay due respect to the law, the law has no power to hold him accountable to it. "The rights of sovereignty of the state," says the emperor himself in the Preamble of the Constitution, "We have inherited from Our Ancestors," who, according to tradition, charged their descendants to reign over and govern the country for eternity. Upon this peculiar Japanese theory of the divine right of the emperor is based the noted Article I. of the Constitution, which merely states in words the principle which has been upheld in history and is universally and enthusiastically supported by the people, that "the empire of Japan shall be reigned over and governed by a line of emperors unbroken for ages eternal." From his sovereign powers it follows that the emperor sanctions laws and orders them to be promulgated and executed (VI.), convokes, opens, closes, and prorogues the imperial diet, and dissolves the house of representatives (VII.), issues imperial ordinances in the place of laws, in case of emergency, even about financial matters, and also administrative ordinances, which shall not alter the existing laws (VIII., XXXI., and IX.), appoints and dismisses civil and military officers (X.), has the supreme command of the army and navy, and determines the organization of their peace standing (XI., XII.), declares war, makes peace, and concludes treaties (XIII.), confers titles of nobility, rank, orders, and other marks of honor (XV.), and orders amnesty, pardon, commutation of punishments and rehabilitation (XVI.), and no amendment of the provisions of the Constitution shall be attempted by the diet except by imperial order (LXXIII.).
It should be remembered that the enumeration of these extensive prerogatives by no means indicates a limitation to the rights of the emperor. Whatever rights he does not name he as sovereign may, in theory, exercise. Yet he is assisted by other institutions, the privy council, the cabinet, and the diet, to which he has made important concessions. While the emperor controls the appointment, dismissal, and payment of officers (X.), determines the organization of the peace standing of the army and navy (XII.), and declares war and makes peace (XIII.), how could he exercise these powers if the consent of the diet, which is required for the expenditure and revenue of the state (LXIV.), were withheld? The diet controls not only the purse, but also legislation, for while it is stated that the emperor exercises the legislative power with the consent of the diet (V.), the residuum of that power vested in him independently of the diet is reduced almost to nil when it is said, in Article XXXI., that every law requires the consent of the imperial diet. He may, indeed, if the diet is not fitting, issue imperial ordinances for emergency, but they lose their legal force as soon as the diet disapproves them at its next session (VII.). As against the article that the emperor convokes, opens, closes, and prorogues the diet, and dissolves the lower house (VII.), stands the provision that the diet shall be convoked annually for three months (XLI. and XLII.). Nor is the emperor's executive power unlimited, for all laws, imperial ordinances and imperial rescripts, that relate to the affairs of the state, require the countersignature of a minister of state (LV.). The share of the emperor is least in the business of the judiciary, the entire judicature being exercised by the courts of law, the procedure and organization of which are determined by law (LVII.). To these and other principles of the Constitution the emperor pledges himself and his descendants, in the wielding of their sovereign rights, always to conform (Preamble). In law, the full sovereignty is vested in the emperor alone, and yet, also in law, the sovereignty is as divided as in the subtle doctrine of the Trinity by his voluntary association with the other great institutions of the state.
Behind these peculiar principles of the Japanese sovereignty should be discerned the intense loyalty of the nation to the reigning house, which during the last few decades has again and again startled the foreign observers who had not comprehended it. It is not possible for us here to discuss how this sentiment has developed, and how the emperor has proved to be the strongest and the only permanent political institution in the past history of Japan. To-day the precise position which he occupies in the organism of the Japanese nation may perhaps be defined as that of the gracious central figure of the social life and the inspiring personification of the profound unity and absorbing ambition of the people. It is not difficult to fancy that, but for the presence in their midst of this commanding institution of the emperor, the national career of the people would end itself abruptly under the pressure of the excessive competitions abroad and untrained, blundering struggles at home.
The new constitutional régime, which began in 1890, has not been without a few interesting incidents illustrative of the political functions of the emperor as an actual organ of the state. One of these incidents follows: In March, 1901, the house of peers had unexpectedly and for the first time rejected a bill, already passed by the other house, for increasing the rates of certain taxes in order to meet necessary expenditures of the state. All efforts of persuasion and mediation miscarried, and the house of peers could not, in law, be dissolved. The deadlock was finally removed by the appearance of an imperial word intimating that the urgent circumstances of the nation made it desirable for the measures of the proposed bill to receive the concurrence of the peers, who now immediately and unanimously passed the bill. Thereupon the opposition in the lower house seized the opportunity to bring forward a resolution censuring the cabinet for having thus necessitated the pronouncement of the imperial word. The speeches of the supporters of the resolution seemed to imply that the cabinet should be held responsible for creating a situation in which the emperor was obliged to resort to a perhaps transconstitutional act on a matter so plainly political, and thus compromise even in the slightest degree his serene dignity, which should stand unsullied and express itself through the normal constitutional channels. The late astute Hoshi, then the house leader of the Liberals, who were supporting the cabinet, quickly seized upon the carefully guarded implications of the opposition, and triumphantly pointed out that the real issue contained in the resolution was the question whether the imperial word was proper or not. He proceeded to say that the Constitution was the manifestation of a part of the full imperial sovereignty, the exercise of which should therefore not be obstructed by the Constitution, and that the imperial word had issued from the emperor through his special sovereign rights, and was proper and legal. No exposure of the opponents' logic could be more ruthless, nor a bolder enunciation of the emperor's "special sovereign rights" could be imagined, than the trenchant argument of Hoshi. It would seem that in this debate both parties conceded that the imperial act was transconstitutional. Seen in this light, the statement made in this connection by Premier Itō to the president of the upper house is highly significant. Although the recent imperial word, said he, should not be regarded as an imperial rescript, as it bore no countersignatures of the ministers of state, it had been issued after a personal conference between the emperor and the premier. The latter was, Marquis Itō went on to declare, responsible for the act of the emperor, for, constitutionally, the premier is held responsible for all the political conduct of the sovereign. Coming from the very framer and commentator of the Constitution, these words may be construed as establishing an important precedent. The emperor is happily relieved of the responsibility for his political conduct, but may he, under extraordinary necessity, resort to a transconstitutional measure at will, or, in other words, may the premier request the emperor to employ such a measure by the simple assumption by the former of the responsibility therefor? The marquis appears to answer the question in the affirmative. The future political development of this point will be a matter of great interest.
The fundamental conception of the Constitution being such as we have described, it would appear as if the political life of Japan must in a large measure depend upon the personal views and inclinations of the emperor, to say nothing of those of his ministers. Such a conception, however, ignores two considerations of utmost importance, namely, that under the new régime are being created regular channels through which the life of the state will more and more habitually run, and that the tradition, whose force has accumulated through the long history of Japan since her foundation as a state, is the spirit of conciliation on the part of the subject and the habit of assuming political impersonality on the part of the supreme ruler. Individual idiosyncrasies of the sovereign will probably prove to be the least important factor of the future political life of the Japanese nation.
Now, passing on to the imperial diet, it is observed that the theoretical view of its legislative capacity is that with its consent the emperor exercises his legislative power (V.), or, in the words of the commentator, that the diet "takes part in legislation, but has no share in the sovereign power; it has power to deliberate upon laws, but none to determine them." This theoretical definition, however, should not be taken as a practical limitation imposed upon the legislative power of the diet, for, it will be remembered, every law of the state must have its consent (XXXIII.), and it may disapprove imperial ordinances issued while it was not in session (VIII.). Over and above its legislative faculty, also, the diet enjoys four important rights: the right to receive petitions directly from the people, the right to put questions to the government and demand explanations, the right to address the throne over the heads of the cabinet ministers, and, the most effective of all, the right to control the management of the finances. It is needless to say that the practical issue of conflict must always lie, not between the diet and the emperor, but between the diet and the government.
The diet consists of two houses, namely, of the peers and of the representatives. The importance of the bicameral system is strongly insisted upon by the commentator of the Constitution. The house of peers is composed of the members of the imperial family and princes and marquises, who sit of their own right; counts, viscounts, and barons, who have been elected by their respective peers; persons who have been specially nominated by the emperor on account of the meritorious services they have rendered to the state or on account of their erudition; and, finally, wealthy persons who have been elected, one member for each city or prefecture, by the people of their own class. All hold their seats for life, except the elected members, whose term is seven years.
It would seem that this upper house was created to serve as a powerful shield of the government. It contains men of wisdom and weight, and is comparatively free from party affiliations. While no financial bill can originate there, the house is above the fear of dissolution, and its actions may be characterized by a greater continuity of policy than those of the other house. "If the house of peers fulfills its functions," writes Marquis Itō in his "Commentaries," "it will serve in a remarkable degree to preserve an equilibrium between political powers, to restrain the undue influence of political parties, to check the evil tendencies of irresponsible discussions, to secure the stability of the Constitution, to be an instrument for maintaining harmony between the governing and the governed, and to permanently sustain the prosperity of the country and the happiness of the people." It was an irony of fate that a dozen years after these words were written their author, at that time the premier, should find in this very organ the most stubborn opposition to his measures that any constitutional cabinet of Japan has ever experienced. The anomaly of the situation consisted in the fact that these measures had already been passed through the lower house, so that the traditionally pro-government peers were now found opposed to the combined front of the cabinet and the representatives. Nothing of the sort could have been imagined by the marquis when he first framed the great document which brought the house of peers into existence. How the deadlock thus caused was removed by a resort to another anomaly has already been described. As to the reasons for the unexpectedly determined opposition of the peers, they will be told in the next chapter.
The house of representatives is made up of persons elected for the term of four years from the electoral districts in accordance with the law of election, which was originally promulgated simultaneously with the Constitution in 1889 and was revised in 1900. The revised law provided that the electoral district should be coextensive with the administrative division, city, or prefecture, and defined the number of members to be elected from each district. Under the earlier arrangement the city or prefecture had been divided into smaller districts, each of which returned one, sometimes two, members. The new larger districts were calculated to do away with some of the evils of sectionalism which had previously been unavoidable. The revised law also separated a certain number of cities from rural districts, to which some of the former had hitherto been connected to form single districts, the change signifying the intention of the law to give the urban population a freer voice in the house than was possible under the old system. The aggregate number of the representatives was also materially increased from 300 to 369, the cities claiming 61 members, instead of less than twenty, as heretofore. Another important feature of the law was the voting by ballot and the provision that each elector should vote for only one candidate, irrespective of the number of members returnable from the same district. The obvious intention was to protect the rights of the elector from the abuses of the political party, whose orderly and organized action was also indirectly encouraged by this measure, and to give a chance to the minorities to be represented. Again, while the property qualifications of the voter and the candidate had been measured by the payment of direct taxes of not less than ten yen by the former and fifteen yen by the latter, the amount was now reduced to ten yen for the elector and altogether removed from the eligible person. The numbers of the electors in the country accordingly rose from some 460,000 to about 800,000. It is curious to note that the original bill of the revised election law introduced by the government was considerably more liberal than the amended and finally passed articles of the lower house. Thus it would appear that the representatives of the people showed themselves reluctant to accept the premium offered by the government whose conservatism they had been wont to attack, but the real situation will be understood only when we come to study in the next section the political maneuvers of the period. We may simply note here in passing that 800,000 electors among the population of more than 46,000,000 cannot be considered adequate, even when allowance is made for the still comparatively untrained political condition of the people. Although an agitation for an enlarged electorate has not yet assumed a definite form, there can be little doubt that progress will be made in this respect in a not distant future.
The house elects its president and vice president, and submits to the imperial decision the names of the three candidates for each position who have received the highest votes for it, of whom the sovereign invariably selects the first. The members then divide themselves into committees, each with an elected chairman, which transact the more important part of the business of the house before it reaches the general session. The seats are decided by lot and without regard to the division of parties. Disorderly scenes on the floor are said to be as rare as specimens of grand oratory. Thrilling incidents are not, however, wanting, particularly when an important interpellation of the government or an address to the throne is under discussion, or on any occasion when the concerted move of a large party is directed by its leaders against the government, or against another party. The sentiment of the house rises to its height when, as in October, 1894, and on March 25, 1904, the partisan spirit is for the moment sunk, opposition to the government is laid aside, and the members, unanimously and enthusiastically, voice the urgent wishes of the entire nation, the latter itself being eminently capable at critical times of standing like one man. The gallery is on such occasions thronged by interested spectators, and the debate and its report arrest the attention of the whole country.
Most of the officers of state, including cabinet members, are eligible for seats in the lower house, but the ministers seldom appear as candidates, and, in one solitary case, when one of them was elected representative, he nearly always absented himself from the house. The cabinet members may, however, voluntarily or on request make their appearance to present the views of the administration on questions under deliberation, and on such occasions they occupy seats assigned for government officials. The presence, in this manner, of the various ministers, as well as premier, is usually a sign of an important, or perhaps exciting, session.
It is unnecessary to say that the representatives are not in theory regarded as delegates from their constituencies, and the local interests have not been found particularly engrossing. As to the practical position which the house occupies in the national life of the people—that is, as to the questions: What are the preponderant interests represented therein, and in what way; what have been the watchwords of the opposition, and how are the party lines drawn; how much has the existence of the house helped or hindered the progress of the nation during the past decade; what have been the effects of the continual struggle between the house and the government on the tactics and discipline of each, and which has shown the higher ability and greater continuity of purpose; and what have been the mutual effects of the action of the house and the more important domestic and foreign problems of the empire—these queries may be only imperfectly answered after the actual political history since the promulgation of the Constitution is thoroughly mastered. The more direct and practical question concerns the relation between the house or the diet in general and the cabinet. Is the latter responsible to the former for its political conduct?
Perhaps nothing in the fundamental law of Japan can be of greater interest and importance than the question just stated, all the more so because the text of the Constitution and Marquis Itō's "Commentaries" on it, as well as his public utterances, seem, when closely examined, significantly to leave much room for future development. Nor are the eight changes of the cabinet which have taken place since the birth of the diet all of a character to decide this momentous question. "The respective ministers of state," says Article LV. of the Constitution, "shall give their advice to the emperor, and be responsible for it." What the last clause signifies is by no means made perfectly clear by the commentator, who says: "He alone can dismiss a minister, who has appointed him.... The appointment and dismissal of them [i. e., the 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. But the diet may put questions to the ministers and demand open answers from them before the public, and it may also present addresses to the sovereign setting forth its opinions. Moreover, although the emperor reserves to himself in the Constitution the right of appointing his ministers at his pleasure, in making an appointment, the susceptibilities of the public mind must also be taken into consideration. This may be regarded as an indirect method of controlling the responsibility of ministers. Thus, in the Constitution the following conclusions have been arrived at:
"First, that the ministers of state are charged with the duty of giving advice to the emperor, which is their proper function, and that they are not held responsible on his behalf; second, that ministers are directly responsible to the emperor and indirectly to the people; third, that it is the sovereign and not the people that can decide as to the responsibility of ministers, because the sovereign possesses the rights of sovereignty of the state; fourth, that the responsibility of ministers is a political one and has no relation to criminal or civil responsibility, nor can it conflict therewith, neither can the one affect the other. Save that all criminal or civil cases must be brought before the ordinary courts of law, and that suits arising out of administrative matters must be brought before a court of administrative litigation, the cases of political responsibility are left to be dealt with by the sovereign as disciplinary measures." The marquis further emphatically repudiates the theory of joint responsibility of the cabinet as a state of things that can never be approved of according to the Japanese Constitution. The argument here again is that the ministers are individually appointed by the sovereign, to whom they are individually responsible for the business of their respective departments, and that for the same reason the minister president, or premier, cannot have control over the post of each minister, nor shall the latter be dependent upon the former. The reader will readily see that the whole line of Itō's argument is consistent with the fundamental theory of the Japanese body politic, that is, the full sovereignty of the emperor. No one can, however, fail to perceive between the lines here quoted a great latitude for the future growth of another theory whose gradual expansion might, imperceptibly, perhaps, but none the less steadily, reduce the political responsibility of the minister to the throne to the position of a mere legal fiction. As has already been intimated, the past changes of the cabinet have not always been directly occasioned by the opposition of the diet, nor has the majority of the opposition in the lower house newly elected after its dissolution always forced the ministers from their chairs. As will be seen in the next chapter, the second Yamagata cabinet (1898-1900) resigned despite its commanding a majority in the diet, and was succeeded by the fourth Itō cabinet (1900-1901), which also retired for reasons quite independent of the conditions of the legislative chambers, where it had the following of an absolute majority of the representatives. On the other hand, nearly all of the eight changes of the cabinet have been caused by difficulties more or less financial in nature, and these are, it will be remembered, under the effective control of the lower house, so that the "indirect" responsibility of the cabinet to the diet already bids fair to become more logical and perhaps less indirect. Moreover, the sovereign has never appointed individual ministers of state at his pleasure, but at the resignation of a cabinet he invariably summons the statesman whose succession to the premiership is the most logical, though not always desired by the latter himself, and leaves to him the task of forming a new cabinet. It would not be too much to suppose that if in the future a cabinet was compelled to resign under the powerful and reasonable opposition of a great popular party in the lower house, the leader of the party would receive the imperial mandate to form a new cabinet. We feel almost safe in predicting that with the growth of an adequate party system, which in Japan is still in its formative stage, the ministerial responsibility to the diet will have become an established usage.
It is interesting to note that Marquis Itō himself remarked, in his address, in February, 1899, to the delegates from the cities, that the English cabinet and party system must be more or less adopted in Japan if a harmonious coöperation were to be secured between the cabinet and the diet, and that the practice of government by party would in no way impair the authority of the throne. The same statesman had an occasion two years later to declare in the lower house, when an already mentioned resolution censuring the cabinet for having caused an imperial word to be pronounced was under discussion, that the passage of a resolution would not shake his position as premier, which he owed to the confidence of his majesty. "If the aim of the resolution is my resignation," exclaimed he, "why do you not propose an address to the throne, instead of a resolution?" These statements made by the same framer of the Constitution at two different occasions may not be interpreted as necessarily contradictory to one another, for, if in 1901, an address had been made to the throne, and if the throne had seemed still to uphold the premier in spite of the diet, it is not impossible to imagine that Itō would have quietly resigned. Weighing his statements side by side, might it not be surmised that in the mind of the veteran statesman the responsibility of the cabinet to the people must be commensurate with the political training of the latter, especially in the form of a well-organized and trained party system? At any rate, it would seem inevitable that the actual state of things under the present régime should move in that direction. As to the state of party politics in Japan, to whose development the marquis himself has made a notable contribution, we shall discuss it at length in the following chapter.
Finally, a reference should be made to the privy council, whose members, twenty-five more or less in number, are appointed by the emperor, in order to deliberate upon important matters of state. The ministers are ex officio privy councilors, but the cabinet is an administrative body, while the privy council is a deliberative one. To the latter is assigned the "task of planning far-sighted schemes of statecraft and of effectuating new enactments, by leisurely meditation and calm reflection, by thorough investigation into ancient and modern history, and by consulting scientific principles" according to Itō's "Commentaries." The councilors, therefore, must be men above party and of wide experience and knowledge, and so conservative and impartial as to be "the palladium of the Constitution and the law." Its opinions are not given publicity, but when they are embodied in an imperial ordinance, the latter states the fact in its preamble. The emperor in theory may accept or reject at will the recommendations of the council, but in practice has in no case overridden them, nor even shown his personal preferences.
Those who are at all familiar with the political conditions of Japan cannot fail to see through this institution of the privy council a group of men who have in a large measure molded the destiny of new Japan. They are collectively termed Genrō, or Elder Statesmen, and include those who were prominent about the time of the revolution of 1868, and also those who have since rendered eminent services to the state. At one time they numbered among them the great Katsu, the most heroic and dramatic figure of the revolution and the most sage-like statesman of modern Japan. Marquis Itō now stands head and shoulders above the rest of the veteran statesmen, and beside him are found Field Marshal Yamagata, Count Matsukata, and others of equal note. It is highly significant that the Constitution has created an institution by means of which those very men whose wisdom and energy have tended to make Japan what she is were attracted together around the person of the emperor. The ship of the state is piloted by their far-sighted loyalty and patriotism, and the influence these statesmen exercise over the fundamental policy of the empire cannot easily be overestimated. The latest example of this influence was the advice of the council to the throne to instruct the peace envoys at Portsmouth to make large concessions in order successfully to conclude a treaty with Russia. These concessions, which made the restoration of peace possible, were radically opposed to the wishes of the majority of the people, but were boldly counseled by the Elder Statesmen regardless of personal consequences upon themselves. Neither the diet nor the political parties could, however, effectively assail the position of the council as such, for it was no executive institution, but a purely deliberative organ closely in touch with the throne. When the treaty was signed by the envoys, the council approved it and the emperor ratified it, despite a great popular demonstration for its rejection.