Читать книгу Hermann Roesler and the Making of the Meiji State - Johannes Siemes - Страница 13

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. The sovereignty of the monarch is the original and highest power that encompasses and founds all public power in the state. The monarch determines all operations of the state and gives validity and authority to them. The Meiji Constitution expresses this monarchical principle in Article 4.

The monarchical principle denies the liberal theory of the division of powers. 'In Germany and Austria the system of the division of powers has not been adopted, though the unity of sovereignty is maintained, but its exercise restricted according to constitutional principles. This system is also recognized by the Japanese Constitution' (see Text of the Commentaries, p. 152). The division of powers is considered as a destruction of the fundamental unity of the state power as it reduces that unity to a mere compromise of the per se isolated powers. It is thought to lead to strife among the isolated powers in the state and finally to the tyrannizing of one over the others. The division of powers can rationally be maintained only as regards the exercise of state power, that is, in the close organization of the various functions of the state. 'Divided powers can turn out as tyrannical as undivided ones . . . remedy against tyranny cannot be found in the division of powers, but in a sound and reasonable organization of the exercise thereof.' (Text, p. 66)

Consistent with the monarchical principle, Article 5 defines the constitutional organization of the legislative power: 'The Emperor exercises the legislative power with the consent of the Imperial Diet.' The article purposely avoids the formula of the Prussian Constitution (Art. 62): 'The legislative power is exercised in common by the King and the Chambers' as this is derogatory to the supreme legislative power of the monarch. The article implies the distinction between the legislative power as such and its exercise, and by this intends to vindicate the legislative power to the monarch, but at the same time to provide an opening for popular representation in the making of the laws. The explanation of how the sovereign's right to make laws involves by its very nature the participation of the people in this lawmaking, constitutes the decisive element in the entire theory of constitutional monarchism and is the base upon which Roesler's interpretation of Article 5 rests: Laws, as they are the highest form of order in the state, must be in accord with the general conscience of right and wrong of the nation. Here we perceive the influence of the historical school of jurisprudence (Savigny) declaring that all law is rooted in the spirit of the nation (Volksgeist). The monarch, therefore, cannot lay down the law arbitrarily; he must in making the laws take into account the thought and feeling of the people, and this is done by making the content of the law dependent upon the consent of the people.

Rules of law, repugnant to national views or feelings, as being deemed detrimental, unjust or in any way objectionable, would if enforced notwithstanding, hurt the national liberty and sense of justice and well-being. Such rules, according to constitutional principles, shall not be enacted by the Sovereign Power. The practical effect of this principle is that the Emperor, in the deliberation of rules of law, is served and assisted by the national intelligence and wishes at large, instead of by His governmental advisers only. (Text, p. 69)

In justification of the sovereignty of the Emperor, the commentary presents only the historical fact of centuries-long undisputed monarchical dynastic rule. 'The Japanese monarchy is the oldest and firmest of the world and it must therefore be assumed that the monarchical government is the one that is exclusively suited to the country.'

In contrast to Roesler's purely historical justification, Itō and Inoue held an essentially mystical foundation of the imperial rule, that is the kokutai ideology. The imperial rule was to them a divine and eternal institution. It was in this sense that they understood the first article of the constitution: this was intended by them as a summary of the kokutai ideology. In the Preamble and especially in the Imperial Oath at the promulgation of the constitution—both composed by Inoue Kowashi—this ideology is fully revealed. It is viewed in the light of its full historical context, an essentially mythological ideology concerning the foundation of the socio-political order (although Inoue, who was by nature a rationalist and inclined to Confucian political concepts, stripped the official expression of the kokutai idea of nearly all concrete elements of the Shintoistic myth.) The imperial ancestors and their instructions according to which the Emperors rule are not meant in these official pronouncements in a merely human sense, but rather as belonging to the eternal, cosmic order. The imperial throne is said to be coeternal with heaven and earth (tenjō mukyū).¹⁹ The Itō commentary bases the imperial rule upon this ideology.

Roesler had opposed the mythological wording of the first article.²⁰ That he could dare to oppose the official state dogma attests to the great authority he enjoyed. In his own draft of the constitution, the first article says "Japan is an hereditary monarchy forever indivisible.' In the commentary he simply ignores the mythological interpretation of the first article. He tries to bring out its strict juridical content: since there exists in Japan an hereditary monarchy from immemorial times, the monarchical sovereignty cannot be divided and abolished.

As to the ultimate legal foundation of hereditary monarchy, Roesler seems to have held the view of enlightened traditionalism: kingship is not immediately instituted by God; an hereditary monarchy which for generations has functioned for the good of the people must, however, be considered as an institution sanctioned by God, since its abolition would mean the destruction of the fundamental public order. It is presumed that the socio-political order created by such an institution remains basically and generally sound and beneficial, even if individual kings misuse their authority. It is further presumed that no merely human intellect could invent another form of government which could conserve the good brought about by the traditional monarchical order. Therefore the monarchical institution cannot be rightfully abolished, as long, that is, as the assumed conditions exist.

In the commentary to Article 3 Roesler speaks of the 'divine nature and origin of the supreme power which is testified by the Christian as well as by every other religion and is only denied by free-thinkers,' and he derives from this the sacredness of the monarch. Here Roesler evidently gives no more than the general Christian interpretation of the foundation of the authority of governments and does not imply any immediate institution of monarchy by God. The Christian doctrine is brought in here as a gentle correction of the mythological kokutai ideology on which the Itō commentary bases the sacred rule of the Emperor. Itō and Inoue could not be quite satisfied with Roesler's explanation of the Japanese monarchy, and this, I believe, is the main reason why Roesler's commentary never was published.

Roesler's commentary contains nothing which speaks directly for or against the so-called organ theory of sovereignty which later became the object of the famous controversy in Japanese constitutional law. In reality, however, by denying the divine descent of the imperial family, it leaves no room for the theory of identity of the state and the imperial power. In fact in his German work on the constitution of the German Empire, Roesler defends the organ theory of sovereignty. 'The sovereignty of the state lies primarily with the state or the nation, but it incorporates itself everywhere in special institutions by which it comes to an orderly execution. Even in monarchies the monarch could not be sovereign if sovereignty would not dwell in the state he governs. The difference between the sovereign and mere officials is that he has the governing power by his own right, they by commission only.'²¹ The first Japanese proponents of the organ theory, Ichiki Kitokurō and Ariga Nagao,²² were, more or less closely, connected with Roesler, and it may well be by his influence that they perceived that sovereignty could be construed in a rational way without recourse to a mystical theory.

In the following, I wish to point out especially those considerations in his Commentaries which throw light on his sociological constitutional theory.

The first chapter of the constitution, laying down in Article 4 the fundamental monarchical principle, enumerates the several sovereign rights of the Emperor. It intends to clarify the whole extent of the supreme right and, by doing so, to prevent any doubt in regard to it or any attempt to weaken it. From the beginning of the constitutional deliberations, Roesler had advocated the explicit formulation of these sovereign rights, and the articles, as they 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 was right to identify himself with the will of this elite. He probably thought that from the new nobility of the Meiji state a circle of leaders would arise on whom the throne could rely in the future. So he did not think of any provision in the constitution to safeguard the throne against the possibility of coming under the domination of irresponsible power cliques. That was however what really happened: the generation of the Genrō died out, and no circle of advisers of an equal political ability succeeded them. In the thirties the Throne fell under the domination of the ambitious and fanatical military who led Japan in the adventure of the China conquest and the debacle of the Pacific War.

In this connection a word on the Privy Council is necessary. It was a creation of Itō. Roesler feared that it would obscure the position of the ministers as the responsible advisers of the Emperor. Acquiescing to the will of Itō, he drafted the Law of the Privy Council with a view to minimizing its function. His commentary on it is singularly brief. (Text, pp. 200-2) That the head of the Privy Council should later play a political role in advising the Emperor in the selection of the prime minister was outside his intentions.

However strongly the Meiji Constitution asserts the imperial power, it limits this power constitutionally. In Roesler's opinion, the Meiji Constitution meets fully the requirement of a constitutional government inspired by the principle of personal freedom. Roesler speaks in his Commentaries frequently and unambiguously of the restrictions to the imperial power. The Itō commentary does not use the word 'restrictions', but in fact fully recognizes them. Roesler summarizes the restrictions under five categories:

1) every law, the annual budget and other important financial measures require the consent of the Diet, 2) every act of the executive power of the sovereign requires the advice and signature of a minister of state, 3) the judicature shall be exercised by independent courts of law according to law only, 4) the respective domains of the legislative, executive and judicial powers are to be constitutionally fixed as much as possible, 5) in all governmental affairs, the Diet can receive petitions, make addresses to the Emperor or representations to the government, and put questions to or demand explanations from the same. (Text, pp. 152-3)

These are indeed very substantial restrictions. Seeing these restrictions, one wonders how anybody can speak of 'sham constitutionalism' or the 'absolutism' of the Meiji Constitution.

The basic constitutional right was for Roesler the right of Parliament to consent to law and taxes. The most interesting debate in the deliberations of the Privy Council on the draft constitution was on this right of consent. There were voices which found it inappropriate to make the legislative power of the Emperor subject to the approval of the people. They wished to substitute for consent a kind of concurrence without the strict right of deciding issue. It was a memorandum of Roesler, especially drawn up for the occasion and defending the right of proper consent, which enabled Itō to overcome the resistance of the traditionalists in this point.²³

Roesler's whole discussion on the rights and duties of the subjects rests on the principle that they have to be determined by law. He had, from the beginning, taken the position that the rights of the citizens should be expressly stated in the constitution, that without that the constitution would be essentially deficient. Contrarily, Inoue's first draft mentions the rights of the citizens only in the preamble of the constitution. Very significantly, doubts were raised from conservative circles in the Privy Council whether a Japanese subject, standing in a relation of absolute loyalty to the Emperor, could have a strict right against the state. Itō's and Inoue's answers in this debate show that Roesler's doctrine on this point was not lost on them: they were convinced that these rights were essential to modern freedom.²⁴ Most Japanese constitutionalists hold that the civil right articles of the Meiji Constitution do not mean rights which belong to a person independently of the state, but only rights given by the Emperor. Furthermore they assert that the limiting clauses of these articles subject them to the arbitrary interference of the state and devoid them of practical effect.

Roesler's Commentaries reveal a very different interpretation of these articles. He calls these articles a 'declaration of rights'. (Text, p. 116) There is not the slightest suggestion that these rights are only given by the state and, therefore, in principle at least, also revocable by the state. According to Roesler's philosophy of law, they are not dependent on the state but inherent rights anteceding the state and only finally recognized in the constitution.

His commentary on civil rights is based on his conception of 'social freedom'. This freedom is not an inalienable attribute of the pure essence of man, but rooted in the historical state of the social cultural development of men. It is the prerequisite of that universal cooperation by which the cultural development of modern society is accomplished. In this conception, freedom is internally bound up with man's destination for cultural values and saved from the individualistic distortion of the natural law proponents of the 18th century. This destination of freedom circumscribes its internal limits, the 'social limits' of freedom, as Roesler says. Those social limits, he insists, have to be made explicit by law. So the constitutional guaranty of the civil rights of freedom essentially requires the determination of these freedoms by laws which circumscribe the proper sphere of freedom. This is the meaning of the clauses 'within the limits of law and order' attached to the articles of civil rights. They determine the sphere of freedom outside which freedom loses its meaning. Roesler insists, whenever he speaks of these limits of freedom, that they have to be formulated by law, that is, by a resolution of the representative body of the people, and not by mere ordinances. It is to be noticed that the explanation of liberty and law in the Itō Commentaries is based on the same conception: 'Liberty exists solely in a community in which order prevails.' His commentary on the freedom of discussion (Art. 29) is a good example of his social interpretation of freedom.

Very characteristically, his social conception of freedom manifests itself in the commentary on freedom of property. (Text, pp. 135-8) He treats of the right of property from a broad social view we do not usually find in a juridical commentary and shows himself aware that the freedom of property is the foundation of the whole bourgeois liberal system. He joins the freedom of property to the social obligations of property. The right of property is not unlimited, the public good creates limits to it, and on this account the system of property has to be determined by law. By the Civil Code a fundamental regulation of the system of property is introduced, but the Civil Code does not lay down all necessary regulations of the system of property. From this point of view, he discusses expropriation and other restrictions of property. (Text, pp. 137-8) I do not know of any constitutionalist, treating, at that time, of the right of property, who insists as much as Roesler on the social limitations of that right.

The diet was, according to Roesler, the effective organ of upholding the liberty of the people. From the fact that the right of the Diet was limited to consenting to laws and the budget and that it had no legal power to enforce a parliamentary government, it does not follow that it had in his conception no very real political power. History has shown that the parliamentary system tended to the establishment of parliamentary government. It is not clear how far Roesler foresaw this development. In any case, he says: 'The Diet has a great share in that restrictive system' (of constitutional government). (Text, p. 153) In the draft constitution, presented to the deliberations of the Privy Council, the right of the Diet to initiate bills was not contained. It was on Roesler's recommendation that this right was finally given to the Diet.²⁵

The two-chamber system Roesler considered essential for a sound working of parliament. He urged constantly that the House of Representatives should be elected by direct universal suffrage. (In his own draft of the constitution only those who have no independent means of living are excluded from the right of voting). He was very much opposed to indirect election and the census system which, in imitation of the Prussian system, were recommended by Gneist and his disciple Albert Mosse.²⁶ Universal suffrage was for Roesler a necessary counterbalance against the preponderance of the acquisitive class in the bourgeois state. He finds the election system introduced by the Law of Election determined by rather restrictive principles (Text, p. 160) and hopes for its liberalization. His whole commentary on the election system is in fact a polemic against Gneist's position and shows how far he was away from being reactionary.

On the other hand, he was a real conservative in holding that besides a representative body, elected on the principle of majority, another body, representing the groups more intimately connected with the state, was necessary. His commentary on Articles 33 and 34 presents the classical argumentation of conservatism for an upper house.

The existence of an upper branch . . . acts as a bulwark for the Crown and the State with regard to the superior interests of national integrity and civilization, against the vulgar and imprudent tendencies of the great masses of the people.

The members of the House of Peers have not the quality of representatives of the people like the members of the other House. If they represent anything, they represent the state in its past achievements and permanent conditions of welfare. The essential character of an upper house, besides the distinguished individuality of its members, is conservative and of considerable stability. The members are not to oppose progress itself, but immature, precipitate actions and experimental progress.

His considerations on the composition of the House of Peers is governed by a sociological interest. He says for instance:

The members nominated on account of their wealth represent the vast interests and the peculiar importance of private property as a social and political institution; property, being one of the great columns of the State edifice and of the universal foundations of individual life, and deserving a superior consideration in all governmental aspects, is thus admitted to a proportional share of honor and weight in the supreme national council.

The independence of the judicature was guaranteed in the Meiji Constitution by the provision that its whole organization and exercise is exclusively determined by law. On the insistence of Roesler, it went beyond most of the constitutions of that time by establishing also an administrative court. Roesler was a pronounced proponent of administrative judicature. In two truly outstanding studies he had substantially contributed to a clearer understanding and more adequate theory of that institution, at that time coming into its own.²⁷ The Law of the Administrative Court follows—except for one essential point we will speak of presently—his draft, which adopted in essence the Austrian system. His commentary on Article 61 gives a succinct summation of the arguments for an administrative judicature, separated from the ordinary law courts. (Text, pp. 215-17) It is found substantially identical in the Itō Commentaries too. He opposes however the extension of the administrative court to a universal control of the state actions. (Text, p. 216) Roesler inserts in his Commentaries a very severe criticism of the Prussian Law of 1883 concerning the general organization of administration, because it omits the general principle for determining the competency of administrative courts. (Text, p. 217) This criticism was directed at the same time against the existing Japanese Law of the Administrative Court which in this regard followed the Prussian law. In his own draft of the Japanese law he had laid down very clearly the general principle that every infringement of rights by an administrative measure could be brought before the administrative court. This article was left out from the promulgated law. It follows the proposals of his rival Albert Mosse, who limited the competency of the court to certain matters enumerated in the law.²⁸

The unique budget legislation of the Meiji Constitution is based entirely on Roesler's proposals and testifies as no other articles to his very earnest endeavor to reconcile a basic constitutional principle with the necessity for a government not to be at the mercy of Parliament. The respective Articles, 64, 67 and 71, can be understood only from the experience of the so-called Prussian Conflict of 1862—65, on which the Commentaries recapitulate the salient point. (Text, p. 225) It was a grave disturbance of the constitutional order which threatened the very foundations of the Rechtsstaat in Prussia. For Roesler with his pronounced idea of the order of law, it was one of the most important objects of the constitution to preclude the rise of a lawless state in a conflict between government and parliament on budget matters. The Prussian Constitution provided no legal solution for such a conflict. Bismarck spoke of a lack in the constitution which the government could fill up at its own will. For Roesler, the articles of the constitution had to establish an undisputable legal base on which a solution could be found. He maintains that the consent of the Diet to the budget is indispensable for a constitutional government. (Text, p. 226) The budget right of the parliament, however, cannot be unlimited. If the Parliament could reject any provision of the budget estimate whatever, it could obstruct the whole conduct of government so that the State would be unable to fulfill its obligatory task. It could destroy the existing order of law by witholding the means of its execution. The budget, however, is—and that is the theoretical kernel of the argument—not a law by which the existing order of law as such can be altered, but from its nature an administrative disposition on the financial conduct of government within the limits of the existing legal order. The existing legal order, therefore, represents the limit to the extent of the budget right of parliament. What is financially necessary for the carrying out of this order, is always valid budget (Art. 67 and 71). But expenses for any new government measure always require the consent of the Diet.

Very interesting are Roesler's remarks on the right of review of cabinet ordinances by the courts, which form the very last remarks of his Commentaries. (Text, pp. 251-2) He concedes that the courts can pronounce the incompatibility of ordinances with existing law. In a memorandum, he had pointed out that, if this right was to be denied to the courts, it would have been expressly so put in the constitution, and in his own draft of the constitution he says: 'Courts and administrative authorities have no right to examine the validity of laws and ordinances which have been promulgated in the orderly way.' His reservation against the review right of the courts springs from his conviction that juridical supremacy was not the ready remedy of legal abuses, but that the legislative and the executive had each to keep the boundaries of the constitution.