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CHAPTER ONE

The Emperor

Article I: The Empire of Japan shall be ruled over by Emperors of the dynasty, which has reigned in an unbroken line of descent for ages past.

This article sets forth two fundamental principles of the Japanese Constitution; they are not at all new, but have been in force since times immemorial. They are pronounced in such a strict manner as to exclude for the future even such modifications of the old system of government as have taken place in past times, but have already been abolished since the late restoration.

1 The Japanese Empire shall remain an Imperial Monarchy, so that any other form of government, and especially the republican government, can never be made the law of Japan. The monarchical government has been established in Japan without any interruption for more than 2500 years; in fact, the Japanese Monarchy is the oldest and firmest of the world, and it must therefore be assumed that the monarchical government is the one which is exclusively suitable to the country and congenial to the national character. Consequently, no republican government and no republican institutions can ever be lawfully introduced into Japan; the government and the institutions of the country shall remain forever purely monarchical.

2 The Empire shall be reigned over and governed by the Emperor. This confirms not only the abolition, as effected by the late restoration of the Imperial government, of any divisional power of government, as it has been exercised in old Japan by the territorial princes (Daimyōs) or by a military commander (Shōgun). It confirms also the entire unity and concentration of the monarchical power in the person of the Emperor. It has been said by a modern French politician (Mr. Thiers) that the King reigns, but does not govern. According to this opinion, the monarch would enjoy the honors of royalty and might also exercise a certain sanctioning power over the parliament, but the governmental or executive power would be a separate ministerial power, independent of the monarch and not responsible to him. Such a division of the monarchical power cannot be admitted in Japan. In this country the monarchical power is entirely vested in the sovereign. Although the sovereign cannot personally perform functions of public officials, yet these functions constitute no separate and independent power in the state; and especially there shall not be in Japan a separate ministerial power, but the ministers perform their functions subject to the supreme decision of the Emperor and are responsible to him.

Article II: The succession to the throne shall devolve upon male descendants of the Imperial House, according to the provisions of the Imperial House Law.

In this article two important principles are established:

1 the Japanese monarchy is hereditary; and

2 the line of succession to the Imperial Throne is determined by the Imperial House Law.

The first principle is so deeply rooted in the immemorial history of Japan that it needs neither explanation nor justification; it pronounces only the old and never disputed law of the country. In some countries, as in the old German Empire, the Monarch was elected by the princes, the electors of the Empire; in other countries, as in modern France, the principle is set forth that the right of the Monarch to the throne should, in order to be legitimate, be confirmed by the vote of the people at large, a so called 'plebiscite'. But no elective or plebiscitary vote is admitted in Japan for legalizing the accession to the throne. The right of accession is simply and entirely hereditary; he is the legitimate Monarch who lawfully succeeds his predecessor. Nor is any other condition required for the exercise of his hereditary right. In Belgium the King cannot take possession of the throne unless he has previously taken a solemn oath before the Chambers, to maintain the constitution, the laws and the national independence. In Prussia, a similar oath is prescribed by the constitution, not as a condition for the exercise of the hereditary right of accession, but for the validity of his governmental acts. Consequently in Prussia and some other German states—but not in Austria, where that oath is likewise required by the Constitution—the Monarch is legally prevented from exercising any governmental acts until he has taken the said constitutional oath. No such condition is contained in the Japanese constitution, because there appears no sufficient reason to modify in any way the hereditary right to the throne. Only it would be advisable to make the fact of accession public to the people by a solemn proclamation, as it is also an international custom to notify the fact to other sovereigns or republics. A solemn coronation of the new Monarch is in most countries, excepting in Hungaria, a mere facultative and immaterial formality.

The line of succession is in some countries, as in Bavaria and Belgium, specially determined by the constitution; in others, as in Prussia, more generally. In Austria it is not determined by the constitution, but by the House laws (testaments, family compacts and other acts). Likewise in Japan it shall be determined by the Imperial House Law. The House Law is a real and binding law of the country; but it is not enacted in virtue of the legislative power of the Monarch, but of this family power, which is likewise a sovereign power and can be freely and irresponsibly exercised by the Monarch, with the sole condition of respecting the existing rights—or obtaining the consent—of the members of the reigning family. The House Law may generally determine the legal condition of the said members, but especially their right and the order of succession. A right of succession has every member of the reigning family, subject to the conditions established by the House Law, as namely the acknowledged and lawful descendance [sic] from the first ancestor, by legitimate marriage and the like. The order or line of succession is generally determined by the degree of relationship with the last bearer of the crown. In the European monarchies the agnatic line of primogeniture is prevailing; that is to say: 1) the male members are preferred to the female members, and the male lines to the female lines, and 2) the first born and his line is preferred to the later born and his line. A line comprehends all the descendants of a certain member. Thus it appears that the right and order of succession to the Throne is by the House Law differently determined from the private succession of subjects according to the civil law.

The following table [see facing page] shows the line of succession according to the agnatic line of primogeniture; ○ being male and ∆ female members. If one of the line at the time of accession should be dead, then the next following him would have to accede; and no one can accede unless previously all his predecessors have died away.

In the system of absolute government there is no exact distinction of House Laws and other laws because all emanate indiscriminately from the Sovereign; likewise that distinction can not well be observed in those countries, as for instance in England, where the parliament is acknowledged to have power of disposing of the throne, contrary to the hereditary line of succession, although that line of succession may generally be respected, and also of regulating the condition of the members of the reigning family. But in a constitutional monarchy, where no deviation from pure monarchical principles shall be admitted, that distinction becomes highly important, as then the constitutional restriction of the legislative power of the Sovereign refers only to ordinary laws, which regulate the rights and duties of the common subjects, and not to the House laws, which regulate the privileged condition of the members of the reigning family. The power of making house laws is a privilege of autonomy—self-legislation—belonging to the high nobility, and which is exercised in sovereign houses by the Sovereign, who in virtue of his sovereignty has full legislation and jurisdiction over the members of His House. Some writers entertain the opinion that the order of succession should be determined by the constitution because it affects the state. This opinion would devolve a right of disposal of the throne on the people and its representatives which is contrary to monarchical principles and might even be exercised by the Parliament alone without the sanction of the Sovereign, as has been the case in England. Such a right is therefore practically a revolutionary right. Although the order of succession affects the state, yet it is no legislative matter because it does not directly determine the rights or duties of the subjects. It is truly a public interest that a certain lawful succession to the throne should be settled, but the order of succession itself is a mere family affair because it determines only the rights of the members of the reigning family, which are according to monarchical principles independent of any concurrent disposition on the part of the people. This is proved by the fact that a House Law neither requires a formal promulgation like other laws, nor the fulfilment of other constitutional conditions, as for instance the signature of the ministers of state. Although in the latter point there exists no uniform practice, yet the ministerial signature cannot be said to be a generally adopted rule of law. Also the advice of a Family Council or of a Privy Council may be prescribed by the House Law itself, or it may be requested by the will of the Emperor. The consent of the agnatic members of the reigning family would be required in so far as their existing rights, especially of succession, of property, are concerned.

In case the Imperial family should at any time become entirely extinct, the succession to the throne would pass over to that person who for such case were providently designed by the House Law. Should the then existing House Law contain no provision to that effect, the last holder of the throne would be entitled to nominate his successor either by adoption, or testament or another legal act. Such act would doubtless be lawful and binding, as it would form an additional part of the House Law and in deficiency of any other member of the Imperial Family the power of making the House Law and especially of settling the succession to the throne would appear concentrated in the person of the last holder thereof alone. The opinion that for such an extraordinary succession to the throne the consent of the national representation would be required, and that in default of such consent the succession might be settled by the people or their representatives themselves—as has been expressed by some writers and for Prussia by Rönne—does not seem approvable, from two important reasons: 1) because no part of the House Law, and no modification thereof, requires the consent of the national representation, as is expressly provided for in this constitution, and 2) because according to pure monarchical principles no right of disposal of the throne by the people can be admitted. The said consent of the national representation is only required if it is so provided for by the constitution, as is the case in Belgium.

Article III: The person of the Emperor is sacred and inviolable.

This article defines the sovereign rights of the Monarch with regard to His person. It rests upon the notion of the divine nature and origin of the supreme power which is testified by the Christian as well as by every other religious belief and is only denied by philosophical freethinkers. It is an express rule of the Christian faith that submission is due to the supreme power because it is instituted by God himself. The Emperor holds His power from Heaven through the medium of His glorious ancestors, but not from any human authorization or concession; consequently He cannot be held responsible to His subjects, but to Heaven alone.

This article is found in most European constitutions. In the Belgian Constitution the person of the King is declared inviolable, but the declaration of his sacredness has been omitted, probably on account of that constitution declaring all powers of the state to emanate from the people, and the King being entitled only to the exercise of the special powers expressly conceded to him. Thus there is in the Belgian Constitution a mixture of monarchical and democratic principles which is quite inadmissible in Japan.

In a more legal sense, the Emperor is declared sacred because He is the most exalted person in the Empire, invested with a power of divine nature the reflection of which on His august person must be acknowledged by the laws of the country. Any offense therefore committed against His person is an aggravated offense to be repressed by a higher punishment than similar offenses committed against subjects. Any attentate against His person is to be punished as high treason, and most other offenses against Him are to be punished as crimes. It consequently does not conform with true constitutional principles if in the existing penal code of Japan offenses against the Emperor are simply assimilated to offenses against a father, as the relations between a father and his children are only of a private nature and do not reach the exalted position of the Monarch over His subjects. It is to be observed that even in Belgium these legal consequences of the personal sacredness of the King, though not expressed in the constitution, are nevertheless recognized in the penal code.