THE CONSTITUTION THE CROWN AND THE HOUSES OF PARLIAMENT
A Constitution, if we are to accept
the dogmatic assertions of those who have written
with a show of learning on the subject, ought to be
evolved rather than established by any parliamentary
or despotic act. The history of the world certainly
tends to prove that paper Constitutions have not been
over-successful in the past. There assuredly
has been no lack of them in the last century or so,
and although some, if not all, of them have been practically
tried, a very few have attained any considerable measure
of success. The English Constitution has long
been held up to the rest of the world by writers on
Constitutional history as a model of what a Constitution
ought to be, for the somewhat paradoxical reason that
it is nowhere clearly, if indeed at all, defined.
It is largely the outcome of custom and usage, and
it is claimed for it that on the whole it has worked
better than any cut-and-dried paper Constitution would
have done.
Nevertheless there does not appear
to be any good and valid reason why a Constitution
should not be as clearly defined as an Act of Parliament.
Undefined Constitutions have worked well at certain
periods when there was a tacit general consent as to
their meaning, but they have not always been able
to withstand the strain of fierce controversy and
the coming into existence of factors which were undreamt
of when these Constitutions were originally evolved,
and definitions or additions or amendments thereto
have, accordingly, become necessary.
The promulgation of a Constitution
for Japan in February, 1889, was an event of great
interest to the civilised world. There were, of
course, at the time a large number of persons who
prophesied that this Constitution would go the way
of many others that had preceded it that
it would, in fact, be found unworkable and, being so
found, Constitutional Government in Japan would eventuate,
as it had elsewhere, in the resumption of autocratic
rule as the only alternative to anarchy. It is
pleasing to be able to record that these prophecies
have, after nearly eighteen years’ experience,
not been fulfilled, and that the Japanese Constitution,
well thought out and devised as it was, seems not
only likely to endure but is admirably adapted to
all the circumstances and needs of the country.
In order to fully comprehend the events
that gradually led up to the establishment of Constitutional
government in Japan, and the precise place of the
Crown and aristocracy in that government, it is, I
think, essential to make a rapid review of past events
in that country.
In ancient times the Mikado was both
the civil ruler and the military leader of his people.
Under him there were exercising authority throughout
the land about 150 feudal lords. Feudalism of
one kind or another prevailed in Japan until 1868.
Towards the end of the sixteenth century the feudal
principle was apparently on the decline. In the
year 1600, however, Tokagawa Iyoyasu, with an army
composed of the clans of the east and north defeated
the combined forces of those of the west and south
at the battle of Sakigahara and proclaimed himself
Shogun. The feudal lords of the various clans
throughout the country then became his vassals and
paid homage to him. The Tokagawa family practically
governed the country till the Revolution of 1868,
when the present Emperor took the reins of government
into his own hands and finally abolished feudalism
and with it the authority of the Daïmios.
Many persons even now believe that the Shogun, or Tycoon
as he was usually called in Europe, was a usurper.
As a matter of fact he received investiture from the
Mikado, and his authority was, nominally at any rate,
a derived one. At the same time there is no doubt
that the real power of the State was in his hands
while the de jure ruler lived in the capital
in complete seclusion surrounded by all the appanages
and ceremonial of royalty.
Up to the year 1868 Japan was divided
into numerous provinces governed by Daïmios,
or territorial lords, each of whom maintained large
standing armies. They were all subject to the
Shogun, while retaining the right to rule their particular
provinces in ordinary matters. In 1868 the Shogun
fell, and there can be little doubt his fall was to
some extent brought about by the concessions which
had been made to foreign Powers in regard to the opening
of the country to foreign trade. In 1868 the
Shogun repaired to Kyoto, the first time for 250 years,
and paid homage to the Mikado. Feudalism was then,
as I have said, abolished, the Emperor took the reins
of authority into his own hands, formed a central
Government at Tokio and reigned supreme as an absolute
monarch.
“The sacred throne was established
at the time when the heavens and earth became separated.”
This has long been an axiom of Japanese belief, but
it has been somewhat modified of late years, even the
assertion of it by the Sovereign himself. A leading
Japanese statesman who has written an article on the
subject of the Emperor and his place in the Constitution
has asserted that he is “Heaven descended, sacred
and divine.” I do not think that the modern
Japanese entertains this transcendental opinion nor,
indeed, do I find that the Emperor himself has of
late years put forward any such pretensions. For
example, in the Imperial proclamation on the Constitution
of the Empire on February 11, 1889, the Emperor declared
that he had “by virtue of the glories of our
ancestors ascended the Throne of a lineal succession
unbroken for ages eternal.” Whereas
in the Imperial Rescript declaring war against China
on August 1, 1894, he contented himself with asserting
that he was “seated on a Throne occupied by the
same dynasty from time immemorial.”
The italics are mine, and the difference in the pretensions
which I desire to emphasise is certainly remarkable.
When granting a Constitution the Emperor,
as has been and probably will be the custom of all
monarchs so acting, declared that the legislative
power belonged to him but that he intended to exercise
it with the consent of the Imperial Diet. The
convocation of the Diet belongs exclusively to the
Emperor. It has no power to meet without his
authority, and if it did so meet its acts and its actions
would be null and void. In this respect the Diet
is on precisely the same basis as the English Parliament.
According to the Constitution the Emperor, when the
Diet is not sitting, can issue Imperial ordinances
which shall have the effect of law so long as they
do not contravene any existing law. The article
authorising these ordinances defines that they shall
only be promulgated in consequence of an urgent necessity
to maintain public safety or to avert public calamities,
and all such ordinances must be laid before the Diet
at its next sitting, and in the event of the same
not being approved they become null and void.
To my mind, one of the most interesting
portions of the Constitution is that which lays down
succinctly and tersely the rights and duties of Japanese
subjects. In this section there are contained
within about fifty lines the declaration of innumerable
rights for which mankind in various parts of the world
during many hundreds of years fought and bled and
endured much suffering. Just let me mention a
few of them. No Japanese subject shall be arrested,
detained, tried or punished unless according to law.
Except as provided by law the house of no Japanese
subject shall be entered or searched without his consent.
Except in the cases provided by law, the secrecy of
the letters of every Japanese subject shall remain
inviolate. The right of property of every Japanese
subject shall remain inviolate. Japanese subjects
shall enjoy freedom of religious belief. Japanese
subjects shall enjoy liberty of speech, writing, publication,
public meetings and associations. Japanese subjects
may present petitions. We have in these few brief
provisoes the sum total of everything that, in effect,
constitutes the liberty of the subject.
The Diet of Japan, like the Parliament
of Great Britain, consists of two Houses a
House of Peers and a House of Representatives.
The House of Peers is composed of (1) the members
of the Imperial family, (2) Princes and Marquises,
(3) Counts, Viscounts and Barons who are elected thereto
by the members of their respective orders, (4) persons
who have been specially nominated by the Emperor on
account of meritorious service or by reason of their
erudition, (5) persons who have been elected, one
member for each city and prefecture of the Empire,
by and from among the taxpayers of the highest amount
of direct national taxes on land, industry, or trade,
and who had subsequently received the approval of
the Emperor. It will be seen that the members
of the Imperial family, the Princes and Marquises,
have an inalienable right to sit in the House of Peers,
the latter rank on attaining the age of 25 years.
In regard to Counts, Viscounts, and Barons there is
no such right. Those ranks, like the Peers of
Scotland and Ireland, meet together and select one-fifth
of their number to represent them in the House of
Peers for a term of seven years. Any subject
over thirty years of age nominated by the Emperor
for meritorious service or erudition remains a life
member. Those returned by the cities and prefectures
remain members for a period of seven years. It
is provided by the Constitution that the number of
members of the House of Peers who are not nobles shall
not exceed the number of the members bearing a title
of nobility.
The question of the necessity for
the existence of a second chamber and the composition
thereof has been keenly debated in this and other
countries of recent years. It seems to me that
in this matter Japan has hit upon the happy mean.
She has combined in her House of Peers the aristocratic
or hereditary element in a modified degree with the
principle of life membership by which she secures the
services and counsel of the great intellects of the
land, and such as have done the State good service
in any capacity. At the same time she has not
excluded the representative element from her second
chamber a fact which must largely obviate
any possibility of the House of Peers becoming a purely
class body. A second chamber so constituted must
obviously serve an extremely useful purpose in preserving
an equilibrium between political parties, in preventing
the rushing through and passing into law of hastily
considered measures. For the composition of her
second chamber, Japan has taken all human means possible
to obtain whatever is representative of the stability,
the intellect, the enterprise and the patriotism of
the country.
The composition of the House of Representatives,
which answers to our House of Commons, is as interesting
as that of the Upper Chamber. When the Constitution
was first promulgated the principle of small electoral
districts obtained, one member being elected for each
district. This system was found or believed to
be faulty, and hence, after some years’ experience,
large electoral districts combined with a single vote
have been instituted. It may be interesting to
relate that both systems, the large and the small
districts, were drafted by an Englishman, Mr. Thomas
Hair. Cities whose population exceeds 30,000
are formed into separate electoral districts while
a city with less than 30,000 inhabitants is, with
its suburbs, constituted a district. The number
of members allowed to each district depends on the
population. For a population of 130,000 or under
one member is allowed, and for every additional 65,000
persons above the former number an additional member
is allotted. The number of members in the House
of Representatives is 381, or little over half that
of which our House of Commons consists. The population
of the two countries is almost identical, and experience
serves to show that the number of Members of Parliament
in Japan is sufficiently numerous for all practical
purposes and that any material addition thereto would
be more likely to impede than to accelerate the wheels
of legislative progress. Neither the Japanese
Constitution nor the Electoral Law makes any provision
for the representation of minorities, that aim of
so many well-meaning persons in different countries.
In Japan the majority rules as everywhere, and minorities
must submit.
Manhood suffrage is not yet a fait
accompli in Japan. Under the present law
to qualify a Japanese subject to exercise the franchise
he must pay 15 yen (about 30s.) or more, indirect
taxation. Only a Japanese subject can vote at
elections. No foreigner has any electoral rights,
but if he becomes a naturalised Japanese subject he
obtains all the privileges appertaining to that position.
Each House of Parliament in Japan
possesses a president and vice-president, who are
elected by the members. The president of each
House receives an annual allowance of 4,000 yen (about
L400) and the vice-president 2,000 yen (about L200).
The payment of Members of Parliament is in vogue in
Japan. The elected and nominated, but not the
hereditary, members of the House of Peers, and each
member of the House of Representatives, receives an
annual allowance of 800 yen (about L80). They
are also paid travelling expenses in accordance with
the regulations on the subject. It may be interesting
to state that there is a clause in the Constitution
which enacts that the president, vice-president, and
members of the two Houses who are entitled to annual
allowances shall not be permitted to decline the same!
It says much for the estimate of patriotism entertained
in Japan when the Constitution was promulgated that
such a clause as this should have been considered
necessary.
Debate in both the Japanese Houses
of Parliament is free and the proceedings public.
There will be no occasion for the uprising of a Wilkes
in Japan to obtain permission to publish Parliamentary
Debates. The Constitution, however, contains
a proviso for the sitting of either House with closed
doors upon the wish of the president or of not less
than ten members, the same being agreed to by the House,
or upon the demand of the Government with or without
the consent of the House. When in the former
event a motion for a secret sitting is made, strangers
have to withdraw from the House and the motion is voted
on without debate. The proceedings of a secret
meeting of either Chamber are not allowed to be published.
The Japanese Constitution, which is
certainly a document containing not only provisions
of an epoch-making nature but most elaborate details
in regard to even minor matters, includes in seven
or eight lines one or two excellent rules in regard
to what is termed “The Passing of the Budget.”
Under these rules, when the Budget is introduced into
the House of Representatives the Committee thereon
must finish the examination of it within fifteen days
and report thereon to the House, while no motion for
any amendment in the Budget can be made the subject
of debate unless it is supported by at least thirty
members.
The Constitution of Japan, as I have
remarked, contains a vast amount of detail. The
framers of that Constitution seem to have been endowed
with an abnormal amount of prevision. In fact
they foresaw the possibility of occurrences and made
provision for those occurrences that nations which
are, or which consider themselves to be, more highly
civilised have not yet taken any adequate steps to
deal with. For example, Article 92 of the Constitution
enacts that in neither House of Parliament shall the
use of coarse language or personalities be allowed,
while Article 93 declares that when any member has
been vilified or insulted either in the House or in
a meeting of a Committee he shall appeal to the House
and demand that proper measures shall be taken.
There shall, it is decreed, be no retaliation among
members. The Constitution also contains several
salutary regulations in reference to the disciplinary
punishment of members.
The establishment of a Parliament
in Japan has produced parties and a party system.
I suppose that was inevitable. In every country
there is, and as human nature is constituted there
always will be, two parties representative of two
phases of the human mind: the party in a hurry
to effect progress because it deems progress desirable,
and the party that desires to cling as long as possible
to the ancient ways because it knows them and has
had experience of them and looks askance at experiments experiments
for which that somewhat hackneyed phrase a “leap
in the dark” has long done service. I have
no intention, as I said in the Preface, of dealing
at all with Japanese politics. There is no doubt
a good deal of heat, and the resultant friction, evoked
in connection with politics in Japan as elsewhere.
Perhaps this young nation that is, young
from a parliamentary point of view takes
politics too seriously. Time will remedy that
defect, if it be a defect. At the same time,
I may express the opinion that, however severe party
strife may be in Japan, and though the knocks given
and received in the course thereof are hard and some
of the language not only vigorous but violent, the
members of all parties have at heart and as their
objective point the advancement of Japan and the good
of the country generally.
The Japanese Constitution, though
not a very lengthy, is such an all-embracing document
that in a hurried survey of it, it is possible to
overlook many important features. It provides
for the establishment of a Privy Council to deliberate
upon important matters of State, but only when consulted
by the Emperor. It enforces the responsibility
of the Ministers of State for all advice given to
the Emperor and decrees that all laws, Imperial ordinances
and Imperial rescripts of any kind relating to affairs
of State, must be countersigned by a Minister of State.
The Constitution also defines the position, authority,
and independence of the judges. That Constitution
contains a proviso all-important in reference to the
upright administration of the law, a proviso which
it took years of agitation to obtain in this country,
that no judge shall be deprived of his position unless
by way of criminal sentence or disciplinary punishment.
All trials and judgments of the court of law are to
be conducted publicly. Provision is made, when
there exists any fear of a trial in open court being
prejudicial to peace and order or to the maintenance
of public morality, for the same to be held in camera.
I may add, before I take leave of the Constitution,
with a view of showing how all-embracing as I have
said are the various matters dealt with therein, that
it defines and declares that the style of address
for the Emperor and Empress shall be His, Her, or
Your Majesty, while that for the Imperial Princes and
Princesses shall be His, Her, Their, or Your Highness
or Highnesses.
In regard to no matter connected with
Japan have I found so large an amount of misconception
prevalent as in reference to the position of the Emperor
of that country. The divine descent which is still
sometimes claimed for the sovereigns of Japan and which
has never, so far as I know, been officially repudiated,
has caused some persons to regard the Emperor from
a somewhat ludicrous standpoint. In this very
prosaic and materialistic age, when very few persons
have profound beliefs on any subject, the spectacle
of one of the sovereigns of the earth still claiming
a divine origin is one that appeals to the ludicrous
susceptibilities of that vague entity “the man
in the street.” It is not well, however,
that people should criticise statements in royal proclamations
or in royal assertions too seriously. Even in
this country there are documents issued from time
to time bearing the royal sign manual which every one
regards as interesting but meaningless formalities interesting
because they are a survival of mediaeval documents
which meant something some hundreds of years ago and
still remain though their meanings have long since
lapsed. And yet there are persons in this country
who peruse such documents and know that they are simply
words signifying practically nothing, who severely
criticise the assertion of a long-used title by the
Japanese Emperor upon issuing a royal proclamation.
I am not aware whether his Imperial Majesty or his
Ministers of State implicitly accept his divine descent,
but this I do know that those persons who
regard the present Emperor of Japan as a State puppet,
arrogating more or less divine attributes, are labouring
under a profound delusion. There is no abler
man in Japan at the present moment. There is no
abler man among the sovereigns of the world. In
fact, I should be inclined to place the Emperor of
Japan at the head of the world’s great statesmen.
He is no monarch content to reign but not to govern,
concerned simply about ceremonial and the fripperies
and gew-gaws of royalty. He is a constitutional
sovereign certainly. He has always shown the
deepest respect for the Constitution ever since its
promulgation, and never in the slightest degree attempted
to infringe or override any portion of it. At
the same time he is an effective force in the Government
of Japan. There is nothing too great or too little
in the Empire or in the relations of the Empire with
foreign Powers for his ken. He, in a word, has
the whole reins of government in his hands, and he
exercises over every department and detail of it a
minute and rigid supervision which is, in my opinion,
largely responsible for the efficiency of the internal
administration of the country as also for the place
that Japan holds among the Great Powers of the world.
I cannot leave a consideration of
this subject without referring to the assistance rendered
to the Emperor by, as also to the debt Japan owes
to, some six or seven great men in that country whose
names I shall not inscribe here because to do so would
be to some extent invidious, several of whom do not,
as a matter of fact, hold any formal position in the
Government of the country. The wisdom of these
men has been a great boon for such a country as Japan,
and if she is not now as sensible of it as she ought
to be future ages will, I feel sure, recognise the
debt that Japan owes to them. Some persons with
an intimate knowledge of Japan have told me that it
is not, after all, a constitutional State but in effect,
though not in name, an oligarchy. This word has
in the past often had unpleasant associations, and
one does not like to apply it in reference to the
Government of a progressive and enlightened country.
Still the word strictly means government by a small
body of men, and if in those men is included the larger
part of the wisdom of the country, and they exercise
their power solely and exclusively for the benefit
of the country, I am not certain that such a form
of government is not the best that could be devised.
Of course, humanity being as it is, an oligarchy, has
its dangers and its temptations. I will say,
however, of the wise men of Japan, the men to whom
I have been referring and who whether in office or
out of office have exercised, and must continue to
exercise, a marked and predominant influence on the
government of the country, that their patriotism has
never been called in question, and no one has at any
time suggested that they were influenced by self-seeking
or other unworthy motives, or had any aspirations
save the material and moral advancement of Japan and
her elevation to a prominent position among the Great
Powers of the world.