program is contained in three documents written by his mentor, Inoue Kowashi,10 who was in fact the inspiration of Iwakura's program. These documents are truly remarkable for their clear grasp and adequate formulation of all essentials of a constitutional system according to the monarchical principle. Inoue's teacher was Roesler: Inoue had his expert knowledge from Roesler's memoranda, as a comparison between them and Inoue's writings shows.11 The cardinal point of Roesler's memoranda is his incisive analysis of the English system of parliamentary government. He characterizes this system as the absorption of state power by the rule of the majority party, in which the cabinet is an executive committee of the party and the monarch excluded from any real governing.
From 1881 on, Roesler was continuously and intimately connected with the preparation of the constitution and the buildup of a state system in line with the projected constitution. He became a close collaborator of Itō Hirobumi, who was entrusted with the task of preparing the constitution. Many writers stress the influence of the German scholars Rudolph von Gneist and Lorenz von Stein, from whom Itō received instructions on constitutional matters during his study journey to Europe in 1882 and 1883. But Roesler's influence on Itō's constitutional ideas was much more fundamental. All that Itō received from Gneist and Stein was in the nature of deepening and confirming the ideas which he had already formed under the influence of Roesler. Certain ideas of Gneist and Stein, especially on the relative independence of the administrative power from the legislative, are indeed realized in the Meiji Constitution. But those were ideas which were approved and constantly urged by Roesler. Roesler alone had an immediate share in the preparations of the constitution, which were carried on in strict secrecy during the years 1884 to 1888 and which were chiefly in the hands of Inoue Kowashi. An immense labor went into the preparation of the constitution. Every point of the draft was most thoroughly studied and discussed. Roesler's advice was sought on every single point. Seventy-five memoranda of his which are directly concerned with the draft of the constitution are preserved in Japanese translation. Every one of them is written with great care and ability. Generally they give an entire historical and systematic conspectus of the question under discussion, presenting extensive material as substantiation. They testify to his immense legal knowledge and his considered political judgement. There were in the course of years several drafts of the constitution successively worked out. Roesler submitted one of his own. Comparing the successive drafts, it is very interesting to note how closely the final draft approximates Roesler's proposal. In fact, the promulgated constitution follows, with only one essential exception—the bansei ikkei,12 'by aline of Emperors unbroken for ages eternal' of Article 1—in its material content and to a great extent in the formulation and order of the articles, Roesler's proposal.13
I do not want to give the impression that the constitution is Roesler's work alone. The circle around Iwakura had decided on a monarchical constitution before it sought Roesler's advice. Inoue had already translated the Prussian Constitution in 1874 and had a good knowledge of European constitutional law. He displayed his own ideas in the framing of the constitution, always kept the lead in the deliberations, and gave the constitution its definitive form. Nevertheless, Roesler's contribution was fundamental and was much more than merely submitting reference material for the deliberations and assisting technically in the formulation of the articles. What the fathers of the constitution owe to Roesler was the deeper understanding of its basic principles, the working out of the ground scheme, the insight into the rationale of the particular articles, the shaping of the elements into an integrated constitutional system, and, finally, the precise formulation of the articles. Above all, the Meiji Constitution owes to Roesler its most distinctive feature, the synthesis of the imperial authority and the rights of the people: that is to say, in consistently carrying through the principle of sovereignty of the Emperor into all functions of government it leaves intact the fundamental principles of a liberal constitution, i. e., government according to laws consented to by the people.
Footnotes
6 三条実美, 岩倉具視, 伊藤博文, 山県有朋
7 Monumenta Nipponica, 1962, XVII 2ff.
8 Hermann Roesler, Gedanken über den konstitutionellen Wert der deutschen Reichsverfassung, Rostock, 1877, pp. 25-6: 'In der parlamentarischen Regierung liegt diejenige Fülle, Macht und Lebensfähigkeit der politischen Aktion eines Staates, welche aus der wirklichen Einheit zwischen dem Souverain und der Nation entspringt.'
9 See Chapter IV, p.52.
10 井上毅
11 See Suzuki, 'Hermann Roesler,' Monumenta Nipponica, IV, 443-453.
12 万世一系
13 See the juxtaposition of Roesler's draft and the promulgated constitution in Suzuki, 'Hermann Roesler.' Monumenta Nipponica, 1942, 349-382.
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