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,