Japan by the Japanese/Chapter 3

In our country the relations between Sovereign and subject were established at the time that the State was first founded. The unity of political powers was weakened, during the middle ages, by a succession of civil commotions. Since the Restoration (A.D. 1868), however, the Imperial power has grown strong and vigorous, and the Emperor has been pleased to issue decrees proclaiming the grand policy of instituting a constitutional form of government, which it is hoped will give precision to the rights and duties of subjects, and gradually promote their well-being, by securing unity to the sovereign powers of the Head of the State, by opening a wider field of activity for serving (the Emperor), and by prescribing, with the assistance of the Minister of State and the advice of the Diet, the whole mode of the working of the machinery of State in a due and proper manner. All this is in strict accordance with the spirit of noble achievements bequeathed by the Imperial ancestors, and all that is proposed to do now is to open the way for the ultimate accomplishment of the object originally entertained by the said Imperial ancestors.

The Sacred Throne of Japan is inherited from Imperial ancestors, and it is bequeathed to posterity; in it resides the power to reign over and govern the State. That express provisions concerning the sovereign power are specially mentioned in the articles of the Constitution in no wise implies that any newly-settled opinion thereon is set forth by the Constitution; on the contrary, the original national policy is by no means changed by it, but is more strongly confirmed than ever.

1. Since the time of the First Imperial Ancestor the county has not been free from occasional checks in its prosperity nor from frequent disturbances of its tranquillity; but the splendour of the Sacred Throne transmitted through an unbroken line of one and the same dynasty has always remained as immutable as that of the heavens and of the earth. At the outset this article states the great principle of the Constitution of the country, and declares that the Empire of Japan shall to the end of time identify itself with the Imperial dynasty unbroken in lineage, and that the principle has never changed in the past, and will never change in the future, even to all eternity. It is intended thus to make clear for ever the relations that shall exist between the Emperor and his subjects. By ‘reigned over and governed’ it is meant that the Emperor on his Throne combines in himself the sovereignty of the State and the government of the country and of his subjects.

2. As to the succession to the Throne, there have been plain instructions since the time of the First Imperial Ancestor. In obedience to these instructions, the Throne has been transmitted to the sons and grandsons of the Emperors, and this rule shall remain immutable for all ages. As regards the order of succession, minute provisions have been already made in the Imperial House Law, lately determined by His Imperial Majesty. This law will be regarded as the family law of the Imperial House. That these provisions are not expressed in the Constitution shows that no interference of the subject shall ever be tolerated regarding them. By ‘Imperial male descendants’ is meant the male offspring in the male line of the Imperial succession. The present clause and Article I. of the Imperial House Law are explanatory the one of the other.

3. ‘The Sacred Throne was established at the time when the heavens and the earth became separated’ (Kojiki). The Emperor is Heaven-descended, divine and sacred; he is pre-eminent above all his subjects. He must be reverenced and is inviolable. He has indeed to pay respect to the law, but the law has no power to hold him accountable to it. Not only shall there be no irreverence for the Emperor’s person, but he shall not be made a topic of derogatory comment nor one of discussion.

4. The sovereign power of reigning over and governing ​the State is inherited by the Emperor from his ancestors, and by him bequeathed to his posterity. All the different legislative as well as executive powers of State, by means of which he reigns over the country and governs the people, are united in this most exalted personage, who thus holds in his hands, as it were, all the ramifying threads of the political life of the country. His Imperial Majesty has himself determined a Constitution, and has made it a fundamental law to be observed both by the Sovereign and by the people. He has, further, made it clear that every provision in the said Constitution shall be conformed to without failure or negligence.

His Imperial Majesty has taken this step out of the high veneration in which he holds his Heaven-bestowed functions, and with a view to the completion of a permanent system of government in harmony with the march of national progress. The combination of all the governmental powers of the State in one person is the essential characteristic of sovereignty, and the carrying of those powers into effect in accordance with the provisions of the Constitution denotes the exercise of sovereignty. When the essential characteristics of sovereignty exist without its exercise in the manner just stated, the tendency will be towards despotism. When, on the other hand, there is such exercise of sovereignty without its essential characteristics, the tendency will be towards irregularities and supineness.

5. The legislative power belongs to the sovereign power of the Emperor; but this power shall always be exercised with the consent of the Diet. The Emperor shall cause the Cabinet to make drafts of laws, or the Diet may initiate projects of laws; and after the concurrence of both Houses of the Diet has been obtained thereto, the Emperor will give them his sanction, and then such drafts or projects shall become law. Thus, the Emperor is not only the centre of the executive, but is also the source and fountain-head of the legislative power.

6. The sanction of a law, the causing of the same to be promulgated in a proper form, and the ordering of the taking of measures for the execution of the same—all these belong to the sovereign power of the Emperor. Sanction completes the process of legislation, while promulgation produces binding force upon the subjects. If the power of sanction belongs to him, it is scarcely necessary to remark that, as a consequence, he also possesses the power to refuse his sanction. Sanction is a manifestation of the sovereign powers of the Emperor in matters of legislation. Consequently, without the sanction of the Emperor no project can become law, even if it has received the consent of the Diet.

7. The convocation of the Diet appertains exclusively to the sovereign power of the Emperor. Hence, the ​Constitution does not recognise a Diet which assembles of its own accord without summons, and the deliberations of no such Diet shall be allowed to possess any efficacy.

8. When the country is threatened with danger, or when the nation is visited with famine, plague, or other calamity, every necessary and possible measure must be taken for the maintenance of the public safety, for the prevention of such calamities, and for the relief of distress thereby caused. Should an emergency of the kind happen to arise while the Diet is not sitting, the Government will have to take upon itself the responsibility of issuing Imperial ordinances in the place of laws, and shall leave nothing undone that may be required in the juncture; for such action is imperatively demanded for the defence and safe-guarding of the country. It will be seen that Article 5, providing that the exercise of the legislative power requires the consent of the Diet, regards ordinary cases; while the provisions of the present article, authorizing the issuing of Imperial ordinances in the place of laws, refers to exceptional cases in times of emergency. This power mentioned in the present article is called the ‘power of issuing emergence ordinances.’ Its legality is recognised by the Constitution, but at the same time abuse of it is strictly guarded against. Thus, the Constitution limits the use of this power to the cases of urgent necessity for the maintenance of public safety and for the averting of public calamities, and prohibits its abuse on the ordinary plea of protecting the public interests and of promoting public welfare. Consequently, in issuing an emergency ordinance, it shall be made the rule to declare that such ordinance has been issued in accordance with the provisions of the present article; for should the Government make use of this power as a pretext for avoiding the public deliberations of the Diet, or for destroying any existing law, the provisions of the Constitution would become dead letters having no significance whatever, and would be far from serving as a bulwark for the protecting of the people. The right of control over this special power has, therefore, been given to the Diet by the present article, making it necessary, after due examination thereof at a subsequent date, to obtain its approbation to an emergence ordinance.

9. The present article treats of the sovereign power of the Emperor as to administrative ordinances. A law requires the consent of the Diet, while an ordinance holds good solely by the decision of the Emperor. There are two occasions for the issuing of an ordinance: the first is when it is required to regulate measures and details for the carrying out of any particular law; the second when it is required to meet the necessity of maintaining the public peace and order, and of ​promoting the welfare of the subjects. All these matters may, without having been passed through the regular course of legislation, form the subjects of legal enactments, having binding effect upon the people at large by virtue of the executive power of the Emperor. As a binding effect upon the people, there should not be the slightest difference between a law and an ordinance, save that a law can make alterations in any of the existing ordinances, whereas no ordinance can alter any of the existing laws. In case of a conflict between law and ordinance, the law will always have the preponderance over the ordinance.

The power of issuing ordinances is in all cases a consequence of the sovereign power of the Emperor. Those that received the personal decision of the Emperor and his sign-manual are called ‘Imperial ordinances.’ The issuing of Cabinet or departmental ordinances is to be regarded as an exercise of the sovereign power delegated by the Emperor. The wording of the present article—to wit, ‘the Emperor issues or caused to be issued’—is intended to cover the above two different instances for the issuing of ordinances.

Emergency ordinances mentioned in the preceding article may take the place of law; but the administrative ordinances mentioned in the preceding article shall take effect within the limits of law, and although they can supply the deficiency of law, yet they shall have no power to either alter any law or to regulate those matters for which a law is required by the express provision of the Constitution. Administrative ordinances are to be made use of under ordinary circumstances, while the aim of emergency ordinances is to meet the requirements of a time of exigency.

10. The Emperor, in accordance with the requirements for the national existence, establishes the offices in the different branches of the Administration, fixes the proper organization and functions of each of them, and exercises the sovereign power of appointing men of talent for civil and military posts, and of dismissing holders of such posts. When the establishment of the different offices and the creation of official positions pertain to the prerogative of the Sovereign, the said prerogative is necessarily accompanied by the power to give salaries and pensions.

11. The supreme authority in military and naval affairs is vested in the Most Exalted Personage, and those affairs are subject to the commands issued by the Emperor.

12. The organization and the peace standing of the army and navy are determined by the Emperor. It is true that this power is exercised with the advice of responsible Ministers of State; still, like the Imperial military command, it nevertheless belongs to the sovereign power of the Emperor, ​and no interference in it by the Diet should be allowed. The power of determining the organization of the army and navy, when minutely examined, embraces the organization of military divisions and of fleets, and all matters relating to military districts and subdistricts, to the storing up and distribution of arms, to the education of military and of naval men, to inspections, to discipline, to modes of salutes, to styles of uniforms, to guards, to fortifications, to naval defences, to naval ports, and to preparations for military and naval expeditions. The determining of the peace standing includes also the fixing of the number of men to be recruited each year.

13. Declarations of war, conclusions of peace and of treaties with foreign countries, are the exclusive rights of the Sovereign, concerning which no consent of the Diet is required. For, in the first place, it is desirable that a monarch should manifest the unity of the sovereign power that represents the State in its intercourse with foreign powers; and, in the second, in war and treaty matters, promptness in forming plans according to the nature of the crisis is of paramount importance. By ‘treaties’ is meant treaties of peace and friendship, of commerce and of alliance.

14. A state of siege is to be declared at the time of a foreign war or of a domestic insurrection, for the purpose of placing all ordinary law in abeyance, and of entrusting part of the administrative and judicial powers to military measures. It is expressly provided that the conditions requisite for the declaration of a state of siege and the effect of the declaration shall be determined by law, and that in pursuance of the provisions thereof it appertains exclusively to the sovereign power of the Emperor, under stress of circumstances, to declare or to revoke a state of siege. By ‘conditions’ is meant the nature of the crisis when a state of siege is to be declared, the necessary limits as to territorial extent affected, and rules needful for making the declaration. By ‘effect’ is meant the limit of the power called into force as the result of the declaration of a state of siege.

The exercise of the right of warfare in the field, or of the declaration of a state of siege, as the exigency of circumstances may require, may be entrusted to the commanding officer of the place, who is allowed to take the actual steps his discretion dictates, and then to report to the Government. This is to be regarded as a delegation of the sovereign power of the Emperor to a General in command of an army, in order to meet the stress of emergencies, according to the provisions of the law (Notification No. 36, issued in the 15th year of Meiji, A.D. 1882).

15. The Emperor is the fountain of honour. It belongs to the sovereign power of the Emperor to reward merit, to require services, to mark distinguished conduct and praiseworthy ​undertakings, and to confer conspicuous titular distinctions, other marks of honour, and special favours. And no subject is allowed to usurp and trifle with this prerogative of the Emperor.

16. The State gives equal and impartial protection to the rights of the subjects, in accordance with the principles of justice and reason, by establishing courts of law and by appointing officers of justice. But the law is not comprehensive or precise enough to meet the various and complicated requirements of human life; and when, as it frequently happens, there are palliating circumstances in the case of an offence against the law, it is to be apprehended that no ordinary process of the legislature or of the judicature will be adequate to supply the deficiency of the law. Consequently, it is intended that the right of pardon may be exercised by the special beneficent power of the Emperor, to give relief where there is no hope of it to be looked for from the law, so that there shall not be one subject ever suffering under an undeserved punishment.

‘Amnesty’ is to be granted, in a special case, as an exceptional favour, and is intended for the pardoning of a certain class of offences. ‘Pardon’ is granted to an individual offender to release him from the penalty he has incurred. ‘Commutation’ is the lessening of the severity of the penalties already pronounced in the sentence. ‘Rehabilitation’ is the restoration of public rights that have been forfeited.

In the thirteen articles from Article 4 to Article 16 the sovereign powers of the Head of the State are enumerated. These sovereign powers are operative in every direction, unless restricted by the express provisions of the Constitution, just as the light of the sun shines everywhere, unless it is shut out by a screen. So these sovereign powers do not depend for their existence upon the enumeration of them in successive clauses. In the Constitution is given a general outline of the sovereign powers; and as to the particulars touching them, only the essential points are stated, in order to give a general idea of what they are. The right of coining money, for example, and that of fixing weights and measures, are not enumerated; still, the very absence of any mention of them shows that they are included in the sovereign power of the Emperor.

17. A Regent shall exercise the sovereign powers of the Emperor. Except as to title, he is in every respect like the Emperor, and carries on the government in the name of the Emperor. The only restriction upon his power is that mentioned in Article 75 of the present Constitution. ‘In the name of the Emperor’ means in the place of the Emperor; that is, a Regent issues his orders in the place of the Emperor.

The institution of a Regent is fixed by the Imperial House Law; but as the exercise of the sovereign powers by a Regent ​is connected with the Constitution, the provisions relating to the said exercise of sovereign powers are mentioned in the Constitution, while those relating to the institution of a Regent are contained in the Imperial House Law. The question whether it is, or is not, advisable to institute a Regent under any particular circumstances shall be decided by the Imperial Family, and the matter lies in a region that admits of no interference of the subjects. The extraordinary cases, in which the Emperor is incapable of personally taking the reins of power, are of very rare occurrence; still, those rare cases not infrequently give rise to national commotions. In the Constitution of a certain country it is provided that both Houses of Parliament shall be convened and asked to vote upon the necessity of instituting a Regent. But such a practice is open to the objection that, as the decision of a matter of great importance to the Imperial Family is thus delegated to the will of the majority of the people, there would be a tendency to bring about degradation of Imperial dignity. It is for the purpose of respecting the character of the national policy of the country, and of guarding against the opening of a way to such a tendency, that the dispositions touching the institution of a Regency mentioned in the present article have been left to the determination of the Imperial House Law, and that no further provision is made in the present Constitution on the subject.

18. The expression ‘Japanese subject’ is here used to distinguish a Japanese from a foreign subject or citizen. Every Japanese subject shall be entitled to possess public as well as civil legal rights. It is consequently necessary to settle by law the conditions for being a Japanese subject. There are two ways by which an individual can be a Japanese subject: one is by birth, the other by naturalization, or by other effect of law.

The status of subjects shall be settled by a special law. But care has been taken to state this fact in the Constitution because the status of subjects or citizens is necessary for the enjoyment of civil rights in whole and of public rights. It will be seen that the provisions of the said special law are framed on the authority of the Constitution, and that such provisions are essentially related to the rights and duties of subjects as mentioned in the Constitution.

Public rights are the right of electing, that of being elected, that of being appointed to office, and so forth. In every country it is the common rule of public law that public rights shall be determined by the Constitution or by special law, and that they shall be enjoyed solely by native subjects or citizens, to the ​exclusion of aliens. But as regards the enjoyment of civil rights, the custom of making a rigid distinction between native subjects and aliens is now a matter of history. At present there is a tendency in almost every country to enable aliens to enjoy, with one or two exceptions, civil rights equally with natives.

19. At the present time, appointment to a military or civil post, or to any other public function, is not regulated by consideration of family. This must be regarded as one of the splendid results of the Restoration. The Constitution now guarantees by the present article that neither nobility nor degree of rank shall any longer be allowed to militate against the equality of all men in regard to appointment to office. Still, the proper qualifications established by law or ordinance,—such as, for example, proper age, payment of taxes, the passing of examinations—shall be the required conditions for appointment to an office or to any post of public trust.

As it is stated that ‘Japanese subjects may be appointed to civil or military or any other public offices equally,’ it follows that this right is not extended to aliens, unless by provisions of a special enactment.

20. Japanese subjects form one of the elements that make up the Japanese Empire. They are to protect the existence, the independence, and the glory of the country … every male subject throughout the land on reaching his twentieth year is entered upon the army and navy rolls, though the number actually called upon to serve each year is determined by the organization of the standing army and navy. Those between their seventeenth and fortieth years of age are all enlisted into the militia, and are liable at any time to be called out, upon the breaking forth of war. Such is the outline of the existing conscription law as it is now carried out. The object of the present article is that every male adult in the whole country shall be compelled, without distinction of class or family, to fulfil, in accordance with the provisions of law, his duty of serving in the army, that he may be incited to valour while his body undergoes physical training, and that in this way the martial spirit of the country shall be maintained and secured from decline.

21. The payment of taxes, like military service, is one of the duties of subjects, as it meets one of the necessities for the common existence of the nation. A tax is the contributive share of each subject in the public expenditures of the State. It is neither benevolence paid in response to exaction, nor a remuneration for certain favours which have been received upon a mutual understanding.

22. The liberty of abode and of changing the same is ​guaranteed. Every Japanese subject is now free to fix his residence permanently or temporarily, to hire dwelling-places, or to engage in business at any place within the boundaries of the empire. That it is provided in the Constitution that this liberty can be restricted by law alone, and that it shall be put beyond the reach of administrative measures, shows how highly the said liberty is estimated.

23. Personal liberty is guaranteed. Arrest, confinement, and trial can be carried out only under cases mentioned in the law, and according to the rules mentioned therein; and no ill conduct whatever can be punished but in accordance with the express provisions of law…. Any police or prison official, arresting or imprisoning anyone, or treating him harshly, otherwise than in accordance with the law, is liable to heavier punishment for so doing than would be a private individual (Criminal Code, Articles 278, 279, and 280. As to the process of trial, no case shall be brought before a police official, but before some judicial authority; defence shall also be permitted, and trial shall be conducted openly. Any judicial or police authority that resorts to violence in order to extort confession of crime from an accused shall be liable to specially severe punishment (Criminal Code, Article 282). Punishments that are not in accordance with the express provisions of the law shall have no effect (Code of Criminal Procedure, Article 410; Criminal Code, Article 2). Such is the extreme thoroughness of care taken for the protection of subjects. The present article insures against the revival of obsolete usages, and places personal liberty on a safe and stable basis.

24. There is also a necessary provision for the protection of individual rights. The Judges established by law shall deal impartially between litigating parties, free from the restraints of power; and every subject shall be able to contend in a court of law with the high and mighty, and, giving his version of the case, defend against prosecuting officials. The Constitution, therefore, does not suffer encroachment upon the judicial power nor denial of the right of individuals, by the establishment of any extraordinary tribunal or commission, other than by the competent court fixed by law.

25. The inviolable nature of dwellings is guaranteed. A house is a place in which subjects reside in security, and not only are private persons forbidden to enter the abodes of other people, without the consent of its occupants, but also any police, judicial, or revenue official, who, in connection with either a civil or a criminal case or with an administrative measure, shall enter the house of a private individual, or make a search therein, otherwise than in cases specified by ​law and in accordance with the provisions contained therein, will be regarded as guilty of an illegal act, and shall be liable to be dealt with according to the Criminal Code (Criminal Code, Articles 171 and 172).

26. The secrecy of letters is one of the benefits conferred by modern civilization. In the present article it is accordingly guaranteed that violation of the secrecy of letters, either by opening or by destroying them, will not be tolerated, except in matters of criminal investigation, or in times of war or of emergency, or in cases specified by express provisions of law.

27. In this article assurance is given of the security of the right of property. The right of property is under the powers of the State. It ought, therefore, to be subordinated to the restrictions of the law. It is indeed inviolable, but it is not unrestricted. For instance, certain kinds of buildings are prohibited within a certain distance of the boundary-line encircling a castle or a fortification, and no indemnity is due for such prohibition; minerals in the earth are under the control of the mining laws; forests are managed by regulations framed in accordance with the requirements of dendrological economy; the planting of trees within a certain distance from a railway-line is prohibited; and wells are not to be dug within a certain distance from a cemetery. These are illustrations of the restrictions that are put upon the right of property; and they will be sufficient to show that the property of individuals, like their persons, is under an obligation of obedience to the State. The right of property is one that falls within the domain of private law, and is not in conflict with the supreme right of governing the country, which belongs to the sphere of public law…. When it is necessitated by public benefit, private individuals may be compelled molens volens to part with their property, in order that the requirements of a given case may be met. This provision is based upon the right of sovereignty—the right of reigning over and of governing the country, though the determination of the regulations concerning the matter in question is delegated to the sphere of law. With regard to a measure by which private property is sacrificed for public benefit, the condition is that a reasonable indemnity shall be paid for the property taken. As to restriction upon the right of property, the Constitution abundantly testifies that they must always be fixed by law, and that they are beyond the control of ordinances.

28. Belief and conviction are operations of the mind. As to forms of worship, to religious discourses, to the mode of propagating a religion, and to the formation of religious associations and meetings, some general legal or police restrictions must be observed for the maintenance of public peace and ​order. No believer in this or that religion has a right to place himself outside the pale of the law of the empire, on the ground of serving his god, and to free himself from his duties to the State, which, as a subject, he is bound to discharge. Thus, although freedom of religious belief is complete, and is exempt from all restrictions, so long as manifestations of it are confined to the mind; yet with regard to external matters, such as forms of worship and the mode of propagandism, certain necessary restrictions of law or regulations must be provided for, and, besides, the general duties of subjects must be observed. This is what the Constitution decrees, and it shows the relation in which political and religious rights stand toward each other.

29. Speeches, writings, publications, public meetings and associations, are the media through which men exercise their influence in political or social spheres…. But as every one of these edged tools can easily be misused, it is necessary, for the maintenance of public order, to punish by law, and to prevent by police measures, delegated by law, any infringement by use thereof upon the honour or the rights of any individual, any disturbance of the peace of the country, or any instigation to crime. These restrictions must, however, be determined by law, and lie beyond the sphere of ordinances.

30. The right of petition is granted to the people out of the Emperor’s most gracious and benevolent consideration, so that an avenue may be opened to his subjects by which they may be able to make their wishes known…. But petitioners must observe proper forms of respect. They must not abuse the right granted them by the Constitution, and show disrespect to the Emperor, or engage in calumniously exposing the secrets of other people. Such conduct is positively condemned by the rules of morality. It is necessary, therefore, to provide proper restrictions thereon by law or ordinance, or by rules of the House of the Diet.

The right of petition at first related only to representations addressed to the Sovereign, but its sphere has been gradually extended to those made to Parliament and Government offices. No legal restriction is made as to whether a petition concerns individual or public interest.

31. All the provisions in the present chapter give constitutional guarantees for the rights of the subject. It is the principle of every Constitution that the duty of obedience to law is not confined to the subject alone, but that the powers of the State in authority over him shall, in the exercise of their sway, likewise come under the restrictions of the law. Such is the essential feature of the present chapter. But the Constitution has not neglected to make exceptional provisions to meet requirements of exceptional contingencies. For it must be remembered that the ultimate aim of the State is to maintain ​its existence… in times of danger the State will have to sacrifice, without hesitation, part of the law and of the rights of the subjects, in order to attain its ultimate end, if it considers that such a course is the only available means by which it can save itself and its people and secure its existence. This is not only a right of the Sovereign, but also his highest duty. Did the State not possess this emergency power, it would be impotent to discharge its functions at the time of crisis.

32. The soldiery must observe military laws and commands while under the banner. Obedience is their first duty. Therefore, such of the provisions of the present chapter relating to rights as come into conflict with military laws and commands shall not be applicable to those in the military and naval service. For example, those of them that are in active service are prohibited from discussing either the military or naval system or political matters, forming themselves into associations of public discussions, of writings, of publications and of petitions, on political matters.

In this section are mentioned the essential features of the Constitution and the rights of the Imperial Diet. It takes part in legislation, but has no share in the sovereign power; it has power to deliberate upon laws, but none to determine them. The right of consent of the Imperial Diet has to be exercised within the limits allowed by the provisions of the Constitution, and is by no means an unlimited one.

That the Diet has its part in legislation is the reason why, in a constitutional government, it is an essential part of the political machinery. The Diet not only has its part in legislation, but indirectly it has also the responsibility of keeping a supervision over the Administration. According to our own Constitution, and in the law of the Houses, the following rights are recognised: First, the right to receive petitions; secondly, the right to address the Emperor and to make representations to him; thirdly, the right to put questions to the Government and demand explanations; and, fourthly, the right to control the management of the finances.

33. The House of Peers shall be an assembly of the higher class of the community; while to the House of Representatives commoners shall be elected. These two Houses together shall constitute the Imperial Diet, which represents the public opinion of the country. The two Houses shall therefore possess equal powers, excepting in certain exceptional cases, and neither House shall by itself alone be competent to participate in matters of legislation. It is desired by this that deliberations ​be thorough and minute, and that public opinion be impartially represented.

34. The members of the House of Peers, whether they be hereditary, elected or appointed ones, are to represent the higher grades of society. If the House of Peers fulfils its functions, it will serve in a remarkable degree to preserve an equilibrium between political powers, to restrain the undue influence of political parties, to check the evil tendencies of irresponsible discussions, to secure the stability of the Constitution, to be an instrument for maintaining harmony between the governing and the governed, and to permanently sustain the prosperity of the country and the happiness of the people. The object of having a House of Peers is not merely admittance of the higher classes to some share in the deliberations upon legislative matters, but also representation of the prudence, experience, and perseverance of the people, by assembling together men who have rendered signal service to the State, men of erudition and men of great wealth. Provisions as to its composition being fixed by the Imperial ordinance concerning the House of Peers, they are not mentioned in the Constitution.

35. The members of the House of Representatives are to be elected by the people throughout the country, from among men having certain qualifications, and for a fixed length of time. The provisions relating to elections are, as stated in the previous article, passed over to those of a special law, so as to make it easy, when the necessity for it arises in the future, to make additions or alterations in the mode of carrying out elections. It is, therefore, undesirable that the Constitution should enter into minutiæ on the subject.

The members of the House of Representatives are all of them representatives of the people of the whole country. The object of establishing election districts for the election of members is to make the election general throughout the whole country, and also for the sake of convenience of election. Representatives, therefore, are to speak freely in the House, according to the dictates of their individual consciences, and are not to regard themselves as the delegates only of the people of their respective districts, commissioned to attend merely to matters entrusted to them by their constituents.

36. The two Houses, though forming the parts of the Diet, are different in the elements composing them, and occupy towards each other equalizing and opposing positions. Therefore the combination in one person of membership of both Houses at one and the same time is incompatible with the object of establishing two Houses.

37. The law is a rule of conduct emanating from the sovereign ​power of the State, to which it is necessary to obtain the consent of the Diet. Such is one of the fundamental precepts of a constitutional government. No Bill, therefore, can become a law that has not passed through the Diet; nor can one become so that has passed through one House, but been rejected by the other.

38. When the Government makes the draft of a law, and by order of the Emperor submits it to the two Houses of the Diet as a Bill, they shall be competent to pass it with or without amendment, or to reject it. When either House deems it necessary that such and such a law should be issued, it may initiate a Bill for the one purpose. When a Bill, initiated by one House and passed in the other with or without amendment to it, shall receive the sanction of the Emperor, it shall become a law the same as in the case of projects submitted by the Government.

The Emperor shall have no relations with the Diet other than to order its convening, its opening and closing, and to give sanction to laws. He charges the Ministers of State, during the session of the Diet, with the drafting of laws and with public correspondence. Accordingly, such projects are said ‘to be submitted by the Government.’

39. The submission to the Diet of the same project for a second time during the same session not only infringes the rights of the Diet, but is likely to prolong the session for the discussion of a solitary matter. It has, therefore, been prohibited by the present article. The Constitution prohibits the evasion of the provisions of the present article by the laying for a second time before the Diet, under a new title and a new phraseology, a project that has been already rejected by the Diet.

A project of a law that has not been sanctioned by the Sovereign cannot be introduced into the Diet a second time during the session. This must be so out of respect to the sovereign powers of the Head of the State, and needs no explicit enunciation. Still, as to representations, it is stated that the same representations cannot be made twice during the same session. For while, on the one hand, whether a project of law be sanctioned or not lies with the Emperor, the acceptance or rejection of a representation, on the other, is in the power of the Government; so there is a distinction between the two as to their relative importance. It will therefore be observed that definite provisions have been made in the one case to avoid all doubt on the subject.

40. The present article shows that the Diet has the right of making representations. But in a preceding article the right of initiating projects of law has been given to both Houses. ​What is, then, the object of the provisions of the present article—that both Houses may make representations concerning a law? It is that the Diet is in this way allowed option of either one of two courses of action: either to make a draft of a law and then bring it in, or, instead of doing so, simply to make representations of their opinion to the Government as to the enactment of a new law, or as to the amendment or abolition of an old one, and, if the representation be accepted by the Government, to leave to the latter the framing of the draft of the law.

The Diet not only has to take part in legislation, but it has also the duty of indirectly keeping a watch upon the Administration. Therefore both Houses may also make representations to the Government as to the advantage or disadvantage, expediency or inexpediency, of this or that matter lying outside the sphere of legislation.

But when the opinion of the one or the other House, as to a law or to some other matter, is not accepted by the Government, that House is not allowed to make representation on the same matter twice during the same session, so that there may be no tendency to controversies and coercion on the part of the Diet.

41. The convocation of the Diet belongs to the sovereign power of the Emperor; but the yearly convocation of the Diet has been expressly provided for in the present article, to guarantee by the Constitution the existence of the Diet. But cases like those mentioned in Article 70 are exceptional ones.

42. Three months have been fixed for the length of a session, so as to avoid the endless prolongation of deliberations. The prolongation of a session, or the postponement of the closing of the Diet by reason of unavoidable necessity, shall be carried out by Imperial order; and the Diet shall have no power to take such steps upon its own responsibility. With the closing of the Diet shall terminate all the business of the session. No subject of debate, whether a vote has been taken upon it or not, shall be continued at the next session, unless special provisions have been made in regard thereto.

43. The Diet shall be convened once a year; this is for the ordinary session. No provision is made in the Constitution as to the time of year of the ordinary session, but, it being necessary to give it time for the consideration of the Budget of the coming year, it will usually be opened in the winter months. When there arises an urgent necessity, therefore, an extraordinary session shall be especially convoked by order of the Emperor. The duration of an extraordinary session is not fixed by the Constitution, but is to be settled by the Imperial order convoking it, according to the necessities of the case.

​44. The House of Peers and the House of Representatives, though two distinct branches of the legislature, together form one Diet. Therefore a project which has passed through one House, but has not received the consent of the other, cannot become a law. Nor ought the proceedings of one House, at a time when the other is not sitting, to have any effect. It is for these considerations that the present article provides that both Houses of the Diet shall be simultaneously opened and closed.

A portion of the House of Peers consists of hereditary members. Therefore, although it may be prolonged, it cannot be dissolved; and when the House of Representatives has been ordered to dissolve, the House of Peers shall be ordered only to prorogue at the same time.

45. The provision contained in this article gives a permanent guarantee to the Diet. By it it is intended to dismiss the old members and to introduce new ones. Should the Constitution not have fixed the time for newly convoking the House after its dissolution, its existence would be left to the mere caprice of the Government.

46. When the number of members present is less than one-third of the whole number of members, no meeting can be held; therefore in such cases deliberations shall not be opened, nor can any vote be taken. The whole number of members is that number of them which is fixed by the law of election. As deliberations cannot be opened unless more than one-third of the whole number of members is present, neither can a House be organized unless more than one-third of the whole number has answered the summons of convocation.

47. It is the usual practice in deliberative assemblies to arrive at decisions by an absolute majority of votes. Absolute majority in the present article means the absolute majority of the members present. It is rational that, when for the two sides of a question there is an equal number of members, it should be decided by the voice of the President. But discussion on an amendment of the Constitution, as set forth in Article 73, is an exceptional case. Again, in the case of an election of President, or of a committee, or in the proceedings of a committee, the term ‘majority’ shall be interpreted according to the rules specially framed for the particular case, and with such cases the present article has no connection.

48. The Diet represents the people; consequently debates and voting therein should be carried on in view of the public. But exceptions should be made for certain affairs that require secrecy of deliberation, such, for instance, as foreign affairs, personal matters, election of the Diet officers and of committees, certain financial matters, certain military affairs, and administrative regulations relating to peace and order. In ​such cases the session may be held with closed doors, either upon the demand of the Government or by resolution of the House.

49. To present addresses is to approach the Emperor by presenting to him a certain writing. The meaning of the word ‘addresses’ includes the reply to an Imperial speech in the Diet, addresses of congratulation or of condolence, representations of opinion, petitions, and the like. The writing may be transmitted, or a delegation of the House may be instructed to ask for an audience and present it to the Emperor. In either case proper forms of respect must be observed. The dignity of the Emperor must not be infringed by any proceeding implying coercion.

50. Subjects are at liberty to directly petition the Emperor, a Government office, or the Diet. In the Diet petitions received from individuals are first examined, and then simply transmitted to the Government, or are transmitted with a memorandum containing the opinion of the Diet, with a request for a report of the Government thereon; but neither House of the Diet has any positive obligation to take petitions into consideration, nor has the Government a positive obligation to grant the prayer set forth in the petition. As to petitions relating to legislative matters, although they need not be taken as direct projects of a law, yet a member may in the usual manner make a motion in the House relating to the opinion set forth in the petition.

51. By ‘the rules necessary for the management of their internal affairs’ is to be understood all those provisions relating to the election of the President, of the Business Bureau, the establishment of the different sections, the election of committees, the business of the same, rules of debate, the minutes of the same, rules for the disposal of petitions, those for granting leave of absence to members of the Diet, order and discipline, the business of the accountant of the Diet, and the like. These rules are to be established by the respective Houses, within the limits allowed by the Constitution and the law of the Houses.

52. The present article recognises the freedom of speech in the Diet. The management of the internal affairs of the Diet appertains to its autonomy; consequently violation of the rules of morality and personal defamation by an unrestricted license of speech are to be suppressed and dealt with by the Diet itself, according to its own regulations, and judicial authorities are not suffered to interfere in these matters. Moreover, the votes of the Diet become bases for future laws, and debates by the members are the means by which the harmonizing of different conflicting opinions is to be brought about. Accordingly, ​members shall be free from criminal or civil liability for expressions used in debate. The purpose of this provision is to insure respect for the rights of the Diet, and to give weight and value to the speeches of the members. When, however, members make public their speeches delivered in the Diet, and thus extend the freedom of speech they enjoyed in the Diet to the outside thereof, they cannot escape legal responsibility for the same, whether the matter made public relate to motions or to refutation of statement.

53. The two Houses of the Diet co-operate in the important affairs of legislation. Accordingly, special privileges are granted to the members during the session, so that they may maintain an independent position and be able to discharge their important functions. As to cases of flagrante delicto, and to offences connected with a state of internal commotion or with a foreign trouble, no immunity can be claimed through special privilege of the Diet. A session comprises the time intervening between the convoking and closing of the Diet. As to cases of non flagrante delicto or to ordinary offences, an offending member may be arrested after communication has been held with the House, and its permission has been obtained so to do. In the case of flagrant delicts and of offences relating to a state of internal commotion or to foreign trouble, an offending member may be arrested at once and the matter reported to the House of which he is a member.

54. To make explanations during debates in the Diet is an important duty of the Ministers of State. The right of the Ministers of State to be present in the House and to speak therein is left to the option of the Government. The Ministers of State therefore may in person take part in debates, and make explanations, or they may instruct delegates of the Government so to do; they may, too, when they think it necessary, decline at pleasure to do either the one or the other, either in person or by delegation.

The Ministers of State are charged with the duty of giving advice to the Emperor; they are to serve as media, through which the Imperial commands are conveyed, and are to execute administrative affairs. The Privy Councillors are to give their opinions on important matters of State in response to the Emperor’s call therefor. They and the Ministers of State are the Emperor’s most eminent assistants.

55. Every Minister of State shall on the one hand take part in the deliberations of the Cabinet, while on the other he shall have charge of the affairs of some department of State, and shall have to bear his responsibility in the affairs ​of State. These shall be despatched through the medium of the Cabinet and of the different departments of State, and through no other medium whatever…. In our Constitution the following conclusions have been arrived at: First, that the Ministers of State are charged with the duty of giving advice to the Emperor, which is their proper function, and that they are not held responsible on his behalf; secondly, that Ministers are directly responsible to the Emperor, and indirectly responsible to the people; thirdly, that it is the Sovereign, and not the people, that can decide as to the responsibility of Ministers, because the Sovereign possesses the rights of sovereignty of State; fourthly, that the responsibility of Ministers of State is a political one, and has no relation to criminal or civil responsibility, nor can it conflict therewith, neither can the one affect the other. Save that all criminal and civil cases must be brought before the ordinary courts of law, and that suits arising out of administrative matters must be brought before a court of administrative litigation, the cases of political responsibility are left to be dealt with by the Sovereign as disciplinary measures.

The Minister President of State is to make representations to the Emperor on matters of State, and to indicate, according to his pleasure, the general course of policy of the State, every branch of the Administration being under the control of the said Minister. As to the other Ministers of State, they are severally held responsible for the matters within their respective competency: there is no joint responsibility among them in regard to such matters. For the Minister President and the other Ministers of State being alike personally appointed by the Emperor, the proceedings of each one of them are, in every respect, controlled by the will of the Emperor, and the Minister President himself has no power of control over the posts occupied by other Ministers, while the latter ought not to be dependent upon the former…. But with regard to important internal and external matters of State, the whole Government is concerned, and no single department can, therefore, be exclusively charged with the conduct of them. As to the expediency of such matters, and as to the mode of carrying them out, all the Ministers of State shall take united counsel, and none of them is allowed to leave his share of the business a burden upon his colleagues. In such matters it would, of course, be proper for the Cabinet to assume joint responsibility.

The counter-signature of a Minister or of Ministers of State has the following two effects: First, laws, Imperial ordinances, and Imperial rescripts that relate to the affairs of the State can be put into force only by virtue of the counter-signature of a Minister or of Ministers of State. Without it they can take no effect, and when issued through any other than a Ministerial ​channel, none can be carried out by the functionaries charged with its execution. Secondly, the counter-signature of a Minister or of Ministers of State attests the right of the said Minister or Ministers to carry out the law, Imperial ordinance, or Imperial rescript, in question, and also his or their responsibility for the same. The Ministers of State are the channels through which the Sovereign’s orders are to flow, both at home and abroad. This is made clear by their counter-signatures. But the political responsibility of Ministers cannot be regarded only from a legal point of view: moral considerations must also enter into the question, for the limits defined by law are not the only ones within which Ministers must move; consequently, when a mistake has been committed by the Government, responsibilities should not be confined to the counter-signing Minister or Ministers, but also those Ministers who, though not counter-signers, have been consulted about the matter, ought to be held responsible for the mistake. If, therefore, the fact of counter-signing be taken as the mark by which the limits of responsibility are to be distinguished, it will lead to an undue reliance upon mere form and to the disregarding of real facts. To conclude, though counter-signature indicates the responsibility of the counter-signing Minister, yet responsibility does not arise from the fact of counter-signing.

56. The Emperor on the one hand maintains the supreme control of administrative affairs through the medium of the Cabinet, while on the other he has established the Privy Council, so that in his wisdom he may have at command its assistance, and that the information he obtain may be thorough and impartial. In performing their Heaven-sent mission, Sovereigns must first take advice before they arrive at a decision. Hence the establishment of the Privy Council is just as necessary as that of the Cabinet, to serve as the highest body of the Emperor’s constitutional advisers.

Moreover, when an emergency ordinance is to be issued, or a state of siege is to be declared, or when some extraordinary financial measure is deemed necessary to be taken, the opinion of the Privy Council is to be sought before the measure is carried out, thereby giving weight to the measures of the administrative in the matter. In this way the Privy Council is the palladium of the Constitution and of the law. Such being the importance attached to the functions of the Privy Council, it is the established rule that every Imperial ordinance on which the advice of the Privy Council is asked shall contain a statement of that fact in the preamble to it. The Privy Council is to hold deliberations only when its opinion has been asked for by the Emperor; and it is entirely for him to accept or reject any opinion given. The duty of the Privy Council is to be perfectly loyal and ​straightforward in furnishing advice to the Emperor. As to a matter about which the opinion of that body has been furnished to the Emperor, no publicity can be given to it, however trifling it may be, without his special permission.

The Judicature is the authority which, in accordance with the provisions of law and in conformity with reason and justice, redresses injured rights of subjects and metes out punishments. The judiciary and administrative departments have each different organizations, and neither of them suffers any encroachment upon its sphere of business by the other.

57. The distinction between the administrative and the judiciary may be briefly described as follows: The functions of the administrative are to carry out laws and to take such measures as may be found expedient for the maintenance of the public peace and order, and for the promotion of the happiness of the people; while the duty of the judiciary is to pronounce judgment upon infringements of rights, according to the provisions of the law. In the judiciary law is everything, and the question of convenience is left out of consideration. In the administrative, however, measures are taken to meet the ever-changing requirements demanded for the convenience and necessities of society; the law simply shows the limits beyond which they are not permitted to obtrude. Therefore trials must be conducted according to law. But the Sovereign is the fountain of justice, and his judicial authority is nothing more than a form of the manifestation of the sovereign power. Therefore judgments shall be pronounced in the name of the Emperor, the judicial authority in this respect representing him in his sovereign power. The organization of the courts of law shall be settled by law, in contradistinction with the organization of the administrative. Officers of justice possess independent positions founded upon law. Though it is in the power of the Sovereign to appoint Judges, and though the courts of law have to pronounce judgment in the name of the Sovereign, yet the Sovereign does not take it upon himself to conduct trials, but causes independent courts to do so, in accordance with the law and regardless of the influence of the administrative. Such is what is meant by the independence of the judicature.

58. The function of Judges is to uphold the law and to administer justice to the people in an impartial manner. Special experience and knowledge are, accordingly, the required qualifications of Judges; hence it is provided in the first clause of the present article that certain qualifications for ​judgeship are to be settled by law. They shall be entitled to hold office for life, unless dismissed from the service by a criminal sentence or by the effect of a disciplinary trial. Disciplinary rules applicable to judicial functionaries are fixed by law, and carried out by decision of a court of law. No interference of any chief of an administrative office is allowed. All details as to suspension from office, to hishoku (temporary retirement from public service on one-third pay), to the transfer of appointment and to retirement on account of age, shall be mentioned in the law.

59. That trials are publicly conducted and that the parties are orally examined in public are most effective guarantees for the rights of the people. There are two stages in every criminal proceeding: preliminary examination and trial. The word ‘trial’ used in the present article does not include, in its meaning, preliminary examination. The cases in which public trial may be ‘prejudicial to peace and order’ are, for instance, those relating to offences connected with a state of internal commotion or with a foreign trouble, or those relating to the assembling of mobs or to instigation of crime, thereby agitating and exciting people’s minds. The cases in which public trial may be ‘prejudicial to maintenance of public morality’ are such, for instance, as relate to private matters causing scandal and shocking public morality when exposed to the knowledge of the community. From the expression ‘… may be prejudicial to peace and order, or to the maintenance of public morality,’ is to be inferred that whether a certain act is calculated to disturb peace and order or to be detrimental to public morality is to be decided by the opinion of the court, ‘according to law’—that is, according to the expressed provisions of the Code of Criminal Procedure and the Code of Civil Procedure. ‘By the decision of the court’—that is, where there is no express provision of law, the decision of the court will suffice to suspend public trial. From the expression ‘the public trial may be suspended’ it is to be inferred that judgment and pronunciation of sentence are always to be in public.

60. Those matters appertaining to men in the military or naval service that are taken cognizance of by the courts-martial belong to the category of matters that fall within the competency of a special court other than the ordinary courts of justice. Further, should it become necessary to establish in future special tribunals of commerce for merchants and manufacturers, commercial and industrial matters to be taken cognizance of by the said tribunals will also belong to the category of matters that shall fall under the jurisdiction of a special court other than the ordinary civil courts. Provision for these ​tribunals shall be established by law. No ordinance can establish legal exceptional cases. The Constitution does not suffer the establishment of exceptional courts placed beyond the control of law, encroaching upon the Judicature through the influence of the administrative authority, and wresting from the people the proper courts where justice can be obtained.

61. By the ‘Court of Administrative Litigation’ is to be understood a tribunal where cases instituted against administrative measures are adjudicated. The law provides certain limits upon rights of subjects in order to insure the safety of the same. And no party of the body politic can claim any exemption from the duty of observing these legal limits. The proper function of judicial courts is to adjudicate in civil cases, and they have no power to annul measures ordered to be carried out by administrative authorities, who have been charged with their duties by the Constitution and the law. For the independence of the administration of the Judicature is just as necessary as that of the Judicature itself. Administrative authorities carry out measures by virtue of their official functions, and for these measures they lie under constitutional responsibility, and it follows that they ought to possess power to remove obstacles in the path of these measures and to decide upon suits springing from the carrying out of them. For should the administrative be denied this power, its executive efficacy would be entirely paralyzed, and it would no longer be able to discharge the responsibilities put upon it by the Constitution. This is the first reason why it is necessary to establish a Court of Administrative Litigation in addition to judicial courts. As the object of an administrative measure is to maintain public interests, it will become necessary under certain circumstances to sacrifice the individuals for the sake of public benefit. But the question of administrative expediency is just what judicial authorities are ordinarily apt to be not conversant with. It would therefore be rather dangerous to confide to them the power of deciding such questions. Administrative cases ought, accordingly, to be left to the decision of men well versed in administrative affairs. This is the second and final reason why the establishment of a Court of Administrative Litigation is necessary, in addition to judicial courts. But its organization, like that of the latter, must be established by law. By the expression ‘illegal measures of the administrative authorities’ it must be understood that no suit can be brought against those measures that have been carried out in conformity with law or with the functionary power of the office in question. The expression ‘rights alleged to have been infringed’ points to the evident conclusion that mere damage to one’s interests, ​though it can become the ground of a petition, begets no right of administrative litigation.

Finance forms an important part of the Administration, as it relates to the management of the annual expenditures and revenue of the State, and has a close and intimate bearing upon the resources of the people. Accordingly, great importance is attached to it by the Constitution, which clearly defines the extent of the rights of the Imperial Diet as to consent and control in regard thereto.

62. It is one of the most beautiful features of constitutional government, and a direct safeguard to the happiness of the subjects, that the consent of the Diet is required for the imposition of a new tax, and that such matters are not left to the arbitrary action of the Government. When a new tax is imposed over and above already existing ones, or when the rate of taxation is to be modified, it must be left to the option of the Diet what would be a proper degree of taxation. ‘Administrative fees or other revenue having the nature of compensation,’ as mentioned in the second clause of the present article, are such as are collected from private individuals for undertakings engaged in, or for transactions conducted, by the Government for them at their request or for their benefit. They are in their nature different from taxes, which are imposed as a common duty to be discharged by all. For instance, railway-fares, warehouse charges, school fees, and the like, may be fixed by administrative ordinance, and need not be settled by law. But, as they are called ‘administrative fees,’ a distinction must be observed between them and ‘judicial fees.’ As to the provision of the third clause of the present article, a national loan involves the incurring of liabilities by the national Treasury to be met in the future. To a new loan, therefore, the consent of the Diet must always be obtained. The effect of a Budget extends only over a single fiscal year, so for giving subsidies or guarantees or making engagements that involve liability of the national Treasury the consent of the Diet is needed, as in the case of a national loan.

63. In the preceding article it has been assured that the imposition of new taxes must be determined by law. In the present one it is provided that the taxes now in existence shall in future be collected in the method and according to the rate heretofore extant, except in so far as changes shall hereafter be effected by new enactments. In order to meet necessary expenses, a State must possess some fixed revenue. Hence, not only has the Constitution not introduced any change ​in the national revenue produced by existing taxes, but has, on the contrary, confirmed the same by express provisions.

64. In the Budget are estimated the expenditure and revenue of each fiscal year, to show the limits which the Administration ought to observe. The preparation of an estimate of the expenditures of the State is the first step in the proper management of finance. And it is an important result of constitutional principles of government that the submission of the Budget to the vote of the Diet is required for its consent thereto, and, further, that after expenses have been defrayed as set forth in the Budget, the subsequent approval of the Diet to any expenditures overpassing the estimated appropriation, or to any expenditures not provided for in the Budget, shall be asked for, as control of such matters lies with it. In 1886, the 19th year of Meiji, the Budget was promulgated by Imperial ordinance. This was the first time that a Budget had been promulgated according to a fixed form. The present article goes a step further, and provides that the Budget shall be laid before the Diet. A Budget is simply a sort of gauge to be observed by the administrative officials for a current year. Thus, the Budget requires the consent of the Diet on account of its special character, and is not, properly speaking, a law. Therefore law has precedence over a Budget, which has no power to change a law. It is true that a law must be passed by the Diet; still, it is not correct to say that everything that has been passed by the Diet ought to be called a law. For those rules which, though they may have been passed by the Diet, relate to particular matters have no general binding force, and are different in their nature from law. When, as provided in the second clause, the appropriations set forth in the titles and paragraphs of the Budget have been exceeded, or when expenditures that are not provided for in the same have been incurred, the subsequent approval of the Diet is to be obtained, for even in regard to an indispensable measure the Government has still to submit to the control of the Diet. It is to be borne in mind that a deficit rather than a surplus is, in fact, to be expected from a Budget that has been accurately prepared. If the Ministers of State are not required, merely because they have been settled in the Budget, to make outlays that are unnecessary, neither are they forbidden by the Constitution to make outlays exceeding the estimated appropriations or not provided for in the Budget, that may be necessary on account of unavoidable circumstances. For the functions of Ministers of State are not determined by consent of the Diet to the Budget: they are fixed by the Constitution and the law. Consequently, unavoidable expenses overpassing the estimated appropriations, or unprovided for in the Budget, are all legal. But if they are ​legal, why ask the subsequent approval of the Diet to them? Because it is thereby intended to keep harmony and close connection between the administrative necessities and the control of the legislative. When the Diet discovers that any extravagant expenses have been illegally incurred, and does not recognise the necessity of such expenses, it may take the matter up as a political question, though it cannot make it a subject of legal contention. But the action of the Diet in such cases cannot affect the consequences of the expenditures already incurred by the Government, or of the obligations thereby devolving upon the Government. ‘Expenditures overpassing the appropriations set forth in the titles and paragraphs of the Budget’ are those expenditures that exceed the amounts voted by the Diet. ‘Expenditures that are not provided for in the Budget’ refers to those expenditures that are incurred, apart from the titles and paragraphs mentioned in the Budget, on account of unforeseen circumstances.

65. It is provided in the present article that, as regards the Budget, the right of priority shall be given to the House of Representatives. In discussing the Budget, the object sought for is to arrive at a clear conception of the resources of the people as compared with the financial condition of the Government, so that a just mean may be secured. This is the most important duty to be discharged by representatives elected by the people.

66. In Article 64 it is provided that the consent of the Imperial Diet shall be required to the Budget. But in the present article an exceptional case is mentioned. The expenditures of the Imperial House are those that are indispensable for maintaining the dignity of the Emperor, and to meet them is the first duty of the Treasury. The employment of the funds is an affair of the Court, and not one for interference by the Diet; consequently, neither consent to these expenditures nor verification of them is required by the Diet. The amount of the expenditures of the Imperial House is, however, stated in the Budget, and also in the statement of the final accounts. But this is merely for the purpose of completing the sum total of public expenditures, and not for the purpose of submission to the deliberation of the Diet. The reason the consent of the Diet is required when it has become necessary to increase the amount of expenditures under review is that the affair in question has a close relation to the taxes contributed by the subjects, and that therefore it is to be submitted to the deliberations of their representatives.

67. ‘Already fixed expenditures based by the Constitution upon the powers appertaining to the Emperor’ include all the expenditures which are based upon the sovereign powers of the ​Emperor, as set forth in Chapter I. of the Constitution—to wit, ordinary expenditures required by the organization of the different branches of the Administration, and by that of the army and navy, the salaries of all civil and military officers, and expenditures that may be required in consequence of treaties concluded with foreign countries. Such expenditures, whether their origin be prior to the coming into force of the present Constitution or subsequent to it, shall be regarded as permanent expenditure already fixed at the time of the bringing of the Budget into the Diet. ‘Such expenditures as may have arisen by the effect of law’ include the expenses of the Houses of the Diet, annual allowances and other miscellaneous allowances to the members, pensions, annuities, expenses and salaries required by the organization of offices determined by law, and other expenses of a like nature. ‘Expenses that appertain to the legal obligations of the Government’ include the interest of the national debt, redemption of the same, subsidies or guarantees to companies, expenses necessary to the civil obligation of the Government, compensations of all kinds, and the like.

The Constitution and the law are the highest guides for the conduct of administrative and financial affairs, and the State, in order to accomplish the object of its existence, must accord the supremacy to the Constitution and the law, and subject administrative and financial affairs to the control of the two. Therefore, in taking the Budget into consideration, the Diet, faithful to the Constitution and the law, must make it the rule to provide the supplies that may be required by the national institutions established by the Constitution and by law. Also all existing contracts and all civil and all other obligations equally beget legal necessity for supplies. Were the Diet, in voting the Budget, to reject entirely or to reduce in amount any of the expenditures based by the Constitution upon the sovereign powers of the Emperor, or any expenditure necessitated by an effect of law for the fulfilment of legal obligations, such proceeding should be regarded as subversive of the existence of the State and contrary to the fundamental principles of the Constitution. From the wording ‘already fixed expenditures’ it is to be understood that, in regard to new expenditures or to the increase of existing ones, though based upon the sovereign powers of the Emperor, the Diet may have the power to freely deliberate upon them. Even those already fixed expenditures based by the Constitution upon the sovereign power of the Emperor, and those that have arisen either by effect of law or from the necessity of fulfilment of legal obligations, may with the consent of the Government be rejected or reduced in amount, or otherwise modified.

68. The expenditures of the State are ordinarily to be ​voted yearly, for the affairs of the State are in a condition of constant activity and motion, and cannot be managed according to a fixed standard. Consequently, the same amount of national expenditures cannot be continued from one year to another. But in the present article exceptional provisions are made for special cases of necessity. In virtue of such provisions, a certain portion of the military and naval expenditures, and expenditures for engineering works, manufactures, and the like, that require several years for completion, may, with the consent of the Diet, be fixed for a period comprising several years.

69. In the present article provision is made for a reserve fund out of which to supply deficiencies in the Budget and to meet requirements unprovided for in the same. Article 69 sets forth that expenditures overpassing the appropriations in the Budget, or that are not provided for therein at all, shall require the subsequent approval of the Diet; but in that article no provision is made as to the source whence such outlays are to be met. Hence the necessity of providing a reserve fund by the present article.

70. The interpretation of the present article is amply furnished by the remarks made under Article 8. The point of difference between the present article and Article 8 is that in the case mentioned in the latter, when the Diet is not sitting, no extraordinary session of it need be called, while in the case of the present one an extraordinary session is required; but even in this case necessary measures may be taken without the consent of the Diet, when the convening of an extraordinary session is impossible on account of some circumstances of a domestic or foreign nature. More precaution is taken in the case of the present article, as it relates to financial administration. By ‘the necessary financial measures’ mentioned in this article is to be understood those measures which, though by their nature they require the consent of the legislative assembly, are taken without it in case of urgency. The withholding of the approbation of the Diet refers only to the continued efficacy of the measures in question, and shall not possess the retrospective effect of annulling past proceedings, as has been fully explained under Article 8. Therefore the Diet cannot cancel the obligations of the Government that have arisen by effect of an Imperial ordinance. The necessity of resorting to the measures in question would occur only in time of great national calamity. So by the present article a formal recognition has been given of the measures that may have been imperatively demanded for the protection of the national existence, while at the same time due importance has been allowed to the rights of the Diet.

​71. When the Diet has closed before it has acted upon the Budget, it will then be said that ‘it has not voted on the Budget.’ When in one of the Houses the Budget has been rejected, it will be considered ‘not to have been brought into actual existence.’ Further, when the Diet has been either prorogued or when the House of Representatives has been dissolved, before a final vote has been taken upon it, the Budget will have no existence until the next opening of the Diet. When the Diet has not voted upon the Budget or the Budget has not been brought into actual existence, the result will be, in extreme cases, the destruction of the national existence, and in ordinary ones the paralyzation of the machinery of the Administration.

72. The Budget is the first piece of work of the yearly financial business, while final accounts are the concluding piece of the same. There are two ways in which the Diet can exercise control over financial operations: one is a preceding, the other a subsequent control. By preceding control is to be understood the power of giving or of withholding consent to the Budget for the coming fiscal year, while by subsequent control is meant the power of verifying the statement of accounts of the past fiscal year. For submission to subsequent control the Government has the duty of laying before the Diet the final accounts that have already undergone verification by the Board of Audit, together with the report thereon of the said Board. The functions of the Board of Audit consist—first, in verifying the vouchers of the accountants of the different branches of the Administration, and in discharging them from responsibility; secondly, in control over the measures of the authorities possessing the power of issuing warrants on the Treasury, and in examination as to whether or not there has been any disbursement exceeding the estimated appropriation, any expenditures not provided for in the Budget, or any operation in violation of provisions of the Budget or of any law or Imperial ordinance; thirdly, in verifications of the general accounts of the national Treasury and of the reports on final accounts of the various departments of State, in comparing the above with the amounts disbursed in the different branches of the Administration, as reported to the said Board by the different accountants, and in thus confirming the general final accounts as well as the reports on final accounts of the different departments of the State. The administrative verification made by the Board of Audit prepares the ground for the legislative one by the Diet. In the Diet the report of the Board of Audit and the final accounts of the Government will be received at the same time, and the latter will be approved and confirmed when they are considered to be correct. For the ​examination of the financial business of the Government, the Board of Audit must possess an independent character. Accordingly, its organizations and functions, like those of Judges, shall be determined by law, and placed beyond the reach of the administrative ordinances. However, rules by which verification is to be conducted shall be determined by Imperial ordinance.

73. The Constitution has been personally determined by His Majesty the Emperor in conformity with the instructions transmitted to him by his ancestors, and he desires to bequeath it to posterity as an immutable code of laws, whose provisions his present subjects and their descendants shall obey for ever. Therefore the essential character of the Constitution shall undergo no alteration. But law is advantageous only when it is in harmony with the actual necessities of society. Thus, although the fundamental character of the national policy is to continue unaltered for all ages to come, yet it may become necessary at some time in the future to make more or less great modification in the important parts of the political institutions, so as to keep them in touch with the changing phases of society. The present article does not prohibit the amendment of the provisions of this Constitution at some future time, but establishes certain special conditions for the operation. The draft of a proposed amendment of the Constitution is submitted to the Diet by an Imperial order, though the projects of ordinary laws have to be laid before the Diet by the Government, or initiated by the Diet itself, because the right of making amendments to the Constitution must belong to the Emperor himself, as he is the sole author of it. Although the power of amendment is vested in the Emperor, it is submitted to the Diet for the reason that the Emperor’s great desire is that a great law, when once established, shall be obeyed by the Imperial Family, as well as by his subjects, and it shall not be changed by the arbitrary will of the Imperial Family. The ordinary way of arriving at a decision by a majority of votes of the members present is not practised in this matter; the presence and a majority of at least two-thirds of the entire number of all the members is required for so doing (in each House), for the reason that the greatest caution is to be exercised in regard to matters relating to the Constitution. From the express provisions of the present article, it is to be inferred that, when a project for the amendment of the provisions of the Constitution has been submitted to the deliberations of the Diet, the latter cannot take a vote ​on any matter other than what is contained in the project submitted to it. It is further to be inferred that the Diet is not allowed to evade the restriction of the present article by voting a law that may directly or indirectly affect any of the principles of the present Constitution.

74. While the vote of the Diet is necessary for any amendment of the Constitution, a modification of the Imperial House Law alone needs no submission to it, for the Imperial House Law is one that has been settled by the Imperial Family concerning their own affairs, and bears no relation to the reciprocal rights and duties of the Emperor or of his subjects towards each other. A rule by which a modification of the Imperial House Law is required to be submitted to the Imperial Family Council, and also to the Privy Council, ought to be mentioned in the Imperial House Law itself, but need have no mention in the Constitution. Such provision is accordingly omitted in the present article. But should modification of the Imperial House Law be suffered to either directly or indirectly bring about any alteration of the present Constitution, the foundations of the latter would not be free from exposure to destruction. Accordingly, in the present article care has been taken to establish a special safeguard for the Constitution.

75. The institution of a Regency is an extraordinary measure, and not an ordinary matter. Thus, although a Regent is entitled to exercise the right of reigning over and of governing the country just as if he were Emperor indeed, yet he is not allowed to exercise any power of decision concerning a modification either of the Constitution or of the Imperial House Law. For the fundamental laws of State and of the Imperial House being of far greater importance than the office of Regent, which is in its nature provisional, no personage other than the Emperor has the power of effectuating the great work of making an amendment to any of them.

76. It is provided in the present article, not only that existing laws, ordinances, and regulations, shall possess binding force, but also that such enactments as are required by the Constitution to be promulgated in the form of laws shall possess the same force as laws. When it becomes necessary in the future to make amendments of such enactments, the amendments are to be carried out as laws, notwithstanding that the original enactment in question had been promulgated in the form of ordinance or of notification.