alted Personage." But the same article can be interpreted in this way: "The people by accepting the Constitution have agreed to put the Emperor at the head of the Empire, empowering him thereby to wield the legal sovereignty, the exercise of which is rigorously defined by the law." To democratize our Constitution we need not redraft, or even revise, it; its interpretation in the light of reason and justice will be sufficient for some generations to come, if not forever.

Again the Constitution says: "The respective Ministers of State shall give their advice to the Emperor, and be responsible for it." This provision may be interpreted as the prescription of Ministers' responsibility to the Emperor and not to the Parliament, i. e., the people. But it can also be interpreted as a clause which provides for the Ministers' responsibility to the Parliament. Why can we not say that, as the people agreed to put the Crown beyond legal responsibility, Ministers are made responsible to the people for the Crown?

A constitution, however rigid, is governed by the law of evolution; and its evolution may be achieved to a great degree through its sound interpretation. There was a time when the expression, "the King can do no wrong," was believed to mean that the sovereign is something supernatural, and therefore free from wrong conduct. But such a foolish idea had been renounced long ago. Nowadays, the same expression is believed to signify that every official act of the Crown, which is done in the manner prescribed by law, is lawful, while every act done under colour of the Royal authority, but not in the proper manner, is not an official act of the Crown. Thus viewed, "no injury, no legal wrong, can be done by the King, because all his official acts are done in accordance with law, and because no unlawful act can be recognized as an act of the Crown."3

1 Ito, op. cit., p. 7.

2 Constitution, Art. 55.

Hearn, The Government of England, p. 20.

66

A still more significant illustration of two different interpretations of a same constitutional provision can be found in the constitution of the United States and that of France. The Federal Constitution of the United States provides that the President shall take care that the laws be faithfully executed."1 The French Constitution of February 25, 1875, provides that the President "looks after and secures" the execution of laws. So far as the wording is concerned there is no difference between the two provisions. But this provision in the French Constitution has been interpreted in a way quite different from that in which the similar provision in the American Constitution has been interpreted. In France the President is allowed an extensive ordinance power. By means of ordinances, the President is able to supplement the law which he promulgates with the consent of the Chambers, even where the legislature has not expressly delegated any such power to him. And this wide power of issuing ordinances is said to result from the constitutional article above cited. It will be a bad sort of heresy, however, on this side of the Atlantic to so interpret the similar article in the Constitution of the United States as to give the President such an extensive ordinance power as the French President is given. Professor Goodnow, in his Comparative Administrative Law, explains this peculiar phenomenon in France by ascribing it to the monarchical tradition of the country.3

We have cited the above instances in order to emphasize that one and the same expression can be interpreted in two such widely different manners. Sound interpretation is, therefore, a sine qua non of the efficacious working of a constitution.

§ 96. I am not a whit disloyal to the Royal family of the country to which I belong. Nor do I wish to belittle the dignity of the throne. But I believe that in every phase of

1 Constitution, Art. II., sect. 3.

2 Constitution, Art. 3.

Comparative Administrative Law, Vol. I., pp. 85-86.

public affairs the Royal will should be intimated through the appropriate channel as couched in law which is the embodiment of the will of the people, although the expression of the Royal will might be said to be conclusive. It would be a most preposterous sort of view under a constitutional regime to say, as does Marquis Ito, that the law has no power to hold the Emperor accountable to it.1 In a constitutional country the ultimate sovereignty, or political sovereignty, if you please, resides, I believe, in the people. The Royal will in contemplation of law, as Professor Hearn points out, is by no means the mere personal will of the King. It is the will which is displayed in his court, not in his chamber. Thus the Royal will is at bottom, nothing more than the creation of law; outside of the law there can exist no Royal will. For my part, I sincerely hope that the time will arrive when the Emperor of Japan reigns, but does not govern, preserving at the same time the dignity of the throne and keeping the respect of the people. Then the government of Japan will have become democratic in spirit as is that of England, although in form it may well be monarchical.

We should exceed the limits within which we promised to keep ourselves at the outset of the present chapter, if we follow out to the very end the chain of reasoning which we have begun. We believe that we have already made clear something of the spirit and fundamental principles of our Constitution. We would rather stop here. Not to be misconstrued by the conservative, however, we conclude this chapter by quoting the following passage from Freeman, which may, we hope, be adapted to the condition of Japan:

"The circumstances of our history have made England an hereditary Monarchy, just as the circumstances of the history of Switzerland have made that country a Federal Commonwealth. And no reasonable person will seek to disturb an

1 Cf., Ito, op. cit., p. 6.

2 Dicey, The Law of the Constitution, pp. 358-9.

3 Hearn, Government of England, pp. 18-19.

institution which, like other English institutions, has grown up because it was wanted... .... Our system gives the State a personal chief, a personal embodiment of the national being, which draws to itself those feelings of personal homage and duty which a large class of mankind find it hard to look upon as due to the more abstract ideas of Law and Commonwealth....... Our present Sovereign reigns by as good a right as Ælfred or Harold, for she reigns by the same right by which they reigned, by the will of the people, embodied in the Act of Parliament which made the crown of Elfred and Harold hereditary in her ancestress. And, reigning by the same right by which they reigned, she reigns also for the same ends, for the common good of the nation of which the law has made her the head."1

1 Freeman, Growth of the English Constitution, pp. 156-159; Italics are mine.

CHAPTER XVII

GROWTH OF SOCIAL DEMOCRATIC IDEAS

$97. We have seen in previous chapters that the dominant idea of the Japanese nation during a score of years preceding the adoption of the constitution was Individualism coupled with Liberalism. "Laissez faire, laissez passer" of Gournay was the motto of leading men, of politicians, of journals, and of the people. But, from Individualism to Socialism the transition is not very difficult, although the gulf between these two isms seems apparently very wide. Modern Socialism may, in a certain sense, be regarded as the offspring of Individualism, as the resultant of free competition, and as the condition for the approach to the Individualist ideal.1 Individualism has its own mission when the masses are under the yoke of absolute government. But when the people take the supervision of the government into their own hands, when the condition of society changes with the change of political organization, Individualism should be remodeled and harmonized with the new needs of society. It is, therefore, a matter of no wonder that the Japanese people who once admired the Individualism of Mill, and even of Spencer, soon began to listen to the gospel of Socialism.

$98. It should be remembered, however, that the Japanese government has been far from adhering to the laissez faire principle. It has already been shown that the paternalistic school of the earlier period of New Japan derived its political principles from Bluntschli, who is decidedly opposed to the Individualistic view of governmental functions. We

1 Cf. Sidney Oliver, Moral Basis of Socialism, in the Fabian Essays in Socialism.