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Published online by Cambridge University Press: 02 September 2013
The executive powers of the Emperor include: (1) appointments and general administration, (2) pardons, (3) organization of the army and navy, (4) declaration of war, (5) conclusion of peace and treaty-making, and (6) establishment of martial law.
Article X of the constitution defines the appointing power of the Emperor. His competence is not confined to mere selection of officials, since the constitution provides that “the Emperor determines the organization of the different branches of the administration, and the salaries of all civil and military officers, and appoints and dismisses the same.” Clearly, the appointing power of the Emperor is unlimited. There is no necessity for securing the consent of any confirming body. The Emperor is thus unhampered by the restrictions that bind the president of the United States. This prerogative also extends to the power of dismissal—a potent instrument for the promotion of executive efficiency as well as autocracy.
36 Compare Minobe, Tatsukichi, Gyoseiho Satsuyo, or Principles of Administrative Law (Tokyo, 1927), Vol. I, p. 214Google Scholar; Oda, Man, Gyoseiho Kogi, or Lectures on Administrative Law (Tokyo, 1917), Vol. I, p. 348Google Scholar. For the text of the Kakusho Kansei Tsusoku, or Ordinance Concerning the Organization of the Departments, and of the Bunkan Ninyo Rei, or Ordinance Concerning the Appointment of Civil Officials, see Genko Horei Shuran (Tokyo, 1927), Vol. I, bk. iii, pp. 13, 349Google Scholar. Translations by Dr.Takeuchi, appear in White, L. D., Civil Service in the Modern State (Chicago, 1930), pp. 528–534Google Scholar.
37 Commentaries, p. 26.
38 In this connection it may be noted that some jurists hold that while a statute vesting in another governmental agency the Emperor's power as commander-in-chief would be unconstitutional, a statute for the exercise of the military power would be constitutional. Ichimura, , Teikoku Kempo Ken, or Commentaries upon the Imperial Constitution (Tokyo, 1926), p. 749Google Scholar.
39 Compare Shimizu, Cho, Kempo Hen (21st ed., 1923), p. 515Google Scholar. An English translation of the Chohei Kisoku, or Military Service Ordinance, of 1871 appears in McLaren, W. W., Japanese Government Documents (Transactions of the Asiatic Society of Japan, Tokyo, 1914), Vol. XLII, pt. 1, p. 17Google Scholar.
40 Commentaries, p. 28.
41 This ordinance, cited as Imperial Ordinance Ho. 22 of 1888, and its amendments, is found in Geriko Horei Shuran (Tokyo, 1927), Vol. I, bk. iii, p. 5Google Scholar. An English translation was published in the Japan Weekly Mail, May 12, 1888, pp. 444–445Google Scholar, and is reprinted in McLaren, W. W., Japanese Government Documents (Transactions of the Asiatic Society of Japan, Tokyo, 1914), Vol. XLII, pt. 1, pp. 127–132Google Scholar.
42 On this subject, see articles by the author on “The Treaty-Making Power in Japan,” in American Journal of International Law (April, 1931), Vol. XXV, pp. 270–297Google Scholar, and “The Japanese Privy Council”, in this REVIEW (August, November, 1931), Vol. XXV, pp. 589-614, 881–905Google Scholar.
43 Hozumi, Yatsuka, Kempo Teiyo (1910), Vol. II, pp. 630–626Google Scholar; Minobe, Tatsukichi, Kempo Seigi (1928), p. 292Google Scholar.
44 Article XI reads: “The Emperor has the supreme command of the army and navy.”
45 Compare Minobe, Tatsukichi, Kempo Seigi (1928), pp. 220, 550–553Google Scholar.
46 For the ordinances as amended to date, see the Genkco Horei Shuran (1929), Vol. I, bk. iii, pp. 78, 88Google Scholar.
47 Yoshino, Sakuzo, Niju Seifu to Iaku Joso, or Dual Government and the Supreme Command (Tokyo, 1922), pp. 7-12, 43–45Google Scholar.
48 For contemporary accounts, see Tokyo Asahi, December 5 and 6, 1912, p. 1Google Scholar; Osaka Mainichi, December 10, 1912, p. 1Google Scholar.
49 Kempo Seigi (1928), p. 301Google Scholar.
50 Kempo Hen (21st ed., 1923), pp. 646–647Google Scholar.
51 Kempo Jutsugi (1927), pp. 647–648Google Scholar. Compare Hozumi, Yatsuka, Kempo Teiyo (1910), Vol. II, pp. 556–558Google Scholar.
52 Article VI of the Ordinance Concerning the Organization of the Cabinet Teads: “With the exception of military and naval affairs of grave importance which, having been reported directly to His Majesty the Emperor, may be submitted to the cabinet for consideration, the ministers of state for war and the navy shall report to the minister president of state.” Imperial Ordinance no. 135 of 1889, amended by Imperial Ordinance no. 7 of 1907. Genko Horei Shuran (1927), Vol. I, bk. iii, p. 1Google Scholar.
53 Compare Yoshino, Sakuzo, Niju Seifu to Iaku Joso (1922), p. 72Google Scholar.
54 Concerning the appeal of Admiral Kato to the Throne, compare the Tokyo Asahi Shimbun, April 2, 3, 1930, p. 1Google Scholar; Jiji Shimpo, April 2, 3, 1930, p. 1Google Scholar; Japan Weekly Chronicle (Kobe), April 10, 1930, pp. 360–361Google Scholar.
55 Compare Tokyo Asahi, September 19, 1931, p. 1Google Scholar; Osaka Mainichi, September 20, 1931, p. 1Google Scholar; Japan Weekly Chronicle (Kobe), September 24, 1931, p. 376Google Scholar.
56 Compare Tokyo Asahi, December 29, 1931, p. 1Google Scholar; Japan Weekly Chronicle (Kobe), December 31, 1931, p. 841Google Scholar.
57 Tokyo Asahi, September 22, 1931, p. 1Google Scholar. Compare dispatch in the New York Times, September 22, 1931, p. 5Google Scholar; Japan Weekly Chronicle (Kobe), October 1, 1931, pp. 405–406Google Scholar.
58 For the statements by the foreign office, see Tokyo Asahi, November 28, 1931, p. 1Google Scholar; Jiji Shimpo, November 28, 1931, p. 4Google Scholar; Japan Weekly Chronicle (Kobe), December 3, 1931, pp. 718–719Google Scholar.
59 Hozumi, Yatsuka, Kempo Teiyo (1910), Vol. I, p. 283Google Scholar; Minobe, , Kempo Oyobi Kempo-shi Kenkyu (1908), p. 65Google Scholar.
60 For a translation of this imperial decree, under date of December 2 and 28, 1880, see Japan Weekly Mail, January 10, 1881, p. 1115Google Scholar. This document Is reprinted inMcLaren's, Japanese Government Documents, pp. 67–68Google Scholar.
61 The text of this ordinance—the Koshitsu-rei—may be found in the Genko Horei Shuran (1927), Vol. I, bk. i, pp. 15–19Google Scholar. An English translation of the Imperial House Law is to be found in the appendix to Count Hiroburui Ito's Commentaries, pp. 155-171.
62 Commenting on imperial succession, Yatsuka Hozumi said: “The Japanese state is based upon the family system, and the imperial succession is to be interpreted in the light of the dynastic history.” Kempo Teiyo (1910), Vol. I, p. 229Google Scholar.
63 Kudo, Takeshigi, Teikoku Gikaishi, or Parliamentary History of Japan (Tokyo, 1901–1906), Vol. I, p. 97Google Scholar.
64 Ibid., Vol. II, p. 329.
65 Commentaries, pp. 84, 93.
66 Kempo Teiyo (1910), Vol. II, pp. 555, 561–562Google Scholar. In the words of Uyesugi: “The minister of state in the capacity of advising the Emperor is responsible for his advice and not the Emperor. … So far as the Diet is concerned, ministerial responsibility goes no further than the necessity of the minister to be questioned in the legislature and to submit to the amendment or rejection of his projects of law.” Kempo Jutsugi (1927), pp. 667, 669–670Google Scholar. Compare Shimizu, Cho, Kempo Hen (21st ed., 1923), pp. 724–727Google Scholar.
67 Kempo Teiyo (1927), pp. 290–291Google Scholar.
68 Article LVI, the only article in the constitution referring to the privy council, reads: “The privy councillors shall, in accordance with the provisions for the organization of the privy council, deliberate upon important matters of state, when they have been consulted by the Emperor.” In commenting on this article, Prince Ito said: “In performing their Heaven-received 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.” Commentaries, p. 98.
69 Compare the author's article, “The Japanese Privy Council,” in this REVIEW, August, 1931.
70 Tokyo Asahi, August 14, 15, 16, 1912, p. 3Google Scholar; Nippon (Tolcyo), August 16, 1912, p. 1Google Scholar. Compare Japan Weekly Chronicle, August 22, 1912, pp. 328–330Google Scholar. See also an article, “Mixture of Court and Politics,” making the allegation that Count Makino promoted the Satsuma clansmen and intrigued to secure the selection of Count Yamamoto as premier. Chuo Shimbun, quoted in Japan Advertiser, January 15, 1924, p. 3Google Scholar.
71 Dr. Ichiki, who received part of his education in Germany (1890-93), became in 1894 professor of administrative law at the Imperial University of Tokyo. In 1900, he was appointed a member of the House of Peers. He served as vice-minister of home affairs in 1908-11, and as chief of the bureau of legislation in 1912-13. He was minister of education, and later minister of home affairs in the cabinet of Terauchi (1916-18). In 1917-25 he served as privy councillor. Count Makino was minister of foreign affairs in 1913-14 and represented Japan at the Paris Peace Conference after the World War. He served as minister of the Imperial Household from 1921 to 1925, and as lord keeper of the privy seal since the latter date.
72 Commentaries, p. 101.
73 Hozumi, Yatsuka, Kempo Teiyo (1910), Vol. I, pp. 107–109Google Scholar; Minobe, Tatsukichi, Kempo Teiyo (1927), pp. 301–307Google Scholar.
74 “The Diet has no power to offer any modification to the proposed amendment; it can only vote ‘yes’ or ‘no.’” Shimizu, Cho, Kempo Hen (21st ed., 1923), p. 201Google Scholar.
75 Uyehara, George Etsujiro, The Political Development of Japan (London, 1910), p. 135Google Scholar.
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