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The Montesquieu moment

It was not the “Meiji” revolutionary government trying to seize the Kinri’s powers which first seriously investigated the introduction of a parliamentary system, but rather the Edo "ancien régime.” In a situation in which the new and old forces were competing with each other and a temporary cease-fire in the form of a “restoration of royal government” (ôsei fukko ZESÎIÎl’È') was reached, the aim was to control the momentum of the new powers by proposing a new political system. It was Nishi Amane [SiJnj (1829-1897), who had studied in the Netherlands with Simon Vissering (1818-1888), who shouldered a concrete draft for an institutional system.19 As has been described, the Edo government, being a hereditary military government, did not necessarily value intellectuals highly. However, on account of the acute political crisis at the end of this government, the Edo government began to slowly recognize the importance of intellectuals and knowledge. Nishi Amane is a good example thereof.

When looking at the details of the new system proposed by Nishi in his Draft of Discussion Topics (Gidai sôan let us first contemplate the understand

ing of the current situation which is at the basis of Nishi’s proposal for the introduction of a parliamentary system. First, he can no longer ignore the importance of “public deliberation” (kôgi 4HM). Some kind of “parliamentary idea” (kaigi no shut éaM®®,®) had to be incorporated into the political structure:

What is called “public deliberation” (kôgi ^aM) is universally praised by the population. Because, indeed, it is unavoidable to deal with public opinion, I wish for the notion of a parliament to be established, summarizing as much as possible the above discussion.20

Second, as a gunken system was temporarily impossible, he foresaw the continuation of hôken (i.e., in this case, a federal system or a confederation) for the time being:

But concerning the meaning of the above-mentioned “restoration of royal government,” in the present hôken government, our lords, pertaining to the same lineages of vassals, have been residing in half of the territory and holding the power in the Empire for more than a thousand years, and have been attached to families which can cause "the heavenly revenue to come to a perpetual end.” Even a three-year-old child would know that not once in a million times would it be possible to wish for the sudden revival of the gunken system and the reestablishment of the “personal fields” and “salary fields.”21

Based on these two premises, Nishi proposed to introduce a parliamentary system based on a “differentiation of three powers” (sunken no betsu

Concretely, in his scheme, the Tokugawa Shogun’s government, being the “government of the Generalissimo” (Kubosama seifu £)^ШЙЙЇ), should continue to hold the executive branch, while an assembly called “Office for Deliberating Politics” (Gisei-in ШЙЮ, composed of representatives of every domain, should be established and be put in charge of the legislative branch. In other words, its main idea was premised on a federal system and foresaw a division of powers between the federal assembly as executive branch and the national government as executive branch. This was, as Nishi Amane expressed it in his Brief explanation of the administrative systems of the West (Taisei kansei ryakusetsu ЖИДФО&аЙ), a reception of the Western “administrative system” (kansei 1l’$iJ) “discovered” (hatsumei by the “great French scholar Montesquieu” (Bukkoku no daiju Montesukiu (L Д ¿.fzfiw > т Z + 7), and more precisely an attempt to copy the federal political system of the United States.22

Of course, there were also large differences to the US model. First, the Tokugawa Shogun was clearly different from the President of the United States. At the same time, as the Tokugawa was the “head of state” representing the “government of the generalissimo,” he was also a landlord controlling a vast stretch of land on his own right. Within his territory, he could autonomously exert his rule. Furthermore, it was not clear from the text of the draft whether his territory should become a member of the federal assembly or not. This aspect also resembled the relationship between the monarch and the parliament in a European sense, and was the reason why Nishi Amane did not say “American model,” but carefully used the expression “the West” (Taisei Ж ІЗ).

Second, the structure of the Lower House was different. The assembly was divided into two chambers, i.e., an Upper and a Lower House, with the Upper-House being composed by the lord (daimyo Л4з) of every domain. In principle, one domain was represented by one person, and the right to speak of every domain was equal, without regard to their size. This basically is the same idea as that of the Upper House (Senate) of the United States. However, the problem was the Lower House. Concerning the structure of the Lower House, in the annex to his Draft of discussion topics (Besshi gidai soan ЯіІМІйЮ^Ж), Nishi writes the following:

In the Western system, representatives are deployed according to the size of the population. Although this exists as an example, such is impossible in our current hoken system. And while such will hardly be possible as long as both the rural and urban common people are still illiterate, at that time it will behove us to abolish the representation of one person per domain!23

The structure of the Lower House was the same “one person per domain” (ichi-han ichi-ntei —їШ—

Nishi hardly looked forward to an Upper House filled up with daimyds. It must have been an honest suggestion when he wrote in his Draft of Discussion Topics: “Because the parliament is unable to decide through the Upper House alone, I think that one should treat the Lower House likewise.”24 Nishi also acknowledges that, in case one would bestow real decision rights to the Lower House, the “number of representatives or the weight of their voice” should actually change according to “the province’s size.” This notwithstanding, because of the “current hoken government,” he deemed that this was impossible in practice. Similarly, Tsuda Mamichi, who had also studied in the Netherlands with Vissering, indeed foresaw an Upper and a Lower House in his General Institutions of Japan (Nihokoku soseido 0 the reform plan which he proposed at about the same

time as Nishi. Yet, concerning the Lower House, it contrasted with Nishi's scheme in that it clearly stipulated a proportional representation of the population: "For every 100,000 citizens, one person should be elected.”25 Here, along with Tsuda’s fidelity to his standard model, the “Western system” (yosei $£ф!|), one can discern an element of his tendency toward centralization of power. As will be discussed later, Tsuda’s outlook was eventually correct. However, the one who thought “realistically” at the moment was probably Nishi. Tsuda assumed Japan’s contemporary political system not to be a hoken one, but to have “the shape of what the Westerners call ‘federation’” (yojin no iwayuru gappo no sugata A ¿.ЯЛйв'н Я>А^).26 Tsuda understood this term, “federation” (gappo иАЮ, as a federal state presupposing unification, while Nishi can be said to have understood hoken as a “confederation which does not presuppose unification.”

As a third point, connected to this, there was an absence of debates about the judicial branch. Nishi’s Draft of Discussion Topics emphasized the “separation of the three powers,” but the discussion of the judicial branch in it was limited to the sentence “the judicial power can for the time being not be set up as within the authority of the laws in force in all countries” (shuho no ken wa imashibaraku no tokoro, kakkoku gybho no kennai пі капе soro koto

(2Yet, its implications were clear: The establishment of a supreme judicature on the model of the United States with jurisdiction for the whole federation was out of consideration, and it was planned to leave it at the jurisdiction of the justice within the various “domains” (han ill) and “provinces” (кипі S). In this aspect, too, it is possible to say that the new political system of Japan envisaged by Nishi was a more strongly decentralized confederation than the federal system of the United States.

Whether one assumed a hoken system or a federation (gappo iiAIA attempts to subsume the decentralized shape of Japan’s contemporary political system under the extremely peculiar models of Montesquieu and “division of powers” were indeed not restricted to Nishi Amane and Tsuda Mamichi. Rather than the Tokugawa government, with which Nishi and Tsuda cooperated, it was Fukuoka Takachika ІмІЇ) A# (1835-1919) who cooperated with the creation of the new institutional structure at the side of the new Meiji government and who wrote about the Constitutional Document (Seitaisho ЙІФйг), which he had drafted himself: “The administrative system laid out in the Constitutional Document takes as its basis a separation of three powers akin to the United States of America.”27 The Montesquieuan Model was widely accepted by both the Tokugawa and Meiji sides. The temporal range of this acception was also long. Even after the abolition of the domains and the establishment of the prefectures had been concluded, and the Meiji state had clearly begun to walk on the path of centralization of powers, the influence of the Montesquieu Model was tenacious. When Maurice Block (1816-1901) asked Kido Takayoshi (1833-1877), who had gone to

Paris as a member of the Iwakura mission (1871-1873): “Why do all the Japanese with whom I have been in touch hold fast to the theory of separation of powers? Methinks this is strange,” he was stunned:

If we had been careless about the three branches of politics being a standpoint of US American democracy, while we thought that it is a common notion in the (whole) West, we would have missed the national essence of Imperial restoration right at the beginning.28

In the autumn of the fifth year of Meiji (1872), Nishimura Shigeki ffl (1828-1902) explained the “principle of the three powers” (sanken no ri in the preface to his Brief history of all countries (Bankoku shiryaku 7J H by noting: "There are three powers in a state: the legislative, the executive, and the judiciary. When the three powers are balanced, then the state will be stable and prosperous.” With the words “The English law is the most perfect one, but the American system even surpasses it,” he valued the system of the United States highly. Nishimura’s preface was continued to be included in both the print edition of 1875 and in the second edition of 1879.

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