The 22 Frimaire of Yuan Shikai Privy councils in the constitutional architectures of Japan and China, 1887-1917
Egas Moniz Bandeira1
It was indeed a grand political idea whereof even England could be jealous of us, this Council of State, which was heard over all big questions, conserved from the great political traditions of the Empire. ... This admirable creation of the Brazilian spirit, which completed the other, no less admirable one taken from Benjamin Constant, the Moderating Power, united, thus, around the Emperor the political heads of the one and the other side, all of their consummated experience, whenever it was necessary to hold consultations about an important public interest.2
This can be dealt with by a completely new invention of my own devising. When you inquire into the basic principles of our Constitution, you will see that sovereignty resides firmly in the imperial house, and that in a crisis His Majesty's judgment is to be the basis for the final decision. ... There must be conscientious imperial advisers who can clearly ascertain the state of the nation and the sentiments of the people, and in the end secure what is in their best interests. I am convinced that only a Privy Council can provide the place where such advisers may be found.2
Itô Hirobumi MW-X (1841-1909)
Advisory bodies to monarchs are among the most traditional forms of collective decision-making, but as institutions of modern states, they are among the least conspicuous ones. As monarchs had their powers limited by constitutional governments or even became symbolical figures in parliamentary political systems, their advisory bodies lost their legislative attributions to parliaments and their executive attributions to the cabinet. Since the nineteenth century, a privy council might seem like a relic from the autocratic past to an observer from Central Europe, the British Isles or her former colonies in North America. It was in this sense that Kenneth Colegrave wrote that the Japanese Privy Council had “almost no counterpart in contemporary Europe,” and belonged to the “England of the Smarts or the France of Louis XVI.”4
But is that really so? Whoever, by whatever strange whim, decides to complement his reading of the Constitution of the Empire of Japan of 1889 by the Constitution of the Empire of Brazil of 1824, will find a parallel between the two of them which he will not find between the Japanese Constitution and the constitutions from which it is thought to be derived. Title V, chapter 6, of the Brazilian Constitution stipulated that the Ministers of State shall countersign and be responsible for all acts of the executive branch of the government, while the next chapter institutes a Council of State to be heard in all “important matters” as well as in cases in which the Emperor “propose to exert any of the attributions of the Moderating Power.”5 While much more laconic, the Japanese Constitution had the same structure: art. 55 stipulated that the Ministers of State countersign all Laws, Imperial Ordinances, and Imperial Rescripts of whatever kind, while art. 56 laid down that the Privy Council “deliberate upon important matters of State.“6 Constitutional thought has also described both institutions in very similar terms: While the Brazilian Council of State has been claimed to have been the “brain of the monarchy,”7 the Japanese Privy Council was the “palladium of the constitution and of the law.”s
In both cases, it has been claimed that the consultative council was a specifically national element of the respective constitutional architecture. While the Brazilian statesman Joaquim Nabuco (1849-1910) claimed that the Council of State was an “admirable creation of the Brazilian spirit,”9 the Japanese statesman Ito Hirobumi (1841-1909) spoke of a “completely new invention of my own devising.“10 But as a matter of fact, Brazil and Japan were by far not the only constitutions to show such a parallel treatment of the executive body of ministers and of the advisory body to the monarch. Next to the Portuguese Constitutions of 1822 and 1826,11 closely related to the Brazilian one, and the Spanish constitutional charters, such as those of 1808 and 1812,12 the feature came up in other seemingly unrelated constitutions around the world, such as articles 41 and 42 of the 1845 Constitution of the Kingdom of Hawai’i and articles 54 and 55 of the 1875 Constitution of the Kingdom of Tonga.13
Did these privy councils and councils of state appear around the globe coincidentally and spontaneously? Using the example of three East Asian polities -the Japanese Empire, the Qing Empire, and the Republic of China - this chapter shows that they did not.14 By the nineteenth century, privy councils were all but a moribund relic of the past. Rather, they were building blocks of global constitutional architecture which surfaced and were adapted in various parts of the world according to local needs. As Lorenz von Stein (1815-1890) explained to his Japanese interlocutors, the old privy councils of pre-constitutional times were transformed in three ways: some of them disappeared completely, others retained ceremonial roles, while some were transformed into significant organs counterbalancing the cabinet or the parliament, being it within monarchic or republican constitutional frameworks.15 The first development occurred in many German states, while England is a prime example for the second type. Although these two types might lead to the impression of the institution being an anachronism, the third type also had a prominent representative in the middle of Europe, and one which proved to be rather influential: the Napoleonic reinterpretation of the preconstitutional curia regts in the form of the constitutional Conseil d’État.
As the chapter shows, Japan and China opted for the third type, adapting the constitutional idea in a variety of local variants designed to meet the needs of the constitution-makers. Meiji Japan opted for the strong Privy Council through the mediation of German constitutional advisors, for such an institution promised additional constitutional stability in a context where the Emperor was to occupy a role at the top of the constitutional architecture. While the strong role of the Japanese Privy Council is well-known, the various Chinese refractions of the institution seem to have been inconspicuous in the formation of the modern political institutions of the Chinese state. Carrying a host of differing names not only in Chinese, but also in English translations, it is easy to overlook that not only the imperial “constitutional preparation” from 1906 to 1911 created a Privy Council, but that early republican constitutional architectures also frequently foresaw such bodies. While, as most other new institutions, they were modeled on foreign institutions, mostly but not exclusively Japanese, they also played the role of being a traditional element within the new system, seen as a successor for indigenous institutions and as a way to accommodate old elites. The chapter shows that not only the late Qing Bideyuan ÿi'jfëK (Privy Council), but also Yuan Shikai’s (1859-1916) Canzhengyuan (literally Political Participatory Council) were refractions of the concept. Thereby, it also highlights political continuities and discontinuities between the Qing Empire and Republican China. A privy council could be formed in both polities due to the structural similarity between constitutional monarchy and presidential republics, but it fell into oblivion when it came to be too strongly associated with monarchic and presidential strongmanship.16
From curia régis to pouvoir neutre
In Europe, perhaps the first place where the privy council lost its power to a responsible subset of itself was England, and later by extension, the United Kingdom. In the mid-seventeenth century, during the English Civil War, the Privy Council was first abolished, but was then replaced with a Council of State, which again became a Privy Council to Lord Protector Oliver Cromwell (1599-1658). After this episode, the royal Privy Council was reinstated, but lost most of its powers to the Cabinet, which is formally a committee of the Privy Council. Except for its main ceremonial functions, the British Privy Council has retained some residual executive, legislative, and judicial functions: it may issue royal charters to grant powers to body corporates, and its Judicial Committee acts as the court of appeal in cases concerning crown dependencies, overseas territories, and certain Commonwealth states.
Similar developments also took place in continental European processes of constitutionalization, but they tended to go a step further: As these processes, beginning from the late eighteenth century, all engendered full-blown written constitutions, the constitutional charters now tended to leave out these institutions.
For example, the Belgian Constitution of 1831 - an internationally influential document - does not mention the Crown Council (Conseil de la Couronne) at all. Although it continued to exist as a customary institution, it was only convened five times since the adoption of the Constitution in matters of supreme importance. In Germany, some constitutions mention the Privy Council, such as that of the Kingdom of Bavaria ( 1818)17 and of the Kingdom of Hannover (1833),18 but they often do so only in passing, and in many places, the institution was gradually sidelined during the century. This was the case, for example, in the most powerful of German states, Prussia. Although the institution saw a few short-lived revivals until the end of monarchy, the Constitution imposed by the King in 1850 does not mention the Staatsrat.19
However, as mentioned, the third type of advisory council - which paralleled the cabinet in the constitution - not only occurred in Brazil, Japan, Hawai’i, and others, but also in a very different central European context. The Council of State (Conseil d’État) of the French ancien régime was inherited by the Napoleonic Conseil d’État, founded in 1799 with the so-called Constitution of 22 Frimaire, Year VIII. In articles 52 and 53, the charter instituted the new Conseil d’État as part of the government, tasking it with devising draft laws and resolving administrative difficulties. Articles 54 and 57 set down the role of ministers, including their responsibility. The legislative power, on the other hand, was fragmented into three assemblies (Conservative Senate, Tribunal, and Legislative Corps). In the post-Napoleonic restoration, the Conseil d’État was sidelined, but it regained its importance in the July Monarchy installed in 1830 and was again constitutionally regulated in the Constitution of the 1848 Republic.
The text of the French Constitution of 1799 was not a perfect blueprint for subsequent constitutions. The attributions of the council of state varied, as, e.g., it was not necessarily tasked with administrative adjudication, and the 1799 stipulation that three orators be chosen from the Conseil d’État to represent the government in the Corps Legislatif remained very specific to Consulate France.20 However, the strong position of the postrevolutionary French Conseil d’État next to the Ministers of State - who were not necessarily yet united in a cabinet - was key in inspiring similar constitutional architectures in Euro-America and beyond.21 As will be shown, it also figured as a significant element in the considerations that led to the adoption of the Japanese Privy Council.
Furthermore, the constitutional theory which came to underpin the constitutional architecture of a Council of State alongside the State Ministers directly in Brazil and, in a more fuzzy way, in Japan, was also of French origin. Basing himself on Stanislas de Clermont-Tonnerre (1757-1792), the liberal French philosopher Benjamin Constant (1767-1830) had conceived of the royal power as of a separate branch of government next to the executive branch of government, even though the monarch was at the head of both:
One will be astonished that I distinguish the royal power from the executive power. This distinction, still unknown, is very important. It is, perhaps, the key of every political organization. There are, says he (Clermont-Tonnerre), two distinct powers within monarchic power: executive power, vested with positive prerogatives, and royal power, which is supported by memories and religious traditions.22
Although Benjamin Constant did not comment about the Council of State, this consultative council attached to the person of the monarch was soon conceived as the epitome of royal power itself. The Brazilian (1824) and Portuguese (1826) Constitutions expressly conceived the Council of State as being the instrument of the monarch’s “moderating power” (poder moderador), which, as expressed in art. 98 of the Brazilian Constitution,
is the key of the while Political organization, and is delegated exclusively to the Emperor, as Supreme Chief of the Nation, and its First Representative, that he incessantly watch over the maintenance of independence, equilibrium, and harmony of the further Political Powers.23
Hence, although privy councils had become at most ceremonial institutions in the Germanic-speaking parts of the world, it was far from an anachronistic rudimentary institution on a global level. In the form of councils of state, advisory bodies to heads of state continued to flourish and be productive in new constitutional formations, especially in cases where they were deemed necessary for the constitutional equilibrium between the several branches of govermnent.