FOOTNOTES:

FOOTNOTES:[1]Lattimore, Owen,Inner Asian Frontiers of China, New York, 1940, p. 45 andpassim. The author, a noted geographer, presents significant new analyses of the interconnections of Chinese economics and culture.[2]Detailed descriptions of the political history of the period are to be found,inter alia, in Holcombe, Arthur N.,The Chinese Revolution, Cambridge, 1930; MacNair, Harley F.,China in Revolution, Chicago, 1931; and, most popularly, Escarra, Jean,China Then and Now, Peiping, 1940. Descriptions of the government are Wu Chih-fang,Chinese Government and Politics, Shanghai, 1934; Lum Kalfred Dip,Chinese Government, Shanghai, 1934; and Linebarger, Paul M. A.,Government in Republican China, New York and London, 1938.[3]This is given in theChien Kuo Ta Kang(Outline of National Reconstruction), of April 12, XIII (1924), particularly points 3, 5, 6, 7, and 23. Translations are to be found in Hsü, Leonard Shihlien,Sun Yat-sen: His Political and Social Ideals, Los Angeles, 1933, and Wu Chih-fang, work cited, p. 430ff.[4]For the text of this constitution, see Wu Chih-fang, cited, p. 430ff.[5]In particular, see Freyn, Hubert,Prelude to War: The Chinese Student Rebellion of 1935-1936, Shanghai, 1939. Reference to contemporary Left-liberal and Left publications in Europe and America will disclose numerous sympathetic eyewitness accounts of the troubles and the fortitude of the students. Some of these accounts now possess a wry, inadvertent humor in their characterization of Chiang as a willing accomplice of Japan.[6]For the Generalissimo's own diary of the kidnapping, together with a narrative by his wife, see Chiang, Mme. Mayling Soong,Sian: A Coup d'Etat, bound with Chiang K'ai-shek,A Fortnight in Sian: Extracts from a Diary, Shanghai, 1938. The Chinese edition of this appeared as Chiang Wei-yüan-chang [Chairman Chiang],Hsi-an Pan Yüeh-chi[A Fortnight's Diary from Sian], Shanghai, XXVI (1937). A first-hand Western account is Bertram, James M.,First Act in China, New York, 1938. Edgar Snow, inRed Star over China, New York, 1938, p. 395ff., gives an account sympathetic to the Left; Harold Isaacs, inThe Tragedy of the Chinese Revolution, London, 1938, p. 445ff., presents a penetrating Trotskyist critique. An excellent factual summary of this crucial year, written by a well-known writer who visited the scene at first hand, is to be found in Bisson, T. A.,Japan in China, New York, 1938.[7]"War" used to mean the reciprocal application of violence by public, armed bodies; private and informal homicide was termed "murder" or was otherwise clearly designated. Today these distinctions are less clear. The author must enter acaveat lector: no term is employed in other than a general (i.e., literary) meaning, except upon special notice. The Sino-Japanese hostilities differ greatly from war in several interesting but technical respects; they are a very special Japanese invention. Yet it would be cumbersome to refer to Chinese changes in Conflict-time, or to speak meticulously of armies engaged in an Incident.[8]See Council of International Affairs,The Chinese Year Book, 1938-39[Hong Kong], 1939; article by Chu Chia-hua, "Consolidation of Democracy in China," Chapter IV; "Reconciliation with the Communists," p. 339-40. This Council is an informal and extra-legal offshoot of the Chinese Ministry of Foreign Affairs; accordingly the annual, rich in official materials, provides insufficient data on Communist, guerrilla, and unofficial activities. See also, Epstein, I.,The People's War[Shanghai], 1939, p. 88ff., for an excellent, clear account of this period.[9]See below, p.193. See also Taylor, George E.,The Struggle for North China, New York, 1940, in the Inquiry Series of the Institute of Pacific Relations.[10]See Epstein, I., work cited, p. 235ff.andThe Chinese Year Book 1938-39, cited, article by the late P. C. Nyi, "Plans for Political and Economic Hegemony in China"; this includes a full administrative description of the Border Region, p. 254ff.The North China zone is arbitrarily translated "Border Region," to distinguish it from the quondam Chinese Soviet Republic in the Northwest, translated as "Frontier Area."[11]See below, p.46.[12]See chart on p.47. Descriptions of the pre-war Central Political Council are to be found in the texts cited on p. 5, n. 2, and in the first two issues ofThe Chinese Year Book, 1935-36and1936-37, Shanghai,passim.[13]See Appendix, p.309.[14]See below, p.69. This is to be distinguished from the various constitutional conventions, the proposed national congress (kuo-min ta-hui) which exists only in contemplation of the constitutional drafters, and the Kuomintang Party Congress.[15]An engrossing first-hand account of this is to be found in Hino, Ashihei,Sea and Soldiers, Tokyo, 1940. This, with its three companion volumes,Mud and Soldiers,Flower and Soldiers, andBarley and Soldiers, Tokyo, 1939 and 1940, forms an eloquent, humane, sensitive narrative of a young Japanese writer serving with the Imperial forces in China. The series ranks with the great narratives of the European war of 1914-18, and expresses the Japanolatrist devoutness, the naïveté, and bewildering courage of much of the Japanese infantry, but does so through the medium of a literary craftsmanship rare in any army.[16]The literature of the war and of the struggles of Free China has already reached an enormous extent. The present work makes no attempt to present a step-by-step account of the interplay of personal politics, the progress of the armies, or to provide a first-hand personal account. Observers other than the author have presented these topics exceedingly well. A few of the outstanding works may be mentioned, however; a Shanghai press line usually signifies that the book was reprinted there from a British or North American edition. Epstein, I.,The People's War, London, 1939, is a spirited, detailed account of development down to the spring of 1939, particularly useful for the New Fourth Army and the Border Region. Among accounts of the war are Bertram, J. M.,Unconquered, New York, 1939; Oliver, Frank,Special Undeclared War, London, 1939, containing interesting accounts, in particular, of Japanese military and political behavior in China. Andersson, J. G.,China Fights for the World[Shanghai], 1939; Utley, Freda,China at War[Shanghai], 1939, a significant personal account with special interest for the Hankow period; Mowrer, Edgar,Mowrer in China, Harmondsworth (England), 1938, published in America asThe Dragon Wakes, New York, 1939; Booker, Edna Lee,News Is My Job[Shanghai], 1940, a reminiscent anecdotage; Lady Hosie,Brave New China, [Shanghai], n.d., a far more informed work than most of the autobiographical accounts, by the daughter and widow of two British Orientalists, herself a distinguished literary writer on China. On the North China situation, four popular works stand out: Snow, Edgar,Red Star Over China, New York, 1938, the great "scoop" on the Communists; and three other books based on first-hand reconnaissance: Bisson, T. A., work cited above; Hanson, Haldore, "Humane Endeavour" [Shanghai], n.d.; and Carlson, Evans Fordyce,Twin Stars of China, New York, 1940, the work of the U. S. Marine Corps Observer in the guerrilla area, unique in its value as professional military interpretation. Gunther, John,Inside Asia, New York, 1939, contains much of great interest. Very special viewpoints are represented in the account of a National-Socialist German observer, Urach, Fürst A.,Ostasien, Kampf um das Kommende Grossreich, Berlin, 1940; the commentary of two British poets, Auden, W. H., and Isherwood, Christopher,Journey to a War, New York, 1939; and the reportage of a distinguished Soviet fellow-traveller, Strong, Anna Louise,One-Fifth of Mankind, New York, 1938.

[1]Lattimore, Owen,Inner Asian Frontiers of China, New York, 1940, p. 45 andpassim. The author, a noted geographer, presents significant new analyses of the interconnections of Chinese economics and culture.

[2]Detailed descriptions of the political history of the period are to be found,inter alia, in Holcombe, Arthur N.,The Chinese Revolution, Cambridge, 1930; MacNair, Harley F.,China in Revolution, Chicago, 1931; and, most popularly, Escarra, Jean,China Then and Now, Peiping, 1940. Descriptions of the government are Wu Chih-fang,Chinese Government and Politics, Shanghai, 1934; Lum Kalfred Dip,Chinese Government, Shanghai, 1934; and Linebarger, Paul M. A.,Government in Republican China, New York and London, 1938.

[3]This is given in theChien Kuo Ta Kang(Outline of National Reconstruction), of April 12, XIII (1924), particularly points 3, 5, 6, 7, and 23. Translations are to be found in Hsü, Leonard Shihlien,Sun Yat-sen: His Political and Social Ideals, Los Angeles, 1933, and Wu Chih-fang, work cited, p. 430ff.

[4]For the text of this constitution, see Wu Chih-fang, cited, p. 430ff.

[5]In particular, see Freyn, Hubert,Prelude to War: The Chinese Student Rebellion of 1935-1936, Shanghai, 1939. Reference to contemporary Left-liberal and Left publications in Europe and America will disclose numerous sympathetic eyewitness accounts of the troubles and the fortitude of the students. Some of these accounts now possess a wry, inadvertent humor in their characterization of Chiang as a willing accomplice of Japan.

[6]For the Generalissimo's own diary of the kidnapping, together with a narrative by his wife, see Chiang, Mme. Mayling Soong,Sian: A Coup d'Etat, bound with Chiang K'ai-shek,A Fortnight in Sian: Extracts from a Diary, Shanghai, 1938. The Chinese edition of this appeared as Chiang Wei-yüan-chang [Chairman Chiang],Hsi-an Pan Yüeh-chi[A Fortnight's Diary from Sian], Shanghai, XXVI (1937). A first-hand Western account is Bertram, James M.,First Act in China, New York, 1938. Edgar Snow, inRed Star over China, New York, 1938, p. 395ff., gives an account sympathetic to the Left; Harold Isaacs, inThe Tragedy of the Chinese Revolution, London, 1938, p. 445ff., presents a penetrating Trotskyist critique. An excellent factual summary of this crucial year, written by a well-known writer who visited the scene at first hand, is to be found in Bisson, T. A.,Japan in China, New York, 1938.

[7]"War" used to mean the reciprocal application of violence by public, armed bodies; private and informal homicide was termed "murder" or was otherwise clearly designated. Today these distinctions are less clear. The author must enter acaveat lector: no term is employed in other than a general (i.e., literary) meaning, except upon special notice. The Sino-Japanese hostilities differ greatly from war in several interesting but technical respects; they are a very special Japanese invention. Yet it would be cumbersome to refer to Chinese changes in Conflict-time, or to speak meticulously of armies engaged in an Incident.

[8]See Council of International Affairs,The Chinese Year Book, 1938-39[Hong Kong], 1939; article by Chu Chia-hua, "Consolidation of Democracy in China," Chapter IV; "Reconciliation with the Communists," p. 339-40. This Council is an informal and extra-legal offshoot of the Chinese Ministry of Foreign Affairs; accordingly the annual, rich in official materials, provides insufficient data on Communist, guerrilla, and unofficial activities. See also, Epstein, I.,The People's War[Shanghai], 1939, p. 88ff., for an excellent, clear account of this period.

[9]See below, p.193. See also Taylor, George E.,The Struggle for North China, New York, 1940, in the Inquiry Series of the Institute of Pacific Relations.

[10]See Epstein, I., work cited, p. 235ff.andThe Chinese Year Book 1938-39, cited, article by the late P. C. Nyi, "Plans for Political and Economic Hegemony in China"; this includes a full administrative description of the Border Region, p. 254ff.The North China zone is arbitrarily translated "Border Region," to distinguish it from the quondam Chinese Soviet Republic in the Northwest, translated as "Frontier Area."

[11]See below, p.46.

[12]See chart on p.47. Descriptions of the pre-war Central Political Council are to be found in the texts cited on p. 5, n. 2, and in the first two issues ofThe Chinese Year Book, 1935-36and1936-37, Shanghai,passim.

[13]See Appendix, p.309.

[14]See below, p.69. This is to be distinguished from the various constitutional conventions, the proposed national congress (kuo-min ta-hui) which exists only in contemplation of the constitutional drafters, and the Kuomintang Party Congress.

[15]An engrossing first-hand account of this is to be found in Hino, Ashihei,Sea and Soldiers, Tokyo, 1940. This, with its three companion volumes,Mud and Soldiers,Flower and Soldiers, andBarley and Soldiers, Tokyo, 1939 and 1940, forms an eloquent, humane, sensitive narrative of a young Japanese writer serving with the Imperial forces in China. The series ranks with the great narratives of the European war of 1914-18, and expresses the Japanolatrist devoutness, the naïveté, and bewildering courage of much of the Japanese infantry, but does so through the medium of a literary craftsmanship rare in any army.

[16]The literature of the war and of the struggles of Free China has already reached an enormous extent. The present work makes no attempt to present a step-by-step account of the interplay of personal politics, the progress of the armies, or to provide a first-hand personal account. Observers other than the author have presented these topics exceedingly well. A few of the outstanding works may be mentioned, however; a Shanghai press line usually signifies that the book was reprinted there from a British or North American edition. Epstein, I.,The People's War, London, 1939, is a spirited, detailed account of development down to the spring of 1939, particularly useful for the New Fourth Army and the Border Region. Among accounts of the war are Bertram, J. M.,Unconquered, New York, 1939; Oliver, Frank,Special Undeclared War, London, 1939, containing interesting accounts, in particular, of Japanese military and political behavior in China. Andersson, J. G.,China Fights for the World[Shanghai], 1939; Utley, Freda,China at War[Shanghai], 1939, a significant personal account with special interest for the Hankow period; Mowrer, Edgar,Mowrer in China, Harmondsworth (England), 1938, published in America asThe Dragon Wakes, New York, 1939; Booker, Edna Lee,News Is My Job[Shanghai], 1940, a reminiscent anecdotage; Lady Hosie,Brave New China, [Shanghai], n.d., a far more informed work than most of the autobiographical accounts, by the daughter and widow of two British Orientalists, herself a distinguished literary writer on China. On the North China situation, four popular works stand out: Snow, Edgar,Red Star Over China, New York, 1938, the great "scoop" on the Communists; and three other books based on first-hand reconnaissance: Bisson, T. A., work cited above; Hanson, Haldore, "Humane Endeavour" [Shanghai], n.d.; and Carlson, Evans Fordyce,Twin Stars of China, New York, 1940, the work of the U. S. Marine Corps Observer in the guerrilla area, unique in its value as professional military interpretation. Gunther, John,Inside Asia, New York, 1939, contains much of great interest. Very special viewpoints are represented in the account of a National-Socialist German observer, Urach, Fürst A.,Ostasien, Kampf um das Kommende Grossreich, Berlin, 1940; the commentary of two British poets, Auden, W. H., and Isherwood, Christopher,Journey to a War, New York, 1939; and the reportage of a distinguished Soviet fellow-traveller, Strong, Anna Louise,One-Fifth of Mankind, New York, 1938.

The constitutional system, basic in most Western states, plays a peculiar, subordinate role in China. Consideration of the issue of constitutionalism high-lights the most practical aspects of the issues of full democracy. Although the purely legal aspects of constitutional development are still unimportant in the internal power politics of China, further constitutional development involves a very real shift in the domestic balance of power. The fullness of national unity, and therefore the effectiveness of resistance against Japan, depend in part on the successful solution or compromise of the problems of constitutionalism.

Ever since the beginnings of political modernization in China, demands for constitutional government have included a written constitution as an imperative prerequisite. The formidable Empress Dowager was troubled in her last days by the Imperial constitution, a rather unimaginative plagiarism of the Japanese Constitution of 1889. Since the Republic began in 1912, China has continued constitutional drafting, amendment, replacement, and suppression; many of these constitutions have gone into legal effect. Law being what it was, practical politics flowed on untroubled.[1]Only with the establishment of the National Government at Nanking did constitutional structure and actual government develop similarities.

In 1931, after three years' operation under an Organic Law, the National Government adopted theYüeh Fa(Provisional Constitution),[2]designed to cover the period between the first stage of the revolution,military conquest, and the final one ofconstitutional government. This intermediate period was formally labelled the stage ofpolitical tutelage, although in fact the military unification of the country continued. The Provisional Constitution, designed for five years' use, has continued in force to the present (March 1941). It possesses the merit of attempting to make actual practice and constitutional form correspond. Grandiloquent, unenforceable provisions concerning elections are omitted, and full exercise of the powers of sovereignty are frankly entrusted to the tutelary Party, the Kuomintang. Such a constitution, formally making the Kuomintang different from and higher than any other party in China—and, for all that, in the world, since the Fascist, National Socialist, and Communist parties are not formally the constitutional superiors of their respective governments—and giving the Party unrestricted authority, has provided China with government realistic if not libertarian.

The constitutional basis of the present Party-dictatorship in China is well summarized by the distinguished constitutional commentator, Dr. Wang Shih-chieh:

According to Sun Chung-shan's[3]Chien-kuo Ta-kang[Outlines of National Reconstruction], China should pass through a period of political tutelage under the Chinese Kuomintang,[4]before the stage of constitutional government be reached. The National Government is merely an organization through which a true republic may be formed. Hence, in order to demonstrate the structure of the National Government clearly, we must first understand the meaning oftang chih[party government]."Party government," so-called, signifies that the whole system of government is under the control or dictatorship of one political party only. The only difference between party government and dictatorship is that the former is under the dictatorship of an entire political party, while the latter is under that of a single person. Party government is of course different from democracy, inasmuch as with democracy, all policies are to be decided by the entire body of citizens, while with party government, policies are to be decided by all the members of the particular party only. In other words, the entire party as one man can exercise political dictatorship, without taking into consideration the opinions of those who are not the members of the party. Any resolution passed by that party is considered a law not only in fact, but sometimes even in name; moreover, the party may cancel or change a law by a resolution passed in a meeting.The above-mentioned points are phenomena common to countries under party governments.After the Chinese Kuomintang has come into power, the system of party government is not only a fact, but even prescribed in laws. TheLaws Governing the System of Organization of the National Government of the Republicof Chinapromulgated for the first time on July 1, Year XIV (1925) were originally formulated by the Political Council of the Chinese Kuomintang. Article I in this code of laws provided: "The National Government discharges all the political affairs of the entire country, under the direction and superintendency of the Chinese Kuomintang." The said code has been constantly amended since its first promulgation, but this article has always remained unchanged. By the summer of Year XVII (1928), when the successful Northern Expedition undertaken by the National Revolutionary Army unified China under one government, the period of political tutelage of the Chinese Kuomintang began with the formulation and promulgation of theOutlines of Political Tutelageon October 3, Year XVII (1928). Article I of the said "Outlines" provided: "During the period of political tutelage of the Republic of China, the National Party Congress of the Chinese Kuomintang will take the place of the National Convention to lead the people and enforce all policies." By the beginning of June, in Year XX (1931), when theProvisional Constitutionfor the period of political tutelage was promulgated, theOutlines of Political Tutelagewere again formed into a part of theProvisional Constitution, thereby giving party government a constitutional recognition. Besides theOutlines of Political Tutelage, Article 72 ("The National Government [Council of State] has a President and a certain number of state councillors, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 58 ("The Central Executive Committee of the Chinese Kuomintang is vested with the power of interpreting this Provisional Constitution.") of theProvisional Constitution, and Article 10 ("The National Government has a President, twenty-four to thirty-six state councillors, a President and a Vice-President of everyYüan, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 15 ("Before the promulgation of the Constitution, the Executive, Legislative, Judicial, Examination and ControlYüanwill each be responsible to the Central Executive Committee of the Chinese Kuomintang.") of theLaws Governing the System of Organization of the National Government(December 30, Year XX [1931]) now being enforced, form the legal basis for party government.[5]

"Party government," so-called, signifies that the whole system of government is under the control or dictatorship of one political party only. The only difference between party government and dictatorship is that the former is under the dictatorship of an entire political party, while the latter is under that of a single person. Party government is of course different from democracy, inasmuch as with democracy, all policies are to be decided by the entire body of citizens, while with party government, policies are to be decided by all the members of the particular party only. In other words, the entire party as one man can exercise political dictatorship, without taking into consideration the opinions of those who are not the members of the party. Any resolution passed by that party is considered a law not only in fact, but sometimes even in name; moreover, the party may cancel or change a law by a resolution passed in a meeting.

The above-mentioned points are phenomena common to countries under party governments.

After the Chinese Kuomintang has come into power, the system of party government is not only a fact, but even prescribed in laws. TheLaws Governing the System of Organization of the National Government of the Republicof Chinapromulgated for the first time on July 1, Year XIV (1925) were originally formulated by the Political Council of the Chinese Kuomintang. Article I in this code of laws provided: "The National Government discharges all the political affairs of the entire country, under the direction and superintendency of the Chinese Kuomintang." The said code has been constantly amended since its first promulgation, but this article has always remained unchanged. By the summer of Year XVII (1928), when the successful Northern Expedition undertaken by the National Revolutionary Army unified China under one government, the period of political tutelage of the Chinese Kuomintang began with the formulation and promulgation of theOutlines of Political Tutelageon October 3, Year XVII (1928). Article I of the said "Outlines" provided: "During the period of political tutelage of the Republic of China, the National Party Congress of the Chinese Kuomintang will take the place of the National Convention to lead the people and enforce all policies." By the beginning of June, in Year XX (1931), when theProvisional Constitutionfor the period of political tutelage was promulgated, theOutlines of Political Tutelagewere again formed into a part of theProvisional Constitution, thereby giving party government a constitutional recognition. Besides theOutlines of Political Tutelage, Article 72 ("The National Government [Council of State] has a President and a certain number of state councillors, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 58 ("The Central Executive Committee of the Chinese Kuomintang is vested with the power of interpreting this Provisional Constitution.") of theProvisional Constitution, and Article 10 ("The National Government has a President, twenty-four to thirty-six state councillors, a President and a Vice-President of everyYüan, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 15 ("Before the promulgation of the Constitution, the Executive, Legislative, Judicial, Examination and ControlYüanwill each be responsible to the Central Executive Committee of the Chinese Kuomintang.") of theLaws Governing the System of Organization of the National Government(December 30, Year XX [1931]) now being enforced, form the legal basis for party government.[5]

Under Kuomintang trusteeship, demands have been heard within and without the Party, for the promised abdication of the Party and for the initiation of popular government. Since the Kuomintang, unlike European one-party groups, established itself only for the formal purpose of democratic training, and was pledged to tolerate multi-party government as soon as possible, the continued monopoly of power was a frustration of the Party ideology and programs. The frustration was serious; involving much loss of popular sympathy for the government, this and appeasement rather demoralized the Party in the years preceding the invasion.

The LegislativeYüanbrought forth on May 5, 1936 (in Chinese chronology, 5/5/XXV, or double-five twenty-five), the celebratedHsien-fa Ts'ao-an(Draft Permanent Constitution), which was promptly dubbed the Double Five Constitution. Ever since its first promulgation, this document has formed the center of all Chinese constitutional debate, and—with very minor modifications—still stands as the official proposal for a permanent constitution, awaiting ratification by theKuo-min Ta-hui(National [Constituent] Congress), when and if that long-postponed body ever convenes.[6]The Draft Constitution is the joint work of many outstanding legal scholars. A product of collective researchand study, it thereby resembles collective private codification of municipal and international law in the West more than it does the creation of a deliberative assembly. The celebrated Chinese jurist, Dr. John C. H. Wu, prepared the first informal draft,[7]and the 5/5/XXV version represents the fourth draft of the LegislativeYüan. The preparation of the various drafts has not, from the scholastic point of view, been secretive or private; but broad popular participation has neither been offered nor solicited.

The Constitution consists of eight Chapters, comprising one hundred and forty-seven articles. Chapter I defines the Chinese state as "a San Min Chu I Republic" (Art.1), declares sovereignty to be "vested in the whole body of its citizens" (Art.2), defines the territories of the republic, specifies racial equality for the "races of the Republic of China," designates the national flag, and declares Nanking to be the capital. Chapter II covers, in nineteen very specific articles, the entire field of private rights and of the civic privileges of individuals. Most specifications carry the qualification, "in accordance with law" or "except in accordance with law." Since law is defined further in the Constitution as "that which has been passed by the LegislativeYüanand promulgated by the President," the qualificationimpresses many persons as sinister rather than encouraging. Except for this point, the specific constitutional guarantees exceed in number and specificity those of almost any other modern constitution.

TheKuo-min Ta-hui(either "National Congress" or "People's Congress") is the subject of Chapter III. This body has a function unlike that of any Western agency; the nearest equivalent is the National Assembly of the Third French Republic. This Congress is an electoral and constituent body with fundamental legislative powers. It is not intended to usurp the functions of the LegislativeYüanby fulfilling the role of a United States Congress, French Deputies and Senate, or a British Parliament. Meeting once every three years for a one-month session, it will be manifestly unable to act as a routine Western-type legislature.

The Central Government is the topic of the fourth Chapter. The first section of the Chapter describes the Presidency; the remaining five, the fiveYüan. This applies the five-fold separation of powers. Sun Yat-sen held that a three-fold separation of powers, as known in the West and applied to American government, was efficacious; he also considered that the Imperial Chinese separation of powers (an implicit one only) was also desirable. The West had executive, legislative, judicial; old China combined these three into the governing power, and joined thereto the examinative power and thechien-ch'a[8]power. (Thechien-ch'apower involved the functions of the traditional Chinese censorate; overt and active expressions are found in auditing and in the lodgment of impeachment charges. The term is fundamentally untranslatable, but if the tribunician connotations ofCensoror the emergency meaning ofControlbe recalled, either of these terms will serve.) Sun Yat-sencombined the Western and the old-Chinese separations, developing a theory of the five powers. The Draft Constitution, like its two working predecessors, is a five-power constitution, with five greatYüan(Boards, Presidencies, or Courts), each headed by aYüan-chang(YüanPresident). The fourth Chapter, by including the President and all fiveYüan, almost covers the full reach of Chinese government.

This Chapter contemplates the creation of a strong President. In the Organic Law of 1928, the five Presidents of theYüanwere relatively less strong, and the Chairman of theKuo-min Chêng-fu Wei-yüan-hui(National Government Council; or, Council of State) was the key figure in the government. Most of this time, Chiang himself was Chairman. In the 1931 Provisional Constitution, now in force, the Chairman of the National Government—termed President by courtesy—is an officer comparable to the President of the Third French Republic; the President of the ExecutiveYüanis a more active officer: Chiang K'ai-shek is President of the ExecutiveYüan. The new President, under the Draft Constitution, is one of the world's most powerful officers. Holding office for six years, eligible for re-election, commander of all armed forces, declarer of war, negotiator of peace, treaty-maker, chief appointing and removing officer of the state, holder of an emergency power greater than that conveyed by Article 48 of the German Weimar Constitution, and superior to the executive, legislative, judicial, examinative and control branches of the government—such a President is fully responsible to the triennial People's Congress, and to that only! Since the proposed President may be recalled at any time by the People's Congress, he is in that respect similar to parliamentary chiefs of state.[9]

The President of the ExecutiveYüan, together with his subordinates, is to be appointed and removed by the President of the Republic. TheYüanincludes Cabinet Ministers—appointed to their posts from among a special group of Executive Members of theYüan, thereby providing a simple, rational equivalent of Cabinet and Privy Council, as in Japan or (less similarly) in Great Britain.

The LegislativeYüanis an interesting semi-cameral legislative body, which seeks to embody the better features of legislative research organs and of representative bodies. The JudicialYüanrationalizes the structure and administration of courts and of judicial process.

The Control [or Censor]Yüanis, like the LegislativeYüan, a quasi-cameral body, with indirect election of members by the People's Congress from territorial electorates. Its functions are audit, inquiry, and impeachment, with such ancillary powers as practice to date has already indicated.[10]

Chapter V of the Draft Permanent Constitution deals with local government. The institutions of provincial government are wittingly minimized, because of recent trouble with provincial satrapies and the dangerously centrifugal effect of provincial autonomism. In contrast to this, government at the district (hsien) level is designed in strict accordance with the realities of twenty-odd centuries' experience. It is probable that no other constitution in the world provides for such careful guarantee of district, county, canton, orKreisautonomy. The old Imperial Chinese system was a loose pseudo-centralized federation of two thousand near-autarkic and near-autonomous commonwealths; the Draft Constitution attempts to reinstitute (at the political level) this vigorous cooperative independence of thehsien. Thehsienmeeting, extrapolitical, unsystematic, and occasional in the past, is made the foundation for the newlegal structure. (These proposed reforms are now being anticipated under the Provisional Constitution and current statutory changes.[11])

Chapter VI provides that the economic system shall rest on Sun Yat-sen's principle ofmin shêng(q.v., below). Willing to apply whatever worked best, Sun himself had no theoretical objections to capitalism, communism, state socialism, or any other economic doctrine. Hence, proletarian ownership of the means of production is not guaranteed; yet state ownership is not restricted, and is specifically required in the case of "all public utilities and enterprises of a monopolistic nature" (Art.123). Henry George's influence on Sun is shown by mandatory taxation of unearned increment (Art.119). Room for free future adaptation from corporative economic techniques successful in the outside world is assured (Art.125): "Labor and capital shall, in accordance with the principles of mutual help and cooperation, develop together productive enterprises." It is likely that any imaginable economic system would be constitutional on this basis, provided that it was initiated by due legal procedure and without hardships irresponsibly imposed.

Chapter VII, on Education, opens: "The educational aim of the Republic of China shall be to develop a national spirit, to cultivate a national morality, to train the people for self-government and to increase their ability to earn a livelihood, and thereby to build up a sound and healthy body of citizens" (Art.131), and continues, "Every citizen of the Republic of China shall have an equal opportunity to receive education" (Art.132). State, secular control of educational policy is assured. Articles 134 and 135 provide for tuition-free elementary education for children and free elementary education for previously non-privileged adults. (The constitutional guarantee concerning tuition is indicativeof the scholastic traditions of the Chinese, of the modern educational revolution, and is reminiscent ofArt.12 of the 1931 Constitution of the Chinese Soviet Republic: "The Soviet Government in China shall guarantee to all workers, peasants, and the toiling masses the right to education. The Soviet Government will, as far as possible, begin at once to introduce free universal education.")[12]

Chapter VIII deals with the interpretation and enforcement of the Constitution. It was a labor of love by shrewd legal theorists, and defines terms with great clarity. Interpretive power is vested in the JudicialYüan.

Nowhere in China is there outright denial of a need for constitutional change. The need exists; the Double Five Draft is the government's answer. Yet there are few patent demerits in the existing constitutional system; the present political structure is more realistic, more broadly national, more expressive of effective opinion than any other in modern China. The question arises from commitments (dating back to the Empire) promising to create actual constitutional government. The National Government was established on the basis of this pledge. The democratic ideology, whatever sects it may include, has a clean sweep of the field of doctrine in China. No one seriously advocates monarchy, separatism, or permanent dictatorship. The only question is: how and when?

At the close of the third session of the advisory People's Political Council, Chiang K'ai-shek replied to demands for immediate broadening of popular controlover the government by reaffirmation of his adherence to the democratic dogma of Sun Yat-sen, together with the following warnings:

The democracy whichTsung-Li[The Leader, i.e., Sun Yat-sen] wished to establish was of the purest kind without the slightest vestige of make-believe or artificiality. Unfortunately, the Chinese people, having inherited all the evil practices handed down throughout the numerous dynasties of autocratic rule, were then at a low ebb both in intelligence and in vitality. The people were used to disorganization and selfishness....We have to wait until our lost territories have been recovered and domestic disorders liquidated before we can have political tutelage and prepare ourselves for constitutionalism....People at that time [the inauguration of the Republic in 1912] made the mistake of neglecting the necessary procedures and instead they rivalled each other in talking about democracy.... As a result, democracy has remained an ideal....We must make it clear to our people that democracy is not a synonym for lack of law and order, or for anarchy.The public opinion on which democracy is based must be sound, collective, and representative of the majority of the people's wills. The freedom which democracy endows on people should not conflict with public welfare, nor should it go beyond the sphere as marked by laws of the State. With our nation facing the worst invasion in history, we must teach the people to respect the absolute authority of laws of the State.[13]

We have to wait until our lost territories have been recovered and domestic disorders liquidated before we can have political tutelage and prepare ourselves for constitutionalism....

People at that time [the inauguration of the Republic in 1912] made the mistake of neglecting the necessary procedures and instead they rivalled each other in talking about democracy.... As a result, democracy has remained an ideal....

We must make it clear to our people that democracy is not a synonym for lack of law and order, or for anarchy.

The public opinion on which democracy is based must be sound, collective, and representative of the majority of the people's wills. The freedom which democracy endows on people should not conflict with public welfare, nor should it go beyond the sphere as marked by laws of the State. With our nation facing the worst invasion in history, we must teach the people to respect the absolute authority of laws of the State.[13]

The clamor for a constitution continued. The difficulties of introducing mass suffrage to Western China were apparent to everyone, but many leaders felt that the advantages of constitutionalism would outweigh the inescapable loss of efficiency, and would mobilize public opinion behind the war and further democratic progress. The Generalissimo found this view hard to reconcile with his military, direct notions of doing first thingsfirst, as he saw them, but he yielded in the fourth session of the People's Political Council and accepted the demand. He stated:

In China ... [democratization] is a tremendously heavy task which cannot be completed within a few days. I think that the Constitution and laws may as well be promulgated at an earlier date. But, gentlemen, please do not forget theTsung-li'spainful consideration ... [of the necessity of an intermediate stage of real democratic training]. Political tutelage does not end with the training of the citizens by the government. It requires training of the citizens by themselves.Today we should understand our object: to start the building of a constitutional government. This means laying a permanently sound basis for the nation. We are not concerned with the time of starting constitutional government. Whether to start it early or later does not matter much. What we are really concerned with is, do we have a real intention of forming a constitutional government? If we are truly so minded, we might as well promulgate the Constitution before the labor of political tutelage is completed.[14]

Today we should understand our object: to start the building of a constitutional government. This means laying a permanently sound basis for the nation. We are not concerned with the time of starting constitutional government. Whether to start it early or later does not matter much. What we are really concerned with is, do we have a real intention of forming a constitutional government? If we are truly so minded, we might as well promulgate the Constitution before the labor of political tutelage is completed.[14]

Chiang thus reconciled the beginning of constitutionalism and the continuance of political tutelage, although implying acquiescence, not recommendation. A theorist holding all men to be driven by "a perpetuall and restlesse desire of Power after power, that ceaseth only in Death,"[15]might consistently suppose that Chiang merely dissimulated an inward lust for authority; more plausible is the postulation that a man who has for years lived with and for a doctrine, giving his life and future reputation to the fulfilment of a program, would incline to prudence and realism in climaxing that doctrine and program. In Chiang's case this is Sun Yat-sen'sSan Min Chu I. Chiang's reluctance to apply democracy then and there is understandable whatever the inmost motive; so, too, is his yielding to a widespread demand.

The convening of a specialKuo-min Ta-huias a national constituent assembly was set for November 12, 1940; this day was chosen because it was traditionally the seventy-fourth birthday of Sun Yat-sen. Administrative machinery for preparation of a hall, secretariat, publications, and other necessities was established and set in motion. Following the severe fires of August 19-20, and the subsequent large-scale demolition of above-ground downtown Chungking by raids, indefinite postponement of the Congress was announced on September 25—on the grounds that military hazard prevented adequate assembly of delegates, and no reasonably safe place for such a meeting could be found.

Meanwhile, recent years have seen an uproar of constitutional debate. This may be summarized briefly, with the case against the Constitution stated first:

Constitutionalization would lead to the legalization of other parties, instead of a mere condition of non-prosecution; this would disrupt the orderliness requiredof a people at war. Why add discord in war time?Reply: legitimization of other parties is not a struggle for power but an act of union. It would widen the periphery of cooperation.[16]

Sun Yat-sen required three stages of the revolution: conquest, tutelage, constitution. China is not ready for mass suffrage. The majority of the people are not yet literate. Public opinion is just developing. The nation is, in fact, still in the period of military recapture of national territories.Reply: Sun Yat-sen must not be interpreted mechanically. If this is done, tutelage will never end, and Sun's cherished democracy will remain forever in the future. Furthermore, the guerrillas, the Border Region, and other instances have shown that the Chinese masses can and will practice democracy right now. Again, the issue has already been decided; the government has been committed to the immediate inauguration of the Constitution. First it was to be 1939; the elections were held in part, until the war finally stopped them on August 13, 1937. It is too late to raise the issue: is China ready? Everyone—government, Kuomintang, independent groups—has decided that China is.

Why change constitutions? The present one is satisfactory. If a war-time amplification of theYüeh Fais needed, it can be found in theProgram of Resistance and Reconstruction.[17]If a convocation of the talents is needed, the People's Political Council is already there. What is the use of a constitutional change in war time?Reply: the constitutionalist movement is no new development. TheProgramwas a democratic advance. "Besides, formation of the People's Political Council was a step toward democracy. The constitutionalmovement was not forced on the government, but was an outgrowth of the war; it has not appeared overnight, but has a clear historical background. As soon as the Sino-Japanese hostilities broke out, it was evident that more democratic rule was necessary. As the war became prolonged, the preliminary steps proved inadequate. A more perfect constitution, whereby the whole people can be mobilized, is imminent. This fact was duly recognized by the people and is the motive power of the present constitutional movement." (This is the comment of an independent writer.)[18]

A pointed question is raised and answered by Tso Tao-fen, one of the Seven Gentlemen (Ch'i Chüntzu) who led the National Salvationists:

Some say that as a matter of fact, the people themselves do not want a constitution. And—to put it more bluntly—that the people do not know what a constitution is. Therefore, the constitutional movement represents the desires of only a minority of the people, not the majority. You have a certain element of truth if you say that most of the people do not know what a constitution is, but it is not true that they do not want a constitution. In the present war period, the burden on the people is enormous. They should not be denied any privileges to which they are entitled. All the proposed constitutional stipulations concerning the duties, rights, economic status, and education of the people have an immediate effect on and relation to the people. Why do they not want a constitution? If you proceed to ask one of the common people, say a peasant, and you talk with him, professorially as though you were in a classroom, about the constitutional movement, he may be at a loss. But if you bother to ask him about his daily life—the work he is doing, his hopes, his bitterness, the cruelties inflicted on him by unscrupulous officials and landlords and gentry—and if he enjoys the freedom of speech, he will give you a good talk!... If you say that the people do not know what aconstitution is, you should enlighten them about the close relationship between themselves and the constitution, not discontinue the constitutional movement.[19]

Other questions relate to specific points in the Draft Constitution. In the opinion of some, the phrase "according to law" which follows every guarantee of popular rights is a dangerous phrase, particularly in view of the neat but arbitrary definition of "law" (Art.139). Others, remembering the Weimar Article 48, mistrust the emergency power of the President. The President's sharing of the budgetary, pardoning, and war powers with the LegislativeYüanseems illogical to some critics, who feel that these powers should be within reach of a more popular body, not a technically legislative organ.

Further discussion deals with the competence of theKuo-min Ta-hui. Many of the critics, particularly those of the Communist and independent Left group, believe the long-heralded epoch of democracy would open badly if it began with mechanical ratification of a dictated constitution. A Communist leader said, "We want a Constitution, a democratic Constitution—arealdemocratic Constitution!" and pointed out that the first Congress was too large, not truly representative of the common people, and not given enough time to work out a constitution by its own action; its task, as he supposed the government intended, would be to rubber-stamp the Double Five Draft. In his opinion, this Draft had many defects—chief of which was unresponsiveness of the central government to popular control. The proposed Congress could not do much with a mere triennial check; the five-power system as projected was unsatisfactory. Democratic rights were insufficiently assured. He added that the Communist Party of China was fora democracy, but that the Double Five Draft was not "the constitution of a democracy."[20]

Furthermore, the representativeness of the proposed constitution-adoptingKuo-min Ta-huiis called into question. The present plan calls for 665 delegates from geographical constituencies, 380 from occupational, 155 "by special methods," 240 by government appointment, and a large number of Kuomintang Party-officersex officio(241 by a recent count).[21]The present administration would obviously have a whip hand over all proceedings. The division into groups has been criticized. A demand, for example, for 120 women members has been made. Under the circumstances, with 1681 members already scheduled, mere additional size could be no handicap.

The question of qualifications has also been raised. About 900 of the representatives had been elected when war broke out. These include men who have since died, or have changed their opinions, or are reported missing, and even a few traitors. Are all the available elected representatives to be gathered together, years later? or is a new election to be held? Whatever occurs, the supreme agency on qualifications is the Election Committee for Representatives to the People's [Constituent] Congress, attached directly to the Council of State.

The constitutional issue in China is no simple problem of reaction versus progressivism. The vast majority of the population is not literate, and is unprepared to deal with a complicated machinery of opinion and election. Wire-pulling, corruption, adherence to form instead of deed—these are all widespread in China. Democracy abruptly established might frustrate further improvement, since sham-democracy would haveestablished itself. The opponents of sudden action also press the telling point that the common people do not know they want immediate democracy, although believing in the term as a symbol and approving its trial application. The Generalissimo remains clearly mistrustful about creating new organs of opinion, or using new political processes; he would prefer to wait until the nation is unified, better administered, and more literate. Hence his and the Kuomintang's insistence on indirect elections, remoteness of policy-making authorities from the electorate, and self-sufficient government.

China did have, it is argued, an excellent democratic constitution in 1912, many more in the warlord years. All had admirable balances of power, guarantees to the individual, libertarian and progressive provisions. Like Chinese social legislation, they lifted China to the level of the rest of the modern world—de jure, and that only! These elevated documents remained elevated; life went on beneath them, and the tragic gap between law and life was so enormous that no one thought of bridging it. The nation would have been humiliated by legislation which limited the working day to fourteen hours, prohibited the mutilation or slavery of children, or required that torture be administered in the presence of a physician. Hence it had eight, ten, or twelve-hour laws, good child legislation, and absolute prohibition of torture for any purpose; these were unenforceable.

To counsels of caution, advocates of immediately responsive institutions reply that the Chinese common people are better democrats than their rulers, citing concrete cases in proof. They mention the general strikes, strong peasant cooperation, the startling phenomena of coordinate mass action—tens and hundreds of thousands strong—in political protest, boycotts, or civic immobility. (In past years many a warlord has been stopped by empty streets and closed houses: no business, no traffic, no talking, no meetings—only thesilence, and somewhere, conspicuously inconspicuous, a committee of plenipotentiaries!) They refer to the Frontier Area, the Border Region, the New Fourth Zone, the guerrillas, the industrial cooperatives, and the wealth of leadership called up from the millions by the war. They quote to the Kuomintang its own professions of democracy, and the words of its late Leader. Told that the masses do not understand modern administration, modern economics, modern war, and that the peasantry and workers would proceed to arbitrary class legislation, economic levelling, and social revolution, they reply, "What do you want—democracy?" It is most unlikely that the Communists would sweep the country under free elections, but they and other dissidents, as the political Outs, would be free to criticize the incumbents in a way sure to bring support and involve new alignments of power. Some Kuomintang leaders wish to shut out any group with foreign connections; the Chinese face—despite their definite movement toward constitutionalism—the question of the limits of democratic toleration

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