出洋考察团与清末立宪研究
发布时间：2018-09-02 06:48
【摘要】： 20世纪的最初十年(1901—1911),是清王朝的最后十年。这是一个内忧与外患交加、危机与生机并存的特殊时期。也是中国社会由旧传统社会向近代社会急剧转变的时期。1840年鸦片战争以后,西方资本主义国家用坚船利炮打开了中国的大门,中国社会被迫步入了近代化的进程。随着外国资本主义侵略的步步加深,中国逐渐沦为半殖民地半封建社会,民族危机日益严重,国内起义不断。面对这种内外交困的局面,救亡图存是各个阶层的使命。清政府为挽救自己的统治地位,也被迫下诏变法修律,进行改革,并且于1905年和1907年两次派朝廷重臣出洋考察,拉开了清末立宪运动的序幕,从而推动了中国法律近代化的进程。 作为一种社会思潮,立宪发端于戊戌时期,兴起于20世纪初,湮没于民主主义革命浪潮。以往,人们研究较多的是作为政治运动的清末立宪,尤其是其以立宪抵制革命的一面。对于清末立宪在中国民主近代化中的地位,对于晚清法律改革的影响,往往语焉不详。在统治合法性面临挑战的情况下,清廷也萌发了宪政意识,先后两次派考察团去西方探求立宪的真谛,不仅表明中国在学习西方道路上的继续前进与探索,也直接地推进了中国政治变革的进程。清末两次派大臣出洋考察宪政,是清末立宪中一个非常重要的课题,它直接关系到清末立宪的开展,是晚清十年“新政”的一个承前启后的中介,也为晚清法律的近代化指明了方向。事实上,清末的“预备立宪”正是根据考察团成员向西方寻求的宪政理念而践行的,这也为中国最终成为大陆法系国家奠定了基础。 本文从当时的社会背景着手,着重讲述清政府两次派员出洋考察宪政的情况、考察人员宪政思想的发展轨迹及其对清末立宪产生的影响。通过对这一课题的研究,可以认识到,清政府的预备立宪运动,是一个不断探索与摸索的过程,一定程度上也是在尝试着考察大臣的宪政理念。如果说第一次出洋推动清廷作出了“预备立宪”的决策,被考察政治大臣“领着走”的话;那么第二次出洋,则进一步帮助清廷确立了“预备立宪”的模式,即日本明治宪政,清政府已经属于被考察宪政大臣“推着走”了。由于考察人员的身份、地位比较特殊,他们属于统治阶级中的一员,所以考察他们对于立宪的认识,也可从侧面窥探当时清廷官方对宪政的态度。当然,考察大臣与某些官僚立宪派是既有区别又有联系的。不能否认,考察团的建议中不乏优秀思想,但清廷在模仿西方宪政模式过程中,也存在着“顽固不化”的症结及“食洋不化”的弊端。 本文正文分为五章,外加绪论和结语,共七个部分。下面对各章 主要内容略作叙述: 第一章为“清廷宪政意识的萌发”,主要分析在戊戌变法中曾镇压过主张设议院、开国会维新人士的清政府,此时产生宪政观念的动力源因素,派考察团出洋学习西方宪政的目的与动机何在,对考察团的出洋寄予了怎样的期望。长期以来,清政府奉行“闭关锁国”的政策,并以“天朝上国”自居,这次却主动两次派大臣出洋,走出国门考察西方世界,尤其是学习他们先进的政治制度,这是“轰动”朝野的大事。本章主要从清廷权威合法性的流失、日俄战争的影响、立宪思潮的勃兴等方面进行分析,指出清政府派员出洋考察,并决定“仿行立宪”,是近代以来西学东渐、舆论大开,时局艰危背景下的必然之举。 第二章为“择善而从寻求宪政理念”,本章主要讲述五大臣遵循清政府“用备甄采”、“择善而从”的方针,考求东西方的一切政治,以期找出能供清廷采纳的立宪途径。这主要包括五大臣在国外考察宪政的活动:他们对不同宪政种类国家的具体考察、考政大臣法律意识的转变及国外政府的态度等方面。这是清王朝以政府名义派出的第一个政治考察团,也是中国历史上第一个以“博采邻邦之良法”为目的的考察团,他们希望通过对东西洋各国政体的实地考察,切实了解宪政制度,为清廷的“预备立宪”制定改革蓝本。 第三章为“预备立宪践行宪政思想”,这是指政治考察团回国后,考政人员所上的奏折和建议,他们的宪政主张被清廷采纳的情况;主要从是否立宪、改革官制、三权分立、责任内阁等几个关于宪政核心问题进行论述。考察团成员根据在东西洋各国“取经”的心得体会,对清末的立宪改革及一些社会问题提出了很多建设性的意见,清末的预备立宪由此展开。 第四章为“师法德日确认宪政模式”,本章主要讲述以达寿、于式枚、汪大燮为首的宪政考察团专访日、英、德三个君主立宪国家的概况,二次出洋具有针对性,而且考察人员的宪政素质普遍较高,出洋考察后又得以升华,形成了比较完备的宪政思想体系,这就对清廷的立宪产生深远影响。清廷作出了“远法德国,近采日本”的变革思路,立宪运动向纵深发展,晚清法律改革呈现新气象。 第五章是“宪政建设的漫长之路”,这是对出洋考察与清末立宪的思考及评价。两次出洋考察对清末立宪意义极大;但清廷采用德日宪政模式存在不足之处。清廷选择德日宪政模式为学习对象,这本身没有错。但清廷认识不到自身的“先天不足”,不具备德、日国家推行宪政的那种社会条件,不但不加补救,反而在模仿过程中又大打折扣,最终导致主观动机与客观效果的背离:清廷的立宪运动不但没有延缓自己的统治,反而使人们看到这个政府的腐朽与不合法,就连立宪派最后也倒向革命阵营。清末立宪虽然以失败告终,但是绝不能因此完全否定对立宪的探索及为此所做的准备工作,并且这种努力与尝试对我们当今的法治建设也有借鉴作用。 总之,清末派考察团出洋,是在国事凋敝、权力失衡状态下的不得已之举,这却成为“预备立宪”的肇兴。虽然晚清法律改革从1902年就开始启动,但对法律近代化产生实质性作用的,却是从五大臣出洋考察宪政之后。清廷根据考察团的宪政建议,抛弃了持续两千多年的专制政体,向君主立宪政体转变,这是“三千年未有之变局”,并且对以后的政府都产生深远的影响。清政府在立宪运动过程中所采取的一系列措施,都没有超出考察团成员所设计的蓝图。但由于清政府本身的腐朽,他们的宪政理念没有得到很好得实践。考察团对大陆法系国家的倾向,也对中国由传统的中华法系向大陆法系迈进,产生潜移默化的作用。
[Abstract]:The first decade of the 20th century (1901-1911) was the last decade of the Qing Dynasty. With the deepening of foreign capitalist aggression, China was gradually reduced to a semi-colonial and semi-feudal society. The national crisis became more and more serious, and domestic uprisings continued. In the face of this situation of internal and external diplomatic predicament, saving the nation from subjugation and striving for survival was the mission of all strata. The imperial reforms were forced to amend the laws and carry out the reforms. In 1905 and 1907, the imperial officials were sent abroad to investigate, which opened the prelude of the constitutional movement in the late Qing Dynasty, and promoted the modernization of Chinese law.
As a social trend of thought, constitutionalism began in the 1898 period, rose in the early 20th century, and was buried in the tide of democratic revolution. In the past, people studied more about the constitutionalism in the late Qing Dynasty as a political movement, especially its resistance to revolution by constitutionalism. The Qing Dynasty sent two delegations to the West to explore the true meaning of constitutionalism, which not only showed that China continued to advance and explore the road of learning from the West, but also directly promoted the process of China's political transformation. The study of constitutionalism is a very important topic in the constitutionalism of the late Qing Dynasty. It is directly related to the development of the constitutionalism of the late Qing Dynasty. It is an intermediary between the past and the future of the New Deal in the late Qing Dynasty. It also points out the direction of the modernization of the law in the late Qing Dynasty. And this has laid the foundation for China to finally become a civil law country.
Starting from the social background at that time, this paper focuses on the Qing government's two dispatches abroad to inspect constitutionalism, inspects the development track of the people's constitutional thought and its influence on the constitutionalism in the late Qing Dynasty. To some extent, it is also an attempt to inspect the minister's constitutional ideas. If the first overseas trip promoted the Qing government to make a "constitutional preparatory" decision and was led by the political minister, then the second overseas trip further helped the Qing government to establish a "constitutional preparatory" model, that is, the Meiji constitutional government of Japan, which belonged to the Qing government. The inspected constitutional ministers were "pushed" away. Because of their special status and status, they belonged to one of the ruling classes. Therefore, to inspect their understanding of constitutionalism can also be seen from the side of the Qing government's attitude towards constitutionalism. Of course, inspecting the ministers and some bureaucratic constitutionalists are both different and related. Needless to say, there were many excellent ideas in the delegation's suggestions, but the Qing Dynasty also had the crux of "stubbornness" and the drawback of "eating foreigners".
The text is divided into five chapters, with seven parts, including introduction and conclusion.
The main contents are briefly described.
The first chapter is "the sprouting of the constitutional consciousness of the Qing Dynasty". It mainly analyzes the Qing government which once suppressed the people who advocated the establishment of Parliament and the opening of Parliament in the Reform Movement of 1898. The Qing government pursued the policy of "closing down the country" and regarded itself as a "heavenly kingdom". This time, however, the Qing government actively sent ministers abroad twice to inspect the western world, especially to study their advanced political system. This is a "sensational" event. This chapter mainly focuses on the loss of authority legitimacy of the Qing government, the impact of the Japanese-Russian war, and the constitution. This paper analyzes the flourishing trend of thought and points out that it is an inevitable move for the Qing government to send its members abroad to study and decide to "imitate the constitution" in the context of the eastward spread of Western learning, the opening of public opinion and the difficult situation in modern times.
The second chapter is "Choosing the good and seeking the constitutional idea". This chapter mainly tells the five ministers follow the Qing government's policy of "selecting with reserve" and "choosing the good and following the good" to study all the politics of the East and the West in order to find out the constitutional way for the Qing government to adopt. This is the first political investigation delegation sent by the Qing Dynasty in the name of the government, and the first one in Chinese history to explore the good laws of the neighboring countries. They hope that through the on-the-spot investigation of the political systems of the eastern and Western countries, they will be practical. Understand the constitutional system and formulate a blueprint for the Qing Dynasty's "preparatory constitutionalism".
The third chapter is "Preparatory Constitutionalism Practices Constitutional Government Thought", which refers to the memorandum and suggestions made by the examiners after the return of the political delegation, and the situation that their constitutional proposals were adopted by the Qing government. The experience of western countries in taking classics has made a lot of constructive suggestions on the constitutional reform and some social problems in the late Qing Dynasty.
Chapter Four is "Constitutional Model Confirmed by Teachers, France, Germany and Japan". This chapter mainly tells the general situation of the three constitutional monarchy countries, namely, Dashou, Yu Shimei and Wang Daxie, who visited Japan, Britain and Germany, and their second voyages are targeted. Moreover, the constitutional quality of the inspectors is generally high, and they have been sublimated after voyages. The Qing Dynasty made a reform idea of "Far from France, Germany, Nearly Adopting Japan". The constitutional movement developed in depth, and the legal reform in the late Qing Dynasty took on a new look.
The fifth chapter is "the long road of constitutional government construction", which is the reflection and evaluation of the investigation abroad and the constitutionalism in the late Qing Dynasty. The social conditions of the constitutional government in Japan were not remedied, but greatly reduced in the imitation process, which eventually led to the deviation of subjective motives and objective effects: the constitutional movement of the Qing Dynasty did not delay its own rule, but made people see the corruption and illegality of the government, and even established it. The constitutionalists eventually turned to the revolutionary camp. Although the constitutionalism at the end of the Qing Dynasty ended in failure, it must not totally negate the exploration of the Constitution and the preparations for it, and this kind of effort and attempt can also be used for reference in the construction of the rule of law today.
In a word, the late Qing Dynasty sent a delegation abroad, which had to be carried out under the condition of depressed state affairs and unbalanced power. This became the start of "constitutional preparations". The political proposals abandoned the autocratic regime which lasted for more than 2000 years and transformed it into a constitutional monarchy. This was the "unchanged situation in 3000 years" and had a far-reaching impact on the future governments. The Qing government adopted a series of measures in the constitutional movement, which did not exceed the blueprint designed by the members of the delegation. Their constitutional ideas were not well practiced because of the decay of their bodies. The delegation's tendency toward continental law countries also exerted a subtle influence on China's progress from the traditional Chinese law system to the continental law system.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：D929
本文编号：2218587
[Abstract]:The first decade of the 20th century (1901-1911) was the last decade of the Qing Dynasty. With the deepening of foreign capitalist aggression, China was gradually reduced to a semi-colonial and semi-feudal society. The national crisis became more and more serious, and domestic uprisings continued. In the face of this situation of internal and external diplomatic predicament, saving the nation from subjugation and striving for survival was the mission of all strata. The imperial reforms were forced to amend the laws and carry out the reforms. In 1905 and 1907, the imperial officials were sent abroad to investigate, which opened the prelude of the constitutional movement in the late Qing Dynasty, and promoted the modernization of Chinese law.
As a social trend of thought, constitutionalism began in the 1898 period, rose in the early 20th century, and was buried in the tide of democratic revolution. In the past, people studied more about the constitutionalism in the late Qing Dynasty as a political movement, especially its resistance to revolution by constitutionalism. The Qing Dynasty sent two delegations to the West to explore the true meaning of constitutionalism, which not only showed that China continued to advance and explore the road of learning from the West, but also directly promoted the process of China's political transformation. The study of constitutionalism is a very important topic in the constitutionalism of the late Qing Dynasty. It is directly related to the development of the constitutionalism of the late Qing Dynasty. It is an intermediary between the past and the future of the New Deal in the late Qing Dynasty. It also points out the direction of the modernization of the law in the late Qing Dynasty. And this has laid the foundation for China to finally become a civil law country.
Starting from the social background at that time, this paper focuses on the Qing government's two dispatches abroad to inspect constitutionalism, inspects the development track of the people's constitutional thought and its influence on the constitutionalism in the late Qing Dynasty. To some extent, it is also an attempt to inspect the minister's constitutional ideas. If the first overseas trip promoted the Qing government to make a "constitutional preparatory" decision and was led by the political minister, then the second overseas trip further helped the Qing government to establish a "constitutional preparatory" model, that is, the Meiji constitutional government of Japan, which belonged to the Qing government. The inspected constitutional ministers were "pushed" away. Because of their special status and status, they belonged to one of the ruling classes. Therefore, to inspect their understanding of constitutionalism can also be seen from the side of the Qing government's attitude towards constitutionalism. Of course, inspecting the ministers and some bureaucratic constitutionalists are both different and related. Needless to say, there were many excellent ideas in the delegation's suggestions, but the Qing Dynasty also had the crux of "stubbornness" and the drawback of "eating foreigners".
The text is divided into five chapters, with seven parts, including introduction and conclusion.
The main contents are briefly described.
The first chapter is "the sprouting of the constitutional consciousness of the Qing Dynasty". It mainly analyzes the Qing government which once suppressed the people who advocated the establishment of Parliament and the opening of Parliament in the Reform Movement of 1898. The Qing government pursued the policy of "closing down the country" and regarded itself as a "heavenly kingdom". This time, however, the Qing government actively sent ministers abroad twice to inspect the western world, especially to study their advanced political system. This is a "sensational" event. This chapter mainly focuses on the loss of authority legitimacy of the Qing government, the impact of the Japanese-Russian war, and the constitution. This paper analyzes the flourishing trend of thought and points out that it is an inevitable move for the Qing government to send its members abroad to study and decide to "imitate the constitution" in the context of the eastward spread of Western learning, the opening of public opinion and the difficult situation in modern times.
The second chapter is "Choosing the good and seeking the constitutional idea". This chapter mainly tells the five ministers follow the Qing government's policy of "selecting with reserve" and "choosing the good and following the good" to study all the politics of the East and the West in order to find out the constitutional way for the Qing government to adopt. This is the first political investigation delegation sent by the Qing Dynasty in the name of the government, and the first one in Chinese history to explore the good laws of the neighboring countries. They hope that through the on-the-spot investigation of the political systems of the eastern and Western countries, they will be practical. Understand the constitutional system and formulate a blueprint for the Qing Dynasty's "preparatory constitutionalism".
The third chapter is "Preparatory Constitutionalism Practices Constitutional Government Thought", which refers to the memorandum and suggestions made by the examiners after the return of the political delegation, and the situation that their constitutional proposals were adopted by the Qing government. The experience of western countries in taking classics has made a lot of constructive suggestions on the constitutional reform and some social problems in the late Qing Dynasty.
Chapter Four is "Constitutional Model Confirmed by Teachers, France, Germany and Japan". This chapter mainly tells the general situation of the three constitutional monarchy countries, namely, Dashou, Yu Shimei and Wang Daxie, who visited Japan, Britain and Germany, and their second voyages are targeted. Moreover, the constitutional quality of the inspectors is generally high, and they have been sublimated after voyages. The Qing Dynasty made a reform idea of "Far from France, Germany, Nearly Adopting Japan". The constitutional movement developed in depth, and the legal reform in the late Qing Dynasty took on a new look.
The fifth chapter is "the long road of constitutional government construction", which is the reflection and evaluation of the investigation abroad and the constitutionalism in the late Qing Dynasty. The social conditions of the constitutional government in Japan were not remedied, but greatly reduced in the imitation process, which eventually led to the deviation of subjective motives and objective effects: the constitutional movement of the Qing Dynasty did not delay its own rule, but made people see the corruption and illegality of the government, and even established it. The constitutionalists eventually turned to the revolutionary camp. Although the constitutionalism at the end of the Qing Dynasty ended in failure, it must not totally negate the exploration of the Constitution and the preparations for it, and this kind of effort and attempt can also be used for reference in the construction of the rule of law today.
In a word, the late Qing Dynasty sent a delegation abroad, which had to be carried out under the condition of depressed state affairs and unbalanced power. This became the start of "constitutional preparations". The political proposals abandoned the autocratic regime which lasted for more than 2000 years and transformed it into a constitutional monarchy. This was the "unchanged situation in 3000 years" and had a far-reaching impact on the future governments. The Qing government adopted a series of measures in the constitutional movement, which did not exceed the blueprint designed by the members of the delegation. Their constitutional ideas were not well practiced because of the decay of their bodies. The delegation's tendency toward continental law countries also exerted a subtle influence on China's progress from the traditional Chinese law system to the continental law system.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：D929
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