出洋考察團與清末立憲研究
發(fā)布時間：2018-09-02 06:48
【摘要】： 20世紀的最初十年(1901—1911),是清王朝的最后十年。這是一個內(nèi)憂與外患交加、危機與生機并存的特殊時期。也是中國社會由舊傳統(tǒng)社會向近代社會急劇轉(zhuǎn)變的時期。1840年鴉片戰(zhàn)爭以后,西方資本主義國家用堅船利炮打開了中國的大門,中國社會被迫步入了近代化的進程。隨著外國資本主義侵略的步步加深,中國逐漸淪為半殖民地半封建社會,民族危機日益嚴重,國內(nèi)起義不斷。面對這種內(nèi)外交困的局面,救亡圖存是各個階層的使命。清政府為挽救自己的統(tǒng)治地位,也被迫下詔變法修律,進行改革,并且于1905年和1907年兩次派朝廷重臣出洋考察,拉開了清末立憲運動的序幕,從而推動了中國法律近代化的進程。 作為一種社會思潮,立憲發(fā)端于戊戌時期,興起于20世紀初,湮沒于民主主義革命浪潮。以往,人們研究較多的是作為政治運動的清末立憲,尤其是其以立憲抵制革命的一面。對于清末立憲在中國民主近代化中的地位,對于晚清法律改革的影響,往往語焉不詳。在統(tǒng)治合法性面臨挑戰(zhàn)的情況下,清廷也萌發(fā)了憲政意識,先后兩次派考察團去西方探求立憲的真諦,不僅表明中國在學(xué)習(xí)西方道路上的繼續(xù)前進與探索,也直接地推進了中國政治變革的進程。清末兩次派大臣出洋考察憲政,是清末立憲中一個非常重要的課題,它直接關(guān)系到清末立憲的開展,是晚清十年“新政”的一個承前啟后的中介,也為晚清法律的近代化指明了方向。事實上,清末的“預(yù)備立憲”正是根據(jù)考察團成員向西方尋求的憲政理念而踐行的,這也為中國最終成為大陸法系國家奠定了基礎(chǔ)。 本文從當(dāng)時的社會背景著手,著重講述清政府兩次派員出洋考察憲政的情況、考察人員憲政思想的發(fā)展軌跡及其對清末立憲產(chǎn)生的影響。通過對這一課題的研究,可以認識到,清政府的預(yù)備立憲運動,是一個不斷探索與摸索的過程,一定程度上也是在嘗試著考察大臣的憲政理念。如果說第一次出洋推動清廷作出了“預(yù)備立憲”的決策,被考察政治大臣“領(lǐng)著走”的話;那么第二次出洋,則進一步幫助清廷確立了“預(yù)備立憲”的模式,即日本明治憲政,清政府已經(jīng)屬于被考察憲政大臣“推著走”了。由于考察人員的身份、地位比較特殊,他們屬于統(tǒng)治階級中的一員,所以考察他們對于立憲的認識,也可從側(cè)面窺探當(dāng)時清廷官方對憲政的態(tài)度。當(dāng)然,考察大臣與某些官僚立憲派是既有區(qū)別又有聯(lián)系的。不能否認,考察團的建議中不乏優(yōu)秀思想,但清廷在模仿西方憲政模式過程中,也存在著“頑固不化”的癥結(jié)及“食洋不化”的弊端。 本文正文分為五章,外加緒論和結(jié)語,共七個部分。下面對各章 主要內(nèi)容略作敘述: 第一章為“清廷憲政意識的萌發(fā)”,主要分析在戊戌變法中曾鎮(zhèn)壓過主張設(shè)議院、開國會維新人士的清政府,此時產(chǎn)生憲政觀念的動力源因素,派考察團出洋學(xué)習(xí)西方憲政的目的與動機何在,對考察團的出洋寄予了怎樣的期望。長期以來,清政府奉行“閉關(guān)鎖國”的政策,并以“天朝上國”自居,這次卻主動兩次派大臣出洋,走出國門考察西方世界,尤其是學(xué)習(xí)他們先進的政治制度,這是“轟動”朝野的大事。本章主要從清廷權(quán)威合法性的流失、日俄戰(zhàn)爭的影響、立憲思潮的勃興等方面進行分析,指出清政府派員出洋考察,并決定“仿行立憲”,是近代以來西學(xué)東漸、輿論大開,時局艱危背景下的必然之舉。 第二章為“擇善而從尋求憲政理念”,本章主要講述五大臣遵循清政府“用備甄采”、“擇善而從”的方針,考求東西方的一切政治,以期找出能供清廷采納的立憲途徑。這主要包括五大臣在國外考察憲政的活動:他們對不同憲政種類國家的具體考察、考政大臣法律意識的轉(zhuǎn)變及國外政府的態(tài)度等方面。這是清王朝以政府名義派出的第一個政治考察團,也是中國歷史上第一個以“博采鄰邦之良法”為目的的考察團,他們希望通過對東西洋各國政體的實地考察,切實了解憲政制度,為清廷的“預(yù)備立憲”制定改革藍本。 第三章為“預(yù)備立憲踐行憲政思想”,這是指政治考察團回國后,考政人員所上的奏折和建議,他們的憲政主張被清廷采納的情況;主要從是否立憲、改革官制、三權(quán)分立、責(zé)任內(nèi)閣等幾個關(guān)于憲政核心問題進行論述�？疾靾F成員根據(jù)在東西洋各國“取經(jīng)”的心得體會,對清末的立憲改革及一些社會問題提出了很多建設(shè)性的意見,清末的預(yù)備立憲由此展開。 第四章為“師法德日確認憲政模式”,本章主要講述以達壽、于式枚、汪大燮為首的憲政考察團專訪日、英、德三個君主立憲國家的概況,二次出洋具有針對性,而且考察人員的憲政素質(zhì)普遍較高,出洋考察后又得以升華,形成了比較完備的憲政思想體系,這就對清廷的立憲產(chǎn)生深遠影響。清廷作出了“遠法德國,近采日本”的變革思路,立憲運動向縱深發(fā)展,晚清法律改革呈現(xiàn)新氣象。 第五章是“憲政建設(shè)的漫長之路”,這是對出洋考察與清末立憲的思考及評價。兩次出洋考察對清末立憲意義極大;但清廷采用德日憲政模式存在不足之處。清廷選擇德日憲政模式為學(xué)習(xí)對象,這本身沒有錯。但清廷認識不到自身的“先天不足”,不具備德、日國家推行憲政的那種社會條件,不但不加補救,反而在模仿過程中又大打折扣,最終導(dǎo)致主觀動機與客觀效果的背離:清廷的立憲運動不但沒有延緩自己的統(tǒng)治,反而使人們看到這個政府的腐朽與不合法,就連立憲派最后也倒向革命陣營。清末立憲雖然以失敗告終,但是絕不能因此完全否定對立憲的探索及為此所做的準備工作,并且這種努力與嘗試對我們當(dāng)今的法治建設(shè)也有借鑒作用。 總之,清末派考察團出洋,是在國事凋敝、權(quán)力失衡狀態(tài)下的不得已之舉,這卻成為“預(yù)備立憲”的肇興。雖然晚清法律改革從1902年就開始啟動,但對法律近代化產(chǎn)生實質(zhì)性作用的,卻是從五大臣出洋考察憲政之后。清廷根據(jù)考察團的憲政建議,拋棄了持續(xù)兩千多年的專制政體,向君主立憲政體轉(zhuǎn)變,這是“三千年未有之變局”,并且對以后的政府都產(chǎn)生深遠的影響。清政府在立憲運動過程中所采取的一系列措施,都沒有超出考察團成員所設(shè)計的藍圖。但由于清政府本身的腐朽,他們的憲政理念沒有得到很好得實踐�？疾靾F對大陸法系國家的傾向,也對中國由傳統(tǒng)的中華法系向大陸法系邁進,產(chǎn)生潛移默化的作用。
[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.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2009
【分類號】：D929
本文編號：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.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2009
【分類號】：D929
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