试论清末制宪权之争

The Struggle for Constituent Power in the Late Qing Dynasty

清廷自踏上立宪之路起,便试图通过宪法钦定、发布《宪法大纲》以及制定资政院章程等形式来把持制宪权;直到1911年武昌起义之后为形势所迫,才不得不将制宪权让与资政院。资政院并非如某些学者所说,"由于清廷不断发布上谕而逐渐获得了制宪权"。相反,武昌起义前资政院议员均认可该院没有制宪权的规定。1910年之后,由于民间立宪人士持续对政府施压和资政院议员的不断争取,资政院最终在武昌起义的乱局中一举获得了制宪权并在短期内制定了《宪法重大信条》。

Since its reform towards constitutionalism began,the Qing Dynasty has attempted to ensure its control over the constituent power through the methods such as making the drafting right exclusive to the emperor,issuing the Outline of the Imperial Constitution and making the outline of the Provisional Assembly.The constituent power wasn’t transferred to the Assembly until the Wuchang Uprising in 1911 forced the imperial court to do so.The Assembly did not,as argued by some,"gradually gained the constituent power through a series of imperial decrees by the court".On the contrary,before the Wuchang Uprising,the members of the Assembly agreed that they did not have the power.After 1910,owing to civil constitutionalists’ continued pressure on the government and endeavors of Assembly members,taking advantage of the chaos caused by the Wuchang Uprising,the Assembly finally won the power in one fell swoop and issued the Nineteen Important Constitutional Articles within a short period of time.