The compilation of the modern code was an important part of the New Deal at the end of the Qing Dynasty. Most of the codification work was centered on Shen Jiaben, Minister of Amendment law, and the Revised Law Museum (opened in 1904) was responsible for drafting various laws, which were later approved and promulgated. Promulgated on the seventh day of the first leap month of the first year of Xuantong (March 28, 1909), the Great Qing Nationality Regulations were China's first nationality law, which played a great role in controlling the unauthorized conversion of domestic residents to foreign nationality and ensuring the status of Qing nationality of overseas Chinese. Because it involves many aspects at home and abroad, in addition to the legal departments, many departments participated in the formulation of the "Nationality Regulations of the Qing Dynasty". Chinese and Japanese scholars have done a lot of research on the formulation of the Qing Nationality Regulations from different perspectives,[1] but the full picture of the formulation process is still not very clear. On the basis of existing research, this paper mainly uses the archives of the Institute of Modern History of the Academia Sinica in Taipei to examine the formulation process of the "Nationality Regulations of the Great Qing Dynasty", and specifically analyzes the role played by various departments in the formulation of the "Nationality Regulations of the Great Qing Dynasty" and the reasons why the nationality regulations adopt the principle of pedigreeism (personalism).
1. Consultation on nationality issues
In June and July of the Thirty-second Year of Guangxu (1906), the Ministry of Foreign Affairs received inquiries on the nationality of overseas Chinese.
In June, a dispute broke out between China and the United States over property cases involving Chinese residents in the United States. U.S. Ambassador to China William W. Rock-hill asked the Department of Foreign Affairs six questions about nationality law, including "What is in your country's laws that stipulate the matter of entering or leaving nationality?" and "What regulations does the Chinese government protect Chinese who are often residents of foreign countries?" [2] The Ministry of Foreign Affairs sent a letter to The Minister of Law, Shen Jiaben, to inquire about the nationality requirement.
In July, Yang Shu, the minister in Japan, consulted the Ministry of Foreign Affairs on the issue of Chinese businessmen becoming Japanese nationals. The governor of Nagasaki Prefecture asked the consular officer in Nagasaki about whether Chen Shiwang and eight other Chinese businessmen would lose their nationality after becoming Japanese nationals, and the Chinese side replied: "Since our country does not have such a special article, it is necessary to ask the person who is naturalized or foreign after naturalization or foreign nationality." [3] Since the Qing government did not have clear regulations on nationality, officials stationed abroad could only give such vague answers.
Yang Shu believed that this unreliable situation would cause "the disadvantages of different ports and differences between the front and back", so he suggested: "On the occasion of the revision of the law in our country, can we ask the Junbu to formulate a method for the chinese to change to foreign nationality, and consult with the minister of law to revise the law." [4] It can be seen that the most distressing problem for officials stationed abroad is that due to the inability to rely on it, the handling methods of various consulates cannot be uniform, resulting in inconsistencies. Therefore, Yang Shu proposed that the Ministry of Foreign Affairs first formulate a method for the change of Chinese to foreign nationality, and then the law was deliberated by the Minister of Law, so that officials stationed abroad could have a unified principle of handling this issue.
However, when the Ministry of Foreign Affairs conveyed Yang Shu's proposal to the Minister of Law for Amendment, the content became "At the time of the revision of the law, can we consult with the Minister of Law to formulate a method for the chinese to change to foreign nationality as a law." [5] This may be due to Yang Shu's phrase "On the occasion of the revision of laws in our country", the Ministry of Foreign Affairs has entrusted the formulation of the regulations for the revision of nationality to the Minister of Amendment.
Regarding the U.S. ambassador's inquiry, in September the Ministry of Foreign Affairs received An answer from Shen Jiaben: "China has been closed to itself for thousands of years and has never communicated with foreign countries, so it is stateless. That is to say, after the sea connection, there is no special article on how to manage the migrants of all households. At present, the civil law has not yet been established, and everything is salty and unfounded. ”[6]
In fact, although the Qing government did not have a clear provision on the management of nationality, in the 1868 Sino-US Renewal Treaty ("Pu Anchen Treaty"), some related issues were involved, such as Article 6 of the Treaty:
The people of the United States who travel to China or travel through various places or live in China permanently must always receive the benefits of permanent residence in accordance with the country with the best treatment. The Americans are all in one. Chinese to the United States or have traveled to various places or habitually resided in the United States, they must also receive the benefit of permanent residence in accordance with the country with the best treatment. Chinese are all in one. However, Americans in China shall not be Chinese people because of this article. A person Chinese in the United States shall not be a citizen of the United States by virtue of this article. [7]
This provision "clarifies for the first time the principles of China's descentist nationality law",[8] i.e. Chinese retain their nationality when they reside in other countries. However, as Shen Jiaben said, the Qing government "did not have a special article" on nationality. Therefore, Shen Jiaben did not rely on this provision as a basis for answering.
Then, Shen Jiaben stated his views: "This minister enters and exits by nationality, and the Chinese laws are not explicit, so the librarians were immediately ordered to investigate the laws of the Eastern and Western countries and properly agreed upon them. But the stakes are too important to be defined. [9] It can be seen that Shen Jiaben believed that it was necessary to formulate regulations on the entry and exit of nationality, and he advocated first investigating the nationality laws of various countries, and then properly agreeing on China's nationality regulations. However, the stakes are too high to be hasty. This may be an answer to the above-mentioned commissioning of the Ministry of Foreign Affairs to formulate nationality regulations.
For the consultation from the diplomatic window on the issue of nationality, the Foreign Ministry's approach was to forward it to Shen Jiaben, the Minister of Amendment of the Law, and hoped that he would formulate regulations on the re-nationality of overseas Chinese. Shen Jiaben was positive about formulating nationality regulations, believing that it should start with an investigation of foreign laws and could not be rushed.
2. The Ministry of Foreign Affairs shall participate in the formulation of the work
At the beginning of the 20th century, some Chinese in the treaty ports and concessions along the coast changed their foreign nationality in order to enjoy consular jurisdiction, so that various problems between local officials and consuls in the Qing Dynasty continued to occur.
On October 17, 1907, the thirty-third year of Guangxu (1907), Song Shou, the governor of Fujian and Zhejiang, reported in a compromise the phenomenon of Chinese in Fujian changing their foreign nationality without authorization: "Since the foreign nationality of Taiwan, the local residents of Fujian Province have often mixed with Japanese and Taiwanese nationality, and still live in the interior in a complicated way, breeding incidents. In the past, when the Min people reported for Japanese Taiwanese nationality, there were originally more People in Fu and Xiamen, but now there are places in Zhangzhou and Quan everywhere. Even if it is reported to the British and French countries and the Japanese and Sri Lankan nationalities, there are also quite a few. On weekdays, they live in the interior, competing for the interests of the Chinese people, helping to resist officials, protecting outsiders, and confusing the publications, and there is no way to investigate. Moreover, the recent cases of citizens of various provinces have also been seen and stacked up, and if the restrictions are not planned early, it is really a great obstacle to the state's rights. [10] These persons who have changed to foreign countries and continue to reside in the country intervene in the event of a conflict with the local population, which creates many contradictions between local officials and foreign consuls. The phenomenon of re-registration expanded from the treaty ports along the coast to the interior, which undoubtedly seriously damaged the sovereignty of the Qing Dynasty.
In response to these problems, Song Shou wrote: "Re-check the nationality laws of the Western European and American states, the strictest level of people's transfer of nationality, especially many restrictions, without the permission of the government, can not be arbitrarily admitted to other nationality." [11] In his view, the nationality laws of Europe and the United States focus on restricting the naturalization of nationals from other countries, and the government has strict regulations on this and cannot change nationality without authorization. Therefore, Song Shou asked: "When this law is revised, the Ministry of Foreign Affairs and the Ministry of Civil Affairs are requested to refer to The Laws of China and the West, clarify the nationality regulations, quickly pass and abide by them, strictly restrict the naturalization of the country, and emphasize the full authority of jurisdiction, so that the Chinese and foreign countries can follow the governance and not worry about correcting the overall situation." ”[12]
Song Shou believed that the casual change of domestic residents to foreign countries was detrimental to the sovereignty of the Qing Dynasty. We should refer to the laws of various countries, formulate nationality regulations, strictly restrict the change of nationality, strengthen management, and act in accordance with the law, so as to stabilize the overall situation. In short, from a domestic point of view, Song Shou proposed to formulate nationality regulations to restrict the change of nationality of domestic residents, so as to maintain the sovereignty of the Qing Dynasty. From this point of view, the main purpose of Songshou's proposal to the Qing government to formulate nationality regulations was to restrict domestic residents from changing to foreign nationality without authorization.
These nationality-related issues that arose at home and abroad made the Qing government realize the necessity of formulating nationality regulations, and after receiving SongShou's recital, it issued a decree on the same day: "The ministry is deliberating on this, and it is admired." [13] Thus, the Ministry of Foreign Affairs, in accordance with the order, began to participate in the formulation of the nationality regulations. Moreover, after receiving the edict, the Ministry of Civil Affairs immediately suggested to the Ministry of Foreign Affairs: "The investigation of this document should be drafted by your ministry and will be played by the ministry." [14] This proposal by the Ministry of Civil Affairs is clearly at odds with the Ministry of Foreign Affairs' previous desire for the Minister of Amending the Law to undertake the matter.
3. Raising the issue of the nationality of overseas Chinese
On February 20, the 34th year of Guangxu (1908), Liu Shixun, the minister in France, played the Guangxu Emperor and once again reiterated the importance of the nationality law. He first wrote: "To the so-called place of origin, it is only the difference between the place of growth and the origin, and there is no relationship with foreign countries." In today's world of communication among nations, there are many things that cannot be dealt with by simple laws of the past. That is to say, in terms of nationality, I have no extraterritorial jurisdiction, and the concession is mixed with Chinese and foreign countries, and there are many overseas Chinese in Nanyang, and if the naturalization and naturalization regulations are not set early, there will be unspeakable abuses in the future. [15] He pointed out that the previous household registration system did not involve foreign countries, and now that the situation between countries is becoming more and more complicated, it is necessary to improve the existing simple legal provisions, and stressed that China has no extraterritorial jurisdiction, and the Chinese in the domestic concession are mixed with foreigners, and there are many overseas Chinese, and if the nationality regulations are not formulated as soon as possible, there will be more and more problems in the future. Here, Liu Shixun not only noticed domestic problems, but also involved overseas Chinese, which shows that envoys stationed abroad are concerned about the issue of overseas Chinese belonging.
He then specified four aspects that the issue of nationality should be resolved as soon as possible.
First, the question of "sovereignty of nationality". "There are many concessions in various areas, and the residents are uneven. Adulterers are protected by each consulate registered. Once the crime is investigated, the consul intervenes to grant the right of immunity. Such incidents have been seen frequently, and if there is a consul, if there is a particular example, it will encroach on sovereignty and be yi yu hudi." [16] This is consistent with Matsushou's view above.
The "traitors" in the coastal treaty ports and concessions have changed their nationality one after another, and once they commit a crime, they will be sheltered by the jurisdiction of foreign consuls, which undoubtedly seriously damaged the sovereignty of the Qing Dynasty. Liu Shixun worries that without the restrictions of the nationality law, this phenomenon of re-nationality will continue to spread endlessly.
Second, the question of "nationality on existing treaties". "The Western Kingdom accepts naturalization of guests and restricts them strictly. All guests registered in the consulate colony are considered only obedient people and are protected and are not allowed to enjoy the rights of the people. Therefore, after registration, it is still dressed in Chinese customs, no different from civilians. If you set up a property in the interior, how can the magistrate be aware of the prohibition? And my treaty of prohibiting outsiders from buying property and setting up wanton property in the interior has been secretly broken for this generation. If it is not prevented early, it will be more harmful than the parishioners." [17] Liu Shixun pointed out that the residents of the coastal zone who changed to foreign nationality went to the interior to buy property and set up shops, which contradicted the treaty's provisions prohibiting foreigners from purchasing property in the interior, that is, the treaty was turned into a blank paper by these Chinese of re-nationality. If this problem is not solved early, the harm is far greater than that of the parishioners.
Third, the nationality of more than one million overseas Chinese. Liu Shixun stressed that although the above two problems are very serious, they are likely to be resolved with the recovery of extraterritorial jurisdiction and the allowing of mixed residences in the interior in the future. However, the issue of the nationality of overseas Chinese is more important than the above two points. "According to the rule of the Chasi Kingdom, a person who is born in his place is naturalized, and a husband or wife who is a guest in his place of origin and whose children are not self-disclosed at the age of his birth are naturalized. Today, overseas Chinese are scattered throughout Hong Kong, Singapore, Sai Kung and Nanyang, with more than one million. Many of the eldest descendants of the countryside lived for several generations. If the other ethnic group had no state to customize, and set up a precedent to eliminate the naturalization of Chinese, China would argue about what to do. It is said that the Dutch possessions are born of their land, that is, they are naturalized. The intention of the attempt to conceal my intentions as a consul can be seen. [18] Here, Liu Shixun is concerned about the ownership of overseas Chinese living in Hong Kong, Singapore, Saigon and Nanyang. Since the nationality law of a foreign country is predominantly territorial, some are considered to have entered the nationality when they are born in that country, and some are considered to have entered the nationality if the children in the place of birth do not make a declaration when they reach a certain age, although their parents are foreign nationals. Liu Shixun was worried that because the Qing Dynasty did not have nationality regulations, Chinese who had lived overseas for generations might be required to change their nationality in accordance with the laws of their locality. If this were the case, the Qing Dynasty would have lost more than millions of overseas Chinese and their property.
The Dutch mentioned in the recital once rejected the Qing government's establishment of a consul on the principle of territorialism, and Lu Haihuan, the German Dutch minister who sent a german envoy in the twenty-seventh year of Guangxu (1901), was also involved in the previous performance. [19] Consular officers are created to protect expatriates of their own nationals, but in the absence of evidence of their own nationals, the object of protection and the necessity of establishing a territory naturally become very vague. It can be seen that the nationality regulations of overseas Chinese involve diplomatic issues such as the Qing government's peripheral territory, so Liu Shixun and other envoys stationed abroad pay special attention to the issue of the ownership of overseas Chinese.
Fourth, the issue of elections and military service. "Fang is now preparing to establish a constitution, and the number of japanese people is slightly higher, or they promote elections, or imitate military service. All nationals, even those who are far away from other countries, shall enjoy this right to perform this duty. In particular, the nationality regulations are not explicitly defined, and there is no restriction to avoid it. [20] Liu Shixun pointed out that overseas Chinese living abroad have both the right to participate in elections and the obligation to perform military service, which can only be realized through the implementation of nationality regulations. At that time, the main content of the New Deal was to prepare for the constitution and implement the system of elections and military service. First of all, it is necessary to clarify who the citizens of the Great Qing Dynasty are. Therefore, Liu Shixun believes that the provision of nationality is related to the construction of modern countries.
Finally, Liu Shixun wrote: "Subjects believe that the approval of nationality is the foundation of the people's law. It is proposed to request the Minister of Law, together with the Ministry of Foreign Affairs, the Ministry of Civil Affairs and the Ministry of Law, to properly formulate the regulations on naturalization and naturalization, and to promulgate them. [21] He stressed that the enactment of the Nationality Law was the basis of civil law and advocated that the Minister of Amendment, together with the Ministry of Foreign Affairs, the Ministry of Civil Affairs and the Ministry of Law, should formulate nationality regulations.
Yang Shu and Song Shou proposed the formulation of regulations on nationality, first, to clarify the method of voluntary change of nationality of foreign Chinese, and first, to strictly restrict domestic residents from changing their nationality without authorization. In addition, Liu Shixun also paid special attention to the issue of the nationality of overseas Chinese. Since the Qing government did not promulgate regulations on nationality, millions of overseas Chinese may be delineated according to the nationality law of the country where they live. If the host country adopts the principle of territorialism, then the overseas Chinese will be naturalized to the host country. Therefore, in his view, in addition to strictly restricting the change of nationality, the nationality regulations should also stipulate the criteria for determining nationality, in other words, to prevent overseas Chinese from being forced to be naturalized into the nationals of the host country according to the principle of territorialism, the nationality regulations of the Qing Dynasty must stipulate that blood is the criterion for determining nationality, that is, the principle of personalism is adopted.
In this regard, the Qing court once again issued a decree: "The ministry is deliberating and praising this." [22] In the course of half a year, the decree was issued twice, which shows the importance that the Qing court attached to this matter.
After receiving the decree, the Ministry of Foreign Affairs sent a letter to the Minister of Amendment, saying, "The Ministry shall write the matter by your Minister in this matter so that it may be played." [23] Thus, the Ministry of Civil Affairs wanted the Ministry of Foreign Affairs to transfer the task of the Ministry of Foreign Affairs to the Minister of Law, Shen Jia himself.
Fourth, the determination of the "quick fix" policy
As mentioned earlier, the Law Revision Library during the New Deal is responsible for preparing for the revision and enactment of various laws. At that time, Shen Jiaben's method was to "refer to the laws of various countries and repeat the translation first." [24] The same approach was taken when the development of the nationality law began. In June of the thirty-fourth year of Guangxu (1908), he asked the Ministry of Foreign Affairs to send a telegram to Wu Tingfang, the minister in the United States, "The museum needs to translate the nationality laws of various countries, and it is necessary to send it on behalf of the buyer, and the price will be paid accordingly." [25] Thus, the Revision Law Library began to translate the nationality laws of various countries and began the compilation work step by step.
However, a telegram sent by Minister of State Lu Zhengxiang to the Ministry of Foreign Affairs on September 14 had to speed up the compilation work. Lu Zhengxiang "probed" to the Dutch government and "planned to make a new law for the people of the Dutch colony during the period of the Parliament this year, who had been living in Southeast Asia for a long time." Our overseas Chinese live in the other land of the majority, this law must be certain, then I suddenly lost hundreds of thousands of overseas Chinese, the relationship is very detailed. Please quickly enact the nationality law, strictly enforce the restrictions on natural origin, and hope to save it." [26] Lu Zhengxiang discovered that the Dutch government would enact new laws to adopt the principle of territorialism and turn the overseas Chinese who had lived in Nanyang for a long time into Dutch colonial nationality. In this way, the Qing Dynasty will lose many overseas Chinese. In order to save one of the situations, he sent a telegram to the Ministry of Foreign Affairs to quickly enact a nationality law that strictly regulates the restrictions on naturalization. It turns out that the above-mentioned Liu Shixun's worries have become a reality.
In addition, Lu Zhengxiang also mentioned another noteworthy issue in the cable, "He also heard that there is a section on the collar, and he must discuss the new law before he can negotiate it, which is particularly deliberate." [27] In other words, the Dutch government intends to first issue a new law and determine the identity of overseas Chinese before negotiating the establishment of a consular matter. Thus, the issue of Indonesia's consulate, which has been an open case, can only resume negotiations after the promulgation of a new Dutch law. The main purpose of the Qing government's establishment of the collar was to protect the overseas Chinese, and if the object of protection was naturalized to the Dutch, what was the significance of the collar? As Lu Zhengxiang wrote in another telegram, "But I first sacrifice this majority of the people in exchange for an equal contract, and the real interests are not offset." [28] In the case of losing many overseas Chinese, even if a consulate can be opened, it is not worth the loss. Therefore, the fast-track nationality law is the most effective way to deal with the Dutch government.
After calling the Ministry of Foreign Affairs, Lu Zhengxiang also reported to the Ministry of Civil Affairs, "Recently, the government of the other side has agreed that a new law must be made, and overseas Chinese who will never return to their home countries will be treated as if they were natives. This matter concerns the number of our people, and the Minister has sent a telegram to the Ministry of Foreign Affairs to ask for instructions on the method. The Nationality Law has not yet been enacted, and there is no evidence of nationality in the private sector to prove who it is. This majority of overseas Chinese have long been under the legal power of other countries, and it is not yet necessary for them to think that they Chinese the people. Therefore, the law of nationality must first be established and evidence of nationality issued". [29] He again stressed that only the pre-nationality law could make the overseas Chinese voucher stand up to the Dutch government.
After receiving Lu Zhengxiang's telegram, the Ministry of Foreign Affairs wrote to the Minister of Law amending the law, saying: "The current Minister of State stationed in Helu has sent a telegram, and because Helan has drawn up a new law on the naturalization of overseas Chinese, he has also taken the law on speeding up the nationality as a request. It is that the nationality regulations have a great relationship with diplomacy, and their conclusion must not be delayed. Your Minister shall be requested to dispatch personnel as soon as possible in conjunction with the personnel assigned by the Ministry to prepare the draft and complete it within the time limit so that it can be resumed. [30] Since the nationality of the Dutch-Indonesian overseas Chinese involves the establishment of a collar, the Ministry of Foreign Affairs recognizes that "nationality regulations are extremely relevant to diplomacy" and that "it must not be delayed". As a result, the Ministry of Foreign Affairs began to take positive action to urge the personnel sent by the Minister of Amendment and the Ministry of Foreign Affairs to jointly draft a draft and complete it within the time limit so that the draft could be jointly played.
After receiving the letter from the Ministry of Foreign Affairs, the Law Revision Hall immediately selected 6 personnel, these 6 personnel were Zhang Zongxiang, Zhang Zongyuan, Xiong Yuan, Chen Lu, Zhu Xianwen, and Ma Derun. [31] Subsequently, "Cao Rulin, the second section of the Museum, and the members sent by your ministry are hereby dispatched to draft the draft together with the members of the Ministry of Foreign Affairs,[32] so that the Revised Law Museum has sent seven personnel to draft the draft together with the Ministry of Foreign Affairs. The seven people assigned have all overseas study experience, and most of them are studying law. [33]
In October, Shen Jiaben also asked the Ministry of Foreign Affairs to send a telegram to Hu Weide, minister in Japan, "I implore the Japanese Ministry of Justice to collect and send the information on the nationality law." [34] It is worth noting that Shen Jiaben and others, in addition to translating the nationality laws of various countries, paid special attention to Japanese information on nationality laws. This is mainly due to the fact that Japan's nationality law is based on the principle of descent.
In this way, Shen Jiaben purchased books and materials on the nationality laws of various countries from the United States, Japan and other countries, and then the Revision Law Museum successively translated the nationality laws of the following countries: the British Nationality Law, the American Nationality Law, the German Nationality Law, the French National Law, the Italian Nationality Law, the Ninth Civil Law of the Russian Legal Class Collection, the Japanese Nationality Law (Meiji 32 Years Law), the Portuguese Civil Law, the Helan Nationality Law, the Spanish Civil Law, and the Naturalization Law of Each Country. [35]
In addition to Japan's nationality law, japanese jurists have also translated theories of Japanese jurists, such as Risaku Taro's Comparative Naturalization Law, Shida Kaotaro's Outline of the Nationality Law, and Opinions on the Enactment of the Nationality Law. [36] After the beginning of the New Deal, the Qing government approved Shen Jiaben's request and hired several Japanese legal scholars as legal advisers to assist in the compilation of various laws, including criminal law and commercial law. [37] Among them, the recommendations made by Professor Shida Kaotaro, an expert in commercial law and private international law, in his Opinion on the Formulation of Nationality Law were later adopted. The presence of Legal Counsel in Japan has had a great influence on the formulation of nationality regulations. [38]
In addition to translating foreign materials, the proposal of the local governor was also forwarded to the Revision Law Museum for reference. In a telegram to Zhang Renjun, the governor of Liangguang, the Ministry of Foreign Affairs wrote: "The five articles are drafted with great sincerity and thoroughness, and they have been consulted and discussed together with the museum." ”[39]
Judging from the above information, after receiving a telegram from Minister Lu Zhengxiang in the Netherlands on September 14, the Ministry of Foreign Affairs realized that "nationality has a great relationship with diplomacy" and determined the policy of "quick fixing". Under the supervision of the Ministry of Foreign Affairs, the Minister of Amendment and Law sent 7 librarians with study abroad experience to work together with the Ministry of Foreign Affairs to compile the work. In addition, while the Revision Law Museum has translated a large number of foreign nationality laws, it has also listened to the opinions of Japanese legal advisers and local governors to speed up the compilation of the work.
V. The petition of overseas Chinese in Dutch Indonesia corresponds to that of diplomatic officials stationed in the Netherlands
When Wang Guangxi, the Dutch counsellor who was touring the islands of the South China Sea in September 34, arrived in Batavia (Jakarta), many overseas Chinese told him that "he will send personnel to China to propose overseas Chinese affairs." All those who grow up in Sax shall be classified as colonists. Here and the words are hard to tell.". [40] In other words, at the same time that Minister in the Netherlands Lu Zhengxiang telephoned the Ministry of Foreign Affairs to inform the Dutch government of its intention to enact a new law, overseas Chinese in Dutch Indonesia also received this news from the "Hebao". Overseas Chinese asked Wang Guangxi one after another about the opinions of the Ministry of Foreign Affairs, and Wang Guangxi tried his best to comfort the overseas Chinese that the Ministry of Foreign Affairs had its own trade-offs and could not be swayed by the Dutch government. He hoped that overseas Chinese everywhere "have no doubts, but each person must still determine the main point of view." [41]
On November 13, Lu Zhengxiang wrote in a letter to the Chinese Chamber of Commerce, which was spontaneously organized by overseas Chinese in Indonesia: "A national of a country must have the nationality of a country, and the entry and exit of nationality must have laws to regulate it. Therefore, the citizens of various countries, although free to move, are always reluctant to abandon their hometowns and their nationality. It has recently been heard that the Congress of the People's Republic of China intends to make a new law, and it is proposed that all overseas Chinese in the South China Sea who have lived on the other island for a long time and do not return to their own country will be paid a colony of nationality. Although this does not refer specifically to overseas Chinese, the majority of overseas Chinese actually live in China, that is, they have a close relationship with me. The Minister of Constitutional Investigation and Law Revision of our country is in the process of formulating a nationality law, which will soon be promulgated, and will be known in the future. [42] In this way, Lu Zhengxiang, on the one hand, urged the domestic nationality law to be quickly determined, and on the other hand, he comforted the overseas Chinese in Dutch Indonesia, telling them that the Qing government was about to promulgate the nationality law, which would certainly solve this problem and strengthen the belief of overseas Chinese in the Qing government.
After receiving Lu Zhengxiang's Zhawen, the uneasiness of overseas Chinese from all walks of life did not disappear, and these uneasiness turned into greater expectations for the Qing government. In order to appeal to the Qing government to speed up the formulation of the nationality law, on December 8 and 9, representatives of the Chinese Chamber of Commerce and the Chinese Academy of Kwai Li held a meeting in Surabaya, and invited Wang Guangxi and Wang Fengxiang, a student of the whole island of Java, such as Batavia, Semarang, Yogyakarta, Solo, Boerang'an, Heli, Makassar, Ambaranlan, Pontianak, Surabaya, and Javanese all-island students. After the meeting, he first called the Ministry of Agriculture, Industry and Commerce and Lu Zhengxiang, and briefly reported the decision of the congress, that is, "calling for the speedy establishment of a consul, the speedy promulgation of the nationality law, and the adoption of blood doctrine, the rejection of the peace movement, and the efforts to control it first, the Overseas Chinese Protection Bureau, and the national system." [43] In this way, the overseas Chinese explicitly proposed that the nationality law of the Qing Dynasty should be based on the principle of bloodism.
Then he wrote separate letters to the Ministry of Agriculture, Industry and Commerce, the Ministry of Foreign Affairs, the Minister of Nanyang, the Governor of Liangguang, and the Shanghai General Chamber of Commerce, detailing the idea of adopting blood doctrine. That is, "The nationality law must take the blood of the people, cover the blood as the most important, no matter how many hundreds of years to go to the country, tens of thousands of miles away from the country, all the blood of their own people, that is, they will always be their own people." This is not only related to the overseas Chinese, that is, the unification of the world population, the largest majority of the Chinese, the unification of the whole country, the number of overseas Chinese living in China, the number of overseas Chinese who are counted as outsiders, and it is impossible to be Chinese the number of expatriates living in other countries, and the number of people who have entered our citizenship is especially small, and if they adopt this doctrine, then all their own people are within the scope, and in addition, there is absolutely no interest, it is a matter of great relevance to the country, so we must ask for the nationality law to be promulgated quickly, and the nationality law must also ask for blood collection. [44] The pedigree requested by the overseas Chinese is contrary to the territorialism to be implemented by the Dutch government, which is not based on the place of birth but on the basis of blood, which is completely consistent with the above-mentioned principle of the Qing government's enactment of the nationality law.
In addition, the letter contained a copy of the Ten Provisions of the Regulations, which had been decided by the General Assembly as an interim countermeasure, one of which was "to try to catch up with the nationality questionnaire". [45] This was a suggestion made by Counsellor Wang Guangxi, who attended the Surabaya Congress, when he called Lu Zhengxiang, that "it is proposed that the envoys issue a form to investigate the nationality of overseas Chinese." [46] After receiving the telegram, Lu Zhengxiang immediately ordered Wang Guangxi to "stay more than a month, investigate nearby, and send a watch to the ministry." Once the nationality law is promulgated, it can be issued to the voucher", and this practice was reported to the Ministry of Foreign Affairs. [47] It can be seen that in order to appease the overseas Chinese, the envoys stationed abroad tried their best to make preparations, only to wait for the Qing government to quickly issue nationality regulations.
The petition of overseas Chinese in Dutch Indonesia not only made various departments of the Qing government pay more attention to the issue of nationality formulation, but also attracted widespread attention in society. Magazines such as Oriental Magazine and Foreign Affairs Daily published many articles on the issue of nationality, so that the public could understand the importance of the issue of nationality. [48]
6. Completion of the Nationality Regulations of the Qing Dynasty
On the 23rd day of the first month of the first year of Xuan reunification (1909), Shen Jiaben wrote in a letter to the Ministry of Foreign Affairs: "The revision of the nationality regulations is now proposed by all the members dispatched together to prepare a draft. At the discretion of the consultation, it is still written by your ministry, and it is known that the library will repeat it. [49] However, the Ministry of Foreign Affairs held that a year earlier, when Liu Shixun was playing the Guangxu Emperor, he had written that "the Minister of Law cultivation under rao, together with the Ministry of Foreign Affairs, the Ministry of Civil Affairs, and the Ministry of Law, shall properly determine the regulations on naturalization and naturalization", and advocated that the draft should be drafted by the Revised Law Museum. [50] It follows from this that the draft nationality regulations have been completed in the first month of the first year of the reunification, although some details remain to be determined. ‘’
On the eighth day of February, Shangshu Puzhen of the Ministry of Agriculture, Industry and Commerce and others played the Qing court and proposed a speedy nationality law to resist the new Dutch law. The song reads: "According to the telegram of overseas Chinese businessmen, the minister of law has been consulted to revise the minister of law, and it has been decided as soon as possible. This month, the Minister made a list of matters to be prepared, which contained the nationality regulations that had been drafted, and translated the national laws of various countries, and the naturalization law was similar to the examination. It will take time for the first concern to be completed, and in case the country formulates a new law and implements it during the period of time, although the overseas Chinese are fighting in groups and have no national strength to think of it as a backup, the public will be in a state of flux. Although the envoys stationed there are many discussions and there is no legal basis for them, the odds of victory are difficult to handle. It is proposed to ask the Minister of Law to amend the Law Under the Decree, to draft the Nationality Law in a hurry in advance, and to request the promulgation of the Law of The King.D. [51] Fearing preemptiveness by the Dutch government, he asked the Minister of Law to issue an order to amend the Law To expeditiously, since the draft of the nationality ordinance had been drawn up.
On the same day, the Qing court issued a decree: "The Ministry of Agriculture, Industry and Commerce shall play a request for a fold of the Law on The Speedy Determination of Nationality, and the Minister of Amendment and the Minister of Foreign Affairs will quickly and properly negotiate and play it." Thanks. [52] Thus, the form of the ensemble between the Minister of Amendment and the Ministry of Foreign Affairs was finalized.
On February 14, the Minister of Amendment and Law sent the draft of the nationality bill and the draft nationality bill to the Ministry of Foreign Affairs, "All the nationality bills that will be played are hereby scheduled to be played on the eighteenth day of this month." Accordingly, a piece of music folded and a volume of draft pieces will be submitted to your ministry for verification, and the painting will be handed over to the museum on the same day, and please write the title of the hall, with or without annotation, so that it can be played according to the script." [53] The Minister of Amendments, which is scheduled to enact the Nationality Bill on February 18, is to be consulted by the Ministry of Foreign Affairs and signed. In this way, in fact, the time left for the Ministry of Foreign Affairs to be approved is very short.
On the seventh day of the first leap month of the first year of Xuan reunification (March 28, 1909), the Minister of Constitutional Compilation and Inspection, Yi Li, requested the promulgation of the approved nationality regulations. In the recital, it was first written: "On February 18 of this year, the Paramilitary Aircraft Department copied the decree: 'The Ministry of Foreign Affairs, together with the Minister of Amendment and Law, drafted a draft of the nationality regulations and presented a fold, and the Constitutional Editor's Office quickly reviewed the draft and played it, and the single was issued concurrently. Thanks. ’”。 [54] That is to say, on February 18, the draft of the meeting between the Minister of Law and the Ministry of Foreign Affairs was forwarded by the Military Aircraft Department to the Constitutional Compilation and Inspection Library for examination and approval, and after about 20 days of revision and approval, the approved nationality regulations were played on the seventh day of the first month of leap February.
Regarding the principles of the regulations, Yi Xi wrote in the recital: "Subjects and others steal the country to the people, and the people to the nationality as the basis. Those who come to say that they are registered as households, but they are only ignorant of their widows, distinguishing between their old and young, so as to make tributes, and to resume their duties. The law of nationality manipulates the entry and exit, the gain or loss of the upper state power, and the subordinate violation of the people's aspirations. The countries of Fang andday are fighting together, and Japan and Israel are conquering the land and colonizing each other, and they are strong with each other. However, China alone uses the people's prosperity and trade to move, and the cultivation and reclamation are biased towards the heavy, measuring the feelings of the other and the other, and destroying the heavy and heavy. It is not necessary to give priority to solicitation, but to be precious to carry away the flow. This is also the original meaning of today's legislation. [55] He believes that the difference between nationality and household registration is that it is related to the right of the state and the people's wishes. The nations competed to expand their territory and colonize, and China moved out of the country because of its large population, so it Chinese cultivated overseas. In this way, the situation between China and foreign countries is different, so the Qing Dynasty's nationality regulations are not mainly based on expanding naturalization, but focus on protecting the outflow. That is to say, the nationality regulations are based on the principle of protecting the inherent nationality of the Chinese, which can not only restrict the change of nationality, but also protect overseas Chinese from being forced to join the nationality of the locality. This is in line with the opinions of the above-mentioned Qing Dynasty officials and the requirements of the Dutch Indonesian overseas Chinese.
His evaluation of the draft nationality regulations was: "The present original draft formulated four chapters of the nationality regulations, based on the principle of inherent nationality, naturalization, naturalization, and restoration, and adopted the method of paying attention to the bloodline in eclecticism, which is clearly organized and appropriate. The proposed implementation rules shall also refer to the negotiation situation in previous years. For the sake of exemption from credit, the ministers and others will deliberate on each article, which is still a possible compromise. [56] That is, the content of the draft is considerably affirmed.
Finally, he proposed changes. "However, the law has a long history and is not tired of detail. At present, our civil law has not yet been promulgated, and the consular jurisdiction has not yet been withdrawn, but in order to maintain this regulation, it must be simplified and everything must be maintained. And if there is no obstacle, the next can be sub-editors to return to the direction, and the upper can show the effect of the law repair. Shu Ji carried out the best interests, and the inside and outside were at peace. Subjects and others have this intention, the amount is increased or lost, changed to Article 24 of the Nationality Regulations, and the implementation of Article 10. [57] Yi Xi et al. believed that the draft was somewhat complicated, and in order to "simplify it", some deletions and changes were made to the content. Finally, the contents of the Nationality Ordinance of the Great Qing Dynasty promulgated are as follows:
Chapter I: Intrinsic Nationality Articles 1 to 2
Chapter II Naturalization Articles 3 to 10
Chapter III Naturalization Articles 11 to 18
Chapter IV Restoration Articles 19 to 23
Chapter V Supplementary Article 24
Enforcement Rules of the Nationality Regulations of the Qing Dynasty Articles 1 to 10
Since there is no draft of the February 18 meeting between Shen Jiaben and the Ministry of Foreign Affairs in the existing materials, it is not possible to know in detail which parts have been deleted. The "Oriental Magazine" issued in February 1909 published the provisions of the "Draft Chinese Nationality Law", which is divided into chapters, a total of 28 articles, and 4 articles of the "Enforcement Law of the Nationality Law". [58] Comparing the contents of the full text, except for article 4 of the Enforcement Law of the Nationality Law, the content of Article 28 of the main text is basically the same as that of the Nationality Law (a total of 28 articles) promulgated by Meiji 32. It can be seen from this that in addition to translating relevant Japanese materials and listening to the opinions of Japanese legal scholars in the process of compilation, a large number of references were made to Japan's nationality law in the content of the articles.
After the provisions of the Draft Law on Chinese Nationality, there is a paragraph stating: "The right case should be a person who has not been decided by the Law Museum, and the reason for its announcement is to cover the matter of naturalization of overseas Chinese nationals who want to accept the territory of the country." The Javanese and Surabaya Chambers of Commerce boycotted the meeting and telegraphed most of them. Quick nationality law cloud cloud. The case was carried out in the newspaper. So comfort overseas Chinese also. ”[59]
It can be inferred from this that the draft compiled by the Revised Law Museum was circulated to the "Oriental Magazine" in some form, and at that time, the society was paying great attention to the issue of nationality because of the petition of the overseas Chinese in Dutch Indonesia, and the magazine published the draft under the title of "Draft Chinese Nationality Law" for the purpose of comforting overseas Chinese. However, from the above archival information, the Minister of Justice used the words "Nationality Regulations" instead of "Chinese Nationality Law", so it is likely that the magazine adopted the name of the "Draft Chinese Nationality Law". [60]
From the content point of view, the "Draft Chinese Nationality Law" published in the "Oriental Magazine" is roughly the same as the "Great Qing Nationality Regulations" promulgated by Yi Xi and others. However, from a formal point of view, it is different from Yi Xi's statement that "the four chapters of the Imahara Draft Nationality Regulations are based on the principles of natural nationality, naturalization, naturalization, and restoration", which may be that the Ministry of Foreign Affairs has revised the draft in a short period of time after receiving the draft for the revision of the Law Museum.
On the seventh day of the first leap month of the first year of Xuantong (March 28, 1909), the "Regulations on Nationality of the Great Qing Dynasty" promulgated by Yi Xi, the Minister of Constitutional Compilation and Inspection, was approved for promulgation on the same day. [61] The ordinance was primarily based on pedigreeism, which achieved the purpose of the Qing government's original formulation of nationality regulations and met the requirements of overseas Chinese in Dutch Indonesia. In the implementation rules, detailed provisions are made on the entry and exit of nationality in various situations at home and abroad, so that envoys stationed abroad and local officials at treaty ports have a specific implementation policy.
Summary
This paper uses the archives of the Institute of Modern History of the Academia Sinica to examine the preparation process of the "Nationality Regulations of the Great Qing Dynasty", and specifically analyzes the role played by various departments in the formulation of nationality regulations and the reasons for the adoption of pedigreeism in the nationality regulations.
Initially, in the face of a consultation from the Diplomatic Window on nationality issues, the Ministry of Foreign Affairs took the approach of forwarding it to the Minister for Amendment of the Law, with the hope that the Minister of Amending the Law would formulate the relevant provisions. In October of the 33rd year of Guangxu (1907), after Song Shou, the governor of Fujian and Zhejiang, was commissioned to participate in the compilation of nationality regulations. At that time, the main purpose of the regulations was to strictly restrict the conversion of Chinese into foreign nationality at treaty ports and concessions.
In February of the thirty-fourth year of Guangxu (1908), Liu Shixun, the minister stationed in France, reiterated the necessity of formulating nationality regulations. The important significance of stipulating the nationality of overseas Chinese was emphasized in the recital. Therefore, the Qing court issued a decree for the second time. To achieve the purpose of ensuring the inherent nationality of overseas Chinese, it means that the nationality regulations of the Qing Dynasty should adopt the principle of blood doctrine.
Therefore, starting from the translation of the foreign nationality law, the work of compiling the nationality regulations was carried out step by step. After receiving a telegram from Minister lu Zhengxiang in the Netherlands in September, the Ministry of Foreign Affairs profoundly realized that "nationality has a great relationship with diplomacy" and urged the Minister of Law to send personnel to "quickly determine" the nationality regulations. Under the supervision of the Ministry of Foreign Affairs, the Law Revision Hall dispatched 7 professionals to draft it together with the Ministry of Foreign Affairs. In early December, the Dutch Indonesian overseas Chinese petitioned for the "speedy promulgation of the nationality law" and "the adoption of blood doctrine", and their demands were consistent with the purpose of the Qing government's original formulation of nationality regulations.
In the first month of the first year of Xuan reunification (1909), the nationality bill was out of paper. In February, Shangshu Puzhen of the Ministry of Agriculture, Industry and Commerce was afraid of being preempted by the Dutch government, and asked to supervise the draft as soon as possible. The Qing court issued a decree to this end, and on February 14, Shen Jiaben sent the draft nationality regulations to the Ministry of State affairs for comments. The Ministry of Foreign Affairs has made formal changes, dividing the original draft without chapters into four chapters: inherent nationality, naturalization, naturalization, and restoration. On 18 February, the Ministry of Foreign Affairs, together with the Minister for Amendment of the Law, played out the bill.
Finally, after the approval of the Constitutional Compilation and Inspection Museum, the "Great Qing Nationality Regulations" were promulgated on the seventh day of the first month of leap February.
From the first edict to the fourth edict, the formulation of the Nationality Regulations of the Qing Dynasty took nearly a year and a half. Since many issues at home and abroad are involved, in the process of formulating the nationality regulations, the Ministry of Foreign Affairs, the Revised Law Museum, the Ministry of Civil Affairs, the Constitutional Compilation and Inspection Hall, as well as envoys stationed abroad, governors of various provinces, Dutch Indonesian overseas Chinese, and Japanese legal advisers have all played a great role. In particular, the Ministry of Foreign Affairs adopted a timely "quick fix" approach to the dutch government's policy, which made the Qing government ahead of the Netherlands in terms of nationality regulations. The "Great Qing Nationality Regulations" is China's first nationality law, which has played a great role in safeguarding national rights.
In the second year of the promulgation of the Qing Nationality Ordinance, the Dutch government promulgated the so-called new law. The two nationality provisions of personalism and territorialism are bound to create friction. Since then, the Qing government and the Dutch government have launched new negotiations on the unresolved issue of the establishment of the collar.
The author is Yan Li, Associate Professor, Department of Economics, Osaka University of Economics, Japan. Originally published in "Shi Lin"