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刑法志上
Punishment and Law, Part One
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刑也者，始於兵而終於禮者也。 鴻荒之代，生民有兵，如蜂有螫，自衛而已。 蚩尤惟始作亂，斯民鴟義，奸宄並作，刑之用豈能已乎？ 帝堯清問下民，乃命三後恤功於民，伯夷降典，折民惟刑，故曰刑也者，始於兵而終於禮者也。 先王順天地四時以建六卿。 秋，刑官也，象時之成物焉。 秋傳氣於夏，變色於春，推可知也。 遼以用武立國，禁暴戢奸，莫先於刑。 國初制法，有出於五服、三就之外者，兵之勢方張，禮之用未遑也。 及阻午可汗知宗室雅裏之賢，命為夷離堇以掌刑辟，豈非士師之官，非賢者不可為乎？ 太祖、太宗經理疆土，擐甲之士歲無寧居，威克厥愛，理勢然也。 子孫相繼，其法互有輕重； 中間能審權宜，終之以禮者，惟景、聖二宗為優耳。
Punishment begins with arms and ends with ritual — that is its nature. In the earliest ages, people bore arms as bees bear stings — solely to defend themselves. When Chiyou first rose in revolt, the people turned violent and treacherous; with crime rampant, how could punishment be set aside? Emperor Yao sought the people's counsel and charged the Three Lords to care for their welfare; Boyi issued the penal code and judged the people by law alone — hence the saying that punishment begins with arms and ends with ritual. The ancient kings aligned the Six Ministries with Heaven, Earth, and the four seasons. Autumn is the season of punishment, when the harvest is gathered in. Autumn draws its force from summer and takes its hue from spring — from this one may infer the rest. The Liao founded their state by force of arms; to curb violence and suppress crime, punishment came first. At the founding of the realm, some laws went beyond the traditional five degrees of kinship and three places of exile — military power was still ascendant, and ritual governance had yet to take hold. When Khan Zuwu saw the talent of Yali in the imperial house, he made him yilijin to oversee justice — was this not the post of chief judge, fit only for a man of merit? Under Taizu and Taizong, who consolidated the realm, armored men knew no year of rest — severity prevailed over mercy, as the times required. Successive rulers inherited the throne, and the laws varied in severity; Of those who could weigh circumstances wisely and bring punishment to rest in ritual, only the Jing and Sheng emperors stand out.
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然其制刑之凡有四：曰死，曰流，曰徒，曰杖。 死刑有絞、斬、淩遲之屬，又有籍沒之法。 流刑量罪輕重，置之邊城部族之地，遠則投諸境外，又遠則罰使絕域。 徒刑一曰終身，二曰五年，三曰一年半； 終身者決五百，其次遞減百； 又有黥刺之法。 仗刑自五十至三百，凡杖五十以上者，以沙袋決之； 又有木劍、大棒、鐵骨朵之法。 木劍、大棒之數三，自十五至三十，鐵骨朵之數，或五、或七。 有重罪者，將決以沙袋，先於脽骨之上及四周擊之。 拷訊之具，有粗、細杖及鞭、烙法。 粗杖之數二十； 細杖之數三，自三十至於六十。 鞭、烙之數，凡烙三十者鞭三百，烙五十者鞭五百。 被告諸事應伏而不服者，以此訊之。 品官公事誤犯，民年七十以上、十五以下犯罪者，聽以贖論。 贖銅之數，杖一百者，輸錢千。 亦有八議、八縱之法。 籍沒之法，始自太祖為撻馬狘沙裏時，奉痕德堇可汗命，按於越釋魯遇害事，以其首惡家屬沒入瓦裏。 及淳欽皇后時析出，以為著帳郎君，至世宗詔免之。 其後內外戚屬及世官之家，犯反逆等罪，復沒入焉； 餘人則沒為著帳戶； 其沒入宮分、分賜臣下者亦有之。 木劍、大棒者，太宗時制。 木劍面平背隆，大臣犯重罪，欲寬宥則擊之。 沙袋者，穆宗時制，其制用熟皮合縫之，長六寸，廣二寸，柄一尺許。 徒刑之數詳於重熙制，杖刑以下之數詳於咸雍制； 其餘非常用而無定式者，不可殫紀。
Their penal system, however, had four main categories: death, exile, penal servitude, and corporal beating. Capital crimes were punished by strangulation, beheading, or lingchi, and there was also confiscation of property and kin. Exile was graded by offense: lesser crimes sent one to border garrisons and tribal lands; graver ones beyond the frontier; the gravest to the farthest reaches of the empire. Penal servitude had three terms: lifetime, five years, and eighteen months; the lifetime term carried five hundred strokes, with each lesser term reduced by one hundred; and branding and tattooing were also prescribed. Corporal punishment ran from fifty to three hundred strokes; for fifty strokes or more, the sandbag cudgel was used; along with the wooden sword, great club, and iron mace. The wooden sword and great club had three grades, from fifteen to thirty blows; the iron mace was used in sets of five or seven. Before a heavy sandbag sentence was carried out, blows were first delivered to the buttocks and surrounding area. Interrogation employed thick and thin rods, whipping, and branding. The thick rod: twenty strokes; the thin rod: three grades, from thirty to sixty strokes. Branding and whipping were paired: thirty brands meant three hundred lashes; fifty brands meant five hundred. Defendants who should have confessed but refused were interrogated by these methods. Officials who erred in office, and commoners over seventy or under fifteen who committed crimes, were allowed to commute their sentences by fine. The redemption tariff was set at one thousand cash for every hundred strokes. The Eight Privileges and Eight Pardons were also in force. Confiscation began when Taizu, still tamag yaglashi, was ordered by Khan Hendejin to investigate the murder of Yuyue Shilu; the ringleader's family was seized and enrolled in the wali. Under Empress Chunqin they were set apart as registered-account gentlemen; Shizong later issued an edict releasing them. Later, collateral kin and hereditary official families convicted of treason and like crimes were again subject to confiscation; others were reduced to registered-account households; some property went to the palace treasury, some was distributed among officials. The wooden sword and great club were introduced under Taizong. The wooden sword was flat on one side and ridged on the other; when a senior minister merited death but the emperor wished mercy, he was struck with this instead. The sandbag cudgel was introduced under Muzong: cured leather sewn into a bag six inches long and two inches wide, on a handle about a foot long. Penal servitude was codified in detail under the Chongxi code; corporal punishments and lesser penalties under the Xianyong code; the rest — irregular punishments without fixed rules — are too numerous to list in full.
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太祖初年，庶事草創，犯罪者量輕重決之。 其後治諸弟逆黨，權宜立法。 親王從逆，不磬諸甸人，或投高崖殺之； 淫亂不軌者，五車轘殺之； 逆父母者視此； 訕詈犯上者，以熟鐵錐摏其口殺之。 從坐者，量罪輕重杖決。 杖有二：大者重錢五百，小者三百。 又為梟磔、生瘞、射鬼箭、炮擲、支解之刑。 歸於重法，閑民使不為變耳。 歲癸酉，下詔曰：「朕自北征以來，四方獄訟，積滯頗多。 今休戰息民，群臣其副朕意，詳決之，無或冤枉。」 乃命北府宰相蕭敵魯等分道疏決。 有遼欽恤之意，昉見於此。 神冊六年，克定諸夷，上謂侍臣曰：「凡國家庶務，巨細各殊，若憲度不明，則何以為治，群下亦何由知禁。」 乃詔大臣定治契丹及諸夷之法，漢人則斷以《律令》，仍置鐘院以達民冤。
In Taizu's early reign, with institutions still taking shape, offenders were sentenced according to the gravity of their crimes. Later, in suppressing his brothers' rebellion, he enacted ad hoc laws suited to the emergency. Imperial princes who joined the revolt were not publicly executed before the assembled domains, but were sometimes hurled from high cliffs; those guilty of sexual misconduct were torn apart by five teams of horses; those who defied their parents received the same punishment; those who slandered their superiors were killed by driving a red-hot iron spike through the mouth. Accomplices were beaten in proportion to their guilt. Two grades of rod were used: the heavy rod weighed five hundred cash, the light three hundred. He also instituted exposure of the head, dismemberment, live burial, ghost-arrow execution, catapulting, and hacking to pieces. These harsh measures were meant to keep the common people from stirring trouble. In the guiyou year, an edict declared: "Since our northern campaigns began, lawsuits from across the realm have piled up in great numbers. Now that war has ceased and the people may rest, let my ministers assist my intent, judge cases carefully, and permit no wrongful conviction. He then ordered Northern Chancellery Chief Minister Xiao Dilu and others to clear the backlog in separate jurisdictions. The Liao concern for compassionate review of cases first appears here. In the sixth year of Shence, after pacifying the tribes, the emperor told his attendants: "State affairs great and small all differ — if the laws are unclear, how can the realm be governed, and how can subjects know what is forbidden? He ordered his ministers to codify laws for the Khitan and other tribes; Han subjects were to be judged under the Tang code, and the Bell Court was established so the people's grievances could reach the throne.
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至太宗時，治渤海人一依漢法，余無改焉。 會同四年，皇族舍利郎君謀毒通事解裏等，已中者二人，命重杖之，及其妻流於厥拔離弭河，族造藥者。 世宗天祿二年，天德、蕭翰、劉哥及其弟盆都等謀反，天德伏誅，杖翰，流劉哥，遣盆都使轄戛斯國。 夫四人之罪均而刑異，遼之世，同罪異論者蓋多。 穆宗應歷十二年，國舅帳郎君蕭延之奴海裏強陵拽剌禿裏年未及之女，以法無文，加之宮刑，仍付禿裏以為奴。 因著為令。 十六年，諭有司：「自先朝行幸頓次，必高立標識以禁行者。 比聞楚古輩，故低置其標深草中，利人誤入，因之取財。 自今有復然者，以死論。」 然帝嗜酒及獵，不恤政事，五坊、掌獸、近侍、奉膳、掌酒人等以獐鹿、野豕、鶻雉之屬亡失傷斃，及私歸逃亡，在告逾期，召不時至，或以奏對少不如意，或以飲食細故，或因犯者遷怒無辜，輒加炮烙鐵梳之刑。 甚者至於無算。 或以手刃刺之，斬擊射燎，斷手足，爛肩股，折腰脛，劃口碎齒，棄屍於野。 且命築封於其地，死者至百有餘人。 京師置百尺牢以處系囚。 蓋其即位未久，惑女巫肖古之言，取人膽合延年藥，故殺人頗眾。 後悟其詐，以鳴鏑叢射、騎踐殺之。 及海裏之死，為長夜之飲，五坊、掌獸人等及左右給事誅戮者，相繼不絕。 雖嘗悔其因怒濫刑，諭大臣切諫，在廷畏懦，鮮能匡救，雖諫又不能聽。 當其將殺壽哥、念古，殿前都點檢耶律夷臘葛諫曰：「壽哥等斃所掌雉，畏罪而亡，法不應死。」 帝怒，斬壽哥等支解之。 命有司盡取鹿人之在系者凡六十五人，斬所犯重者四十四人，余悉痛杖之。 中有欲置死者，賴王子必攝等諫得免。 已而怒頗德飼鹿不時，致傷而斃，遂殺之。 季年，暴虐益甚，嘗謂太尉化葛曰：「朕醉中有處決不當者，醒當覆奏。」 徒能言之，竟無悛意，故及於難。 雖云虐止褻禦，上不及大臣，下不及百姓，然刑法之制，豈人主快情縱意之具邪！ 景宗在潛，已鑒其失。 及即位，以宿衛失職，斬殿前都點檢耶律夷臘葛。 趙王喜隱自囚所擅去械鎖，求見自辯，語之曰：「枉直未分，焉有出獄自辯之理？」 命復縶之。 既而躬錄囚徒，盡召而釋之。 保寧三年，以穆宗廢鐘院，窮民有冤者無所訴，故詔復之，仍命鑄鐘，紀詔其上，道所以廢置之意。 吳王稍為奴所告，有司請鞫，帝曰：「朕知其誣，若按問，恐餘人效之。」 命斬以徇。 五年，近侍實魯裏誤觸神纛，法應死，杖而釋之。 庶幾寬猛相濟。 然緩於討賊，應歷逆黨至是始獲而誅焉，議者以此少之。 聖宗沖年嗣位，睿智皇后稱制，留心聽斷，嘗勸帝宜寬法律。 帝壯，益習國事，銳意於治。 當時更定法令凡十數事，多合人心，其用刑又能詳慎。 先是，契丹及漢人相毆致死，其法輕重不均，至是一等科之。 統和十二年，詔契丹人犯十惡，亦斷以《律》。 舊法，死囚屍市三日，至是一宿即聽收瘞。 二十四年，詔主非犯謀反大逆及流死罪者，其奴婢無得告首； 若奴婢犯罪至死，聽送有司，其主無得擅殺。 二十九年，以舊法，宰相、節度使世選之家子孫犯罪，徒杖如齊民，惟免黥面，詔自今但犯罪當黥，即準法同科。 開泰八年，以竊盜贓滿十貫，為首者處死，其法太重，故增至二十五貫，其首處死，從者決流。 嘗敕諸處刑獄有冤，不能申雪者，聽詣御史臺陳訴，委官覆問。 往時大理寺獄訟，凡關覆奏者，以翰林學士、給事中、政事舍人詳決，至是始置少卿及正主之。 猶慮其未盡，而親為錄囚。 數遣使詣諸道審決冤滯，如邢抱樸之屬，所至，人自以為無冤。 五院部民有自壞鎧甲者，其長佛奴杖殺之，上怒其用法太峻，詔奪官。 吏以故不敢酷。 撻剌幹乃方十因醉言宮掖事，法當死，特貰其罪。 五院部民偶遺火。 延及木葉山兆域，亦當死，杖而釋之，因著為法。 至於敵八哥始竊薊州王令謙家財，及覺，以刃刺令謙，幸不死。 有司擬以盜論，止加杖罪。 又那母古犯竊盜者十有三次，皆以情不可恕，論棄市。 因詔自今三犯竊盜者，黥額、徒三年； 四則黥面、徒五年； 至於五則處死。 若是者，重輕適宜，足以示訓。 近侍劉哥、烏古斯嘗從齊王妻而逃，以赦，後會千齡節出首，乃詔諸近侍、護衛集視而腰斬之。 於是國無幸民，綱紀修舉，吏多奉職，人重犯法。 故統和中，南京及易、平二州以獄空聞。 至開泰五年，諸道皆獄空，有刑措之風焉。
Under Taizong, the Bohai were governed entirely by Han law; otherwise the system was unchanged. In the fourth year of Huitong, Imperial Clan Sheli Langjun plotted to poison Interpreter Jieli and others; two victims had already succumbed. He was heavily beaten, his wife exiled to the Juebalimi River, and the poison-makers' clan exterminated. In Shizong's second year of Tianlu, Tiande, Xiao Han, Liuge, and Liuge's brother Pendu plotted rebellion. Tiande was executed, Han beaten, Liuge exiled, and Pendu dispatched as envoy to the Kirghiz. Though the four men's crimes were equal, their punishments differed — under the Liao, equal guilt often received unequal sentences. In Muzong's twelfth year of Yingli, slave Haili of Imperial Uncle-in-Law Tent Langjun Xiao Yan raped Zhuala Tulii's underage daughter. With no statute covering the offense, he was castrated and given to Tulii as a slave. The case was then codified as precedent. In his sixteenth year, he instructed officials: "On imperial progresses since former times, tall markers were erected to bar unauthorized passage. I have lately heard that Chugu and his ilk deliberately set markers low in deep grass, profiting when travelers strayed in by mistake and then extorting them. Anyone who does so again shall be put to death. Yet the emperor cared only for wine and the hunt, neglecting government. Keepers of the Five Wards, animal handlers, attendants, food servers, and wine stewards — for lost or injured game, unauthorized absence, overstayed leave, or tardiness when summoned; for answers at audience that displeased him, trifles at table, or rage vented on the innocent because of another's fault — he would at once apply branding and iron-comb torture. In the worst cases the toll was beyond counting. Sometimes he stabbed them himself, hacked, shot, and burned them, severed limbs, mangled shoulders and thighs, broke backs and shins, slashed mouths and shattered teeth, and left the corpses in the open country. He even ordered burial mounds raised on the spot; the dead numbered more than a hundred. In the capital a hundred-foot prison was built to hold detainees. Not long after his accession he was swayed by the shamaness Xiaogu, who claimed human gall was needed for an elixir of longevity — hence the many killings. When he realized her fraud, he had her shot with whistling arrows and trampled under horses. After Haili's execution he held all-night revels, and executions among the Five Wards, beast keepers, and personal attendants continued without pause. Though he once regretted his angry excesses and urged his ministers to remonstrate, the court was timid and few could save victims; even when they spoke up, he would not listen. When he was about to execute Shouge and Nian'gu, Palace Front Chief Inspector Yelü Yilige remonstrated: "Shouge and the others let their pheasants die and fled in fear of punishment — by law they do not deserve death. The emperor flew into a rage, beheaded Shouge and the others, and had them hacked apart. He ordered all sixty-five deer keepers in custody seized; forty-four of the worst offenders were beheaded, the rest severely beaten. Some who would have been executed were spared through remonstrance by Princes Bishe and others. Soon after, enraged that Pode had fed the deer irregularly, causing one to be injured and die, he had him killed. In his final years his cruelty worsened. He once told Grand Marshal Huage: "When I pass improper judgments while drunk, report them again when I am sober. He could say the words but never meant to reform — and so met his end. Though his cruelty is said to have touched only those close at hand, not reaching ministers above or commoners below, is the penal code an instrument for a ruler to indulge his whims? Jingzong, while still heir apparent, had already taken note of these excesses. On his accession, citing dereliction of the palace guard, he beheaded Palace Front Chief Inspector Yelü Yilige. Prince of Zhao Xiyin removed his own shackles and sought an audience to plead his case. The emperor told him: "Guilt and innocence are not yet settled — what grounds have you to leave prison and plead? He ordered him bound again. Soon after he personally reviewed the prisoners and released them all. In the third year of Baoning, because Muzong had abolished the Bell Court and the poor had nowhere to appeal their grievances, Jingzong restored it, ordered a new bell cast, and had the edict inscribed upon it explaining why it had been abolished and restored. Prince of Wu Shao was denounced by a slave; officials requested an investigation. The emperor said: "I know this is false — if we investigate, others may follow suit. He ordered the slave beheaded as a warning. In the fifth year, attendant Shiruli accidentally touched the sacred banner — a capital offense by law, but he was beaten and released. Thus leniency and severity were balanced. Yet he was slow to pursue rebels; the Yingli traitors were only now captured and executed — critics held this against him. Shengzong succeeded as a child; the Wise Empress Dowager held regency, attended carefully to judgments, and urged him to lighten the laws. When he came of age, he grew adept at statecraft and devoted himself to governance. He revised more than a dozen statutes, most of which won popular approval, and applied punishment with care and deliberation. Previously, when Khitan and Han beat each other to death, the penalties differed; now both were punished alike. In the twelfth year of Tonghe, an edict declared that Khitan who committed the Ten Abominations were also to be judged under the Tang code. Under the old law, executed prisoners' corpses were displayed in the market for three days; now burial was permitted after a single night. In the twenty-fourth year, an edict declared that slaves might not denounce masters who had not committed treason, great sedition, or capital or exilable offenses; if a slave merited death, the case was to be sent to the authorities; masters were forbidden to execute them privately. In the twenty-ninth year, under the old law, descendants of hereditary chancellor and military governor families who committed crimes received the same penal servitude and beating as commoners, though facial tattooing was waived; an edict now required that whenever tattooing was warranted, they be punished like everyone else. In the eighth year of Kaitai, theft of ten strings of cash had meant death for the ringleader — the penalty was judged too harsh, so the threshold was raised to twenty-five strings; the ringleader still faced death, accomplices exile. He once ordered that prisoners who could not clear wrongful convictions might appeal to the Censorate, with officials commissioned to reinvestigate. Formerly, Court of Judicial Review cases requiring imperial review were decided by Hanlin academicians, supervising secretaries, and administrative assistants; only now were a vice director and presiding officer appointed. Still unsatisfied, he personally reviewed the prisoners. He repeatedly dispatched envoys to the circuits to clear stale wrongful cases; men like Xing Baopu left people feeling that nowhere did injustice remain. When a man of the Five Wards damaged his own armor, his chief Fonu beat him to death; the emperor, angered at such harsh application of the law, stripped Fonu of his post. Officials thereafter dared not be cruel. Tatala Gannai Fangshi spoke of inner-palace matters while drunk — a capital offense by law, but he was specially pardoned. A man of the Five Wards accidentally started a fire. The fire spread to the sacred precinct of Mount Muye — also a capital offense, but he was beaten and released, and the case was codified as precedent. Dibage first stole the property of Wang Lingqian of Jizhou; when discovered, he stabbed Lingqian with a blade, but fortunately Lingqian survived. Officials proposed treating it as theft, but the emperor imposed only a beating. Namugu had committed theft thirteen times; each case was deemed unforgivable, and he was sentenced to public execution. An edict therefore declared that a third theft offense would bring forehead tattooing and three years' penal servitude; a fourth offense, facial tattooing and five years' penal servitude; a fifth, death. Such gradations were proportionate and sufficient to serve as a warning. Attendants Liuge and Wugusi had once fled with the Prince of Qi's wife; though pardoned, they confessed at the Thousand-Age Festival; the emperor then had all attendants and guards assembled to witness their execution by cutting in two at the waist. Thus no one counted on luck to escape justice; discipline was restored, officials performed their duties, and the people feared breaking the law. During Tonghe, the Southern Capital and the prefectures of Yi and Ping were famed for empty prisons. By the fifth year of Kaitai, every circuit reported empty prisons — a sign that punishments had fallen largely into disuse.
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故事，樞密使非國家重務，未嘗親決，凡獄訟惟夷離畢主之。 及蕭合卓、蕭樸相繼為樞密使，專尚吏才，始自聽訟。 時人轉相效習，以狡智相高，風俗自此衰矣。 故太平六年下詔曰：「朕以國家有契丹、漢人，故以南、北二院分治之，蓋欲去貪枉，除煩擾也； 若貴賤異法，則怨必生。 夫小民犯罪，必不能動有司以達於朝，惟內族、外戚多恃恩行賄，以圖茍免，如是則法廢矣。 自今貴戚以事被告，不以事之大小，並令所在官司按問，具申北、南院覆問得實以聞； 其不按輒申，及受請托為奏言者，以本犯人罪罪之。」 七年，詔中外大臣曰：「《制》條中有遺闕及輕重失中者，其條上之，議增改焉。」
By precedent, the Commissioner of the Bureau of Military Affairs did not personally decide major state matters; all lawsuits were handled by the yilibi alone. When Xiao Hezhuo and Xiao Pu successively served as commissioners, prizing administrative talent, they began hearing lawsuits themselves. Others followed suit, competing in cunning, and public morals declined from that point. Therefore in the sixth year of Taiping an edict declared: "Our state has Khitan and Han subjects, whom we govern through separate Southern and Northern Courts, intending to remove corruption and eliminate vexation; if noble and humble are judged by different laws, resentment is sure to follow. Commoners who commit crimes cannot move the authorities to reach the throne; only imperial kin and affines rely on favor to bribe their way free — and thus the law falls into disuse. Henceforth, when nobles and affines are accused, regardless of the gravity of the offense, local offices must investigate and report to the Northern and Southern Courts for review before memorializing the throne; anyone who investigates improperly, memorializes rashly, or accepts bribes to speak on a defendant's behalf shall be punished with the same offense as the accused. In the seventh year, an edict to all ministers declared: "Where provisions in the Regulations are missing or penalties are imbalanced, submit the articles for discussion of additions and revisions."