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刑法志下
Punishment and Law, Part Two
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興宗即位，欽哀皇后始得志，昆弟專權。 馮家奴等希欽哀意，誣蕭浞卜等謀反，連及嫡後仁德皇后。 浞卜等十餘人與仁德姻援，坐罪者四十餘輩皆被大辟，仍籍其家。 幽仁德於上京，既而遣人弒之。 迫殞非命，中外切憤。 欽哀後謀廢立，遷於慶州。 及奉迎以歸，頗復預事，其酷虐不得逞矣。 然興宗好名，喜變更，又溺浮屠法，務行小惠，數降赦宥，釋死囚甚眾。
When Xingzong came to the throne, Empress Dowager Qin'ai finally had her way, and her brothers seized control of the government. Feng Jianu and others, eager to please Qin'ai, framed Xiao Hubu and his associates for treason and dragged in the legitimate empress, Ren'ade. Hubu and more than ten others were connected to Ren'ade by marriage; over forty people implicated in the case were executed, and their families' property was confiscated. Ren'ade was imprisoned at Shangjing, and assassins were soon sent to kill her. Her violent death stirred fierce indignation throughout the court and the realm. When Qin'ai plotted to depose the emperor and enthrone another, she was banished to Qingzhou. When she was brought back to court, she again meddled in state affairs, but she could no longer carry out her cruelties at will. Yet Xingzong cared deeply for his reputation, loved to change policy, and was devoted to Buddhism; he showered petty favors, issued frequent amnesties, and released a great many prisoners under sentence of death.
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重熙元年，詔職事官公罪聽贖，私罪各從本法； 子弟及家人受賕，不知情者，止坐犯人。 先是，南京三司銷錢作器皿三斤，持錢出南京十貫，及盜遺火家物五貫者處死； 至是，銅逾三斤，持錢及所盜物二十貫以上處死。 二年，有司奏：「元年詔曰，犯重罪徒終身者，加以捶楚，而又黥面。 是犯一罪而具三刑，宜免黥。 其職事官及宰相、節度使世選之家子孫，犯奸罪至徒者，未審黥否？」 上諭曰：「犯罪而悔過自新者，亦有可用之人，一黥其面，終身為辱，朕甚憫焉。」 後犯終身徒者，止刺頸。 奴婢犯逃，若盜其主物，主無得擅黥其面，刺臂及頸者聽。 犯竊盜者，初刺右臂，再刺左，三刺頸之後，四刺左，至於五則處死。 五年，《新定條制》成，詔有司凡朝日執之，仍頒行諸道。 蓋纂修太祖以來法令，參以古制。 其刑有死、流、杖及三等之徒而五，凡五百四十七條。
In the first year of Chongxi, an edict allowed functional officials to redeem public offenses, while private offenses were punished under the usual statutes; when sons, younger brothers, or household members took bribes, those who did not know were not punished—only the guilty party was. Previously, melting three jin of coin into vessels at the Nanjing Three Departments, carrying ten strings of cash out of Nanjing, or stealing—or through fire, destroying—household goods worth five strings were capital crimes; now death applied only when copper exceeded three jin, or when cash carried or goods stolen amounted to twenty strings or more. In the second year, the responsible offices reported: "The first-year edict provides that offenders guilty of serious crimes and sentenced to lifetime penal servitude are beaten and also tattooed on the face. One offense thus carries three punishments; facial tattooing should be waived. For functional officials and descendants of hereditary chancellor and military commissioner families, when adultery is punished by penal servitude, should facial tattooing still apply?" The emperor replied: "Some who commit crimes and truly repent may still be useful; a single mark on the face is a lifelong disgrace, and We pity them deeply." Thereafter, lifetime penal servitude was marked by tattoo on the neck alone. When slaves fled or stole their master's property, masters might not tattoo their faces on their own authority; tattooing the arm or neck was permitted. Petty thieves were first marked on the right arm, then the left, then the neck, then the left again; on the fifth offense they were executed. In the fifth year the "Newly Fixed Regulations" were completed; officials were ordered to apply them at every court session and to promulgate them throughout all circuits. They compiled statutes from Taizu onward and drew on ancient models. The code defined death, exile, beating, and five grades of penal servitude in three terms—five hundred forty-seven articles in all.
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時有群牧人竊易官印以馬與人者，法當死，帝曰：「一馬殺二人，不亦甚乎？」 減死論。 又有兄弟犯強盜當死，以弟從兄，且俱無子，特原其弟。 至於枉法受賕，詐敕走遞，偽學御書，盜外國貢物者，例皆免死。 郡王貼不家奴彌裏吉告其主言涉怨望，鞫之無驗，當反坐，以欽哀皇后裏言，竟不加罪，亦不斷付其主，僅籍沒焉。 寧遠軍節度使蕭白強掠烏古敵烈都詳穩敵魯之女為妻，亦以後言免死，杖而奪其官。 梅裏狗丹使酒殺人而逃，會永壽節出首，特赦其罪。 皇妹秦國公主生日，帝幸其第，伶人張隋，本宋所遣汋者，大臣覺之以聞。 召詰，款伏，乃遽釋之。 後詔諸職官私取官物者，以正盜論。 諸帳郎君等於禁地射鹿，決杖三百，不徵償； 小將軍決二百已下； 至百姓犯者決三百。 聖宗之風替矣。
Some herd-masters had secretly swapped official seals to trade government horses; the statute called for death. The emperor said, "To execute two men over one horse—is that not excessive?" The sentence was commuted from death. Two brothers guilty of armed robbery faced execution; because the younger had followed the elder and neither had sons, the younger was specially spared. Those who perverted the law for bribes, forged edicts to flee by relay post, counterfeited imperial calligraphy, or stole foreign tribute were routinely spared execution. Miliji, a slave of Prince Junwang Tiebu, accused his master of disloyal speech; the charge could not be proved and the accuser should have been punished in turn, but at Qin'ai's private word he escaped punishment, was not returned to his master, and only had his property confiscated. Xiao Bai, commissioner of Ningyuan Army, forcibly took Dile's daughter as his wife; he too was spared death on the empress's word, beaten, and dismissed from office. Meilidoudan killed a man in a drunken rage and fled; he surrendered on the Eternal Longevity festival and received a special pardon. On his sister the Princess of Qin's birthday the emperor visited her residence; the actor Zhang Sui, originally a Song spy, was detected and reported by a senior minister. Summoned and questioned, he confessed fully—and was immediately released. Later an edict ruled that officials who privately took government property were guilty of full theft. Account gentlemen who shot deer in the imperial preserve were sentenced to three hundred strokes, without compensation; junior generals received two hundred strokes or fewer; commoners who offended received three hundred strokes. The standards of Shengzong's reign were gone.
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道宗清寧元年，詔諸宮都部署曰：「凡有機密事，即可面奏； 餘所訴事，以法施行，有投誹訕之書，其受及讀者皆棄市。」 二年，命諸郡長吏如諸部例，與僚屬同決罪囚，無致枉死獄中。 下詔曰：「先時諸路死刑皆待決於朝，故獄訟留滯； 自今凡強盜得實者，聽即決之。」 四年，復詔左夷離畢曰：「比詔外路死刑，聽所在官司即決。 然恐未能悉其情，或有枉者。 自今雖已款伏，仍令附近官司覆問，無冤然後決之，有冤者即具以聞。」 咸雍元年，詔獄囚無家者，給以糧。 六年，帝以契丹、漢人風俗不同，國法不可異施，於是命惕隱蘇、樞密使乙辛等更定《條制》。 凡合於《律令》者，具載之； 其不合者，別存之。 時校定官即重熙舊制，更竊盜贓二十五貫處死一條，增至五十貫處死； 又刪其重復者二條，為五百四十五條； 取《律》一百七十三條，又創增七十一條，凡七百八十九條，增重編者至千餘條。 皆分類列。 以大康間所定，復以《律》及《條例》參校，續增三十六條。 其後因事續校，至大安三年止，又增六十七條。 條約既繁，典者不能遍習，愚民莫知所避，犯法者眾，吏得因緣為奸。 故五年詔曰：「法者所以示民信而致國治，簡易如天地，不忒如四時，使民可避而不可犯。 此命有司纂修刑法，然不能明體朕意，多作條目，以罔民於罪，朕甚不取。 自今復用舊法，余悉除之。」 然自大康元年，北院樞密使耶律乙辛等用事，宮婢單登等誣告宣懿皇后，乙辛以聞，即詔乙辛劾狀，因實其事。 上怒，族伶人趙惟一，斬高長命，皆籍其家，仍賜皇后自盡。 三年，乙辛又與其黨謀構昭懷太子，陰令右護衛太保耶律查剌，告知樞密院事蕭速撒等八人謀立皇太子。 詔按無狀，出速撒、達不也外補，流護衛撒撥等六人。 詔告首謀逆者，重加官賞； 否則悉行誅戮。 乙辛教牌印郎君蕭訛都斡自首「臣嘗預速撒等謀」，因籍姓名以告。 帝信之，以乙辛等鞫按，至杖皇太子，囚之宮中別室，殺撻不也、撒剌等三十五人，又殺速撒等諸子； 其幼稚及婦女、奴婢、家產，皆籍沒之，或分賜群臣。 燕哥等詐為太子爰書以聞，上大怒，廢太子，徙上京，乙辛尋遣人弒於囚所。 帝猶不寤，朝廷上下，無復紀律。 天祚乾統元年，凡大康三年預乙辛所害者悉復官爵，籍沒者出之，流放者還鄉里。 至二年，始廢乙辛等墓，剖棺戮屍，誅其子孫，餘黨子孫減死，徙邊，其家屬奴婢皆分賜被害之家。 如耶律撻不也、蕭達魯古等，黨人之尤凶狡者，皆以賂免。 至於覆軍失城者，第免官而已。 行軍將軍耶律涅裏三人有禁地射鹿之罪，皆棄市。 其職官諸局人有過者，鐫降決斷之外，悉從軍。 賞罰無章，怨讟日起； 劇盜相挺，叛亡接踵。 天祚大恐，益務繩以嚴酷，由是投崖、炮擲、釘割、臠殺之刑復興焉。 或有分戶五京，甚者至取其心以獻祖廟。 雖由天祚救患無策，流為殘忍，亦由祖宗有以啟之也。
In the first year of Qingning, Daozong ordered the palace chief deployments: "Report confidential matters to Us in person; all other suits shall follow the law. Anyone who receives or reads a slanderous writing shall be executed in the marketplace." In the second year he ordered prefectural administrators, following tribal precedent, to decide criminal cases jointly with their staffs so that no one would die wrongfully in prison. An edict declared: "Formerly all capital sentences in the circuits awaited court decision, and litigation piled up; from now on, wherever armed robbery is proved, the local office may execute judgment at once." In the fourth year he again instructed the Left Yilipin: "The recent edict allowed local offices on the outer circuits to decide capital cases on the spot. Yet We fear the facts may not be fully known and innocents wronged. Henceforth, even after full confession, nearby offices must re-examine the case; only when no injustice is found may sentence be carried out; any sign of wrongful conviction must be reported." In the first year of Xianyong, prisoners without families were supplied with grain. In the sixth year the emperor held that Khitan and Han customs differed and national law could not be applied in two ways; he ordered Tiyin Su, Privy Councilor Yixin, and others to revise the "Regulations." Whatever accorded with the "Statutes and Ordinances" was fully recorded; what did not accord was kept in a separate register. The revisers, working from the Chongxi code, raised the death penalty for theft from twenty-five to fifty strings of booty; deleted two duplicate articles, leaving five hundred forty-five; they took one hundred seventy-three articles from the "Statutes" and added seventy-one new ones—seven hundred eighty-nine in all; with further additions and revisions the total exceeded a thousand. All were arranged by category. Building on the Dakang code, they collated it again against the "Statutes" and "Regulations" and added thirty-six articles. Revision continued case by case until the third year of Da'an, when sixty-seven more articles were added. As the code grew bloated, officials could not master it, common people did not know what to avoid, offenses multiplied, and clerks exploited the confusion for private gain. Therefore in the fifth year an edict declared: "Law exists to win the people's trust and bring order to the state—it should be as plain as Heaven and Earth, as steady as the four seasons, so that people may know what to avoid and dare not transgress. We ordered the offices to revise the penal code, yet they failed to grasp Our intent and multiplied articles to trap the people in crime—We will not accept this. Henceforth the old law alone shall apply; all additions are abolished." Yet from the first year of Dakang, Northern Privy Councilor Yelü Yixin held power; palace maid Shan Deng falsely accused Empress Xuanyi; Yixin reported it, and the emperor ordered him to investigate—thereby making the charge stick. The emperor flew into a rage: the actor Zhao Weiyi and his entire clan were destroyed, Gao Changming was beheaded, both families' property was confiscated, and the empress was ordered to take her own life. In the third year Yixin and his faction framed Crown Prince Zhaohuai, secretly ordering Right Guard Commissioner Yelü Chala to accuse Privy Councilor Xiao Susa and eight others of plotting to enthrone the crown prince. Investigation found no substance; Susa and Dabuye were posted elsewhere; six guards including Sapo were exiled. An edict promised heavy promotion and reward to whoever reported the chief plotters of treason; otherwise all involved would be executed. Yixin coached Seal Office Gentleman Xiao Eduo to confess: "I once took part in Susa's plot," and Eduo denounced others by name. The emperor believed them; Yixin conducted the inquiry, had the crown prince beaten and imprisoned in a separate palace chamber, executed Tabuye, Sala, and thirty-five others, and killed Susa's sons as well; their children, wives, slaves, and property were confiscated or distributed among the ministers. Yange and others forged the crown prince's confession; the emperor deposed him and sent him to Shangjing, where Yixin soon had him murdered in prison. The emperor still did not see the truth, and discipline vanished from the court. In Tianzuo's first year of Qiantong, all whom Yixin had harmed in the third year of Dakang had rank and titles restored, confiscated property returned, and exiles sent home. In the second year Yixin's tomb was destroyed, his coffin opened and corpse flogged, his descendants executed; other faction members' descendants had sentences reduced and were exiled, their families and slaves given to the victims' kin. Men such as Yelü Tabuye and Xiao Dalugu, the faction's most vicious members, all bought their way free. Generals who lost armies or cities were merely dismissed. Campaign General Yelü Nieli and three others who shot deer in the imperial preserve were all executed in the marketplace. Officials and bureau staff who offended, beyond demotion and formal judgment, were all sent to the army. Rewards and punishments had no rhyme or reason; resentment mounted daily; banditry spread and defections followed one after another. Tianzuo, terrified, tightened the law with ever greater cruelty; casting from cliffs, cannon-throwing, nailing, cutting, and dismemberment were revived. Some offenders' families were split among the Five Capitals; in the worst cases their hearts were taken as offerings at the ancestral temple. Though Tianzuo, lacking any strategy to save the realm, drifted into cruelty, his ancestors had shown him the way.
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遼之先代，用法尚嚴。 使其子孫皆有君人之量，知所自擇，猶非祖宗貽謀之道； 不幸一有昏暴者，少引以藉口，何所不至。 然遼之季世，與其先代用刑同，而興亡異者何歟？ 蓋創業之君，施之於法未定之前，民猶未敢測也； 亡國之主，施之於法既定之後，民復何所賴焉。 此其所為異也。 傳曰：「新國輕典。」 豈獨權事宜而已乎？ 天祚未年，遊畋無度，頗有倦勤意。 諸子惟文妃所生敖盧斡最賢。 蕭奉先乃元妃兄，深忌之。 會文妃之女兄適耶律撻曷裏，女弟適耶律余睹，奉先乃誣告余睹等謀立晉王，尊天祚為太上皇。 遂戮撻曷裏及其妻，賜文妃自盡。 敖盧斡以不與謀得免。 及天祚西狩奉聖州，又以耶律撒八等欲劫立敖盧斡，遂誅撒八，盡其黨與。 敖盧斡以有人望，即日賜死。 當時從行百官、諸局承應人及軍士聞者，皆流涕。 蓋自興宗時，遽起大獄，仁德皇后戕於幽所，遼政始衰。 道宗殺宣懿皇后，遷昭懷太子，太子尋被害。 天祚知其父之冤，而己亦幾殆，至是又自殺其子敖盧斡。 《傳》曰：「於所厚者薄，無所不薄矣。」 遼二百餘年，骨肉屢相殘滅。 天祚荒暴尤甚，遂至於亡，噫！
The early Liao rulers applied the law with notable severity. Even if every descendant possessed true kingly stature and knew how to choose wisely, severity alone is not how ancestors bequeath good counsel; but let one benighted tyrant cite that precedent, and there is no limit to what he may do. Yet the late Liao applied punishment much as the early dynasty had—why did one flourish and the other perish? The founding ruler enforced severity before the law was fully codified, and the people still could not predict his will; the last ruler enforced it after the law was fixed, and the people had nothing left to rely on. That is the difference. The Documents says, "A new state uses light statutes." Was that merely a matter of expedience? In his last years Tianzuo hunted without restraint and showed signs of weariness with rule. Of all his sons, only Aoluwo, born of Consort Wen, was truly worthy. Xiao Fengxian, elder brother of the Primary Consort, deeply resented him. Consort Wen's elder daughter was married to Yelü Tahieli and her younger to Yelü Yudu; Fengxian then falsely accused Yudu and others of plotting to enthrone the Prince of Jin and make Tianzuo Retired Emperor. Tahieli and his wife were executed, and Consort Wen was ordered to take her own life. Aoluwo was spared because he had not joined the plot. When Tianzuo marched west to Fengshengzhou, he was told that Yelü Saba and others meant to seize him and enthrone Aoluwo; Saba was executed and his entire faction destroyed. Because Aoluwo enjoyed popular esteem, he was ordered to die that same day. Every official, bureau attendant, and soldier on the march who heard of it wept. From Xingzong's reign great purges began; Empress Ren'ade died in confinement—and Liao governance began its decline. Daozong killed Empress Xuanyi and banished Crown Prince Zhaohuai, who was soon murdered. Tianzuo knew the injustice done to his father and had himself nearly died for it; now he killed his own son Aoluwo. The Commentary says, "He who is sparing toward those he favors will be sparing toward everyone." For more than two hundred years the Liao royal house repeatedly destroyed its own kin. Tianzuo was more benighted and violent than any before him, and so the dynasty fell — alas!