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志一百十七
Treatise 117
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刑法一
Penal Law 1
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中國自書契以來，以禮教治天下。 勞之來之而政出焉，匡之直之而刑生焉。 政也，刑也，凡皆以維持禮教於勿替。 故尚書曰：「明於五刑，以弼五教。」 又曰：「士制百姓於刑之中，以教祗德。」 古先哲王，其制刑之精義如此。 周衰禮廢，典籍散失。 魏李悝著法經六篇，流衍至於漢初，蕭何加為九章，歷代頗有增損分合。 至唐永徽律出，始集其成。 雖沿宋迄元、明而面目一變，然科條所布，於扶翼世教之意，未嘗不兢兢焉。 君子上下數千年間，觀其教化之昏明，與夫刑罰之中不中，而盛衰治亂之故，綦可睹矣。
Since the age of written contracts, China has governed the realm through ritual instruction. By comforting and calling the people forth, government emerged; by correcting and straightening them, punishments arose. Government and punishments alike all served to uphold ritual instruction without decline. Hence the Book of Documents says: "Be clear about the five punishments, to assist the five teachings." It also says: "The minister established the people within the norms of punishment, to teach reverent virtue." Such was the essential meaning of how the ancient sage kings fashioned punishments. When the Zhou declined, ritual was abandoned and the classical records were scattered and lost. Li Kui of Wei wrote the six chapters of the Classic of Law, which passed down to early Han when Xiao He expanded them into the Nine Chapters; successive dynasties then added, cut, divided, and merged them in various ways. When the Tang Yonghui Code appeared, the legal corpus was first fully assembled. Though from Song through Yuan and Ming its form changed entirely, the statutes promulgated never ceased to pursue, with scrupulous care, the aim of supporting the moral instruction of the age. Over several thousand years, the discerning observer can plainly see the causes of rise and fall, order and chaos, by watching whether moral instruction was enlightened or benighted and whether punishments were measured or excessive.
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有清起自遼左，不三四十年混一區宇。 聖祖沖年踐阼，與天下休養，六十餘稔，寬恤之詔，歲不絕書。 高宗運際昌明，一代法制，多所裁定。 仁宗以降，事多因循，未遑改作。 綜其終始，列朝刑政，雖不盡清明，然如明代之廠衛、廷杖，專意戮辱士大夫，無有也。 治獄者雖不盡仁恕，然如漢、唐之張湯、趙禹、周興、來俊臣輩，深文慘刻，無有也。 德宗末葉，庚子拳匪之變，創巨痛深，朝野上下，爭言變法，於是新律萌芽。 迨宣統遜位，而中國數千年相傳之刑典俱廢。 是故論有清一代之刑法，亦古今絕續之交也。 爰備志之，俾後有考焉。
The Qing arose in eastern Liao; within three or four decades they unified the realm. The Sacred Ancestor came to the throne in his youth and gave the realm its repose; for more than sixty years, edicts of clemency and relief were issued without cease. When Gaozong's reign coincided with a flourishing age, many of the legal institutions of that generation were definitively settled. From Renzong onward, affairs were largely left to inertia, without time to undertake reform. Taken as a whole from beginning to end, the penal administration of successive reigns was not wholly lucid, yet nothing like the Ming practice of the Factory Guards and court beating, devoted to humiliating and killing scholar-officials, ever appeared. Those who ran the prisons were not always humane, yet there were none like Zhang Tang and Zhao Yu of Han or Zhou Xing and Lai Junchen of Tang, who twisted the law into cruel severity. In Dezong's final years, after the catastrophe of the 1900 Boxer uprising, with wounds still fresh and pain still deep, court and country alike clamored for reform, and the new penal code began to take shape. When Xuantong abdicated, the penal codes that China had transmitted for thousands of years were all abolished. Thus in treating Qing penal law as a whole, one stands at the very juncture where ancient and modern legal continuity was severed. Accordingly it is set down here in full, that posterity may have material for study.
5
清太祖嗣服之初，始定國政，禁悖亂，戢盜賊，法制以立。 太宗繼武，於天聰七年，遣國舅阿什達爾漢等往外籓蒙古諸國宣布欽定法令，時所謂「盛京定例」是也。 嗣復陸續著有治罪條文，然皆因時立制，不盡垂諸久遠。
At the outset of his succession, Qing Taizu first settled state affairs, forbade rebellion and disorder, suppressed banditry, and thereby established the legal order. Taizong continued the martial tradition; in the seventh year of Tiancong he sent his maternal uncle Ashi Darhan and others to the outer Mongol states to proclaim the imperially ordained statutes—what was then known as the "Shengjing Established Precedents." Penal provisions were compiled one after another, but all were measures for the moment and were not meant to endure for the long term.
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世祖順治元年，攝政睿親王入關定亂，六月，即令問刑衙門准依明律治罪。 八月，刑科給事中孫襄陳刑法四事，一曰定刑書：「刑之有律，猶物之有規矩準繩也。 今法司所遵及故明律令，科條繁簡，情法輕重，當稽往憲，合時宜，斟酌損益，刊定成書，布告中外，俾知畫一遵守，庶奸慝不形，風俗移易。」 疏上，攝政王諭令法司會同廷臣詳繹明律，參酌時宜，集議允當，以便裁定成書，頒行天下。 十月，世祖入京，即皇帝位。 刑部左侍郎黨崇雅奏，在外官吏，乘茲新制未定，不無憑臆舞文之弊。 並乞暫用明律，候國制畫一，永垂令甲。 得旨：「在外仍照明律行，如有恣意輕重等弊，指參重處。」 二年，命修律官參稽滿、漢條例，分輕重等差，從刑科都給事中李士焜請也。
In Shunzhi 1, while the regent Prince Rui was entering the passes to quell disorder, in the sixth month he ordered the judicial yamen to adjudicate crimes according to the Ming Code. In the eighth month, Criminal Affairs supervising secretary Sun Xiang submitted four proposals on penal law. The first was to fix the penal code: "Law in penal matters is to things what compass and square are to measurement. The statutes now followed by the judicial offices and the former Ming codes vary in complexity and in how circumstance and law weigh light or heavy. These should be checked against past statutes, fitted to present needs, carefully revised, engraved as a fixed book, and promulgated at home and abroad so that all may observe a single standard; then wickedness may not take shape and customs may change for the better." When the memorial was submitted, the regent ordered the judicial offices, together with court ministers, to expound the Ming Code in detail, weigh present needs, deliberate until agreement was reached, and then fix the code as a book to be promulgated throughout the realm. In the tenth month Shizu entered the capital and assumed the throne. Left vice minister of the Ministry of Punishments Dang Chongya memorialized that local officials, taking advantage of the unsettled new system, were not above twisting the law to suit their whims. He also asked that the Ming Code be used temporarily until the national system was unified and could be handed down as permanent law. The rescript read: "Outside the capital, continue to follow the Ming Code. If officials arbitrarily vary punishments in severity, report them for severe punishment." In the second year he ordered the code-revising officials to examine Manchu and Han regulations and distinguish grades of severity, following a request from Criminal Affairs chief supervising secretary Li Shikun.
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三年五月，大清律成，世祖御制序文曰：「朕惟太祖、太宗創業東方，民淳法簡，大辟之外，惟有鞭笞。 朕仰荷天休，撫臨中夏，人民既眾，情偽多端。 每遇奏讞，輕重出入，頗煩擬議。 律例未定，有司無所稟承。 爰敕法司官廣集廷議，詳譯明律，參以國制，增損劑量，期於平允。 書成奏進，朕再三覆閱，仍命內院諸臣校訂妥確，乃允刊布，名曰大清律集解附例。 爾內外有司官吏，敬此成憲，勿得任意低昂，務使百官萬民，畏名義而重犯法，冀幾刑措之風，以昭我祖宗好生之德。 子孫臣民，其世世守之。」 十三年，復頒滿文大清律。
In the fifth month of the third year the Great Qing Code was completed. Shizu wrote a preface in his own hand: "I reflect that Taizu and Taizong founded the enterprise in the east, where the people were simple and the law was spare—apart from capital punishment there was only flogging. I, bearing Heaven's favor, now rule central China; the people are numerous, and truth and falsehood take many forms. Whenever cases came up for judgment, punishments varied inconsistently in severity, and deliberation became burdensome. With statutes and precedents still unfixed, officials had no authority to follow. Therefore I charged the judicial offices to gather broad court discussion, translate the Ming Code in detail, consult our national institutions, revise it with care, and aim at fairness. When the book was completed and submitted, I reviewed it repeatedly, ordered the Inner Court ministers to collate it until correct, and then authorized its publication under the title Great Qing Code with Collected Exegesis and Attached Precedents. You officials at court and in the provinces, revere this established code; do not arbitrarily raise or lower punishments. See that officials and common people alike fear disgrace and hold the law in awe, so that punishments may fall into disuse and our ancestors' virtue of cherishing life may be made manifest. Descendants and subjects, guard it generation after generation." In the thirteenth year the Great Qing Code in Manchu was promulgated again.
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康熙九年，聖祖命大學士管理刑部尚書事對喀納等將律文復行校正。 十八年，特諭刑部定律之外，所有條例，應去應存，著九卿、詹事、科道會同詳加酌定，確議具奏。 嗣經九卿等遵旨會同更改條例，別自為書，名為現行則例。 二十八年，台臣盛符升以律例須歸一貫，乞重加考定，以垂法守。 特交九卿議，准將現行則例附入大清律條。 隨命大學士圖納、張玉書等為總裁。 諸臣以律文昉自唐律，辭簡義賅，易致舛訛，於每篇正文後增用總注，疏解律義。 次第酌定名例四十六條，三十四年，先行繕呈。 三十六年，發回刑部，命將奏聞後更改之處補入。 至四十六年六月，輯進四十二本，留覽未發。
In Kangxi 9 the Sacred Ancestor ordered Grand Secretary Duikana, who was acting as Minister of Punishments, and others to correct the statutory text once more. In the eighteenth year he specially instructed the Ministry of Punishments that, apart from the fixed code, all supplementary regulations—those to be removed and those to be kept—should be carefully deliberated jointly by the Nine Ministers, the Household Officials of the Heir Apparent, and the censorate, and reported in a definitive memorial. Subsequently the Nine Ministers and others, obeying the instruction, jointly revised the regulations and issued them as a separate book called the Current Precedents in Practice. In the twenty-eighth year censor Sheng Fusheng argued that the code and precedents must be unified, and asked that they be re-examined and fixed so that a single standard of law might be handed down. The matter was referred to the Nine Ministers for discussion, and they approved attaching the Current Precedents in Practice to the articles of the Great Qing Code. Grand Secretaries Tuna, Zhang Yushu, and others were then appointed chief compilers. The ministers noted that the statutory text was modeled on the Tang Code: its language was concise and its meaning compressed, which easily led to error. They therefore added general annotations after the main text of each section to explain the meaning of the statutes. They then worked through and fixed the forty-six articles of General Principles; in the thirty-fourth year these were first copied and submitted. In the thirty-sixth year it was sent back to the Ministry of Punishments with orders to insert the revisions made after the memorial was heard. By the sixth month of the forty-sixth year forty-two volumes were compiled and submitted; they were kept for imperial review and not issued.
9
雍正元年，巡視東城御史湯之旭奏：「律例最關緊要，今六部見行則例，或有從重改輕，從輕擬重，有先行而今停，事同而法異者，未經畫一。 乞簡諳練律例大臣，專掌律例館總裁，將康熙六十一年以前之例並大清會典，逐條互訂，庶免參差。」 世宗允之，命大學士硃軾等為總裁，諭令於應增應減之處，再行詳加分晰，作速修完。 三年書成，五年頒布。 蓋明律以名例居首，其次則分隸於六部，合計三十門，都凡四百六十條。 順治初，釐定律書，將公式門之信牌移入職制，漏泄軍情移入軍政，於公式門刪漏用鈔印，於倉庫門刪鈔法，於詐偽門刪偽造寶鈔。 後又於名例增入邊遠充軍一條。 雍正三年之律，其刪除者：名例律之吏卒犯死罪、殺害軍人、在京犯罪軍民共三條，職制門選用軍職、官吏給由二條，婚姻門之蒙古、色目人婚姻一條，宮衛門之懸帶關防牌面一條。 其併入者：名例之邊遠充軍並於充軍地方，公式門之毀棄制書印信並二條為一，課程門之鹽法並十二條為一，宮衛門之衝突儀仗並三條為一，郵驛門之遞送公文並三條為一。 其改易者：名例之軍官軍人免發遣更為犯罪免發遣，軍官有犯更為軍籍有犯； 儀制門之收藏禁書及私習天文生節為收藏禁書。 其增入者：名例之天文生有犯充軍地方二條。 總計名例律四十六條。 吏律：曰職制十四條，曰公式十四條。 戶律：曰戶役十五條，曰田宅十一條，曰婚姻十七條，曰倉庫二十三條，曰課程八條，曰市廛五條。 禮律：曰祭祀六條，曰儀制二十條。 兵律：曰宮衛十六條，曰軍政二十一條，曰關津七條，曰廄牧十一條，曰郵驛十六條。 刑律：曰賊盜二十八條，曰人命二十條，曰鬥毆二十二條，曰罵詈八條，曰訴訟十二條，曰受贓十一條，曰詐偽十一條，曰犯奸十條，曰雜犯十一條，曰捕亡八條，曰斷獄二十九條。 工律：曰營造九條，曰河防四條。 蓋仍明律三十門，而總為四百三十六條。 律首六贓圖、五刑圖、獄具圖、喪服圖，大都沿明之舊。 納贖諸例圖、徒限內老疾收贖圖、誣輕為重收贖圖，銀數皆從現制。 其律文及律注，頗有增損改易。 律後總注，則康熙年間所創造。 律末並附比引律三十條。 此其大較也。 自時厥後，雖屢經纂修，然僅續增附律之條例，而律文未之或改。 惟乾隆五年，館修奏准芟除總注，並補入過失殺傷收贖一圖而已。
In Yongzheng 1, Eastern Metropolitan censor Tang Zhixu memorialized: "The code and precedents are matters of the utmost importance. The currently enforced precedents of the Six Ministries sometimes change severity to leniency or leniency to severity; some were once enforced and are now suspended; the facts are the same but the law differs—they have not been unified. I ask that a minister skilled in code and precedents be selected to serve exclusively as chief compiler of the Code and Precedents Office, and that precedents before Kangxi 61 together with the Great Qing Statutes be checked article by article against one another, so that discrepancies may be avoided." The Shizong approved, appointed Grand Secretary Zhu Shi and others as chief compilers, and instructed that where additions and subtractions were needed they should be analyzed in detail and the revision completed swiftly. The book was completed in the third year and promulgated in the fifth. The Ming Code placed General Principles first; the statutes were then distributed under the Six Ministries, totaling thirty sections and four hundred sixty articles in all. At the beginning of Shunzhi, when the law book was put in order, the section on credentials was moved from Administrative Forms to Official Regulations, and leaking military intelligence was moved into Military Administration; from Administrative Forms the article on omitting stamped documents was deleted, from Granaries the article on paper money was deleted, and from Fraud the article on forging treasure notes was deleted. Later one article on military exile to remote regions was added to General Principles. In the Yongzheng 3 code, the following were deleted: from General Principles three articles on clerks and runners guilty of capital crimes, killing soldiers, and military and civilian offenders in the capital; from Official Regulations two articles on selecting military posts and officials receiving credentials; from Marriage one article on Mongol and Semu marriages; and from Palace Guard one article on wearing pass tokens and seals. What was merged: remote military exile in General Principles was merged into the article on places of military exile; in Administrative Forms two articles on destroying imperial documents and seals were combined into one; in Revenue Duties twelve articles on salt law were combined into one; in Palace Guard three articles on clashing with ceremonial guards were combined into one; and in Postal Stations three articles on forwarding official documents were combined into one. What was altered: in General Principles "military officers and soldiers exempt from banishment" was changed to "offenders exempt from banishment," and "officers who commit offenses" to "offenders registered in the military rolls"; in Rites and Ceremonies the article on collecting forbidden books and privately studying astronomy was abridged to the article on collecting forbidden books alone. What was added: in General Principles two articles on astronomy students who offend and on places of military exile. In all, General Principles contained forty-six articles. Officials Code: Official Regulations, fourteen articles; Administrative Forms, fourteen articles. Households Code: Household Service, fifteen articles; Fields and Dwellings, eleven; Marriage, seventeen; Granaries, twenty-three; Revenue Duties, eight; Markets, five. Rites Code: Sacrifices, six articles; Rites and Ceremonies, twenty articles. Military Code: Palace Guard, sixteen articles; Military Administration, twenty-one; Passes and Ferries, seven; Stables and Herds, eleven; Postal Stations, sixteen. Punishments Code: Robbery and Theft, twenty-eight articles; Homicide, twenty; Assault, twenty-two; Abuse, eight; Litigation, twelve; Accepting Bribes, eleven; Fraud, eleven; Sexual Offenses, ten; Miscellaneous Offenses, eleven; Apprehension of Fugitives, eight; Trial and Judgment, twenty-nine. Works Code: Construction, nine articles; River Control, four articles. It still followed the Ming Code's thirty sections, but totaled four hundred thirty-six articles. At the head of the code were diagrams of the six categories of bribery, the five punishments, prison implements, and mourning garments—mostly following the Ming as before. Diagrams of commutation by payment, of the aged and infirm redeemed within the term of penal servitude, and of treating a light offense as heavy for redemption—all silver amounts followed the current system. The statutory text and annotations underwent considerable additions, deletions, and revisions. The general annotations after the statutes were a Kangxi-era innovation. At the end of the code were also attached thirty articles of analogous citation statutes. Such was the general outline. From that time onward, although the code was revised repeatedly, only the supplementary precedents were continually added; the statutory text itself was never changed. Only in Qianlong 5 did the compiling office obtain approval to remove the general annotations and add one diagram on redemption for negligent killing and wounding—and that alone.
10
例文自康熙初年僅存三百二十一條，末年增一百一十五條。 雍正三年，分別訂定，曰原例，累朝舊例凡三百二十一條； 曰增例，康熙間現行例凡二百九十條； 曰欽定例，上諭及臣工條奏凡二百有四條，總計八百十有五條。 其立法之善者，如犯罪存留養親，推及孀婦獨子； 若毆兄致死，並得准其承祀，恤孤嫠且教孝也。 犯死罪非常赦所不原，察有祖父子孫陣亡，准其優免一次，勸忠也。 枉法贓有祿人八十兩，無祿人及不枉法贓有祿人一百二十兩，俱實絞，嚴貪墨之誅也。 衙蠹索詐，驗贓加等治罪，懲胥役所以保良懦也。 強盜分別法無可貸、情有可原，殲渠魁、赦脅從之義也。 復仇以國法得伸與否為斷，杜兇殘之路也。 凡此諸端，或隱合古義，或矯正前失，皆良法也。 而要皆定制於康、雍時。
As for precedent texts, at the beginning of Kangxi only three hundred twenty-one articles remained; by the end of the reign one hundred fifteen more were added. In Yongzheng 3 they were separately fixed and designated: Original Precedents, old precedents of successive reigns totaling three hundred twenty-one articles; Added Precedents, currently enforced precedents of the Kangxi period totaling two hundred ninety articles; Imperially Fixed Precedents, imperial instructions and ministers' submitted articles totaling two hundred four articles—in all eight hundred fifteen articles. Among the sound provisions of legislation were such measures as allowing offenders to remain at home to support their parents, extended to widows with only sons; if one beat an elder brother to death, one might still be permitted to continue the sacrifices—showing compassion for the solitary and widowed while teaching filial piety. For capital crimes not normally pardoned by general amnesty, if investigation found that grandfathers, fathers, or sons had died in battle, one special mitigation was permitted—encouraging loyalty. For bribes taken by twisting the law, salaried officials at eighty taels; for unsalaried persons and for non-twisting bribes by salaried officials, one hundred twenty taels—all were executed by strangulation in fact, strictly punishing corruption. Yamen parasites who extorted and swindled, once the bribe was verified, were punished by increased grades—punishing clerks and runners in order to protect the honest and defenseless. Robbers were distinguished between those whom the law could not spare and those with excusable circumstances—exterminating ringleaders while pardoning the coerced. Vengeance was decided by whether the national law could be fulfilled or not—blocking the path of cruel violence. All these provisions either tacitly accorded with ancient principle or corrected previous errors—all were sound laws. Yet the essentials were all established in the Kangxi and Yongzheng periods.
11
又國初以來，凡纂修律例，類必欽命二三大臣為總裁，特開專館。 維時各部院則例陸續成書，苟與刑律相涉，館員俱一一釐正，故鮮乖牾。 自乾隆元年，刑部奏准三年修例一次。 十一年，內閣等衙門議改五年一修。 由是刑部專司其事，不復簡派總裁，律例館亦遂附屬於刑曹，與他部往往不相關會。 高宗臨御六十年，性矜明察，每閱讞牘，必求其情罪曲當，以萬變不齊之情，欲御以萬變不齊之例。 故乾隆一朝纂修八九次，刪原例、增例諸名目，而改變舊例及因案增設者為獨多。
Moreover, from the founding of the state, whenever the code and precedents were compiled and revised, two or three great ministers were invariably appointed by imperial command as chief compilers, and a special office was opened. At that time the precedents of the various ministries and courts were completed one after another; whenever they touched on penal statutes, the office members corrected them one by one, so conflicts were rare. From Qianlong 1 the Ministry of Punishments obtained approval to revise precedents once every three years. In the eleventh year the Inner Court and other offices deliberated changing this to revision once every five years. Thereupon the Ministry of Punishments took exclusive charge of the matter; chief compilers were no longer specially appointed, and the Code and Precedents Office was attached to the penal bureaucracy, often without coordination with other ministries. The Qianlong Emperor reigned for sixty years. Proud and sharply perceptive by nature, he scrutinized every criminal case that came before him, insisting that the facts and the sentence fit together justly. He sought to meet the infinite variety of human circumstances with an equally varied body of legal precedent. During the Qianlong reign the code was therefore compiled and revised eight or nine times. Revisions took many forms—deleting original precedents, adding new ones, altering old rules, and creating precedents in response to individual cases—but changes to existing precedents and case-driven additions were by far the most common.
12
嘉慶以降，按期開館，沿道光、咸豐以迄同治，而條例乃增至一千八百九十有二。 蓋清代定例，一如宋時之編敕，有例不用律，律既多成虛文，而例遂愈滋繁碎。 其間前後牴觸，或律外加重，或因例破律，或一事設一例，或一省一地方專一例，甚且因此例而生彼例，不惟與他部則例參差，即一例分載各門者，亦不無歧異。 展轉糾紛，易滋高下。 雍正十三年，世宗遺詔有曰：「國家刑罰禁令之設，所以詰奸除暴，懲貪黜邪，以端風俗，以肅官方者也。 然寬嚴之用，又必因乎其時。 從前朕見人情淺薄，官吏營私，相習成風，罔知省改，不得不懲治整理，以戒將來。 今人心共知警惕矣，凡各衙門條例，有前嚴而改寬者，此乃從前部臣定議未協，朕與廷臣悉心酌核而後更定，自可垂諸永久。 若前寬而改嚴者，此乃整飭人心風俗之計，原欲暫行於一時，俟諸弊革除，仍可酌復舊章，此朕本意也。 向後遇事斟酌，如有應從舊例者，仍照舊例行。」 惜後世議法諸臣，未盡明世輕世重之故，每屆修例，第將歷奉諭旨及議准臣工條奏節次編入，從未統合全書，逐條釐正。 穆宗號稱中興，母后柄政，削平發、捻、回疆之亂，百端待理，尚於同治九年纂修一次。 德宗幼沖繼統，未遑興作。 兼之時勢多故，章程叢積，刑部既憚其繁猥，不敢議修，群臣亦未有言及者，因循久之。
From the Jiaqing reign onward, compilation offices opened at regular intervals, continuing through Daoguang and Xianfeng into Tongzhi, until the body of precedents swelled to 1,892 articles. In essence, the Qing practice of codifying precedent resembled the Song dynasty's compilation of edicts: when a precedent applied, the statute did not. As the statutes themselves largely became dead letter, precedent grew ever more fragmented and prolix. These provisions often contradicted one another. Some imposed penalties harsher than the statutes allowed; others overrode the statutes entirely through precedent. A single case might spawn its own rule; a single province or locality might receive a rule of its own. One precedent might even beget another. The result was inconsistency not only with regulations in other ministries, but also internal disagreement when the same precedent was recorded under different sections of the code. Disputes multiplied and entangled with one another, making arbitrary and uneven enforcement all too easy. In the thirteenth year of Yongzheng, the Yongzheng Emperor's deathbed edict declared: "The state establishes punishments and prohibitions to root out wickedness and violence, punish greed and drive out corruption, rectify public morals, and keep officialdom in order. Yet whether to apply the law leniently or severely must always depend on the times. In the past I saw that public morals had grown shallow, that officials pursued private gain until corruption had become habit, and that none knew how to restrain themselves or reform. I had no choice but to punish and set things in order, so as to warn those who would come after. Now everyone knows to be on guard. Where regulations in the various yamens were once strict and have been relaxed, this is because the ministries' earlier deliberations had not been sound. After the court ministers and I examined them carefully and revised them, such changes may stand permanently. Where rules once lenient were made strict, that was a measure to discipline public morals and reform custom, originally meant to be temporary. Once the abuses had been removed, the old regulations could be restored as appropriate. That was my original intent. Henceforth, when cases arise, weigh each matter on its merits. Where the old precedents should apply, follow the old precedents.' Alas, the ministers who debated law in later generations never fully grasped why penalties should be lighter in one age and heavier in another. At each revision they merely appended, in chronological order, the edicts previously received and the memorials approved by the bureaucracy. They never consolidated the whole corpus and corrected it provision by provision. Emperor Tongzhi was hailed as restoring the dynasty. With the Empress Dowager holding power and the Taiping, Nian, and Muslim frontier rebellions newly suppressed, the court faced a hundred pressing tasks—yet in the ninth year of Tongzhi it still undertook one full revision of the code. The Guangxu Emperor succeeded the throne while still a child and had no opportunity to launch such projects. The times were also unsettled, and regulations accumulated in overwhelming numbers. The Board of Punishments, intimidated by the sheer bulk and complexity of the material, dared not propose a revision, and no minister raised the matter. Inertia therefore persisted for years.
13
逮光緒二十六年，聯軍入京，兩宮西狩。 憂時之士，咸謂非取法歐、美，不足以圖強。 於是條陳時事者，頗稍稍議及刑律。 二十八年，直隸總督袁世凱、兩江總督劉坤一、湖廣總督張之洞，會保刑部左侍郎沈家本、出使美國大臣伍廷芳修訂法律，兼取中西。 旨如所請，並諭將一切現行律例，按照通商交涉情形，參酌各國法律，妥為擬議，務期中外通行，有裨治理。 自此而議律者，乃群措意於領事裁判權。
By the twenty-sixth year of Guangxu, the allied armies entered Beijing and the two sovereigns fled west. Men anxious for the fate of the realm agreed that China could not become strong unless it learned from Europe and America. Memorialists on current affairs then began, little by little, to touch upon criminal law as well. In the twenty-eighth year, Viceroy Yuan Shikai of Zhili, Viceroy Liu Kunyi of Liangjiang, and Viceroy Zhang Zhidong of Huguang jointly recommended Left Vice Minister of Punishments Shen Jiaben and Minister to the United States Wu Tingfang to revise the laws, combining Chinese and Western approaches. The throne approved the request and further ordered that all current statutes and precedents be reconsidered in light of treaty and commercial relations, with reference to foreign legal systems, and carefully redrafted so that the law might serve both domestic and international needs and strengthen governance. From this time onward, those debating legal reform focused above all on consular jurisdiction.
14
是年刑部亦奏請開館修例。 三十一年，先將例內今昔情形不同，及例文無關引用，或兩例重複，或舊例停止者，奏准刪除三百四十四條。 三十三年，更命侍郎俞廉三與沈家本俱充修訂法律大臣。 沈家本等乃徵集館員，分科纂輯，並延聘東西各國之博士律師，藉備顧問。 其前數年編纂未竣之舊律，亦特設編案處，歸併分修。 十二月，遵旨議定滿、漢通行刑律，又刪並舊例四十九條。 宣統元年，全書纂成繕進，諭交憲政編查館核議。 二年，覆奏訂定，名為現行刑律。
That same year the Board of Punishments also memorialized asking permission to open an office for revising precedents. In the thirty-first year, the court first approved the deletion of 344 precedents whose circumstances had changed, whose wording was no longer applicable, that duplicated other provisions, or that had already fallen into disuse. In the thirty-third year, Vice Minister Yu Liansan was appointed together with Shen Jiaben as commissioners for legal revision. Shen Jiaben and his colleagues then assembled a staff, divided the work by subject, and retained legal scholars and practicing lawyers from East and West as advisers. For older legal projects left unfinished in earlier years, they also set up a special drafting office to consolidate the materials and divide the remaining work. In the twelfth month, pursuant to imperial instruction, they finalized a criminal code applicable to both Manchu and Han subjects and deleted or merged forty-nine obsolete precedents. In the first year of Xuantong, when the completed work was compiled and presented to the throne, an edict ordered it sent to the Constitutional Drafting and Review Office for examination. In the second year, after further review and confirmation, it was given the title Current Criminal Code.
15
時官制改變，立憲詔下，東西洋學說朋興。 律雖仍舊分三十門，而芟削六部之目。 其因時事推移及新章遞嬗而刪者，如名例之犯罪免發遣、軍籍有犯、流囚家屬、流犯在道會赦、天文生有犯、工樂戶及婦人犯罪、充軍地方，職制之大臣專擅選官、文官不許封公侯、官員赴任過限、無故不朝參公座、奸黨，公式之照刷文卷、磨勘卷宗、封掌印信，戶役之丁夫差遣不平、隱蔽差役、逃避差役，田宅之任所置買田宅，婚姻之同姓為婚、良賤為婚姻，課程之監臨勢要中鹽、阻壞鹽法、私礬、舶商匿貨，禮制之朝見留難，宮衛之內府工作人匠替役，軍政之邊境申索軍需、公侯私役官軍、夜禁，關津之私越冒度關津、詐冒給路引、遞送逃軍妻女出城、私出外境及違禁下海、私役弓兵，廄牧之公使人等索借馬匹，郵驛之占宿驛舍上房，賊盜之起除刺字，鬥毆之良賤相毆，訴訟之軍民約會、詞訟誣告、充軍及遷徙，受贓之私受公侯財物，犯奸之良賤相奸，雜犯之搬做雜劇，捕亡之徒流人逃，斷獄之徒囚不應役，營造之有司官吏不住公廨是也。 其緣政體及刑制遷變而改者，如名例之化外人有犯改為蒙古及入國籍人有犯，徒流遷徙地方改為五徒三流二遣地方，婚姻之娶樂人為妻妾改娶娼妓為妻，人命之殺子孫及奴婢圖賴人節去「及奴婢」字，鬥毆之奴婢毆家長改為僱工人毆家長，罵詈之奴婢罵家長改為僱工人罵家長，犯奸之奴婢奸家長妻改為僱工人奸家長妻是也。 綜計全律仍存三百八十有九條，而比引律則刪存及半，依類散入各門，不列比附之目。 舊例除刪並外，合續纂之新例，統一千六十六條。 其督捕則例一書，順治朝命臣工纂進，原為旗下逃奴而設。 康熙十五年重加酌定，乾隆以後續有增入，計條文一百一十，亦經分別去留，附入刑律，而全書悉廢。 律首仍載服制全圖，以重禮教。 是年冬頒行焉。 若蒙古治罪各條，載諸理籓院則例，及西寧番子治罪條例，別行諸岷、洮等處者，以其習俗既殊，刑制亦異，未敢輕議更張。
At that time the official system was being reformed, constitutional edicts were issued, and Eastern and Western doctrines flourished side by side. Although the code still kept the old division into thirty sections, the categories tied to the Six Ministries were cut away. Articles removed as events moved on and new rules replaced old ones included, among others: under General Principles, crimes exempt from exile, offenses by persons on military registers, families of transported convicts, transported offenders meeting amnesty en route, offenses by astronomy students, crimes by artisan-musician households and by women, and places of military exile; under Official Regulations, grand ministers arrogating the selection of officials, civil officials barred from enfeoffment as duke or marquis, officials exceeding the deadline for taking up a post, absenting oneself from court without cause, and factional cliques; under Administrative Forms, auditing documents, scrutinizing case files, and sealing and keeping official seals; under Household Service, unfair dispatch of corvée laborers, concealing corvée service, and evading corvée service; under Fields and Dwellings, purchasing fields and dwellings at one's post; under Marriage, marriage within the same surname and marriage between commoners and debased persons; under Revenue Duties, powerful officials monopolizing salt, obstructing the salt law, private alum, and merchant ships concealing goods; under Rites and Ceremonies, obstructing audiences; under Palace Guard, substitute service for inner-palace artisan laborers; under Military Administration, border regions demanding military supplies, dukes and marquises privately employing official troops, and the night curfew; under Passes and Ferries, privately crossing or falsely passing checkpoints, fraudulently obtaining travel permits, escorting fugitive soldiers' wives and daughters out of the city, privately leaving the border or violating prohibitions by going to sea, and privately employing archer-soldiers; under Stables and Herds, envoys and the like demanding or borrowing horses; under Postal Stations, occupying upper rooms at relay stations; under Robbery and Theft, removing tattoo marks; under Assault, mutual assault between commoners and debased persons; under Litigation, military and civilian gatherings, false accusation in lawsuits, and military exile and relocation; under Accepting Bribes, privately accepting goods from dukes and marquises; under Sexual Offenses, adultery between commoners and debased persons; under Miscellaneous Offenses, performing miscellaneous plays; under Apprehension of Fugitives, penal servitude and exile offenders fleeing; under Trial and Judgment, penal servitude prisoners refusing labor; and under Construction, responsible officials not residing at government offices. Articles revised because the political and penal systems changed included, among others: under General Principles, "Offenses by Aliens" became "Offenses by Mongols" and "Offenses by Naturalized Persons"; places for penal servitude, exile, and relocation became places for the five degrees of penal servitude, three degrees of exile, and two degrees of banishment; under Marriage, "taking female entertainers as wives and concubines" became "taking prostitutes as wives"; under Homicide, the words "and bondservants" were cut from the article on killing descendants and bondservants to extort through false accusation; under Assault, "bondservants assaulting the head of household" became "hired laborers assaulting the head of household"; under Abuse, "bondservants abusing the head of household" became "hired laborers abusing the head of household"; and under Sexual Offenses, "bondservants committing adultery with the head of household's wife" became "hired laborers committing adultery with the head of household's wife." In all, the code still contained three hundred eighty-nine articles; the analogous citation statutes were reduced to about half, distributed by category among the various sections, and no longer listed under a separate heading for analogical application. Apart from deletions and mergers among old precedents, the newly compiled precedents brought the total to one thousand sixty-six articles. As for the Regulations for Supervision and Apprehension, the Shunzhi court ordered officials to compile and submit them; they had originally been devised for fugitive Banner slaves. In Kangxi 15 it was reexamined and revised; after Qianlong further additions were made, bringing the total to one hundred ten articles; these too were selectively kept or discarded, incorporated into the penal code, and the entire book was abolished. The complete diagram of mourning garments was still placed at the head of the code, to emphasize ritual instruction. It was promulgated that winter. As for the various articles on punishing Mongols, recorded in the precedents of the Court of Colonial Affairs, and the regulations on punishing Xining frontier peoples separately enforced in Min, Tao, and other regions—their customs were already different and their penal systems differed as well, so no one dared lightly propose a thorough overhaul.
16
新律則光緒三十二年法律館撰上刑民訴訟律，酌取英、美陪審制度。 各督撫多議其窒礙，遂寢。 三十三年，復先後奏上新刑律草案，總則十七章：曰法例，曰不論罪，曰未遂罪，曰累犯罪，曰俱發罪，曰共犯罪，曰刑名，曰宥恕減輕，曰自首減免，曰酌量減輕，曰加減例，曰緩刑，曰暫釋，曰恩赦，曰時效，曰時期計算，曰文例。 分則三十六章：曰關於帝室之罪，曰關於內亂之罪，曰關於國交之罪，曰關於外患之罪，曰關於漏泄機務之罪，曰關於瀆職之罪，曰關於妨害公務之罪，曰關於選舉之罪，曰關於騷擾之罪，曰關於逮捕監禁者脫逃之罪，曰關於藏匿罪人及湮滅證據之罪，曰關於偽證及誣告之罪，曰關於放火決水及水利之罪，曰關於危險物之罪，曰關於往來通信之罪，曰關於秩序之罪，曰關於偽造貨幣之罪，曰關於偽造文書及印文之罪，曰關於偽造度量衡之罪，曰關於祀典及墳墓之罪，曰關於鴉片煙之罪，曰關於賭博彩票之罪，曰關於奸非及重婚之罪，曰關於飲料水之罪，曰關於衛生之罪，曰關於殺傷之罪，曰關於墮胎之罪，曰關於遺棄之罪，曰關於逮捕監禁之罪，曰關於略誘及和誘之罪，曰關於安全信用名譽及秘密之罪，曰關於竊盜及強盜之罪，曰關於詐欺取財之罪，曰關於侵佔之罪，曰關於贓物之罪，曰關於毀棄損壞之罪。 兩編合共三百八十七條，經憲政編查館奏交部院及疆臣覈議，簽駁者夥。
As for the new code, in Guangxu 32 the Law Compilation Office drafted and submitted the Criminal and Civil Procedure Code, selectively adopting British and American jury systems. Various governors-general and governors mostly argued that it was impracticable, and the project was shelved. In year 33 they again submitted the draft New Penal Code in succession, with seventeen chapters of General Provisions: Legal Examples; Crimes Not Punishable; Attempted Crimes; Repeated Crimes; Concurrent Crimes; Joint Crimes; Names of Punishments; Pardon and Mitigation; Mitigation for Voluntary Surrender; Discretionary Mitigation; Rules for Increase and Decrease; Suspended Sentences; Temporary Release; Gracious Amnesty; Statute of Limitations; Calculation of Time Periods; and Textual Rules. Thirty-six chapters of Specific Provisions: Crimes Concerning the Imperial House; Crimes Concerning Internal Disorder; Crimes Concerning Foreign Relations; Crimes Concerning External Threats; Crimes Concerning Leaking State Secrets; Crimes Concerning Dereliction of Duty; Crimes Concerning Obstruction of Official Business; Crimes Concerning Elections; Crimes Concerning Public Disturbance; Crimes Concerning Escape from Arrest or Detention; Crimes Concerning Concealing Offenders and Destroying Evidence; Crimes Concerning Perjury and False Accusation; Crimes Concerning Arson, Breaching Dikes, and Water Control; Crimes Concerning Dangerous Objects; Crimes Concerning Communications; Crimes Concerning Public Order; Crimes Concerning Counterfeiting Currency; Crimes Concerning Forging Documents and Seals; Crimes Concerning Forging Weights and Measures; Crimes Concerning Sacrificial Rites and Graves; Crimes Concerning Opium; Crimes Concerning Gambling and Lotteries; Crimes Concerning Adultery and Bigamy; Crimes Concerning Drinking Water; Crimes Concerning Public Health; Crimes Concerning Killing and Wounding; Crimes Concerning Abortion; Crimes Concerning Abandonment; Crimes Concerning Arrest and Detention; Crimes Concerning Abduction and Enticement; Crimes Concerning Safety, Credit, Reputation, and Privacy; Crimes Concerning Theft and Robbery; Crimes Concerning Fraudulent Obtaining of Property; Crimes Concerning Embezzlement; Crimes Concerning Stolen Goods; and Crimes Concerning Destruction and Damage. The two parts together totaled three hundred eighty-seven articles; once the Constitutional Research Bureau submitted them to ministries, courts, and frontier officials for review, objections poured in.
17
宣統元年，沈家本等彙集各說，復奏進修正草案。 時江蘇提學使勞乃宣上書憲政編查館論之曰：「法律大臣會同法部奏進修改刑律，義關倫常諸條，未依舊律修入。 但於附則稱中國宗教遵孔，以綱常禮教為重。 如律中十惡親屬容隱，干名犯義，存留養親，及親屬相奸、相盜、相毆，發冢犯奸各條，未便蔑棄。 中國人有犯以上各罪，應仍依舊律，別輯單行法，以昭懲創。 竊維修訂新律，本為籌備立憲，統一法權。 凡中國人及在中國居住之外國人，皆應服從同一法律。 是此法律，本當以治中國人為主。 今乃依舊律別輯中國人單行法，是視此新刑律專為外國人設矣。 本末倒置，莫此為甚。 草案案語謂修訂刑律，所以收回領事裁判權。 刑律內有一二條為外國人所不遵奉，即無收回裁判權之實。 故所修刑律，專以摹仿外國為事。 此說實不盡然。 泰西各國，凡外國人居其國中，無不服從其國法律，不得執本國無此律以相爭，亦不得恃本國有此律以相抗。 今中國修訂刑律，乃謂為收回領事裁判權，必盡舍固有之禮教風俗，一一摹仿外國。 則同乎此國者，彼國有違言，同乎彼國者，此國又相反，是必窮之道也。 總之一國之律，必與各國之律相同，然後乃能令國內居住之外國人遵奉，萬萬無此理，亦萬萬無此事。 以此為收回領事裁判權之策，是終古無收回之望也。 且夫國之有刑，所以弼教。 一國之民有不遵禮教者，以刑齊之。 所謂禮防未然，刑禁已然，相輔而行，不可缺一者也。 故各省簽駁草案，每以維持風化立論，而案語乃指為渾道德法律為一。 其論無夫奸曰：『國家立法，期於令行禁止。 有法而不能行，轉使民玩法而肆無忌憚。 和姦之事，幾于禁之無可禁，誅之不勝誅，即刑章具在，亦祗具文。 必教育普及，家庭嚴正，輿論之力盛，廉恥之心生，然後淫靡之風可少衰。』 又曰：『防遏此等醜行，不在法律而在教化。 即列為專條，亦無實際。』 其立論在離法律與道德教化而二之，視法律為全無關於道德教化，故一意摹仿外國，而於舊律義關倫常諸條棄之如遺，焉用此法為乎？」 謂宜將舊律有關禮教倫紀各節，逐一修入正文，並擬補干名犯義、犯罪存留養親、親屬相奸相毆、無夫奸、子孫違犯教令各條。 法律館爭之。 明年資政院開，憲政編查館奏交院議，將總則通過。 時勞乃宣充議員，與同院內閣學士陳寶琛等，於無夫奸及違犯教令二條尤力持不少怠，而分則遂未議決。 餘如民律、商律、刑事訴訟律、民事訴訟律、國籍法俱編纂告竣，未經核議。 惟法院編制法、違警律、禁煙條例均經宣統二年頒布，與現行刑律僅行之一年，而遜位之詔下矣。
In Xuantong 1, Shen Jiaben and others gathered the various opinions and again submitted a revised draft. At the time Jiangsu provincial education commissioner Lao Naixuan wrote to the Constitutional Research Bureau, arguing: "The legal ministers, together with the Ministry of Justice, submitted the revised penal code, yet the articles concerning human relations and moral norms were not incorporated from the old code. Only in the supplementary provisions did it say that China's religion follows Confucius and that the bonds of human relations and ritual instruction weigh most heavily. Such articles in the code as concealment by relatives among the Ten Abominations, offenses against names and violation of righteousness, remaining home to support parents, mutual adultery, theft, and assault among relatives, and grave-robbing adultery ought not to be cast aside lightly. When Chinese commit the above crimes, they should still be judged under the old code in a separately compiled special law, to make punishment and deterrence clear. I respectfully consider that revising the new code was originally intended to prepare for constitutional government and unify legal authority. All Chinese and all foreigners residing in China should be subject to the same law. This law should chiefly govern the Chinese. Now to compile a separate special law for Chinese under the old code is to treat this new penal code as if it were made exclusively for foreigners. To invert root and branch—nothing could be more perverse. The draft's commentary says that revising the penal code is meant to reclaim consular jurisdiction. If foreigners refuse to observe even one or two articles in the penal code, there is in reality no reclaiming of judicial authority. Therefore the revised penal code has devoted itself exclusively to imitating foreign countries. This claim is not entirely accurate. In all Western countries, foreigners residing within their borders must obey the laws of those countries; they may neither argue that their own country has no such law nor rely on their own country's law to resist. Now, in revising China's penal code, it is said that to reclaim consular jurisdiction one must wholly abandon China's own ritual instruction and customs and imitate foreign countries one by one. Then whatever matches this country, that country will reject; whatever matches that country, this country will reject—a path that can only end in deadlock. In short, the notion that one country's laws must be identical with every other country's laws before foreigners residing within can be made to obey them is utterly without principle and utterly impossible. To take this as the strategy for reclaiming consular jurisdiction is to abandon all hope of ever reclaiming it. Moreover, a state maintains punishments in order to assist moral instruction. When the people of a state fail to observe ritual instruction, punishments are used to bring them into line. This is what is meant by saying that ritual guards against what has not yet happened and punishments restrain what has already happened: the two assist each other, and neither can be dispensed with. Therefore, when the various provinces annotated objections to the draft, they often argued from the need to uphold public morals, yet the commentary denounced this as conflating morality and law. Its discussion of adultery without a husband says: "When the state makes laws, it expects them to be enforced and obeyed. When laws exist but cannot be enforced, the people treat the law as a game and act without restraint. In cases of consensual adultery, prohibition is nearly impossible and punishment cannot keep pace; even when the penal code is complete, it remains only words on paper. Only when education is widespread, households are strict, public opinion is strong, and a sense of shame takes root can the tide of debauchery begin to recede. It also says: "To check such vile conduct lies not in law but in moral instruction." Even if such conduct were made the subject of separate articles, there would be no practical effect." Its argument separates law from moral instruction, treating law as wholly unrelated to moral instruction; therefore it single-mindedly imitates foreign countries and casts aside the old code's articles on human relations and moral norms like rubbish—of what use is such a law?" He urged that each section of the old code concerning ritual instruction and ethical order be incorporated one by one into the main text, and proposed adding articles on offenses against names and violation of righteousness, offenders remaining home to support parents, mutual adultery and assault among relatives, adultery without a husband, and descendants violating parental commands. The Law Compilation Office contested this. The next year the Advisory Council convened; the Constitutional Research Bureau submitted the draft to the council for deliberation, and the General Provisions were passed. At the time Lao Naixuan served as a councilor; together with fellow councilor Grand Secretary Chen Baochen and others, he especially held firm without yielding on the two articles concerning adultery without a husband and violation of parental commands, but the Specific Provisions were never decided. Other codes, such as the Civil Code, Commercial Code, Criminal Procedure Code, Civil Procedure Code, and Nationality Law, were all compiled and completed but had not yet been reviewed. Only the Court Organization Law, Public Order Offenses Law, and Opium Prohibition Regulations were promulgated in Xuantong 2; the Current Penal Code had been in force for barely a year when the abdication edict was issued.