1
志一百十八
Treatise 118
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刑法二
Penal Law 2
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明律淵源唐代，以笞、杖、徒、流、死為五刑。 自笞一十至五十，為笞刑五。 自杖六十至一百，為杖刑五。 徒自杖六十徒一年起，每等加杖十，刑期半年，至杖一百徒三年，為徒五等。 流以二千里、二千五百里、三千里為三等，而皆加杖一百。 死刑二：曰斬，曰絞。 此正刑也。 其律例內之雜犯、斬絞、遷徙、充軍、枷號、刺字、論贖、凌遲、梟首、戮屍等刑，或取諸前代，或明所自創，要皆非刑之正。
The Ming legal code derived from Tang practice and recognized five punishments: light-bamboo beating, heavy-stick beating, penal servitude, exile, and death. Light-bamboo punishments comprised five grades, from ten to fifty blows. Stick beating likewise had five grades, ranging from sixty to one hundred blows. Penal servitude started at sixty blows plus one year's labor; each step added ten blows and six months, culminating at one hundred blows with three years' service—five grades in all. Exile had three distances—two thousand, two thousand five hundred, and three thousand li—and each grade included an additional hundred stick blows. Capital punishment took two forms: decapitation and strangulation. These constituted the formal statutory punishments. The code and its supplementary statutes also prescribed decapitation and strangulation for miscellaneous crimes, resettlement, military exile, the cangue, tattooing, ransom payments, lingchi, display of the severed head, and corpse dismemberment—some inherited from earlier dynasties, others a Ming creation—all of them punishments outside the formal five-penalty framework.
4
清太祖、太宗之治遼東，刑制尚簡，重則斬，輕則鞭撲而已。 迨世祖入關，沿襲明制，初頒刑律，笞、杖以五折十，注入本刑各條。 康熙朝現行則例改為四折除零。 雍正三年之律，乃依例各於本律註明板數。 徒、流加杖，亦至配所照數折責。 蓋恐撲責過多，致傷生命，法外之仁也。 文武官犯笞、杖，則分別公私，代以罰俸、降級、降調，至革職而止。
During the early Qing rule of the eastern Liao under the Taizu and Taizong emperors, penal law remained simple: serious offenses meant decapitation, minor ones no more than whipping and beating. After the Shizu emperor crossed into China proper, the Qing adopted Ming practice and issued its first penal code, applying the five-for-ten reduction to light-bamboo and stick penalties and embedding it in the relevant articles. Under Kangxi, the operative sub-statutes replaced this with a fourfold reduction, dropping remainders. The Yongzheng code of 1725, following sub-statutory practice, specified the exact number of blows in each principal article. Additional stick blows attached to servitude and exile were likewise reduced to the prescribed count once the convict reached his place of assignment. The aim was to avoid so much beating that life was endangered—a mercy extending beyond strict legal requirement. Civil and military officials subject to light-bamboo or stick penalties were treated according to whether the offense was public or private: fines, demotion, transfer, or dismissal replaced corporal punishment.
5
徒者，奴也，蓋奴辱之。 明發鹽場鐵冶煎鹽炒鐵，清則發本省驛遞。 其無驛縣，分撥各衙門充水火夫各項雜役，限滿釋放。
Penal servitude—the word tu means slave—was essentially compulsory labor meant to degrade the offender. The Ming sent convicts to salt pans and ironworks for salt boiling and iron smelting; the Qing assigned them to courier service within their home province. Where no courier stations existed, convicts were allotted to government offices as water carriers, fire tenders, and other menial laborers and released when their term ended.
6
流犯，初制由各縣解交巡撫衙門，按照里數，酌發各處荒蕪及瀕海州縣。 嗣以各省分撥失均，不免趨避揀擇。 乾隆八年，刑部始纂輯三流道里表，將某省某府屬流犯，應流二千里者發何省何府屬安置，應流二千五百里者發何省何府屬安置，應流三千里者發何省何府屬安置，按計程途，限定地址，逐省逐府，分別開載。 嗣於四十九年及嘉慶六年兩次修訂。 然第於州縣之增並，道里之參差，略有修改，而大體不易。 律稱：「犯流妻妾從之，父祖子孫欲隨者聽。」 乾隆二十四年，將僉妻之例停止。 其軍、流、遣犯情原隨帶家屬者，不得官為資送，律成虛設矣。
Originally, exiled convicts were forwarded from county to provincial governor's office and, according to the statutory distance, assigned to desolate or coastal districts. Uneven distribution among provinces soon led to evasion and cherry-picking of destinations. In 1743 the Board of Punishments compiled a table of exile routes and distances, assigning convicts from each province and prefecture to specific destinations for the two-thousand-, two-thousand-five-hundred-, and three-thousand-li grades, with distances calculated and every province and prefecture listed in detail. The table was revised twice more, in 1784 and 1801. Revisions were limited to administrative mergers and minor distance adjustments; the overall scheme stayed the same. The code provided: "When a man is exiled, his wife and concubines accompany him; fathers, grandfathers, sons, and grandsons may follow if they wish." In 1759 the requirement that wives accompany exiled convicts was abolished. Convicts in military exile, banishment, or frontier deportation who wished to bring their families received no official assistance, rendering the statutory provision meaningless.
7
斬、絞，同是死刑。 然自漢以來，有秋後決囚之制。 唐律除犯惡逆以上及奴婢、部曲殺主者，從立春至秋分不得奏決死刑。 明弘治十年奏定真犯死罪決不待時者，凌遲十二條，斬三十七條，絞十二條； 真犯死罪秋後處決者，斬一百條，絞八十六條。 順治初定律，乃於各條內分晰註明，凡律不注監候者，皆立決也； 凡例不言立決者，皆監候也。 自此京、外死罪多決於秋，朝審遂為一代之大典。 雜犯斬、絞准徒五年與雜犯三流總徒四年，大都創自有明。 清律於官吏受贓，枉法不枉法，滿貫俱改為實絞，餘多仍之。 名實混淆，殊形轇轕。
Decapitation and strangulation were both capital punishments. Since the Han, however, there had been the practice of carrying out executions only after the autumn harvest. Under Tang law, capital cases could not be reported for execution between the Beginning of Spring and the Autumn Equinox, except for treason and for slaves or retainers who killed their master. In 1497 the Ming fixed immediate execution for true capital crimes: twelve articles of lingchi, thirty-seven of decapitation, and twelve of strangulation; capital crimes deferred until after autumn: one hundred articles of decapitation and eighty-six of strangulation. The early Shunzhi code annotated each article clearly: unless marked for detention pending review, every capital offense was immediate execution; where sub-statutes did not specify immediate execution, all were held for autumn review. Thereafter most capital sentences in the capital and provinces were carried out in autumn, and the annual court review of death cases became a defining institution of the dynasty. Commutation of miscellaneous capital offenses to five years' servitude and of miscellaneous exile to four years' servitude were largely Ming innovations. The Qing code made actual strangulation mandatory for officials who took bribes to the full statutory amount, whether or not they had perverted justice, while retaining most other Ming provisions. Legal labels and actual penalties diverged, producing extreme confusion.
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遷徙原於唐之殺人移鄉，而定罪則異。 律文沿用數條，然皆改為比流減半、徒二年，並不徙諸千里之外。 惟條例於土蠻、瑤、僮、苗人仇殺劫擄及改土為流之土司有犯，將家口實行遷徙。 然各有定地，亦不限千里也。
Resettlement derived from the Tang practice of relocating murderers to another district, but the grounds for conviction differed. Several statutory articles survived, but all were reduced to half the exile distance plus two years' servitude, without relocation a thousand li or more. Sub-statutes alone required actual resettlement of entire families for feud killings, robbery, and abduction among Tujia, Yao, Zhuang, and Miao peoples, and for native chieftains in converted territories who committed crimes. Each case had a designated destination, and distances were not necessarily a thousand li.
9
明之充軍，義主實邊，不盡與流刑相比附。 清初裁撤邊衛，而仍沿充軍之名。 後遂以附近、近邊、邊遠、極邊、煙瘴為五軍，且於滿流以上，為節級加等之用。 附近二千里，近邊二千五百里，邊遠三千里，極邊、煙瘴俱四千里。 在京兵部定地，在外巡撫定地。 雍正三年之律，第於十五布政司應發省分約略編定。 乾隆三十七年，兵部根據邦政紀略，輯為五軍道里表，凡發配者，視表所列。 然名為充軍，至配並不入營差操，第於每月朔望檢點，實與流犯無異。 而滿流加附近、近邊道里，反由遠而近，司讞者每苦其紛歧，而又有發遣名目。 初第發尚陽堡、寧古塔，或烏喇地方安插，後並發齊齊哈爾、黑龍江、三姓、喀爾喀、科布多，或各省駐防為奴。 乾隆年間，新疆開闢，例又有發往伊犁、烏魯木齊、巴里坤各回城分別為奴種地者。 咸、同之際，新疆道梗，又復改發內地充軍。 其制屢經變易，然軍遣止及其身。 苟情節稍輕，尚得更赦放還。 以視明之永遠軍戍，數世後猶句及本籍子孫者，大有間也。 若文武職官犯徒以上，輕則軍台效力，重則新疆當差。 成案相沿，遂為定例。 此又軍遣中之歧出者焉。
Ming military exile was meant chiefly to reinforce the frontier and did not always align with statutory exile. The early Qing abolished frontier garrisons but kept the term military exile. Five grades of military exile emerged—nearby, near frontier, distant frontier, extreme frontier, and miasma regions—used to escalate penalties beyond full statutory exile. Distances were two thousand li for nearby, two thousand five hundred for near frontier, three thousand for distant frontier, and four thousand for extreme frontier and miasma regions. The Board of War assigned destinations in the capital; provincial governors did so in the provinces. The 1725 code only roughly specified which of the fifteen provincial administrations should receive convicts. In 1772 the Board of War compiled a table of military-exile routes and distances from frontier administration records; all assignments followed the table. Despite the name, military exiles never joined garrison duty or drill; they were checked only on the first and fifteenth of each month and were in practice indistinguishable from banished convicts. Escalating full exile to nearby or near-frontier military exile reversed distances from far to near, baffling judges; a further category of frontier deportation added to the confusion. Initially deportees went only to Shangyang Fort, Ningguta, or the Ula region; later destinations included Qiqihar, Heilongjiang, Sanxing, Khalkha, Kobdo, or enslavement in provincial garrisons. After Xinjiang was opened in the Qianlong era, convicts could also be sent to Yili, Urumqi, Barkol, and Muslim towns as bonded laborers on the land. When Xinjiang routes were cut off in the Xianfeng and Tongzhi periods, convicts were again assigned to military exile within China proper. The system changed repeatedly, but military exile and deportation applied only to the offender himself. Where circumstances were relatively mild, repeated amnesties could still secure release. This differed greatly from Ming perpetual military service, which could still implicate descendants in the offender's home district generations later. Civil and military officials guilty of offenses above penal servitude served at courier stations for lighter cases and performed labor in Xinjiang for heavier ones. Accumulated precedent made this standard practice. This was yet another exceptional variant within military exile and deportation.
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枷杻，本以羈獄囚。 明代問刑條例，於本罪外或加以枷號，示戮辱也。 清律犯罪免發遣條：「凡旗人犯罪，笞、杖各照數鞭責，軍、流、徒免發遣，分別枷號。 徒一年者，枷號二十日，每等遞加五日。 流二千里者，枷號五十日，每等亦遞加五日。 充軍附近者，枷號七十日，近邊、沿海、邊外者八十日，極邊、煙瘴者九十日。」 原立法之意，亦以旗人生則入檔，壯則充兵，鞏衛本根，未便離遠，有犯徒、流等罪，直以枷號代刑，強榦之義則然。 然犯系寡廉鮮恥，則銷除旗檔，一律實發，不姑息也。 若竊盜再犯加枷，初犯再犯計次加枷，犯奸加枷，賭博加枷，逃軍逃流加枷，暨一切敗檢逾閒、不顧行止者酌量加枷，則初無旗、民之別。 康熙八年，部議囚禁人犯止用細鍊，不用長枷，而枷號遂專為行刑之用。 其數初不過一月、二月、三月，後竟有論年或永遠枷號者。 始制重者七十觔，輕者六十斤。 乾隆五年，改定應枷人犯俱重二十五斤，然例尚有用百斤重枷者。 嘉慶以降，重枷斷用三十五斤，而於四川、陝西、湖北、河南、山東、安徽、廣東等省匪徒，又有系帶鐵杆石礅之例，亦一時創刑也。
The cangue and fetters were originally meant to restrain jail prisoners. Ming interrogation sub-statutes sometimes added cangue wearing beyond the principal sentence as public humiliation. The Qing statute on exempting Bannermen from deportation reads: "Bannermen who commit offenses receive full light-bamboo or stick whipping; military exile, banishment, and penal servitude are commuted to graded cangue wearing instead of actual deportation. One year of servitude meant twenty days in the cangue, with five days added per grade. Two-thousand-li exile meant fifty days in the cangue, with five days added per grade. Nearby military exile meant seventy days in the cangue; near frontier, coastal, and outer frontier eighty days; extreme frontier and miasma regions ninety days." The intent was that Bannermen were registered at birth and served as soldiers in adulthood to guard the dynasty's foundation; sending them far away was undesirable, so the cangue replaced servitude and exile—strengthening the trunk, as the principle required. For offenses showing gross moral corruption, however, Banner registration was revoked and full deportation imposed without leniency. Repeat theft, counted first and repeat offenses, adultery, gambling, desertion from exile, and all breaches of propriety drew additional cangue penalties with no distinction between Bannermen and commoners. In 1669 the ministry ruled that prisoners should be restrained with light chains only, not the long cangue, and cangue wearing became exclusively a punitive measure. Terms initially ran no longer than one to three months; later some lasted years or even indefinitely. Originally the heavy cangue weighed seventy jin and the light one sixty. In 1740 all cangues were standardized at twenty-five jin, though sub-statutes still allowed a hundred-jin heavy cangue. From the Jiaqing era the heavy cangue was capped at thirty-five jin; in several provinces bandits could also be fitted with iron rods and stone blocks—another ad hoc punishment of the age.
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刺字，古肉刑之一，律第嚴於賊盜。 乃其後條例滋多，刺緣坐，刺兇犯，刺逃軍、逃流，刺外遣、改遣、改發。 有刺事由者，有刺地方者，並有分刺滿、漢文字者。 初刺右臂，次刺左臂，次刺右面、左面。 大抵律多刺臂，例多刺面。 若竊盜責充警跡，二三年無過，或緝獲強盜二名以上、竊盜三名以上，例又准其起除刺字，復為良民。 蓋惡惡雖嚴，而亦未嘗不予以自新之路焉。
Tattooing was an ancient corporal punishment; the code applied it most strictly to thieves and robbers. Later sub-statutes multiplied: tattooing for guilt by association, violent offenders, deserters from exile, and those in outer deportation or reassignment. Some tattoos recorded the offense, some the place, and some were inscribed in both Manchu and Chinese. The first tattoo went on the right arm, then the left arm, then the right and left cheeks. The code generally tattooed the arms; sub-statutes more often tattooed the face. Thieves assigned as police trackers who went two or three years without offense, or who captured two robbers or three thieves, could have their tattoos removed and regain commoner status. Though punishment of evil was severe, a path to reform was never wholly closed.
12
贖刑有三：一曰納贖，無力照律決配，有力照例納贖。 二曰收贖，老幼廢疾、天文生及婦人折杖，照律收贖。 三曰贖罪，官員正妻及例難的決，並婦人有力者，照例贖罪。 收贖名曰律贖，原本唐律收贖。 贖罪名為例贖，則明代所創行。 順治修律，五刑不列贖銀數目。 雍正三年，始將明律贖圖內應贖銀數斟酌修改，定為納贖諸例圖。 然自康熙現行例定有承問官濫准納贖交部議處之條，而前明納贖及贖罪諸舊例又節經刪改，故律贖俱照舊援用，而例贖則多成具文。
Commutation took three forms: payment commutation, under which the poor were sentenced as the code required and the wealthy paid ransom according to precedent. Second, statutory commutation allowed the aged, young, disabled, astronomy students, and women subject to reduced beating to commute according to the code. Third, offense commutation covered officials' principal wives, cases where sub-statutes forbade execution, and women of means. Statutory commutation, called code commutation, derived from Tang practice. Offense commutation, or sub-statutory commutation, was a Ming innovation. The Shunzhi code revision omitted silver amounts for commutation of the five punishments. In 1725 the Ming commutation charts were revised to establish the payment commutation tables. Since Kangxi sub-statutes penalized officials who improperly approved payment commutation, and Ming provisions on payment and offense commutation had been repeatedly trimmed, code commutation continued under old rules while sub-statutory commutation largely became a dead letter.
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其捐贖一項，順治十八年，有官員犯流徒籍沒認工贖罪例； 康熙二十九年，有死罪現監人犯輸米邊口贖罪例； 三十年，有軍流人犯捐贖例； 三十四年，有通倉運米捐贖例； 三十九年，有永定河工捐贖例； 六十年，有河工捐贖例。 然皆事竣停止，其歷朝沿用者，惟雍正十二年戶部會同刑部奏准預籌運糧事例，不論旗、民，罪應斬、絞，非常赦所不原者，三品以上官照西安駝捐例捐運糧銀一萬二千兩，四品官照營田例捐運糧銀五千兩，五、六品官照營田例捐銀四千兩，七品以下、進士、舉人二千五百兩，貢、監生二千兩，平人一千二百兩，軍、流各減十分之四，徒以下各減十分之六，俱准免罪。 西安駝捐，行自雍正元年，營田例則五年所定也。 乾隆十七年，西安布政使張若震奏請另定捐贖笞、杖銀數。 經部議，預籌運糧事例，杖、笞與徒罪不分輕重，一例捐贖，究未允協。 除犯枷號、杖責者照徒罪捐贖外，酌擬分杖為一等，笞為一等。 其數，杖視徒遞減，笞視杖遞減。 二十三年，諭將斬、絞緩決各犯納贖之例永行停止。 遇有恩赦減等時，其憚於遠行者，再准收贖。 而贖鍰則仍視原擬罪名，不得照減等之罪。 著為令。 嗣後官員贖罪者，俱照運糧事例核奪。 刑部別設贖罪處，專司其事。 此又律贖、例贖而外，別自為制者矣。
Donation commutation began in 1661 with a precedent allowing officials guilty of exile or servitude to redeem offenses through labor after confiscation; in 1690 capital convicts in custody could redeem offenses by delivering grain to the frontier; in 1691 military exiles and banished convicts could redeem by donation; in 1695 commutation by transporting grain to central granaries was allowed; in 1700 commutation for Yongding River works was allowed; in 1721 commutation for river works was allowed. All ended when projects concluded; only the 1734 precedent for advance grain transport continued. Bannermen and commoners alike guilty of decapitation or strangulation not covered by extraordinary amnesty could commute: third rank and above twelve thousand taels (per the Xi'an camel precedent), fourth rank five thousand, fifth and sixth rank four thousand, seventh rank and below plus jinshi and juren two thousand five hundred, tribute and academy students two thousand, commoners one thousand two hundred; military exile and banishment rates were reduced forty percent, servitude and below sixty percent—all securing exemption from punishment. The Xi'an camel donation dated from 1723; the military colony rates were set in 1727. In 1752 Xi'an provincial treasurer Zhang Ruozhen memorialized for separate silver rates for commutation of light-bamboo and stick penalties. The ministries ruled that applying the advance grain transport precedent to light-bamboo, stick, and servitude without distinguishing severity was inappropriate. Except for cangue wearers and those subject to stick beating, who commuted at penal-servitude rates, the ministries devised separate grade scales for stick beating and light-bamboo punishment. The silver amounts decreased stepwise from servitude rates for stick penalties and from stick rates for light-bamboo penalties. In 1758 an edict permanently abolished payment commutation for convicts held for deferred decapitation or strangulation. When amnesties reduced a sentence, those who dreaded long-distance exile could again commute by payment. The commutation fine, however, still followed the original proposed charge, not the reduced sentence. This was codified as a standing regulation. Thereafter all officials who commuted offenses were assessed under the grain-transport precedent. The Board of Punishments set up a separate office devoted solely to offense commutation. Thus donation commutation became a third system, distinct from code commutation and sub-statutory commutation.
14
凌遲，用之十惡中不道以上諸重罪，號為極刑。 梟首，則強盜居多。 戮屍，所以待惡逆及強盜應梟諸犯之監故者。 凡此諸刑，類皆承用明律，略有通變，行之二百餘年。 至過誤殺之賠人，竊盜之割腳筋，重辟減等之貫耳鼻，強盜、貪官及窩逃之籍家產，或沿自盛京定例，或順治朝偶行之峻令，不久革除，非所論也。
Lingchi applied to the gravest offenses among the Ten Abominations—unfilial conduct and worse—and was regarded as the supreme penalty. Display of the severed head was chiefly reserved for armed robbery. Corpse dismemberment applied to treason and felonious sons, and to prisoners who died in custody through deliberate neglect when they should have been decapitated with head displayed. These punishments largely followed Ming practice with minor adjustments and remained in force for over two centuries. Compensation for accidental homicide, cutting foot tendons for theft, ear-and-nose piercing for commuted capital offenses, and confiscation of family property for armed robbery, corrupt officials, and harboring fugitives—some derived from Shenyang precedents, others were harsh Shunzhi-era measures soon repealed—lie outside this discussion.
15
自光緒變法，二十八年，山西巡撫趙爾巽奏請各省通設罪犯習藝所。 經刑部議准，徒犯毋庸發配，按照年限，於本地收所習藝。 軍、流為常赦所不原者，照定例發配，到配一律收所習藝。 流二千里限工作六年，二千五百里八年，三千里者十年。 遣軍照滿流年限計算，限滿釋放，聽其自謀生計，並准在配所入籍為民。 若為常赦所得原者，無論軍、流，俱無庸發配，即在本省收所習藝。 工作年限，亦照前科算。 自此五徒並不發配，即軍、流之發配者，數亦銳減矣。 二十九年，刑部奏准刪除充軍名目，將附近、近邊，邊遠併入三流，極邊及煙瘴改為安置，仍與當差並行。 自此五軍第留其二，而刑名亦改變矣。 三十年，劉坤一、張之洞會奏變法第二摺內，有恤刑獄九條。 其省刑責條內，經法律館議准，笞、杖等罪，仿照外國罰金之法，改為罰銀。 凡律例內笞刑五，以五錢為一等，至笞五十罰銀二兩五錢，杖六十者改為罰五兩。 每一等加二兩五錢，以次遞加，至杖一百改為罰十五兩而止。 如無力完納，折為作工。 應罰一兩，折作工四日，以次遞加，至十五兩折作工六十日而止。 然竊盜未便罰金，議將犯竊應擬笞罪者，改科工作一月； 杖六十者，改科工作兩月； 杖七十至一百，每等遞加兩月。 又附片請將軍、流、徒加杖概予寬免，無庸決責。 自此而笞、杖二刑廢棄矣。
During the Guangxu reforms, in 1902 Shanxi governor Zhao Erxun memorialized for vocational training institutions for convicts in every province. The Board of Punishments approved the plan: servitude convicts would no longer be sent away but would train locally for the prescribed term. Military exiles and banished convicts not covered by ordinary amnesty were still assigned as before, but upon arrival all entered vocational training. Two-thousand-li exile meant six years' labor; two-thousand-five-hundred-li eight years; three-thousand-li ten years. Frontier deportees and military exiles served terms equivalent to full statutory exile; when the term ended they were released to make their own living and could register as commoners at their place of assignment. Offenses pardonable under ordinary amnesty, whether military exile or banishment, required no distant assignment; convicts trained locally within their province. Labor terms followed the same schedule as above. Thereafter all five servitude grades stayed local, and even among military exiles and banished convicts the number actually sent away dropped sharply. In 1903 the Board of Punishments abolished military exile as a category, folding nearby, near-frontier, and distant-frontier grades into the three statutory exile grades, converting extreme frontier and miasma regions to resettlement while retaining labor duty. Of the five military-exile grades only two survived, and penal terminology changed accordingly. In 1904 Liu Kunyi and Zhang Zhidong's joint reform memorial included nine articles on leniency in criminal justice. Under the article on reducing corporal punishment, the Law Codification Office approved replacing light-bamboo and stick penalties with silver fines modeled on Western monetary penalties. The five light-bamboo grades were set at five cash per grade, reaching two taels five mace for fifty blows; sixty stick blows became a five-tael fine. Each grade added two taels five mace, up to a maximum of fifteen taels for one hundred stick blows. Those unable to pay in full could convert the fine to labor. One tael of fine equaled four days' labor, scaling up to sixty days for a fifteen-tael fine. Theft, however, was deemed unsuitable for monetary fines; thieves liable to light-bamboo punishment would instead serve one month's labor; those liable to sixty stick blows would serve two months; from seventy to one hundred stick blows, each grade added two months. A supplementary memorial also requested wholesale remission of additional stick blows for military exile, banishment, and servitude. Light-bamboo and stick beating were thus abolished.
16
三十一年，修訂法律大臣沈家本等奏請刪除重法數端，略稱：「見行律例款目極繁，而最重之法，亟應先議刪除者，約有三事：一曰凌遲、梟首、戮屍。 凌遲之刑，唐以前無此名目。 遼史刑法志始列入正刑之內。 宋自熙寧以後，漸亦沿用。 元、明至今，相仍未改。 梟首在秦、漢時惟用諸夷族之誅，六朝梁、陳、齊、周諸律，始於斬之外別立梟名。 自隋迄元，復棄而不用。 今之斬梟，仍明制也。 戮屍一事，惟秦時成蟜軍反，其軍吏皆斬戮屍，見於始皇本紀。 此外歷代刑制，俱無此法。 明自萬曆十六年，定有戮屍條例，專指謀殺祖父母、父母而言。 國朝因之，後更推及於強盜。 凡此酷重之刑，固所以懲戒兇惡。 第刑至於斬，身首分離，已為至慘。 若命在頃忽，菹醢必令備嘗，氣久消亡，刀鋸猶難倖免，揆諸仁人之心，當必慘然不樂。 謂將以懲本犯，而被刑者魂魄何知； 謂將以警戒眾人，而習見習聞，轉感召其殘忍之性，實非聖世所宜遵。 請將凌遲、梟首、戮屍三項，一概刪除，死罪至斬決而止。 凡律例內凌遲、斬梟各條，俱改斬決。 斬決而下，依次遞減。 一曰緣坐。 緣坐之制，起於秦之參夷及收司連坐法。 漢高後除三族令，文帝除收孥相坐律，當時以為盛德。 惜夷族之誅，猶間用之。 晉以下仍有家屬從坐之法，唐律惟反叛、惡逆、不道，律有緣坐，他無有也。 今律則奸黨、交結近侍諸項俱緣坐矣，反獄、邪教諸項亦緣坐矣。 一案株連，動輒數十人。 夫以一人之故而波及全家，以無罪之人而科以重罪，漢文帝以為不正之法反害於民，北魏崔挺嘗曰『一人有罪，延及闔門，則司馬牛受桓魋之罰，柳下惠膺盜跖之誅，不亦哀哉』，其言皆篤論也。 今世各國，皆主持刑罰止及一身之義，與『罪人不孥』之古訓實相符合。 請將律內緣坐各條，除知情者仍坐罪外，其不知情者悉予寬免。 餘條有科及家屬者准此。 一曰刺字。 刺字乃古墨刑，漢之黥也。 文帝廢肉刑而黥亦廢，魏、晉、六朝雖有逃奴劫盜之刺，旋行旋廢。 隋、唐皆無此法。 至石晉天福間，始創刺配之制，相沿至今。 其初不過竊盜逃人，其後日加煩密。 在立法之意，原欲使莠民知恥，庶幾悔過而遷善。 詎知習於為非者，適予以標識，助其兇橫。 而偶罹法網者，則黥刺一膺，終身僇辱。 夫肉刑久廢，而此法獨存，漢文所謂刻肌膚痛而不德者，未能收弼教之益，而徒留此不德之名，豈仁政所宜出此。 擬請將刺字款目，概行刪除。 凡竊盜皆令收所習藝，按罪名輕重，定以年限，俾一技能嫻，得以餬口，自少再犯、三犯之人。 一切遞解人犯，嚴令地方官僉差押解，果能實力奉行，逃亡者自少也。」 奏上，諭令凌遲、梟首、戮屍三項永遠刪除。 所有現行律例內凌遲、斬梟各條，俱改為斬決； 其斬決各條，俱改為絞決； 絞決各條，俱改為絞監候，入於秋審情實； 斬監候各條，俱改為絞監候，與絞候人犯仍入於秋審，分別實緩。 至緣坐各條，除知情者仍治罪外，餘悉寬免。 其刺字等項，亦概行革除。 旨下，中外稱頌焉。
In 1905 revising law ministers Shen Jiaben and others memorialized to abolish several severe punishments, noting: "Current statutes are vast, but three exceptionally harsh penalties should be removed first: lingchi, display of the severed head, and corpse dismemberment. Lingchi did not exist as a named punishment before the Tang. The penal monograph of the History of Liao first listed it among formal statutory punishments. From the Song Xining era onward it gradually came into use. From Yuan and Ming times to the present it remained unchanged. In Qin and Han, display of the severed head applied only to clan extermination; Six Dynasties codes of Liang, Chen, Qi, and Zhou first made it a separate penalty beyond decapitation. From Sui through Yuan it fell out of use again. Today's decapitation with head displayed still follows Ming practice. Corpse dismemberment appears only once in early records: when Prince Cheng Jiao's army rebelled in Qin, his officers were decapitated and their corpses dismembered, as recorded in the First Emperor's annals. No other dynasty's penal system included this punishment. In 1588 the Ming fixed a corpse-dismemberment statute specifically for plotting to kill grandparents or parents. The Qing followed suit and later extended it to armed robbery. These cruelly severe punishments were meant to chastise the vicious. Yet decapitation already severed body from head—the utmost cruelty. When life lasts but a moment yet the condemned must endure every form of mincing and dissection, and long after death knife and saw still mutilate the corpse, any humane heart must recoil in horror. If the aim is to punish the offender, what could the dead know? If the aim is to warn the public, habitual exposure to such cruelty only nurtures brutality—hardly fitting for an enlightened age. We request abolition of lingchi, display of the severed head, and corpse dismemberment, limiting capital punishment to immediate decapitation. All code and sub-statute articles prescribing lingchi or decapitation with head displayed should be changed to immediate decapitation. Lesser penalties below immediate decapitation should be reduced accordingly. Second: guilt by association. Guilt by association originated in Qin practices of clan extermination and joint punishment of related officials. Empress Lü abolished clan extermination; Emperor Wen ended the seizure of wives and children for joint punishment—both hailed as great acts of mercy. Clan extermination regrettably persisted in occasional use. From Jin onward families could still share punishment, but Tang law limited guilt by association to rebellion, felonious sons, and unfilial conduct alone. Today's code extends guilt by association to factionalism, collusion with palace attendants, prison revolt, heterodox sects, and more. A single case could implicate dozens of people. Punishing an entire family for one person's crime and imposing heavy penalties on the innocent—Emperor Wen of Han called such law harmful to the people; Cui Ting of Northern Wei wrote that when one person's guilt reaches the whole household, "Sima Niu would suffer Huan Tui's punishment and Liu Xiahui would bear Zhi's execution—is this not lamentable?"—sound judgment all. Modern nations uphold punishment limited to the offender alone, in keeping with the ancient teaching that guilt does not extend to one's family. We request that guilt-by-association articles punish only those who knew of the offense; all who did not know should be exempted. Other articles imposing penalties on family members should follow the same rule. Third: tattooing. Tattooing was the ancient ink punishment—the Han-era branding penalty. Emperor Wen abolished corporal punishment and branding with it; Wei, Jin, and Six Dynasties occasionally tattooed runaway slaves and robbers, but the practice came and went. Neither Sui nor Tang law included tattooing. Later Jin's Tianfu era first combined tattooing with exile—a practice that continued to the present. Initially it applied only to thieves and fugitives; later it grew ever more elaborate. The original intent was to shame habitual offenders into repentance and reform. Yet for habitual criminals the mark became a badge of defiance, fueling their brutality. Those who fell into the law's net by misfortune bore a chest tattoo and lifelong disgrace. Corporal punishment was long abolished, yet tattooing alone survived—what Emperor Wen called "cutting flesh and causing pain without virtue." It aided neither reform nor instruction but left only a stain on humane governance. We propose abolishing all tattooing provisions. All thieves should enter vocational training for terms scaled to offense severity, mastering a trade to earn a living and reducing repeat offenders. Local officials should strictly escort all forwarded convicts; if enforced, escapes would naturally decline." The memorial was approved, and an edict permanently abolished lingchi, display of the severed head, and corpse dismemberment. All current articles prescribing lingchi or decapitation with head displayed were changed to immediate decapitation; all articles on immediate decapitation were changed to immediate strangulation; all articles on immediate strangulation were changed to strangulation held for autumn review as cases of true culpability; all articles on decapitation held for review were changed to strangulation held for review; both entered the autumn assizes, classified as true culpability or reprieve. Guilt-by-association articles punished only those who knew of the offense; all others were exempted. Tattooing and similar provisions were also abolished. When the edict was issued, it was widely praised at court and throughout the empire.
17
三十二年，法律館奏准將戲殺、誤殺、擅殺虛擬死罪各案，分別減為徒、流。 自此而死刑亦多輕減矣。 又是年法律館以婦女收贖，銀數太微，不足以資警戒，議准婦女犯笞、杖，照新章罰金。 徒、流、軍、遣，除不孝及奸、盜、詐偽舊例應實發者，改留本地習藝所工作，以十年為限，餘俱准其贖罪。 徒一年折銀二十兩，每五兩為一等，五徒准此遞加。 由徒入流，每一等加十兩，三流准此遞加。 遣、軍照滿流科斷。 如無力完繳，將應罰之數，照新章按銀數折算時日，改習工藝。 其犯該枷號，不論日數多寡，俱酌加五兩，以示區別。 自此而收贖銀數亦稍變矣。
In 1906 the Law Codification Office approved reducing playful killing, accidental killing, and unauthorized killing—cases nominally capital—to servitude or exile. Capital punishment was thus substantially lightened. That same year the Law Codification Office found women's commutation rates too low to deter offense and approved fines for women guilty of light-bamboo or stick offenses under the new regulations. For servitude, exile, military exile, and frontier deportation—except unfilial conduct, adultery, theft, and fraud requiring actual assignment—women would labor locally at vocational training institutions for up to ten years; all others could commute. One year of servitude converted to twenty taels; each five-tael increment applied across all five servitude grades. Moving from servitude to exile, each grade added ten taels across all three exile grades. Frontier deportation and military exile were assessed at full statutory exile rates. Those unable to pay in full could convert the fine to vocational training under the new silver-to-days schedule. Cangue offenders, regardless of term length, paid an additional five taels to distinguish their cases. Statutory commutation rates also shifted accordingly.
18
故宣統二年頒布之現行刑律，第將近數年奏定之章程採獲修入，於是刑制遂大有變更。 其五刑之目，首罰刑十，以代舊律之笞、杖。 一等罰，罰銀五錢，至十等罰，為銀十五兩，據法律館議覆恤刑獄之奏也。 次徒刑五，年限仍舊律。 次流刑三，道里仍舊律，然均不加杖，以法律館業經附片奏刪也。 次遣刑二：曰極邊足四千里及煙瘴地方安置，曰新疆當差。 以閏刑加入正刑，承用者廣，不得不別自為制也。 次死刑二：曰絞，曰斬。 時雖有死刑唯一之議，以舊制顯分等差，且凌遲、梟首等項甫經議減，不敢徑行廢斬也。 徒、流雖仍舊律，然為制不同。 按照習藝章程，五徒依限收入本地習藝所習藝； 流、遣毋論發配與否，俱應工作。 故於徒五等註明按限工作，流二千里注工作六年，二千五百里注工作八年，三千里注工作十年，遣刑俱注工作十二年。 收贖則根據婦女贖罪新章酌減銀數，改為通例。 罰刑照應罰之數折半收贖，徒一年贖銀十兩，每等加銀二兩五錢，至徒三年收贖銀二十兩。 流刑每等加銀五兩，至三千里贖銀三十五兩。 遣刑與滿流同科。 絞、斬則收贖銀四十兩。 亦分注於各刑條下。 然非例應收贖者，不得濫及也。 捐贖，據光緒二十九年刑部奏准照運糧事例，減半銀數，另輯為例。 其笞、杖雖不入正刑，仍留竹板，以備刑訊之用。 外此各刑具，盡行廢除，枷號亦一概芟削，刑制較為徑省矣。
The penal code promulgated in 1910 incorporated regulations fixed over recent years, bringing sweeping change to the penal system. The five punishments now began with ten grades of monetary penalty, replacing the old light-bamboo and stick penalties. The first grade fined five mace of silver; the tenth fifteen taels—following the Law Codification Office's response to the memorial on leniency in criminal justice. Next came five grades of penal servitude, with terms unchanged from the old code. Next came three grades of exile at the old distances, but without additional stick blows—the Law Codification Office had already secured their removal by supplementary memorial. Next came two deportation grades: resettlement at the extreme frontier or in miasma regions four thousand li distant, and labor service in Xinjiang. Because supplementary penalties had been folded into the formal punishments and widely applied, they required a separate statutory framework. Capital punishment comprised two forms: strangulation and decapitation. Although some argued for a single capital penalty, the old system clearly distinguished grades, and with lingchi and head display only recently curtailed, decapitation could not be abolished outright. Servitude and exile retained the old statutory labels but operated under a different system. Under the vocational training regulations, all five servitude grades were admitted to local training institutes within the statutory term; exile and deportation, whether or not distant assignment was required, always entailed labor. The five servitude grades were annotated for term-limited labor; two-thousand-li exile meant six years' work, two-thousand-five-hundred-li eight years, three-thousand-li ten years, and all deportation twelve years. Statutory commutation rates were reduced following the new women's commutation regulations and applied as a general rule. Fines could be commuted at half the assessed amount; one year's servitude required ten taels, each grade adding two taels five mace, up to twenty taels for three years. Exile commutation added five taels per grade, reaching thirty-five taels for three-thousand-li exile. Deportation was commuted at the same rate as full statutory exile. Strangulation and decapitation could be commuted for forty taels. These amounts were noted in each relevant article. Those not statutorily eligible for commutation could not be included. Donation commutation, approved by the Board of Punishments in 1903 at half the transport-grain precedent rates, was compiled as separate sub-statutes. Light-bamboo and stick penalties were no longer formal punishments, but bamboo boards were retained for judicial interrogation. All other penal implements were abolished, cangue wearing eliminated entirely, and the penal system became considerably simpler.
19
惟就地正法一項，始自咸豐三年。 時各省軍興，地方大吏，遇土匪竊發，往往先行正法，然後奏聞。 嗣軍務敉平，疆吏樂其便己，相沿不改。 光緒七八年間，御史胡隆洵、陳啟泰等屢以為言。 刑部聲請飭下各省，體察情形，仍照舊例解勘，分別題奏。 嗣各督撫俱覆稱地方不靖，礙難規復舊制。 刑部不得已，乃酌量加以限制，如實系土匪、馬賊、游勇、會匪，方准先行正法，尋常強盜，不得濫引。 自此章程行，沿及國變，而就地正法之制，訖未之能革。
Only summary execution on the spot dated from 1853. With warfare spreading across the provinces, local officials often executed bandits summarily and reported afterward. After military affairs subsided, frontier officials found summary execution convenient and continued the practice. In 1881–1882 censors Hu Longxun, Chen Qitai, and others repeatedly protested the practice. The Board of Punishments urged the provinces to examine local conditions and restore the old practice of forwarding prisoners for review and separate memorialization. Governors-general and governors replied that local unrest made restoring the old system impossible. The Board of Punishments reluctantly imposed limits: summary execution was permitted only for genuine bandits, horse thieves, roaming soldiers, or secret-society members—not ordinary robbers. Once enacted, the regulation persisted through dynastic collapse, and summary execution was never abolished.