1
志一百十九
Treatise 119
2
刑法三
Penal Law 3
3
太祖始創八旗，每旗設總管大臣一，佐管大臣二。 又置理政聽訟大臣五人，號為議政五大臣。 扎爾固齊十人，號為理事十大臣。 凡聽斷之事，先經扎爾固齊十人審問，然後言於五臣，五臣再加審問，然後言於諸貝勒。 眾議既定，猶恐冤抑，親加鞫問。 天命元年，諭貝勒大臣曰：「國人有事，當訴於公所，毋得訴於諸臣之家。 茲播告國中，自貝勒大臣以下有罪，當靜聽公斷，執拗不服者，加等治罪。 凡事俱五日一聽斷於公所，其私訴於家，不執送而私斷者，治罪不貸。」 十一年，太宗以議政五大臣、理事十大臣不皆分授，或即以總管、佐管兼之，於是集諸貝勒定議裁撤。 每旗由佐管大臣審斷詞訟，不令出兵駐防。 其每旗別設調遣大臣二員，遇有駐防調遣所屬詞訟，仍令審理。 天聰七年，設刑部承政、參政、啟心郎等官，聽訟始有專責。
When the Taizu first established the Eight Banners, he appointed one supervising minister and two assisting ministers for each banner. He also set up five ministers charged with governance and adjudication, known as the Five Great Deliberative Ministers. Ten jaruči officials were named the Ten Great Administrative Ministers. Every case to be adjudicated was first examined by the ten jaruči, then reported to the five ministers for a second review, and only then brought before the beile. Even after the collective decision was reached, he still feared wrongful conviction and personally conducted further interrogation. In the first year of Tianming, he instructed the beile and ministers: "When subjects of the state have grievances, they must bring them to the public tribunal and may not plead them at any minister's private residence. This proclamation was now broadcast throughout the realm: from the beile and ministers downward, anyone found guilty must accept the public verdict in silence; those who stubbornly refused would be punished one degree more severely. All cases were to be heard at the public tribunal every five days. Anyone who accepted private suits at home, or who adjudicated on his own without delivering the parties to the public office, would be punished without mercy." In the eleventh year, the Taizong found that the Five Great Deliberative Ministers and Ten Great Administrative Ministers were not always separately appointed—some men held those posts concurrently with banner supervising or assisting duties—so he convened the beile, who resolved to abolish the offices. Each banner's assisting ministers were to adjudicate civil suits, and they were barred from fielding troops for campaigns or garrison service. Each banner was also given two dispatch ministers; whenever lawsuits arose among men under their garrison or dispatch command, those ministers were still to hear the cases. In the seventh year of Tiancong, the Ministry of Justice was staffed with chengzheng, canzheng, qixinlang, and related posts, giving litigation a dedicated bureaucracy for the first time.
4
世祖入主中夏，仍明舊制，凡訴訟在外由州縣層遞至於督撫，在內歸總於三法司。 然明制三法司，刑部受天下刑名，都察院糾察，大理寺駮正。 清則外省刑案，統由刑部核覆。 不會法者，院寺無由過問，應會法者，亦由刑部主稿。 在京訟獄，無論奏咨，俱由刑部審理，而部權特重。 刑部初設十四司。 雍正元年，添置現審左右二司，審理八旗命盜及各衙門欽發事件。 後復改並，定為十八清吏司：曰直隸，曰奉天，曰江蘇，曰安徽，曰江西，曰福建，曰浙江，曰湖廣，曰山東，曰山西，曰陝西，曰四川，曰廣東，曰廣西，曰雲南，曰貴州。 凡各省刑名咨揭到部，各司具稿呈堂，以定準駮。 吉林、黑龍江附諸奉天，甘肅、新疆附諸陝西，京曹各署關涉文件，亦分隸於十七司。 現審則輪流簽分。 順治十年，設督捕衙門，置侍郎滿、漢各一員，其屬有前司、後司。 初隸兵部，專理緝捕逃旗事宜。 康熙三十八年裁撤，將前後司改隸刑部。 嗣復並為督捕一司，不掌外省刑名，亦不分現審。 刑部收受訟案，已結未結，每月匯奏。 設督催所，而督以例限。 審結尋常徒、流、軍、遣等罪，按季匯題。 案系奏交，情雖輕，專案奏結。 死罪既取供，大理寺委寺丞或評事，都察院委御史，赴本司會審，謂之會小法。 獄成呈堂，都察院左都御史或左副都御史，大理寺卿或少卿，挈同屬員赴刑部會審，謂之會大法。 如有翻異，發司覆審，否則會稿分別題奏。 罪干立決，旨下，本司派員監刑。 監候則入朝審。 各省戶、婚、田土及笞、杖輕罪，由州縣完結，例稱自理。 詞訟每月設立循環簿，申送督、撫、司、道查考。 巡道巡歷所至，提簿查核，如有未完，勒限催審。 徒以上解府、道、臬司審轉，徒罪由督撫匯案咨結。 有關人命及流以上，專咨由部匯題。 死罪系謀反、大逆、惡逆、不道、劫獄、反獄、戕官，並洋盜、會匪、強盜、拒殺官差，罪干凌遲、斬、梟者，專摺具奏，交部速議。 殺一家二命之案，交部速題。 其餘斬、絞，俱專本具題，分送揭帖於法司科道，內閣票擬，交三法司核議。 如情罪不符及引律錯誤者，或駮令覆審，或徑行改正，合則如擬核定。 議上立決，命下，釘封飛遞各州縣正印官或佐貳，會同武職行刑。 監候則入秋審。
After the Shizu took possession of China proper, he retained the Ming framework: lawsuits in the provinces ascended step by step from county and prefecture to the governor-general or governor, while capital cases were consolidated in the Three Judicial Offices. Under the Ming arrangement, the Three Judicial Offices divided labor: the Ministry of Justice received criminal cases from across the empire, the Censorate conducted surveillance and impeachment, and the Court of Revision reviewed and corrected judgments. Under the Qing, criminal cases from the provinces were uniformly reviewed and ratified by the Ministry of Justice. For cases that did not require joint deliberation, the Court of Revision and Censorate had no avenue to intervene; even when joint deliberation was required, the Ministry of Justice still drafted the memorial. All litigation and detention in the capital, whether submitted by memorial or routine report, fell to the Ministry of Justice, whose authority was exceptionally heavy. The Ministry of Justice was first organized into fourteen bureaus. In the first year of Yongzheng, Left and Right Bureaus of Current Review were added to handle Banner homicides and robberies and cases dispatched by imperial order from other agencies. They were later reorganized again into eighteen Bureaus of Pure Officials: Zhili, Fengtian, Jiangsu, Anhui, Jiangxi, Fujian, Zhejiang, Huguang, Shandong, Shanxi, Shaanxi, Sichuan, Guangdong, Guangxi, Yunnan, and Guizhou. Whenever provincial criminal reports reached the ministry, each bureau drafted a recommendation for the chief ministers, who then decided approval or rejection. Jilin and Heilongjiang were handled under Fengtian; Gansu and Xinjiang under Shaanxi; and paperwork from capital agencies was likewise distributed among the seventeen bureaus. Current-review cases were assigned in rotation by signature. In the tenth year of Shunzhi, the Office of Pursuit and Capture was established with one Manchu and one Han vice minister, supported by Front and Rear Bureaus. It was initially subordinate to the Ministry of War and specialized in hunting down fugitive bannermen. In the thirty-eighth year of Kangxi it was abolished, and its Front and Rear Bureaus were transferred to the Ministry of Justice. They were later merged into a single Bureau of Pursuit and Capture, which neither handled provincial criminal cases nor took part in current-review rotation. The Ministry of Justice reported monthly on all cases received, concluded or pending. A Supervision and Urging Office was established to enforce the statutory deadlines. Routine sentences of penal servitude, exile, military exile, and banishment, once concluded, were reported quarterly in summary memorials. Cases referred to the throne by memorial, however light the circumstances, required a separate concluding memorial. After confessions were obtained in capital cases, the Court of Revision sent a vice director or reviewer and the Censorate a censor to join the responsible bureau for a preliminary joint review—the "minor joint review." When the file was complete and brought before the chief ministers, the left censor-in-chief or left vice censor-in-chief of the Censorate and the chief or vice chief of the Court of Revision, with their staffs, joined the Ministry of Justice for the "major joint review." If the parties changed their testimony, the case was sent back for retrial; otherwise the joint draft was memorialized in the usual form. For crimes warranting immediate execution, once the edict arrived the responsible bureau dispatched officers to supervise the sentence. Prisoners held awaiting execution were referred to the court review. In the provinces, household, marriage, land, and minor beating offenses were concluded at the county or prefecture level—cases "adjudicated locally." Each month a rotating litigation register was kept and forwarded to the governor-general, governor, provincial judge, and circuit intendant for review. When a circuit intendant made his inspection rounds, he examined the register on the spot and, if cases remained open, imposed deadlines to hurry them to judgment. Sentences of penal servitude and above were escalated through prefecture, circuit, and provincial judicial commissioner; penal-servitude cases were bundled by the governor or governor-general and reported for closure. Cases involving loss of life or exile and heavier punishments were reported separately to the ministry for inclusion in summary memorials. Capital crimes of treason, great sedition, wicked sedition, impiety, prison raids or revolts, murder of officials, foreign piracy, secret-society banditry, robbery, or killing officials or runners while resisting—when the sentence was dismemberment, decapitation, or exposure of the head—were reported by special folded memorial for rapid ministry deliberation. Cases involving two deaths in a single household were sent to the ministry for expedited memorial. All other decapitation and strangulation cases were likewise submitted by special memorial; summary slips went to the judicial censors, the Grand Secretariat drafted rescripts, and the Three Judicial Offices conducted joint review. If the facts did not match the charge or the statutes were misapplied, the case might be sent back for retrial or corrected outright; if correct, the proposed sentence was ratified. Once immediate execution was approved and the order issued, sealed dispatches were rushed to the chief civil officer or deputy at each prefecture and county, who carried out the sentence jointly with the local military officer. Prisoners held awaiting execution entered the autumn review.
5
朝審原於明天順三年，令每歲霜降後，但有該決重囚，三法司會同公、侯、伯從實審錄。 秋審亦原於明之奏決單，冬至前會審決之。 順治元年，刑部左侍郎黨崇雅奏言：「舊制凡刑獄重犯，自大逆、大盜決不待時外，餘俱監候處決。 在京有熱審、朝審之例，每至霜降後方請旨處決。 在外直省，亦有三司秋審之例，未嘗一麗死刑輒棄於市。 望照例區別，以昭欽恤。」 此有清言秋、朝審之始。 嗣後逐漸舉行，而法益加密。 初制分情實、緩決、矜、疑，然疑獄不經見。 雍正以後，加入留養承祀，區為五類。 截止日期，雲南、貴州、四川、廣東、廣西以年前封印日，福建以正月三十日，奉天、吉林、黑龍江、陝西、甘肅、湖北、湖南、浙江、江西、安徽、江蘇以月初十日，河南、山東、山西以三月初十日，直隸以三月三十日。 然遇情重之案，雖後期有聲明趕入秋審者。 刑部各司，自歲首將各省截止期前題准之案，分類編冊，發交司員看詳。 初看藍筆句改，覆看用紫，輪遞至秋審處坐辦、律例館提調，墨書粘簽，一一詳加斟酌，而後呈堂核閱。 朝審本刑部問擬之案，刑部自定實緩。 秋審則直省各督撫於應勘時，將人犯提解省城，率同在省司道公同會勘，定擬具題。 刑部俟定限五月中旬以前，各省後尾到齊，查閱外勘與部擬不符者，別列一冊。 始則司議，提調、坐辦主之。 繼則堂議，六堂主之，司議各員與焉。 議定，刑部將原案及法司督撫各勘語刊刷招冊，送九卿、詹事、科道各一分，八月內定期在金水橋西會同詳核。 先日朝審，三法司、九卿、詹事、科道入座，刑部將監內應死人犯提至當堂，命吏朗誦罪狀及定擬實、緩節略，事畢回禁。 次日秋審，憑招冊審核，如俱無異議，會同將原擬陸續具題； 有異，前期簽商。 若各執不相下，持異之人奏上，類由刑部回奏聽裁。 苟攻及原審，則徑行扣除再訊。 二百餘年來，刑部歷辦秋、朝審，句稽講貫，備極周密，長官每以此校司員之優劣。 究之人命至重，死者不可復生，其所矜慎，尤在實、緩。 乾隆以前，各司隨意定擬，每不畫一。 三十二年，始酌定比對條款四十則，刊分各司，並頒諸各省，以為勘擬之準繩。 四十九年，復行增輯。 嗣刑部侍郎阮葵生別輯秋讞志略，而後規矩略備，中外言秋勘者依之，並比附歷年成案，故秋、朝審會議，其持異特奏者，每不勝焉。
Court review originated in Ming Tianshun 3, when it was ordered that after the Frost's Descent each year the Three Judicial Offices, together with dukes, marquises, and earls, should examine all capital prisoners due for execution and record their findings according to the facts. Autumn review likewise derived from the Ming "memorial decision" procedure, with joint review and final disposition completed before the winter solstice. In Shunzhi 1, Dang Chongya, left vice minister of the Ministry of Justice, memorialized: "Under the former system, all serious prisoners except those guilty of great sedition or great robbery—who were executed at once—were held in custody awaiting sentence. In the capital the summer review and court review applied, and execution required imperial approval only after the Frost's Descent. In the provinces as well, the three offices conducted autumn review, and a death sentence was never carried out the moment it was pronounced. I beg that the old distinctions be preserved, to manifest the throne's compassionate regard for human life." This passage marks the Qing dynasty's own account of how autumn and court review began. The practice was gradually extended thereafter, and the procedures grew ever more elaborate. The original categories were deserving execution, deferred decision, meriting compassion, and doubtful—but doubtful cases were seldom encountered. After the Yongzheng reign, retention for family support and sacrificial duties was added, making five categories in all. Cutoff dates varied by province: Yunnan, Guizhou, Sichuan, Guangdong, and Guangxi used the year-end seal date; Fujian, the thirtieth day of the first month; Fengtian, Jilin, Heilongjiang, Shaanxi, Gansu, Hubei, Hunan, Zhejiang, Jiangxi, Anhui, and Jiangsu, the tenth day of the first month; Henan, Shandong, and Shanxi, the tenth day of the third month; and Zhili, the thirtieth day of the third month. Even so, especially grave cases could still be declared for rushed inclusion in the autumn review after the regular deadline. From the start of each year the ministry's bureaus compiled registers of cases approved from the provinces before the cutoff and assigned them to clerks for detailed review. The first reader marked revisions in blue, the second in purple; cases then rotated to the autumn-review resident officer and the Code and Statutes Office compiler, who annotated in black, attached labels, and weighed each point before the chiefs reviewed the file. Court review covered cases the Ministry of Justice had already proposed after inquiry, and the ministry itself classified them as deserving execution or deferred. For autumn review each governor or governor-general, when investigation was due, had the prisoners brought to the provincial capital, convened the provincial judicial and circuit officials for joint review, and memorialized with a proposed classification. The ministry waited until mid-fifth month, when the last provincial reports had arrived, then singled out cases in which the provincial finding disagreed with the ministry's proposal into a separate register. Deliberation began at bureau level under the compiler and resident officer. It then moved to deliberation by the six chief ministers, with the bureau officers participating. When deliberation was complete, the ministry printed casebooks containing the original files and the findings of the judicial offices and provincial authorities, distributed one copy each to the Nine Ministers, Household Officials of the Heir Apparent, and censors, and scheduled a joint review west of the Jinshui Bridge during the eighth month. Court review came first: the Three Judicial Offices, Nine Ministers, Household Officials, and censors took their seats while the ministry brought capital prisoners before the hall, had clerks read aloud the charges and proposed classifications, and returned them to detention when finished. Autumn review followed the next day. If the casebooks aroused no objection, the participants jointly memorialized the original proposals in turn; where there was disagreement, they negotiated by signed memoranda beforehand. If neither side would yield, the dissenting party memorialized the throne, and the Ministry of Justice usually replied with a memorial for the emperor's decision. If the challenge struck at the original trial, the case was struck from the list and sent back for reinvestigation. For more than two centuries the Ministry of Justice has conducted autumn and court review with painstaking thoroughness, and chiefs routinely used a clerk's performance on these cases to judge his ability. Human life is paramount—the dead cannot be restored—and the greatest caution was exercised precisely over the categories of deserving execution and deferred decision. Before the Qianlong reign each bureau classified cases as it saw fit, with little consistency. In his thirty-second year the emperor promulgated forty comparative guidelines, distributed them to each bureau and to every province, and made them the standard for classification. In his forty-ninth year the guidelines were expanded and revised again. Later Vice Minister Ruan Kuisheng compiled the Brief Record of Autumn Verdicts, bringing the rules to rough completeness. Officials throughout the empire who handled autumn review relied on it and cited precedents from past years, so dissenters at the autumn and court review conferences seldom carried the day.
6
秋審本上，入緩決者，得旨後，刑部將戲殺、誤殺、擅殺之犯，奏減杖一百，流三千里，竊贓滿貫、三犯竊贓至五十兩以上之犯，奏減雲、貴、兩廣極邊、煙瘴充軍，其餘仍舊監固，俟秋審三次後查辦。 間有初次入緩，後復改實者，權操自上，非常例也。 入可矜者，或減流，或減徒。 留養承祀者，將該犯枷號兩月，責四十板釋放。 案系斗殺，追銀二十兩給死者家屬養贍。 情實則大別有三，服制、官犯、常犯是也。 本下，內閣隨命欽天監分期擇日。 句到，刑部按期進呈黃冊。 至日，素服御殿，大學士三法司侍，上秉硃筆，或命大學士按單予句。 服制冊大都殺傷期功尊長之案，既以情輕而改監候，類不句決； 情實二次，大學士會同刑部奏請改緩。 官犯則情重者，刑部從嚴聲敘，未容倖免； 輕則一律免句，十次改緩。 常犯之入情實，固罪無可逭者； 其或一線可原，刑部粘簽聲敘，類多邀恩不句，十次亦改緩。 向例句決重囚，刑科三覆奏，自乾隆十四年簡去二覆，第於句到前五日，覆奏一次。 句到時，將原本進呈覆閱，一俟批發，在京例由刑科給事中、刑部侍郎各一人赴西市監視。 官犯無論句否，俱綁赴行刑場候決。 在外則刑部各司將句單連同榜示釘封送兵部發驛，文到之日行刑。 如恭逢慶典或國家有故，則下旨停句。
After the autumn-review memorial was approved, prisoners classified as deferred might receive further reductions: the ministry memorialized that playful, mistaken, or unauthorized killers be reduced to one hundred blows and exile three thousand li; habitual thieves reaching fifty taels or more, to military exile in the miasma frontiers of Yunnan, Guizhou, and the two Guangs; all others remained in custody until reviewed after three autumn sessions. Occasionally a prisoner first classified as deferred was later reclassified as deserving execution—a prerogative exercised by the throne itself, not a routine procedure. Those classified as meriting compassion might have exile or penal servitude reduced. Those retained to support parents and maintain ancestral sacrifices were cangued for two months, given forty blows of the paddle, and released. In brawl-killing cases twenty taels of silver were levied for the victim's family's support. Deserving execution fell into three broad types: mourning-regulation cases, official offenders, and ordinary offenders. Once the memorial was approved, the Grand Secretariat ordered the Directorate of Astronomy to set execution dates in stages. On each execution day the ministry presented the yellow register on schedule. On the appointed day the emperor appeared in plain dress, attended by Grand Secretaries and the Three Judicial Offices, took up the vermilion brush, or delegated to the Grand Secretaries to mark executions on the list. The mourning-regulation register mostly covered cases of killing or wounding senior relatives within the mourning circle; because the original sentence had been commuted to imprisonment awaiting review, execution was usually withheld; after two classifications as deserving execution, the Grand Secretaries and Ministry of Justice jointly memorialized to change the sentence to deferred. For official offenders in grave cases the ministry argued strictly for execution, allowing no reprieve; lighter cases were uniformly spared execution, and after ten appearances reclassified as deferred. Ordinary offenders classified as deserving execution had, in principle, no escape from the penalty; yet if even a slender thread of excuse remained, the ministry attached a label pleading for mercy, and execution was usually withheld; after ten appearances the sentence might be changed to deferred as well. Formerly, execution of capital prisoners required three re-memorials from the Ministry of Justice censorate; from Qianlong 14 two of these were dropped, leaving a single re-memorial five days before the execution date. On the execution day the original memorial was presented again for the emperor's review; once the rescript issued, one supervising secretary from the Ministry of Justice censorate and one vice minister customarily supervised at the West Market. Official offenders, whether marked for execution or not, were bound and taken to the execution ground to await the final decision. In the provinces each bureau sealed the execution list with the public notice and sent it through the Ministry of War by courier; the sentence was carried out on the day the dispatch arrived. If a celebration occurred or the state faced extraordinary circumstances, an edict suspended executions.
7
順治十三年，諭刑部：「朝審秋決，系刑獄重典。 朕必詳閱招案始末，情形允協，令死者無冤。 今烸期伊邇，朝審甫竣，招冊繁多，尚未及詳細簡閱，驟行正法，朕心不忍。 今年姑著暫停秋決，昭朕矜恤至意。」 自是列朝於秋讞俱勤慎校閱。 康熙二十二年，聖袓御懋勤殿，召大學士、學士等入，酌定在京秋審情實重犯。 聖袓取罪案逐一親閱，再三詳審，其斷無可恕者，始定情實。 因諭曰：「人命事關重大，故召爾等共相商酌。 情有可原，即開生路。」 雍正十一年，世宗御洞明堂，閱秋審情實招冊，諭刑部曰：「諸臣所進招冊，俱經細加斟酌，擬定情實。 但此內有一線可生之機，爾等亦當陳奏。 在前日定擬情實，自是執法，在此刻句到商酌，又當原情，斷不可因前奏難更，遂爾隱默也。」 高宗尤垂意刑名，秋審冊上，每干飭責。 乾隆三十一年，湖南官犯饒佺，以其回護己過予句。 迨閱浙省招冊，知府高象震亦以承審回護，原題僅擬軍台效力。 急諭湖南巡撫將饒佺暫停處決，令刑部查明兩案情節不同，始行明諭處分。 其慎重讞典如此。 仁宗亦嫻習法律。 嘉慶七年，御史廣興會議秋審，奏請將斗殺擬緩之廣東姚得輝改入情實，援引乾隆十八年「一命必有一抵」之旨。 仁宗謂：「一命一抵，原指械鬥等案而言，至尋常鬥毆，各斃各命，自當酌情理之平，分別實緩。 若拘泥『一命必有一抵』之語，則是秋讞囚徒，凡殺傷斃命之案，將盡行問擬情實，可不必有緩決一項。 有是理乎？」 命仍照原擬入緩。 其剖析法意，致為明允。 自後宣宗、文宗遵循前軌，罕可紀述。 穆宗、德宗兩經垂簾，每逢句到，命大學士一人捧單入內閣恭代，後遂沿為故事。
In Shunzhi 13 the throne instructed the Ministry of Justice: "Court review and autumn execution are grave matters of criminal justice. I must read each casebook through from start to finish, ensure the facts fit the charge, and see that the condemned die without injustice. The execution season is upon us, court review has only just ended, and the casebooks are too many for me to have reviewed them all in detail. To put them to death at once—I cannot bear it. Suspend autumn executions for this year, to show my utmost regard for human life." Thereafter every reign handled autumn verdicts with scrupulous care. In Kangxi 22 the Sage Ancestor held court in the Hall of Diligent Government, summoned Grand Secretaries and academicians, and classified capital prisoners for autumn review. He read every case himself, examining each again and again; only those beyond all excuse were marked deserving execution. He said: "Human life is a grave matter, which is why I have called you to deliberate together. Where circumstances permit mercy, open a path to life." In Yongzheng 11 the Shizong held court in the Bright Hall of Enlightenment, reviewed autumn-review casebooks, and told the Ministry of Justice: "The casebooks your officials have submitted have all been carefully weighed and classified as deserving execution. But if even a thread of life remains possible, you must say so in memorial. Fixing deserving execution earlier was enforcing the law; at the moment of execution you must weigh the human circumstances again—you must not stay silent because an earlier memorial is hard to change." The Gaozong paid special attention to criminal matters and often reprimanded officials on the autumn-review registers. In Qianlong 31 the Hunan official offender Rao Qian was marked for execution for shielding his own misconduct. When he reviewed the Zhejiang casebook, he found Prefect Gao Xiangzhen had likewise shielded himself during trial, though the original memorial had proposed only service at a military post. He urgently ordered the Hunan governor to suspend Rao Qian's execution, told the ministry to establish that the two cases differed in circumstance, and only then issued clear instructions on punishment. Such was the care the throne took with capital verdicts. The Renzong was likewise well versed in law. In Jiaqing 7, at the autumn-review conference, Censor Guangxing asked that Yao Dehui of Guangdong—a brawl killer proposed for deferral—be reclassified as deserving execution, citing the Qianlong 18 instruction that "one life must have one compensation." The Renzong replied: "One life for one compensation referred to armed brawls and the like. In ordinary brawls each side kills and dies; reason and feeling must be weighed to distinguish deserving execution from deferral. If we rigidly applied 'one life must have one compensation' to every killing, every autumn-review prisoner would be marked deserving execution and the category of deferred decision would become pointless." Would that make any sense?" He ordered the original classification of deferral to stand." His parsing of the law was exceptionally clear and fair. The Xuanzong and Wenzong followed precedent, with little worth recording. Under the Muzong and Dezong, during two regencies, whenever execution dates arrived one Grand Secretary carried the list into the Grand Secretariat to act for the throne; this later became fixed practice.
8
而前行之秋審條款，因光緒季年死刑遞有減降，法律館重加釐定，奏頒內外焉。
The earlier autumn-review regulations were revised and promulgated by the Law Codification Office after capital punishments were progressively reduced in late Guangxu.
9
熱審之制，順治初賡續舉行。 康熙十年，定每年小滿後十日起，至立秋前一日止，非實犯死罪及軍、流，俱量予減等。 四十三年，諭刑部停止。 雍正初復行。 乾隆以後，第准免笞、杖，則遞行八折決放，枷號漸釋，餘不之及。 且惟京師行之，外省笞、杖自理，無從考核，具文而已，列朝無寒審，而有軍、流、遣犯隆冬停遣之例。 未起解者，十月至正月終及六月俱停遣。 若已至中途，至十一月初一日准停。 倘抵配不遠，並發往東南省分，人犯有情原前進者，一體起解。
The summer-review system was continued from early Shunzhi. In Kangxi 10 it was fixed that from ten days after Lesser Fullness until the day before Beginning of Autumn, all except true capital crimes and military exile or banishment might receive appropriate reduction. In the forty-third year the ministry was ordered to stop. It was revived in early Yongzheng. After Qianlong only rod and stick punishments were exempted, applied at eight-tenths of the statutory penalty with gradual release from the cangue; other punishments were unaffected. It applied only in the capital; in the provinces rod and stick cases were locally adjudicated without oversight—empty form. No dynasty had winter review, but military exiles, banished persons, and deportees were not dispatched in deep winter. Prisoners not yet dispatched were not sent from the tenth month through the first month, nor in the sixth month. Those already en route might be halted from the first day of the eleventh month. If the destination was near, or if prisoners were bound for southeastern provinces and circumstances favored proceeding, they were dispatched as usual.
10
又有停審之例，每年正月、六月、十月及元旦令節七日，上元令節三日，端午、中秋、重陽各一日，萬壽聖節七日，各壇廟祭享、齋戒以及忌辰素服等日，並封印日期，四月初八日，每月初一、初二日、皆不理刑名。 然中外問刑衙門，於正月、六月、十月及封印日期、每月初一二等日不盡如例行也。 其農忙停審，則自四月初一日至七月三十日，一應戶、婚、田土細故，不準受理，刑事不在此限。 又有停刑之例，每年正月、六月及冬至以前十日，夏至以前五日，一應立決人犯及秋、朝審處決重囚，皆停止行刑。
Trials were also suspended on the first, sixth, and tenth months; the seven New Year festival days; three Lantern festival days; Dragon Boat, Mid-Autumn, and Double Ninth; seven imperial birthday days; altar sacrifices and fasts; mourning anniversaries in plain dress; seal days; the eighth day of the fourth month; and the first and second of each month. Yet criminal offices throughout the empire did not always observe these days in full. During the agricultural busy season, from the first day of the fourth month through the thirtieth of the seventh, household, marriage, and land disputes were not accepted; criminal cases were excepted. Executions were also suspended in the first and sixth months and the ten days before the winter solstice and five days before the summer solstice—for immediate executions and autumn or court review prisoners alike.
11
凡審級，直省以州縣正印官為初審。 不服，控府、控道、控司、控院，越訴者笞。 其有冤抑赴都察院、通政司或步軍統領衙門呈訴者，名曰京控。 登聞鼓，順治初立諸都察院。 十三年，改設右長安門外。 每日科道官一員輪值。 後移入通政司，別置鼓廳。 其投廳擊鼓，或遇乘輿出郊，迎駕申訴者，名曰叩閽。 從前有擅入午門、長安門、堂子跪告，及打長安門內、正陽門外石獅鳴冤者，嚴禁始絕。 即迎車駕而衝突儀仗，亦罪至充軍。 京控及叩閽之案，或發回該省督撫，或奏交刑部提訊。 如情罪重大，以及事涉各省大吏，抑經言官、督撫彈劾，往往欽命大臣蒞審。 發回及駮審之案，責成督撫率同司道親鞫，不準復發原問官，名為欽部事件。 文武官犯罪，題參革職。 道府、副將以上，遴委道員審理。 同知、游擊以下，遴委知府審理。 巡按御史，順治初猶常設。 四年，從大理寺卿王永吉奏，差官往直省恤刑，然皆不久停罷。 外省刑名，遂總匯於按察使司，而督撫受成焉。 京師笞、杖及無關罪名詞訟，內城由步軍統領，外城由五城巡城御史完結，徒以上送部，重則奏交。 如非常大獄，或命王、大臣、大學士、九卿會訊。 自順治迄乾隆間，有御廷親鞫者。 律稱八議者犯罪，實封奏聞請旨，不許擅自句問。 在京大小官員亦如之。
Trial levels in the provinces began with the seal-holding county or prefecture official as first instance. Appeals went to prefecture, circuit, provincial judge, or governor's office; skipping levels brought beating with the rod. Those who brought suppressed grievances to the Censorate, Office of Transmission, or Metropolitan Infantry Command were called capital appeals. The Petition Drum was first established at the Censorate in early Shunzhi. In the thirteenth year it was moved outside the Right Chang'an Gate. One censor served on rotation each day. It was later moved into the Office of Transmission with a separate drum hall. Striking the drum in the hall, or presenting grievances when the imperial procession left the suburbs, was called knocking at the gate. Earlier practices—rushing the Meridian Gate, Chang'an Gate, or the Hall to kneel and complain, or striking the stone lions at Chang'an Gate or the Front Gate—were strictly forbidden and finally suppressed. Even charging the imperial guard of honor when meeting the carriage was punished with military exile. Capital appeals and gate-knocking cases were sent back to the provincial authorities or memorialized to the ministry for escorted interrogation. Grave cases, matters involving provincial high officials, or cases impeached by censors or governors often drew an imperial order for a minister to preside. Sent-back and rejected cases were assigned to the governor or governor-general to interrogate personally with provincial officials, not to the original trial officer—these were called imperial-department cases. Civil and military officials who committed crimes were impeached and dismissed. From circuit intendant and deputy commander upward, a circuit intendant was appointed to try the case. From subprefect and battalion commander downward, a prefect was appointed. Touring censors were still regularly established in early Shunzhi. In the fourth year, following Court of Revision chief Wang Yongji's memorial, officials were sent to the provinces for compassionate review, but the practice was soon abandoned. Provincial criminal matters were then consolidated under the provincial judicial commissioner, with governors giving final approval. In the capital, rod, stick, and non-criminal suits in the inner city fell to the Metropolitan Infantry Command; in the outer city to the Five-City patrol censors; penal servitude and above went to the ministry; grave cases were memorialized. Exceptionally grave cases might be assigned to princes, ministers, Grand Secretaries, or the Nine Ministers for joint interrogation. From Shunzhi through Qianlong there were cases of personal interrogation before the throne. The Code's Eight Privileges required a sealed memorial before interrogation; unauthorized execution was forbidden. Capital officials great and small were treated the same way.
12
若宗室有犯，宗人府會刑部審理。 覺羅，刑部會宗人府審理。 所犯笞、杖、枷號，照例折罰責打； 犯徒，宗人府拘禁； 軍、流、鎖禁，俱照旗人折枷日期，滿日開釋。 屢犯軍、流，發盛京、吉林、黑龍江等處圈禁； 死刑，宗人府進黃冊。 閹寺犯輕罪，內務府慎刑司訊決，徒以上亦送部。 八旗地畝之訟，屬諸戶部現審處，刑事統歸刑部。 清初有都統會審之制，有高牆拘禁之條，至乾隆時俱廢。 旗營駐防省分，額設理事同知。 旗人獄訟，同知會同州縣審理。 熱河都統衙門特設理刑司，刑部派員聽訟，三年一任。 同治三年，以吉林獄訟繁多，詔依熱河設立刑司例，令刑部揀派滿、漢郎中、員外、主事各一員，分別掌印主稿，統歸將軍管轄。 嗣吉林建省裁撤，而熱河如故。
Imperial clansmen were tried jointly by the Imperial Clan Court and the Ministry of Justice. Aisin Gioro were tried with the ministry joining the Imperial Clan Court. Rod, stick, and cangue offenses were reduced and punished by beating according to regulation; penal servitude was served in Imperial Clan Court detention; military exile, banishment, and lockup followed Banner cangue schedules and ended on the appointed day. Repeat military exiles and banished persons were confined in guarded compounds at Shengjing, Jilin, Heilongjiang, and elsewhere; capital cases required a yellow register from the Imperial Clan Court. Eunuchs guilty of light offenses were tried by the Internal Affairs Office's Cautious Punishment Bureau; penal servitude and above went to the ministry. Banner land disputes belonged to the Ministry of Revenue's Current Review section; criminal matters to the Ministry of Justice. Early Qing had joint trial by banner commanders and high-wall detention; both were abolished by Qianlong. Provinces with Banner garrisons had quota posts of administrative subprefect for Banner affairs. Banner lawsuits were tried jointly by the subprefect and local civil officials. The Rehe commander's yamen had a special Judicial Bureau with ministry officers on three-year terms. In Tongzhi 3, because Jilin had excessive litigation, a criminal bureau was established on the Rehe model with paired Manchu and Han directors, vice directors, and secretaries from the ministry under the general. When Jilin became a province the bureau was abolished; Rehe remained unchanged.
13
蒙古刑獄，內外扎薩克王公、台吉、塔布囊及協理台吉等承審。 康熙三十七年，曾遣內地官員教導蒙古王等聽斷盜案，後不常設。 沿邊與民人交涉案件，會同地方官審理，死罪由盟長核報理籓院，會同三法司奏當。 在京犯斬、絞，刑部審訖，會理籓院法司亦如之。 盛京刑部掌讞盛京旗人及邊外蒙古之獄。 秋審，會同四部侍郎、奉天府尹酌定實、緩匯題，蓋皆特別之制。
Mongol criminal matters were tried by inner and outer league princes, taiji, tabunang, and assistant taiji. In Kangxi 37 inland officials were once sent to instruct Mongol princes in robbery cases, but the practice was not kept up. Border cases involving civilians were tried with local officials; capital crimes were reported through league chiefs to the Court of Colonial Affairs and the Three Judicial Offices. Capital cases in the capital, after ministry trial, likewise involved the Court of Colonial Affairs and judicial offices. The Shengjing Ministry of Justice handled Shengjing Banner people and frontier Mongols. Autumn review there joined four department vice ministers and the Fengtian prefect to classify cases—a special system.
14
凡檢驗，以宋宋慈所撰之洗冤錄為準，刑部題定驗屍圖格，頒行各省。 人命呈報到官，地方正印官隨帶刑書、仵作，立即親往相驗。 仵作據傷喝報部位之分寸，行兇之器物，傷痕之長短淺深，一一填入屍圖。 若屍親控告傷痕互異，許再行覆檢，不得違例三檢。 如自縊、溺水、事主被殺等案，屍屬呈請免驗者，聽。 京師內城正身旗人及香山等處各營房命案，由刑部當月司員往驗。 街道及外城人命，無論旗、民，歸五城兵馬司指揮相驗。 檢驗不以實者有刑。
Forensic examination followed Song Ci's Washing Away of Wrongs; the ministry's corpse-examination charts were promulgated to every province. When homicide was reported, the seal-holding official immediately took clerks and coroners to examine the body in person. The coroner reported wound locations by inch, weapons used, and dimensions of each wound on the corpse chart. If the victim's kin disputed the wounds, re-examination was permitted, but a third examination was forbidden except by rule. In hanging, drowning, or master-killed cases, exemption from examination was permitted if the kin requested it. Inner-city homicides of registered Banner people and cases at Xiangshan and other camps were examined by the ministry's monthly duty officer. Street and outer-city homicides, Banner or civilian, were examined by the Five Cities military patrol. False examination was itself punishable.
15
凡訊囚用杖，每日不得過三十。 熱審得用掌嘴、跪鍊等刑，強盜人命酌用夾棍，婦人指，通不得過二次。 其餘一切非刑有禁。 斷罪必取輸服供詞，律雖有「眾證明白，即同獄成」之文，然非共犯有逃亡，並罪在軍、流以下，不輕用也。
Interrogation with the stick was limited to thirty blows per day. Summer review permitted slapping the mouth and kneeling in chains; robbery and homicide might use the leg-press; women received finger-press torture—not more than twice in all. All other non-statutory tortures were forbidden. Conviction required a submitted confession; though the Code says clear collective proof equals conviction, this was not lightly applied except for accomplices with fugitives or crimes below military exile.
16
凡審限，直省尋常命案限六閱月，盜劫及情重命案、欽部事件並搶奪掘墳一切雜案俱定限四閱月。 其限六月者，州縣三月解府州，府州一月解司，司一月解督撫，督撫一月咨題。 其限四月者，州縣兩月解府州，府州二十日解司，司二十日解督撫，督撫二十日咨題。 如案內正犯及要證未獲，或在監患病，准其展限或扣限。 若隔屬提人及行查者，以人文到日起限。 限滿不結，督撫咨部，即於限滿之日起算，再限二、三、四月，各級分限如前。 如仍遲逾，照例參處。 按察司自理事件，限一月完結。 州縣自理事件，限二十日審結。 上司批發事件，限一月審報。 刑部現審，笞杖限十日，遣、軍、流、徒二十日，命盜等案應會三法司者三十日。 每月奏報，聲明曾否逾限。 如有患病及查傳等情，亦得依例扣展。 速議速題，均限五日覆。 死罪會核，自科鈔到部之日，立決限七十日，監候限八十日。 會同題覆，院寺各分限八日。 由咨改題之案，展限十日。 系清文加譯漢十日或二十日，逾限附參。 盜賊逾月不獲，捕役汛兵予笞，官罰俸。 吏兵兩部處分則例，尚有疏防及初、二、三、四參之分。 命案兇犯在逃，承緝、接緝亦按限開參。 然例雖嚴，而巧於規避者，蓋自若也。
Trial limits: ordinary homicide in the provinces, six months; robbery, grave homicide, imperial-department cases, and miscellaneous grave-robbing and robbery cases, four months. Under the six-month limit: county to prefecture in three months, prefecture to judge in one, judge to governor in one, governor to memorial in one. Under the four-month limit: county to prefecture in two months, prefecture to judge in twenty days, judge to governor in twenty days, governor to memorial in twenty days. If the principal offender or key witnesses were still at large, or a prisoner was ill in custody, the deadline might be extended or suspended. When prisoners were summoned across jurisdictions or inquiries dispatched, the clock started when the person or report arrived. If a case was not concluded when the limit expired, the governor reported to the ministry and a further two to four months was allowed, with the same tiered schedule. Further delay brought impeachment under the regulations. Cases handled by the provincial judicial commissioner had to be concluded within one month. County and prefecture self-adjudicated cases had a twenty-day limit. Cases assigned by superiors had to be tried and reported within one month. Ministry current review: rod and stick, ten days; deportation, military exile, banishment, and penal servitude, twenty days; homicides and robberies requiring the Three Offices, thirty days. Each month a report stated whether any limit had been exceeded. Illness or pending inquiries also permitted suspension or extension under the rules. Expedited deliberation and memorial required reply within five days. Capital joint review: from arrival of the censorate copy, seventy days for immediate execution, eighty for prisoners held awaiting. Joint reply memorials: eight days each for Court and Censorate. Cases converted from routine report to memorial received ten extra days. Manchu documents requiring Chinese translation added ten or twenty days; overrun brought impeachment. Robbers not captured within a month brought rod punishment for constables and salary fines for officials. The civil and military ministries' discipline regulations also distinguished negligent defense and degrees of impeachment. Escaped homicide suspects also triggered impeachment schedules for initial and relay pursuit. Yet though the rules were strict, those skilled at evasion carried on unchanged.
17
凡解犯有三：一、定案時之解審。 徒犯解至府州轉報，軍、流、遣及死罪，自府州遞省，逐級訊問無異，督撫然後咨題。 一、秋審時之解勘。 死罪非立決，發回本州縣監禁，逮秋審，徑行解司審勘。 官犯自定案即拘禁司監待決。 常犯緩決者，二次秋審，即不復解。 其直省各邊地離督撫駐處窵遠，有由該管巡道審勘加結轉報者，非通例也。 一、發遣時之解配。 徒囚問發隔縣，軍、流起解省分，預行咨明應發省分督撫，查照道里表，酌量州縣大小遠近、在配軍流多寡，先期定地，飭知入境首站州縣，隨到隨發。 遣犯解至例定地方安插。 犯籍州縣僉差，名曰長解。 沿途州縣，派撥兵役護送，名為短解。 罪囚視罪名輕重，定用鐵鎖杻釒道數。 若中途不覺失囚，訊明有無賄縱，分別治罪。 隔屬關提及發交各地方官管束者，視此為差。 京師現審，徒犯發順天府充徒。 流囚由刑部定地，劄行順天府起送。 五軍咨由兵部定地提發，外遣亦咨兵部差役起解。 綜計訴訟所歷，自始審迄終結，其程序各有定規，毋或逾越。
Prisoner escort took three forms. First: escort for trial upon conviction. Penal-servitude cases went to the prefecture; military exile, banishment, deportation, and capital crimes ascended through the province level by level, then the governor memorialized. Second: escort for autumn-review investigation. Non-immediate capital sentences returned to county detention, then at autumn review were escorted to the provincial judge. Official offenders were confined in the provincial prison from conviction onward. Ordinary deferred prisoners were not escorted again after their second autumn review. Remote border districts sometimes used the circuit intendant for autumn investigation—not the general rule. Third: escort to place of punishment. Penal servitude went to another county; military exiles required prior notice to the receiving province, which fixed the destination by route tables and local capacity. Deportees were escorted to their regulated place of resettlement. The home county supplied contract escorts—the "long escort." Each county along the route supplied soldiers—the "short escort." Fetters and chains were fitted according to the severity of the sentence. Lost prisoners en route were investigated for bribery or negligence and punished accordingly. Cross-jurisdiction summons and delivery to local supervision followed similar rules. Capital penal-servitude offenders were assigned to Shuntian prefecture. Exiles were assigned by the ministry, which ordered Shuntian to dispatch them. Five Armies cases went through the Ministry of War; outer deportees likewise. In sum, litigation from first hearing to final disposition followed fixed procedures at every stage.
18
迨光緒變法，三十二年，改刑部為法部，統一司法行政。 改大理寺為大理院，配置總檢察廳，專司審判。 於是法部不掌現審，各省刑名，畫歸大理院覆判，並不會都察院，而三法司之制廢。 題本改為摺奏，內閣無所事事。 秋、朝審專屬法部，其例緩者隨案聲明，不更加勘，而九卿、科道會審之制廢。 京師暨各省設高等審檢廳，都城省會及商埠各設地方及初級審檢廳，改按察使為提法司。 三十二年，法部奏定各級廳試辦章程。 宣統二年，法律館奏頒法院編制法，由初級起訴之案不服，可控由地方而至高等，由地方起訴之案不服，可控由高等而至大理院，名為四級三審。 從前審級、審限、解審、解勘之制，州縣行之而不行於法院。 審判分民事、刑事。 民律艱於成書，所據者第舊律戶役、田宅、錢債、婚姻各條，而法未備。 司法事務有年度，判斷有評議，刑事有檢察官蒞審，人命由檢察官相驗，法院行之而不能行於州縣。 刑訴制度，蓋雜糅矣。
In Guangxu 32 the Ministry of Justice became the Ministry of Law, centralizing judicial administration. The Court of Revision became the Supreme Court with a General Procuratorate for adjudication. The ministry no longer tried cases; provincial criminal matters went to the Supreme Court without the Censorate, abolishing the Three Offices. Routine memorials became folded submissions; the Grand Secretariat had little left to do. Autumn and court review fell to the Ministry of Law; deferrals were noted in the case file, ending Nine Ministers and censor joint review. High and local courts of trial and prosecution were established; the provincial judge became procuratorial commissioner. In Guangxu 32 the ministry memorialized trial regulations for each court level. Xuantong 2 brought the Court Organization Law: primary to local to high to Supreme Court—four levels, three trials. Former trial levels, deadlines, and escort rules applied to counties, not to the new courts. Trials were divided into civil and criminal. The civil code remained unfinished; courts relied on old household, land, debt, and marriage statutes—incomplete law. Courts had annual terms, deliberative judgments, prosecutorial attendance, and prosecutorial autopsy—unknown at the county level. Criminal procedure had become a hybrid system.
19
然爾時所以急於改革者，亦曰取法東西列強，藉以收回領事裁判權也。 考領事裁判，行諸上海會審公堂，其源肇自咸豐朝，與英、法等國締結通商條約，約載中外商民交涉詞訟，各赴被告所屬之國官員處控告，各按本國律例審斷。 嗣遇他國締約，俱援利益均霑之說，群相仿效。 同治八年，定有洋涇浜設官章程，遴委同知一員，會同各國領事審理華洋訴訟。 其外人應否科刑，讞員例不過問。 華人第限於錢債、鬥毆、竊盜等罪，在枷杖以下，准其決責。 後各領擴張權限，公堂有逕定監禁數年者。 外人不受中國之刑章，而華人反就外國之裁判。 清季士大夫習知國際法者，每咎彼時議約諸臣不明外情，致使法權坐失。 光緒庚子以後，各國重立和約，我國齗齗爭令撤銷，而各使藉口中國法制未善，靳不之許。 迨爭之既亟，始聲明異日如審判改良，允將領事裁判權廢棄。 載在約章，存為左券。 故二十八年設立法律館，有「按照交涉情形，參酌各國法律，務期中外通行」之旨。 蓋亦欲修明法律，俾外國就範也。 夫外交視國勢之強弱，權利既失，豈口舌所能爭。 故終日言變法，逮至國本已傷，而收效卒鮮，豈法制之咎與？ 然其中有變之稍善而未竟其功者，曰監獄。 有政體所關而未之變者，曰赦典。
Reform was also driven by the hope of modeling Western powers to recover consular jurisdiction. Consular jurisdiction began in Xianfeng-era commercial treaties: Sino-foreign suits went to the defendant's national court under that nation's law—the Shanghai Mixed Court being the model. Later treaty powers cited most-favored-nation clauses and followed suit. Tongzhi 8 fixed Yangjingbang regulations: one subprefect joined foreign consuls in mixed suits. Whether foreigners were punished—the Chinese judge did not inquire. Chinese offenders in debts, brawls, and petty theft below rod and stick might be punished by the court. Consuls later expanded powers; the mixed court sometimes imposed years of imprisonment directly. Foreigners escaped Chinese law while Chinese were judged by foreign courts. Late-Qing scholars versed in international law blamed treaty negotiators for ignorance that cost China its jurisdiction. After the Boxer treaties China demanded abolition; foreign ministers cited imperfect Chinese law and refused. Under pressure they promised eventual abolition if China's trials were reformed. This was written into treaties as a formal pledge. Hence Guangxu 28 established the Law Codification Office to harmonize Chinese and foreign law. The aim was also to improve law so foreign powers would accept Chinese jurisdiction. Diplomacy follows national strength; lost rights cannot be recovered by argument alone. Reform talk continued until the state was wounded, yet little was gained—was the legal system alone to blame? Some reforms improved matters without finishing the job—prisons among them. Some touched the polity itself and went unchanged—amnesty.
20
監獄與刑制相消息，從前監羈罪犯，並無已決未決之分。 其囚禁在獄，大都未決犯為多。 既定罪，則笞、杖折責釋放，徒、流、軍、遣即日發配，久禁者斬、絞監候而已。 州縣監獄，以吏目、典史為管獄官，知州、知縣為有獄官，司監則設按司獄。 各監有內監以禁死囚，有外監以禁徒、流以下，婦人別置一室，曰女監。 徒以上鎖收，杖以下散禁。 囚犯日給倉米一升，寒給絮衣一件。 鎖杻常洗滌，席薦常鋪置，夏備涼漿，冬設暖床，疾病給醫藥。 然外省監獄多湫隘，故例有輕罪人犯及干連證佐，准取保候審之文。 無如州縣懼其延誤，每有班館差帶諸名目，胥役藉端虐詐，弊竇叢滋。 雖屢經內外臣工參奏，不能革也。 刑部有南北兩監，額設司獄八員、提牢二員，掌管獄卒，稽查罪囚，輪流分值。 每月派御史查監，有瘐斃者亦報御史相驗。 年終並由部匯奏一次，防閒致為周備。 自光緒三十二年審判畫歸大理院，院設看守所，以羈犯罪之待訊者，各級審檢廳亦然，於是法部犴狴空虛。 別設已決監於外城，以容徒、流之工作，並令各省設置新監，其制大都采自日本。 監房有定式，工廠有定程。 法律館特派員赴東調查，又開監獄學堂，以備京、外新監之用。 然斯時新法初行，措置未備，外省又限於財力，未能遍設也。
Prisons and penal law interact; formerly there was no distinction between convicted and unconvicted detainees. Most prisoners were still awaiting trial. After conviction, rod and stick ended quickly; penal servitude and exile were dispatched at once; only capital prisoners awaiting review stayed long. County prisons were run by clerks under the magistrate; provincial prisons by the judicial commissioner's staff. Prisons had inner wards for capital prisoners, outer wards for lesser sentences, and separate women's quarters. Penal servitude and above were locked; rod and stick offenders were loosely held. Prisoners received one sheng of rice daily and one padded garment in winter. Fetters were washed, bedding provided, cool drink in summer, warm beds in winter, medicine when ill. Outer-province prisons were cramped; regulations allowed bail for light crimes and witnesses. Yet magistrates feared delay and used guard houses and escort lodges; clerks extorted under countless pretexts. Repeated memorials could not end the abuses. The ministry's North and South prisons had eight wardens and two chief jailers on rotation. Monthly censorial inspection applied; deaths in custody were also examined. Year-end ministry memorials made capital prevention relatively thorough. After Guangxu 32 trials went to the Supreme Court, which set detention centers; the ministry's cells emptied. A convicted prison outside the city held laboring prisoners; provinces built new prisons modeled on Japan. Cells and workshops followed fixed standards. The Law Codification Office studied Japanese prisons and opened a prison school. New law was not yet complete and provinces lacked funds to build everywhere.
21
赦典有恩赦、恩旨之別。 歷朝登極、升祔、冊立皇后、皇上五旬以上萬壽、皇太后六旬以上萬壽及武功克捷之類，例有恩赦。 其詔書內開：一、官吏軍民人等有犯，除謀反、大逆、子孫謀殺祖父母父母、內亂、妻妾殺夫、奴婢殺家長、殺一家非死罪三人、採生折割人、謀殺故殺真正人命、蠱毒魘魅毒藥殺人、強盜、妖言、十惡等真正死罪不赦外，軍務獲罪、隱匿逃人及侵貪入己亦不赦外，其餘已發覺未發覺、已結未結者，咸赦除之。 若尋常萬壽及喜慶等事，則傳旨行赦。 恩赦死罪以下俱免，恩旨則死罪已下遞減。 詔書既頒，刑部檢查成案，分別准免不準免，開單奏定，名為恩赦條款。 恩旨則分別准減不準減，名為減等條款。 部設減等處，專司核駮。 其巡幸所經，赦及一方，及水旱兵災、清理庶獄者，則視詔旨從事焉。 明制，徒、流已至配，不復援赦。 清自康熙九年准在配徒犯會赦放免。 乾隆二年恩詔，軍、流在配三年，安靜悔過，情原回籍，查明准釋。 迨嘉慶二十五年，始將到配未及三年人犯一體查辦，尤為曠典。 昔人有言：「赦者小人之幸，君子之不幸。」 意第謂赦恩之不可濫耳。 若夫非常慶典，特頒汗號，使之蕩滌瑕穢，洒然自新，未始非仁政之一端。 有清一代，赦典屢頒，然條款頗嚴，毋虞濫及。 且行慶施惠，王者馭世之大權，非苟然也。 故光緒三十四年宣統登極，猶循例大赦雲。
Amnesty distinguished general amnesty from grace edicts. Accessions, spirit elevations, empress investitures, imperial birthdays above fifty, empress dowager birthdays above sixty, and military victories customarily brought general amnesty. Edicts listed capital exceptions—treason, parricide, sedition, witchcraft, robbery, the ten abominations, military crimes, fugitive concealment, embezzlement—then pardoned the rest, discovered or not, concluded or not. Ordinary birthdays and celebrations received grace by edict only. General amnesty freed all below capital crime; grace edicts reduced sentences by degree. The ministry then checked cases into permitted and denied lists—amnesty articles. Grace edicts produced reduction articles for permitted and denied reductions. A Reduction Bureau specialized in verification. Touring amnesty covered one region; disasters and prison clearances followed the edict's terms. Under Ming law, assigned penal servitude and exile were not amnestied. From Kangxi 9 assigned penal-servitude offenders might be amnestied. Qianlong 2 allowed military exiles after three years of quiet conduct to return home if approved. Not until Jiaqing 25 were prisoners who had reached their place of assignment but served less than three years included in general review—a precedent widely regarded as excessive. Someone of old remarked: "Amnesty is the fortune of the petty man and the misfortune of the gentleman." The point was simply that amnesty must not be abused. Yet on extraordinary occasions, when a broad pardon allowed offenders to wash away their stains and begin anew, that too was not without its place in humane government. Throughout the Qing, amnesties were frequent, but the articles were strict enough that abuse was seldom a concern. Celebration and grace were among the great prerogatives by which a ruler governed the realm—not matters undertaken lightly. Thus even in Guangxu 34, when Xuantong ascended the throne, a great amnesty was still proclaimed according to precedent.