1
夫刑者,制死生之命,詳善惡之源,翦亂誅暴,禁人為非者也。 聖王仰視法星,旁觀習坎,彌縫五氣,取則四時,莫不先春風以播恩,後秋霜而動憲。 是以宣慈惠愛,導其萌芽,刑罰威怒,隨其肅殺。 仁恩以為情性,禮義以為綱紀,養化以為本,明刑以為助。 上有道,刑之而無刑; 上無道,殺之而不勝也。 記曰:「教之以德,齊之以禮,則人有格心。 教之以政,齊之以刑,則人有遁心。」 而始乎勸善,終乎禁暴,以此字人,必兼刑罰。 至於時逢交泰,政稱忠厚,美化與車軌攸同,至仁與嘉祥間出,歲布平典,年垂簡憲。 昭然如日月,望之者不迷,曠乎如大路,行之者不惑。
Punishment is what controls life and death, traces good and evil to their roots, suppresses rebellion and executes the violent, and keeps people from wrongdoing. Sage kings looked to the stars of law and the trigram of peril, harmonizing the five elemental forces and taking the four seasons as their model: always spreading grace like the spring wind before enforcing law like the autumn frost. Thus they nurtured mercy and affection while wrongdoing was still in bud, and deployed the stern authority of punishment when severity was required. Benevolence was their disposition, ritual the framework, moral cultivation the foundation, and clear law the supporting force. Under a ruler who holds the Way, punishment is applied yet crime scarcely exists. Under a ruler without the Way, even execution cannot stem the tide of crime. The Record says: "Teach people through virtue and align them through ritual, and they will develop a reverent heart. Instruct them through statute and regulate them through punishment, and they will harbor only thoughts of evasion. Beginning with encouragement of virtue and ending with suppression of violence—governing people in this manner requires punishment as well. In ages of perfect harmony, when government is praised for its sincerity, moral influence reaches everywhere carts may travel, supreme benevolence and good omens appear in turn, and equitable statutes are issued year after year. Clear as sun and moon, so that none who look upon them lose their way; broad as a great highway, so that none who walk it go astray.
2
刑者甲兵焉,鈇鉞焉,刀鋸鑽鑿,鞭扑榎楚,陳乎原野而肆諸市朝,其所由來,亦已久矣。 若夫龍官之歲,鳳紀之前,結繩而不違,不令而人畏。 五帝畫象,殊其衣服,三王肉刑,刻其膚體。 若重華之眚災肆赦,文命之刑罰三千,而都君卹刑,尚奉唐堯之德,高密泣罪,猶懷虞舜之心。 殷因以降,去德滋遠。 若紂能遵成湯,不造炮格,設刑兼禮,守位依仁,則西伯斂轡,化為田叟。 周王立三刺以不濫,弘三宥以開物,成、康以四十二年之間,刑厝不用。 薰風潛暢,頌聲遐舉,越裳重譯,萬里來歸。 若乃魯接燕、齊,荊鄰鄭、晉,時之所尚,資乎辯舌,國之所恃,不在威刑。 是以纔鼓夷蒐,宣尼致誚,既鑄刑辟,叔向貽書。 夫勃澥之浸,沾濡千里,列國之政,豈周之膏潤者歟! 秦氏僻自西戎,初平區夏,于時投戈棄甲,仰恩祈惠,乃落嚴霜於政教,揮流電於邦國,棄灰偶語,生愁怨於前,毒網凝科,害肌膚於後。 玄鉞肆於朝市,赭服飄於路衢,將閭有一劍之哀,茅焦請列星之數。 漢高祖初以三章之約,以慰秦人,孝文躬親玄默,遂疎天網。 孝宣樞機周密,法理詳備,選于定國為廷尉,黃霸以為廷平。 每以季秋之後,諸所請讞,帝常幸宣室,齋而決事,明察平恕,號為寬簡。 光武中興,不移其舊,是以二漢羣后,罕聞殘酷。 魏武造易釱之科,明皇施減死之令,中原凋敝,吳、蜀三分,哀矜折獄,亦所未暇。 晉氏平吳,九州寧一,乃命賈充,大明刑憲。 內以平章百姓,外以和協萬邦,實曰輕平,稱為簡易。 是以宋、齊方駕,轥其餘軌。 若乃刑隨喜怒,道暌正直,布憲擬於秋荼,設網踰於朝脛,恣興夷翦,取快情靈。 若隋高祖之揮刃無辜,齊文宣之輕刀臠割,此所謂匹夫私讎,非關國典。 孔子曰:「刑亂及諸政,政亂及諸身。」 心之所詣,則善惡之本原也。 彪、約所製,無刑法篇,臧、蕭之書,又多漏略。 是以撮其遺事,以至隋氏,附于篇云。
Punishment takes the form of armor and weapons, axes and halberds, knives, saws, drills, and awls, whips and cudgels, mulberry rods and thorn switches—displayed in the open fields and exposed in market and court. Its origins, too, stretch far back in time. In the age of the Dragon officials, before the Phoenix chronicle, people used knotted cords and did not transgress; without being commanded, they lived in awe. The Five Emperors marked punishments on painted images and distinguished offenses by dress; the Three Dynasties applied corporal punishment, marking the flesh and body. Even when Emperor Shun, stricken by calamity, granted universal amnesty, and when Yu's code listed three thousand punishments—the Lord of Yong still mourned the use of punishment and upheld the virtue of Emperor Yao, and Gao Yao wept over guilt and still cherished the heart of Emperor Shun. From the Shang dynasty onward, rulers drifted ever further from virtue. Had King Zhou followed the ways of King Tang, forsworn the roasting pillar, blended punishment with ritual, and held the throne through benevolence, the Lord of the West would have reined in his horses and become an ordinary farmer. King Wu of Zhou instituted three rounds of interrogation to prevent excess, and expanded the three grounds for pardon to show compassion; during the forty-two years of Kings Cheng and Kang, punishment was laid aside altogether. A gentle breeze permeated the realm, songs of praise rose from afar, and the people of Yue, bearing interpreters, came from ten thousand li to pay tribute. When Lu bordered Yan and Qi, and Chu neighbored Zheng and Jin, the age prized skill in debate, and states relied not on harsh punishment but on persuasion. When Jin held the autumn hunt at Yi, Confucius expressed his disapproval; when penal inscriptions were cast in bronze, Shu Xiang sent his letter of protest. Like boiling seawater spreading its moisture for a thousand li—the politics of the feudal states were surely nurtured by the enriching influence of Zhou! The Qin, isolated in the western frontier, when first pacifying the central realm cast aside arms and looked to their conquerors for mercy—yet they brought harsh frost upon government and teaching, struck their domain with lightning, and with prohibitions on discarded ashes and casual conversation bred resentment at every turn, while their cruel statutes damaged body and soul. Dark axes were swung in market and court, red-clad convicts wandered the highways; Jiang Lu mourned with the grief of a single sword, and Mao Jiao petitioned for the tally of the stars. Emperor Gaozu of Han at first offered the three-article covenant to reassure the people of Qin; Emperor Wen personally cultivated silent humility and thereby loosened the net of Heaven. Emperor Xuan was meticulous in the machinery of state and thorough in legal doctrine; he appointed Yu Dingguo Commandant of Justice and Huang Ba Tribunal Assessor. Each year after the autumn equinox, when cases came up for review, the emperor would visit the Hall of Illumination, fast, and pass judgment—keen-eyed, fair, and clement, earning a reputation for lenity and simplicity. When Emperor Guangwu restored the Han, he kept these practices unchanged; thus among the rulers of the two Han dynasties, cruel punishment was seldom heard of. Cao Cao of Wei instituted lighter shackles, and Emperor Ming reduced death sentences—but the central plain lay in ruins, the realm was divided among three powers, and there was little time for compassionate restraint in judging cases. When the Jin pacified Wu and the Nine Provinces were united under one rule, Jia Chong was charged with codifying the penal law in full. It was meant to govern the people within and harmonize the myriad states without—and was praised as lenient, fair, and straightforward. Song and Qi followed in their tracks, leaving little of their own mark behind. When punishment followed whim, when justice was abandoned, when laws proliferated like autumn grass and traps were set beyond measure, when rulers slaughtered at will to satisfy their passions— Such as Emperor Wen of Sui slaying the innocent at will, or Emperor Wenxuan of Northern Qi carving up victims with casual cruelty—these were the private vendettas of individual men, not the business of national law. Confucius said: "When punishment falls into disorder, government follows; when government falls into disorder, the ruler himself suffers. What the heart pursues is the root of good and evil. The histories compiled by Ban Biao and Ban Gu contained no chapter on penal law, and the works of Zang Rongxian and Xiao Fang lacked much besides. I therefore gather such surviving records down to the Sui dynasty and attach them to this chapter.
3
梁武帝承齊昏虐之餘,刑政多僻。 既即位,乃制權典,依周、漢舊事,有罪者贖。 其科,凡在官身犯,罰金。 鞭杖杖督之罪,悉入贖停罰。 其臺省令史士卒欲贖者,聽之。 時欲議定律令,得齊時舊郎濟陽蔡法度,家傳律學,云齊武時,刪定郎王植之,集注張、杜舊律,合為一書,凡一千五百三十條,事未施行,其文殆滅。 法度能言之。 於是以為兼尚書刪定郎,使損益植之舊本,以為梁律。 天監元年八月,乃下詔曰:「律令不一,實難去弊。 [1]殺傷有法,昏墨有刑,此蓋常科,易為條例。 至如三男一妻,懸首造獄,事非慮內,法出恒鈞。 前王之律,後王之令,因循創附,良各有以。 若遊辭費句,無取於實錄者,宜悉除之。 求文指歸,可適變者,載一家為本,用眾家以附。 丙丁俱有,則去丁以存丙。 若丙丁二事,注釋不同,則二家兼載。 咸使百司,議其可不,取其可安,以為標例。 宜云『某等如干人同議,以此為長』,則定以為梁律。 留尚書比部,悉使備文,若班下州郡,止撮機要。 可無二門侮法之弊。」 法度又請曰:「魏、晉撰律,止關數人,今若皆諮列位,恐緩而無決。」
Emperor Wu of Liang inherited the aftermath of Northern Qi's benighted and cruel rule, under which penal administration had grown deeply perverse. Upon taking the throne, he instituted provisional statutes based on Zhou and Han precedent, under which offenders could redeem their penalties. Under these statutes, all officials who committed offenses while in office were subject to monetary fines. Offenses normally punished by whipping, beating, or supervised flogging could all be redeemed and the physical penalty waived. Secretarial clerks, provincial staff, soldiers, and conscripts who wished to redeem their penalties were permitted to do so. When they sought to revise the code, they found Cai Fadu of Jiyang, a former Qi clerk whose family had preserved the legal tradition. He reported that under Emperor Wu of Qi, the revising clerk Wang Zhizhi had compiled and annotated the Zhang and Du commentaries on the old code into a single work of 1,530 articles—the project had never been enacted, and the text was nearly lost. Fadu was able to recite it from memory. He was then appointed revising clerk in the Ministry of Justice and charged with revising Wang Zhizhi's original text to produce the Liang code. In the eighth month of Tianjian 1, an edict declared: "Where statutes and ordinances lack unity, abuses cannot easily be removed. Laws for homicide and assault, penalties for obscuring truth and marking the face—these standing categories can readily be set down as articles. But matters such as polygamy, capital display of severed heads, and arbitrary imprisonment—issues never intended for routine deliberation, yet laws that fall outside the ordinary measure— Former kings' statutes and later kings' edicts accumulated by precedent, each with its own rationale— —but flowery language and redundant clauses that serve no practical purpose should all be removed. Seek the essential meaning of the text; where adaptation is needed, take one commentary as the base and attach the others as supplements. If provisions by Bing and Ding overlap, retain Bing and discard Ding. If Bing and Ding offer different interpretations of the same matter, include both. Let all offices debate what is and is not workable, adopt what can be reliably applied, and establish it as the standard precedent. Record that 'So-and-so and X others jointly deliberated and adopted this as the superior reading'—and then fix the result as the Liang code. Keep the complete text on file in the Ministry of Justice's Comparison Section; when issuing copies to prefectures and commanderies, send only the essentials. This will prevent the abuse of conflicting legal gates. Fadu further petitioned: "When Wei and Jin drafted their codes, only a handful of people were involved; if we now consult every office, I fear deliberation will drag on without resolution."
4
於是以尚書令王亮、侍中王瑩、尚書僕射沈約、吏部尚書范雲、長兼侍中柳惲、給事黃門侍郎傅昭、通直散騎常侍孔藹、御史中丞樂藹、太常丞許懋等,參議斷定,定為二十篇:一曰刑名,二曰法例,三曰盜劫,四曰賊叛,五曰詐偽,六曰受賕,七曰告劾,八曰討捕,九曰繫訊,十曰斷獄,十一曰雜,十二曰戶,十三曰擅興,十四曰毀亡,十五曰衞宮,十六曰水火,十七曰倉庫,十八曰廐,十九曰關市,二十曰違制。 其制刑為十五等之差:棄市已上為死罪,大罪梟其首,其次棄市。 刑二歲已上為耐罪,言各隨伎能而任使之也。 有髠鉗五歲刑,笞二百,收贖絹,男子六十疋。 又有四歲刑,男子四十八疋。 又有三歲刑,男子三十六疋。 又有二歲刑,男子二十四疋。 罰金一兩已上為贖罪。 贖死者金二斤,男子十六疋。 贖髠鉗五歲刑笞二百者,金一斤十二兩,男子十四疋。 贖四歲刑者,金一斤八兩,男子十二疋。 贖三歲刑者,金一斤四兩,男子十疋。 贖二歲刑者,金一斤,男子八疋。 罰金十二兩者,男子六疋。 罰金八兩者,男子四疋。 罰金四兩者,男子二疋。 罰金二兩者,男子一疋。 罰金一兩者,男子二丈。 女子各半之。 五刑不簡,正于五罰,五罰不服,正于五過,以贖論,故為此十五等之差。 又制九等之差:有一歲刑,半歲刑,百日刑,鞭杖二百,鞭杖一百,鞭杖五十,鞭杖三十,鞭杖二十,鞭杖一十。 又有八等之差:一曰免官,加杖督一百; 二曰免官; 三曰奪勞百日,杖督一百; 四曰杖督一百; 五曰杖督五十; 六曰杖督三十; 七曰杖督二十; 八曰杖督一十。 論加者上就次,當減者下就次。
Wang Liang, Wang Ying, Shen Yue, Fan Yun, Liu Yun, Fu Zhao, Kong Ai, Yue Ai, Xu Mao, and others were appointed to finalize the code in twenty chapters: Names of Punishments, Legal Precedents, Robbery and Plunder, Rebellion and Treason, Fraud and Forgery, Accepting Bribes, Accusation and Impeachment, Pursuit and Capture, Detention and Interrogation, Trial and Judgment, Miscellaneous, Household Registers, Unauthorized Mobilization, Destruction and Loss, Palace Guard, Fire and Water, Granaries and Storehouses, Stables, Passes and Markets, and Violating Regulations. Capital punishment was divided into two degrees: for major crimes the head was displayed, for lesser ones the convict was executed in the market. Terms of two years or more constituted "service penalties," meaning convicts were assigned labor according to their skills. Shaved head and cangue for five years, plus two hundred strokes of the rod, could be redeemed with sixty bolts of silk for a man. A four-year term could be redeemed with forty-eight bolts for a man. A three-year term could be redeemed with thirty-six bolts for a man. A two-year term could be redeemed with twenty-four bolts for a man. Monetary fines of one liang or more constituted redeemable offenses. Death could be redeemed with two jin of gold, or sixteen bolts of silk for a man. Redemption of shaved head and cangue for five years plus two hundred rod strokes required one jin twelve liang of gold, or fourteen bolts for a man. A four-year term required one jin eight liang of gold, or twelve bolts for a man. A three-year term required one jin four liang of gold, or ten bolts for a man. A two-year term required one jin of gold, or eight bolts for a man. A fine of twelve liang could be redeemed with six bolts for a man. A fine of eight liang could be redeemed with four bolts for a man. A fine of four liang could be redeemed with two bolts for a man. A fine of two liang could be redeemed with one bolt for a man. A fine of one liang could be redeemed with two zhang of silk for a man. Women paid half these amounts. When the five corporal punishments could not resolve a case, the five fines applied; when fines failed, the five pardons applied—with ransom as the governing principle, these fifteen degrees were established. Nine lesser degrees were also established: one year, half year, hundred days, and whip penalties of two hundred, one hundred, fifty, thirty, twenty, and ten strokes. Eight administrative degrees were also established: first, dismissal from office plus one hundred strokes of supervised beating; second, dismissal from office alone; third, suspension of salary for one hundred days plus one hundred strokes of supervised beating; fourth, one hundred strokes of supervised beating; fifth, fifty strokes of supervised beating; sixth, thirty strokes of supervised beating; seventh, twenty strokes of supervised beating; eighth, ten strokes of supervised beating. When aggravating a sentence, apply the next higher degree; when mitigating, the next lower.
5
凡繫獄者,不即答款,應加測罰,不得以人士為隔。 若人士犯罰,違扞不款,宜測罰者,先參議牒啟,然後科行。 斷食三日,聽家人進粥二升。 女及老小,一百五十刻乃與粥,滿千刻而止。 囚有械、杻、斗械及鉗,[2]並立輕重大小之差,而為定制。 其鞭,有制鞭、法鞭、常鞭,凡三等之差。 制鞭,生革廉成; 法鞭,生革去廉; 常鞭,熟靼不去廉。 [3]皆作鶴頭紐,長一尺一寸。 梢長二尺七寸,廣三分,[4]靶長二尺五寸。 杖皆用生荊,長六尺。 有大杖、法杖、小杖三等之差。 大杖,大頭圍一寸三分,小頭圍八分半。 法杖,圍一寸三分,小頭五分。 小杖,圍一寸一分,小頭極杪。 諸督罰,大罪無過五十、三十,小者二十。 當笞二百以上者,笞半,餘半後決,中分鞭杖。 老小於律令當得鞭杖罰者,皆半之。 其應得法鞭、杖者,以熟靼鞭、小杖。 過五十者,稍行之。 將吏已上及女人應有罰者,以罰金代之。 其以職員應罰,[5]及律令指名制罰者,不用此令。 其問事諸罰,皆用熟靼鞭、小杖。 其制鞭制杖,法鞭法杖,自非特詔,皆不得用。 詔鞭杖在京師者,皆於雲龍門行。 女子懷孕者,勿得決罰。 其謀反、降叛、大逆已上皆斬。 父子同產男,無少長,皆棄市。 母妻姊妹及應從坐棄市者,妻子女妾同補奚官為奴婢。 貲財沒官。 劫身皆斬,妻子補兵。 遇赦降死者,黵面為劫字,髠鉗,補冶鎖士終身。 其下又讁運配材官冶士、尚方鎖士,皆以輕重差其年數。 其重者或終身。
Prisoners who did not confess promptly were subject to interrogation under torture, regardless of social rank. When a person of rank resisted confession and torture was warranted, a memorial had first to be submitted for deliberation before the penalty could be applied. After three days without food, family members were permitted to bring two sheng of gruel. For women, the elderly, and children, gruel was given only after one hundred fifty ke of fasting, and no further after one thousand ke. Prisoners wore shackles, cangues, combined restraints, and leg irons—[2] with fixed regulations distinguishing light from heavy and large from small. Three types of whip were prescribed: ceremonial, legal, and ordinary. The ceremonial whip was made of raw hide with the smooth side left intact; the legal whip of raw hide with the smooth side stripped away; the ordinary whip of tanned hide with the smooth side left on. [3] All were made with crane-head knots, one chi one cun in length. The lash was two chi seven cun long and three fen wide; [4] the handle was two chi five cun long. All beating rods were made of raw thornwood, six chi in length. Three grades were prescribed: the great cudgel, the legal cudgel, and the small cudgel. The great cudgel measured one cun three fen around the thick end and eight and a half fen around the thin end. The legal cudgel measured one cun three fen around the thick end and five fen around the thin end. The small cudgel measured one cun one fen around the thick end, tapering to a very fine tip. Supervised beatings were capped at fifty or thirty strokes for major offenses and twenty for minor ones. When two hundred or more rod strokes were prescribed, half was applied first and the remainder later, divided equally between whip and cudgel. Elderly and juvenile offenders received half the prescribed whip or cudgel strokes. Offenders subject to legal whip or cudgel penalties were punished with the tanned whip and small cudgel. When more than fifty strokes were required, they were administered in stages. Generals, officials, and women subject to physical punishment paid monetary fines instead. Offenses punished according to official rank, [5] or by specifically named penalties in the code, were exempt from this rule. Interrogation under torture employed the tanned whip and small cudgel. Ceremonial and legal whips and cudgels could not be used except by special imperial edict. Capital punishments of whipping or cudgeling ordered by edict were carried out at the Cloud Dragon Gate. Pregnant women were exempt from sentencing and punishment. Rebellion, defection, and great treason and above were all punished by beheading. Fathers and sons of the same household, regardless of age, were all executed in the market. Mothers, wives, sisters, and others subject to joint execution—their wives, sons, daughters, and concubines were all assigned as slaves to the Xi officials. Property was confiscated by the state. Robbers were beheaded; their wives and children were conscripted into the army. When amnesty commuted a death sentence, the convict's face was tattooed with the character for robber, his head was shaved and a cangue applied, and he was assigned as a smelting-chain laborer for life. Lesser sentences were commuted to transport duty or assignment as artisan laborers, smelters, or imperial workshop chain gangs, with terms varying by severity. The most severe cases could mean lifelong servitude.
6
士人有禁錮之科,亦有輕重為差。 其犯清議,則終身不齒。 耐罪囚八十已上,十歲已下,及孕者、盲者、侏儒當械繫者,及郡國太守相、都尉、關中侯已上,亭侯已上之父母妻子,及所生坐非死罪除名之罪,二千石已上非檻徵者,並頌繫之。
Scholars and officials were subject to a category of prohibition and confinement, also graded by severity. Those who violated standards of moral reputation were permanently excluded from office. Service-penalty prisoners aged eighty or above or ten or below, pregnant women, the blind, and dwarfs requiring shackles, prefects and chancellors, commandants, frontier marquises and above, the parents, wives, and children of marquises and above, those born to them guilty of non-capital register offenses, and officials of two thousand shi and above not summoned in cages—all were detained with red cords rather than irons.
7
丹陽尹月一詣建康縣,令三官參共錄獄,察斷枉直。 其尚書當錄人之月者,與尚書參共錄之。 大凡定罪二千五百二十九條。
Each month the Administrator of Danyang visited Jiankang County and ordered the three judicial officials jointly to review cases and examine whether judgments were fair. Ministry of Justice officials whose turn it was to review prisoners joined in the joint review. In all, 2,529 articles defined criminal offenses.
8
二年四月癸卯,法度表上新律,又上令三十卷,科三十卷。 帝乃以法度守廷尉卿,詔班新律於天下。
In the fourth month of Tianjian 2, on the day guimao, Fadu submitted the new code along with thirty scrolls of ordinances and thirty scrolls of statutes. The emperor appointed Fadu Commandant of Justice and ordered the new code promulgated throughout the realm.
9
三年八月,建康女子任提女,坐誘口當死。 其子景慈對鞫辭云,母實行此。 是時法官虞僧虬啟稱:「案子之事親,有隱無犯,直躬證父,仲尼為非。 景慈素無防閑之道,死有明目之據,陷親極刑,傷和損俗。 凡乞鞫不審,降罪一等,豈得避五歲之刑,忽死母之命! 景慈宜加罪辟。」 詔流于交州。 至是復有流徒之罪。 其年十月甲子,詔以金作權典,宜在蠲息。 於是除贖罪之科。
In the eighth month of Tianjian 3, a Jiankang woman named Ren Tinv was convicted of abducting people and sentenced to death. Her son Jingci, under interrogation, confessed that his mother had indeed committed the crime. Judge Yu Sengqu submitted: "In serving one's parents, concealment is no offense; in testifying against one's father, Confucius deemed it wrong. Jingci had never shown proper restraint; he had clear evidence before his eyes yet condemned his mother to death, harming social harmony and damaging public morals. When a plea fails verification, the sentence is reduced one degree—how could he evade a five-year term yet deliver his mother to death! Jingci should receive an aggravated sentence. An edict exiled him to Jiaozhou. Exile and transport penalties were thus reinstated. In the tenth month of that year, on the day jiazi, an edict declared that monetary fines as provisional statutes should be suspended. The category of redeemable offenses was abolished.
10
武帝敦睦九族,優借朝士,有犯罪者,皆諷羣下,屈法申之。 百姓有罪,皆案之以法。 其緣坐則老幼不免,一人亡逃,則舉家質作。 人既窮急,姦宄益深。 後帝親謁南郊,秣陵老人遮帝曰:「陛下為法,急於黎庶,緩於權貴,非長久之術。 誠能反是,天下幸甚。」 帝於是思有以寬之。 舊獄法,夫有罪,逮妻子,子有罪,逮父母。 十一年正月壬辰,乃下詔曰:「自今捕讁之家,及罪應質作,若年有老小者,可停將送。」 十四年,又除黵面之刑。
Emperor Wu cherished his kinsmen and showed leniency to court officials; when any committed offenses, he always signaled his subordinates to bend the law in their favor. Common people, by contrast, were always judged strictly according to the law. Under joint punishment, the elderly and young were not exempt; if one family member fled, the entire household was held as collateral for forced labor. Driven to desperation, the people turned increasingly to crime. Later, when the emperor visited the southern suburb, an old man of Moling stopped him and said: "Your Majesty's laws are harsh toward commoners and lenient toward the powerful—this is no strategy for the long term. If you can truly reverse this, the realm will be greatly fortunate. The emperor then sought ways to show leniency. Under the old prison law, if a husband was guilty his wife and children were seized; if a son was guilty his parents were seized. In the first month of the eleventh year, on the day renchen, an edict declared: "From now on, in families of those arrested for exile, and in cases requiring collateral labor, if there are elderly or young among them, transport may be suspended. In the fourteenth year, facial tattooing was also abolished.
11
帝銳意儒雅,疎簡刑法,自公卿大臣,咸不以鞫獄留意。 姦吏招權,巧文弄法,貨賄成市,多致枉濫。 大率二歲刑已上,歲至五千人。 是時徒居作者具五任,其無任者,著斗械。 若疾病,權解之。 是後囚徒或有優劇。 大同中,皇太子在春宮視事,見而愍之,乃上疏曰:「臣以比時奉勑,權親京師雜事。 切見南北郊壇、材官、車府、太官下省、左裝等處上啟,並請四五歲已下輕囚,助充使役。 自有刑均罪等,愆目不異,而甲付錢署,乙配郊壇。 錢署三所,於事為劇,[6]郊壇六處,在役則優。 今聽獄官詳其可否,舞文之路,自此而生。 公平難遇其人,流泉易啟其齒,將恐玉科重輕,全關墨綬,金書去取,更由丹筆。 愚謂宜詳立條制,以為永准。」 帝手敕報曰:「頃年已來,處處之役,唯資徒讁,逐急充配。 若科制繁細,義同簡絲,切須之處,終不可得。 引例興訟,紛紜方始,防杜姦巧,自是為難。 更當別思,取其便也。」 竟弗之從。 是時王侯子弟皆長,而驕蹇不法。 武帝年老,厭於萬機,又專精佛戒,每斷重罪,則終日弗懌。 嘗遊南苑,臨川王宏,伏人於橋下,將欲為逆。 事覺,有司請誅之。 帝但泣而讓曰:「我人才十倍於爾,處此恒懷戰懼。 爾何為者? 我豈不能行周公之事,念汝愚故也。」 免所居官。 頃之,還復本職。 由是王侯驕橫轉甚,或白日殺人於都街,劫賊亡命,咸於王家自匿,薄暮塵起,則剝掠行路,謂之打稽。 武帝深知其弊,而難於誅討。 十一年十月,復開贖罪之科。 中大同元年七月甲子,詔自今犯罪,非大逆,父母、祖父母勿坐。 自是禁網漸疎,百姓安之,而貴戚之家,不法尤甚矣。 尋而侯景逆亂。
The emperor devoted himself to Confucian refinement and relaxed penal enforcement; from dukes and ministers downward, none paid attention to trying cases. Corrupt officials grasped power, twisted the law with cunning prose, and bribery flourished, producing many wrongful convictions. Generally, sentences of two years or more reached five thousand persons each year. At that time convicts in labor service all wore five shackles; those deemed incapable of flight wore combined cangue and shackles. If they fell ill, restraints were temporarily removed. Thereafter, prisoners were assigned to light or heavy labor according to circumstances. During the Datong era, the Crown Prince, while attending to affairs in the Eastern Palace, saw this and was moved to pity; he submitted a memorial: "I have lately been ordered to oversee miscellaneous affairs in the capital. I have seen the northern and southern suburban altars, artisan offices, carriage depot, imperial kitchen, left equipment section, and other offices all request light prisoners of four or five years or less to serve as laborers. Although crimes and punishments were equal in grade, one convict might be assigned to the money office while another went to the suburban altar. The money office had three locations where work was heavy, [6] while the suburban altars had six locations where labor was lighter. Allowing prison officials to decide what is feasible opens the path to twisting the law. Fairness is hard to find; like flowing springs, corruption easily opens its mouth—I fear the weight of the jade code will entirely depend on the official's black cord, and judicial decisions will further depend on the clerk's red brush. I respectfully suggest that detailed regulations be established as permanent standards. The emperor wrote in reply: "In recent years, labor service everywhere has relied on convicts and exiles, urgently filling assignments. If the code is made detailed and fine as untangling silk, what is urgently needed will ultimately be unobtainable. Citing precedents to raise litigation will only breed confusion, and preventing crafty abuse will become difficult. We must think further and take what is convenient. In the end he did not adopt the proposal. By then the sons and younger brothers of kings and marquises had all come of age, yet remained arrogant and lawless. Emperor Wu was aging, weary of state affairs, and devoted himself to Buddhist precepts; whenever he passed a heavy sentence, he was displeased all day. Once while touring the southern park, Prince Linchuan of the River hid men under a bridge, intending rebellion. When the plot was discovered, the relevant offices requested execution. The emperor only wept and reproached him: "My talent is ten times yours, yet in this position I always live in fear and dread. What are you doing? Could I not act as the Duke of Zhou did? I spare you only because you are foolish. He was removed from his post. Before long, he was restored to his original post. Thereafter the princes grew ever more arrogant; some killed people in broad daylight on the capital streets; bandits and fugitives all hid in princely households; at dusk they plundered travelers on the roads in what was called 'beating the checkpoint.' Emperor Wu was well aware of these abuses, yet found it difficult to suppress them. In the tenth month of the eleventh year, the category of redeemable offenses was reinstated. In the seventh month of Zhongdatong 1, on the day jiazi, an edict declared that except for great treason, parents and grandparents would no longer be jointly punished. Thereafter the net of prohibition gradually loosened and common people lived in peace, yet among noble clans lawlessness was especially severe. Before long Hou Jing rebelled.
12
陳氏承梁季喪亂,刑典疎闊。 及武帝即位,思革其弊,乃下詔曰:「朕聞唐、虞道盛,設畫象而不犯,夏、商德衰,雖孥戮其未備。 洎乎末代,綱目滋繁,矧屬亂離,憲章遺紊。 朕始膺寶曆,思廣政樞,外可搜舉良才,刪改科令,羣僚博議,務存平簡。」 於是稍求得梁時明法吏,令與尚書刪定郎范泉,參定律令。 又勑尚書僕射沈欽、吏部尚書徐陵、兼尚書左丞宗元饒、兼尚書左丞賀朗參知其事,制律三十卷,令律四十卷。 採酌前代,條流冗雜,綱目雖多,博而非要。 其制唯重清議禁錮之科。 若縉紳之族,犯虧名教,不孝及內亂者,發詔棄之,終身不齒。 先與士人為婚者,許妻家奪之。 其獲賊帥及士人惡逆,免死付冶,聽將妻入役,不為年數。 又存贖罪之律,復父母緣坐之刑。 自餘篇目條綱,輕重簡繁,一用梁法。 其有贓驗顯然而不款,則上測立。 立測者,以土為垛,高一尺,上圓,劣容囚兩足立。 鞭二十,笞三十訖,著兩械及杻,上垛。 一上測七刻,日再上。 三七日上測,七日一行鞭。 凡經杖,合一百五十,得度不承者,免死。 其髠鞭五歲刑,降死一等,鎖二重。 [7]其五歲刑已下,並鎖一重。 五歲四歲刑,若有官,准當二年,餘並居作。 其三歲刑,若有官,准當二年,餘一年贖。 若公坐過誤,罰金。 其二歲刑,有官者,贖論。 一歲刑,無官亦贖論。 寒庶人,准決鞭杖。 囚並著械,徒並著鎖,不計階品。 [8]死罪將決,乘露車,著三械,加壺手。 至市,脫手械及壺手焉。 當刑於市者,夜須明,雨須晴。 晦朔、八節、六齊、月在張心日,並不得行刑。 廷尉寺為北獄,建康縣為南獄,並置正監平。 又制,常以三月,侍中、吏部尚書、尚書、三公郎、部都令史、三公錄寃局,令史、御史中丞、侍御史、蘭臺令史,親行京師諸獄及冶署,理察囚徒寃枉。
The Chen dynasty inherited the chaos at the end of Liang, under which the penal code had grown sparse and loose. When Emperor Wu ascended the throne, seeking to reform these abuses, he issued an edict: "We have heard that in the flourishing age of Tang and Yu, painted images were set up yet none transgressed; in the declining virtue of Xia and Shang, even family punishment was incomplete. By the final generations, legal categories had proliferated; amid disorder and disunion, statutes and regulations were lost and tangled. We, having just received the imperial mandate, seek to strengthen governance: worthy talent should be sought, statutes and ordinances revised, and all officials broadly consulted, striving for fairness and simplicity. They gradually found legal officials from Liang times and ordered them, together with Fan Quan, revising clerk in the Ministry of Justice, to codify the statutes and ordinances. He also ordered Shen Qin, Xu Ling, Zong Yuanrao, and He Lang to participate, producing thirty scrolls of code and forty scrolls of ordinances. Drawing on former dynasties, the articles flowed redundantly; though numerous, they were broad without being essential. The code emphasized only the category of moral reputation and prohibition from office. Gentry who violated moral teaching through unfilial conduct or internal disorder were cast out by edict and permanently excluded from office. If such a person had previously contracted marriage with a scholar, the wife's family was permitted to reclaim her. Those who captured bandit chiefs, and scholars guilty of wicked rebellion, had death remitted and were assigned to smelting work, permitted to bring wives into service without term limits. The statute of redeemable offenses was retained, and joint punishment of parents was restored. For all remaining chapters, articles, and categories, light and heavy, simple and complex—the Liang code was followed throughout. When guilt was clearly evidenced yet the accused would not confess, standing interrogation was applied. Standing interrogation required a mound of earth one chi high, rounded on top, barely large enough for the prisoner to stand on both feet. After twenty strokes of the whip and thirty of the rod, double shackles and a cangue were applied, and the prisoner was placed on the mound. Each session on the mound lasted seven ke, twice daily. They stood on the mound for three seven-day periods, with a whipping every seven days. After one hundred fifty strokes in all, if the prisoner still would not confess, the death sentence was commuted. Shaved head and five-year term with whipping reduced a death sentence one degree and required double chains. [7] Sentences of five years or less required single chains. For four- and five-year terms, officials could commute two years by rank; the remainder was served as labor. For three-year terms, officials could commute two years by rank; the remaining year could be redeemed. Officials guilty of negligent error in public duty paid monetary fines. Two-year terms for officials were subject to redemption. One-year terms could be redeemed even by those without office. Commoners of humble status received whip and cudgel penalties as prescribed. Prisoners wore shackles and convicts wore chains regardless of rank. [8] Condemned prisoners rode in an open cart wearing three shackles plus hand restraints. At the execution ground, hand shackles and restraints were removed. Market executions required daylight and clear weather. Executions were forbidden on new and full moons, the eight seasonal nodes, the six fast days, and days when the moon was in the Heart of Zhang. The Commandant of Justice's court served as the northern prison and Jiankang County as the southern prison; both had chief wardens and assessors. Each third month, the Palace Attendant, Minister of Personnel, Ministers of Justice, Three Excellencies' staff, chief clerks, wrongful-conviction review clerks, Imperial Censor, Attending Censor, and Orchid Terrace clerks personally inspected all capital prisons and smelting offices to examine wrongful convictions.
13
文帝性明察,留心刑政,親覽獄訟,督責羣下,政號嚴明。 是時承寬政之後,功臣貴戚有非法,帝咸以法繩之,頗號峻刻。 及宣帝即位,優借文武之士,崇簡易之政,上下便之。 其後政令既寬,刑法不立,又以連年北伐,疲人聚為劫盜矣。 後主即位,信任讒邪,羣下縱恣,鬻獄成市,賞罰之命,不出于外。 後主性猜忍疾忌,威令不行,左右有忤意者,動至夷戮。 百姓怨叛,以至於滅。
Emperor Wen was clear-sighted and attentive to penal matters, personally reviewing lawsuits and holding officials accountable—his reign was known for strict and fair justice. Following an era of leniency, when meritorious ministers and noble kin broke the law, Emperor Wen always held them to account—earning a reputation for severity. When Emperor Xuan took the throne, he favored civil and military scholars and promoted simple governance that benefited all ranks. Thereafter, as governance grew lax and penal law went unenforced, and with years of northern campaigns exhausting the people, banditry flourished. When the Later Lord took the throne, he trusted slanderers; officials ran wild; justice was sold openly; and rewards and punishments were decided entirely within the palace. The Later Lord was suspicious, cruel, and jealous; his authority went unheeded; those who displeased him were often exterminated to the last. The people rose in resentment and rebellion, leading to the dynasty's destruction.
14
齊神武、文襄,並由魏相,尚用舊法。 及文宣天保元年,始命羣官刊定魏朝麟趾格。 是時軍國多事,政刑不一,決獄定罪,罕依律文,相承謂之變法從事。 清河房超為黎陽郡守,有趙道德者,使以書屬超。 超不發書,棒殺其使。 文宣於是令守宰各設棒,以誅屬請之使。 後都官郎中宋軌奏曰:「昔曹操懸棒,威於亂時,今施之太平,未見其可。 若受使請賕,猶致大戮,身為枉法,何以加罪?」 於是罷之。 既而司徒功曹張老上書,稱大齊受命已來,律令未改,非所以創制垂法,革人視聽。 於是始命羣官,議造齊律,積年不成。 其決獄猶依魏舊。 是時刑政尚新,吏皆奉法。 自六年之後,帝遂以功業自矜,恣行酷暴,昏狂酗醟,任情喜怒。 為大鑊、長鋸、剉碓之屬,並陳於庭,意有不快,則手自屠裂,或命左右臠噉,以逞其意。 時僕射楊遵彥,乃令憲司先定死罪囚,置于仗衞之中,帝欲殺人,則執以應命,謂之供御囚。 經三月不殺者,則免其死。 帝嘗幸金鳳臺,受佛戒,多召死囚,編籧篨為翅,命之飛下,謂之放生。 墜皆致死,帝視以為歡笑。 時有司折獄,又皆酷法。 訊囚則用車輻𤠮杖,夾指壓踝,又立之燒犁耳上,或使以臂貫燒車釭。 既不勝其苦,皆致誣伏。 七年,豫州檢使白𢶏,為左丞盧斐所劾,乃於獄中誣告斐受金。 文宣知其姦罔,詔令按之,果無其事。 乃勑八座議立案劾格,負罪不得告人事。 於是挾姦者畏糾,乃先加誣訟,以擬當格,吏不能斷。 又妄相引,大獄動至千人,多移歲月。 然帝猶委政輔臣楊遵彥,彌縫其闕,故時議者竊云,主昏於上,政清於下。
Emperor Shenwu and Wenxiang of Northern Qi, both former Wei chancellors, continued to use the old Wei code. In Tianbao 1, Emperor Wenxuan first ordered officials to revise the Wei dynasty's Linzhi Code. Military and state affairs were pressing, government and punishment lacked unity, and judgments rarely followed the code—what passed for law was called 'changing the law to handle matters.' Fang Chao of Qinghe was Administrator of Liyang; one Zhao Daode sent him a letter requesting a favor. Chao refused the letter and beat the messenger to death. Wenxuan then ordered every prefect and magistrate to set up cudgels for executing messengers who came soliciting favors. Later Song Gui of the Capital Office submitted: "Cao Cao hung up cudgels to inspire awe in chaotic times; applying them in peacetime seems inadvisable. If a messenger solicits bribes, he already faces execution—if the official himself bends the law, how can further punishment be added? The practice was abolished. Soon Zhang Lao of the Ministry of Education submitted that since Great Qi received the mandate, statutes and ordinances had not been revised—hardly the way to establish institutions and reform public expectations. Officials were then ordered to draft a Qi code, but years passed without completion. Case decisions still followed Wei precedent. At first penal administration was still fresh, and officials upheld the law. After the sixth year, the emperor grew proud of his achievements and practiced cruel violence at will—benighted, drunken, and debauched, indulging every whim. Great cauldrons, long saws, and grinding pestles were displayed in the courtyard; when displeased, he personally butchered victims or ordered attendants to carve and devour them to satisfy his cruelty. Vice Director Yang Zunyan ordered the censorate to keep condemned prisoners among the armed guards; when the emperor wished to kill, one was produced on command—these were called 'prisoners supplied for the emperor.' If not executed within three months, the death sentence was remitted. Once at the Golden Phoenix Tower, after receiving Buddhist precepts, he summoned condemned prisoners, fitted them with woven bamboo wings, and ordered them to fly down—calling it ' releasing life.' All who fell died; the emperor watched and laughed. Judicial offices again applied cruel methods in trying cases. Interrogation employed wagon-spoke cudgels, finger-crushing and ankle-pressing, standing prisoners on burning plowshares, or forcing arms through burning wagon axles. Unable to bear the suffering, all confessed falsely. In the seventh year, Yuzhou inspector Bai Kai, impeached by Vice Director Lu Fei, falsely accused Fei in prison of accepting bribes. Wenxuan knew the accusation was false, ordered investigation, and found no basis for it. He ordered the Eight Seats to establish a precedent that the guilty could not accuse others. Those harboring guilt then preemptively filed false accusations to exploit the precedent, leaving officials unable to decide. Prisoners falsely implicated one another; major cases often involved a thousand persons and dragged on for months. Yet the emperor still entrusted governance to Yang Zunyan, who patched the system's gaps; contemporaries whispered that the ruler was benighted above while government remained clear below.
15
孝昭在藩,已知其失,即位之後,將加懲革。 未幾而崩。 武成即位,思存輕典,大寧元年,乃下詔曰:「王者所用,唯在賞罰,賞貴適理,罰在得情。 然理容進退,事涉疑似,盟府司勳,或有開塞之路,三尺律令,未窮畫一之道。 想文王之官人,念宣尼之止訟,刑賞之宜,思獲其所。 自今諸應賞罰,皆賞疑從重,罰疑從輕。」 又以律令不成,頻加催督。 河清三年,尚書令、趙郡王叡等,奏上齊律十二篇:一曰名例,二曰禁衞,三日婚戶,四曰擅興,五曰違制,六曰詐偽,七曰鬬訟,八曰賊盜,九曰捕斷,十曰毀損,十一曰廐牧,十二曰雜。 其定罪九百四十九條。 又上新令四十卷,大抵採魏、晉故事。 其制,刑名五:一曰死,重者轘之,其次梟首,並陳屍三日; 無市者,列於鄉亭顯處。 其次斬刑,殊身首。 其次絞刑,死而不殊。 凡四等。 二曰流刑,謂論犯可死,原情可降,鞭笞各一百,髠之,投于邊裔,以為兵卒。 未有道里之差。 其不合遠配者,男子長徒,女子配舂,並六年。 三曰刑罪,即耐罪也。 有五歲、四歲、三歲、二歲、一歲之差。 凡五等。 各加鞭一百。 其五歲者,又加笞八十,四歲者六十,三歲者四十,二歲者二十,一歲者無笞。 並鎖輸左校而不髠。 無保者鉗之。 婦人配舂及掖庭織。 四曰鞭,有一百、八十、六十、五十、四十之差,凡五等。 五曰杖,有三十、二十、十之差,凡三等。 大凡為十五等。 當加者上就次,當減者下就次。 贖罪舊以金,皆代以中絹。 死一百匹,流九十二匹,刑五歲七十八匹,四歲六十四匹,三歲五十匹,二歲三十六匹。 各通鞭笞論。 一歲無笞,則通鞭二十四匹。 鞭杖每十,贖絹一匹。 至鞭百,則絹十匹。 無絹之鄉,皆准絹收錢。 自贖笞十已上至死,又為十五等之差。 當加減次,如正決法。 合贖者,謂流內官及爵秩比視、老小閹癡并過失之屬。 犯罰絹一匹及杖十已上,皆名為罪人。 盜及殺人而亡者,即懸名注籍,甄其一房配驛戶。 宗室則不注盜,及不入奚官,不加宮刑。 [9]自犯流罪已下合贖者,及婦人犯刑已下,侏儒、篤疾、癃殘非犯死罪,皆頌繫之。 罪刑年者鎖,無鎖以枷。 流罪已上加杻械。 死罪者桁之。 決流刑鞭笞者,鞭其背。 五十,一易執鞭人。 鞭鞘皆用熟皮,削去廉稜。 鞭瘡長一尺。 笞者笞臀,而不中易人。 杖長三尺五寸,大頭徑二分半,小頭徑一分半。 決三十已下杖者,長四尺,大頭徑三分,小頭徑二分。 在官犯罪,鞭杖十為一負。 閑局六負為一殿,平局八負為一殿,繁局十負為一殿。 加於殿者,復計為負焉。 赦日,則武庫令設金雞及鼓於閶闔門外之右。 勒集囚徒於闕前,撾鼓千聲,釋枷鎖焉。 又列重罪十條:一曰反逆,二曰大逆,三曰叛,四曰降,五曰惡逆,六曰不道,七曰不敬,八曰不孝,九曰不義,十曰內亂。 其犯此十者,不在八議論贖之限。 是後法令明審,科條簡要,又勑仕門之子弟,常講習之。 齊人多曉法律,蓋由此也。
Emperor Xiaozhao, while still a prince, already knew these faults; upon taking the throne he intended reform. Before long he died. Emperor Wucheng, seeking lenient statutes, issued an edict in Daning 1: "A king's tools are reward and punishment alone; reward must fit the merit, punishment must fit the crime. Yet reason allows discretion; cases involve doubt; merit offices may open or close paths; and the written code cannot exhaust every circumstance. Recalling King Wen's appointment of men and Confucius's counsel against litigation, we seek the proper measure of punishment and reward. Henceforth, when reward is doubtful apply the greater, when punishment is doubtful apply the lesser. Because the code remained unfinished, he frequently urged its completion. In Heqing 3, Prince Rui of Zhao and others submitted the Qi code in twelve chapters: Names and Examples, Forbidden Guard, Marriage and Households, Unauthorized Mobilization, Violating Regulations, Fraud and Forgery, Fighting and Litigation, Bandits and Robbers, Pursuit and Judgment, Destruction and Damage, Stables and Herds, and Miscellaneous. Criminal offenses were defined in 949 articles. They also submitted forty scrolls of new ordinances, generally drawn from Wei and Jin precedents. Five categories of punishment were established: first, death—for the most severe, dismemberment at the waist; next, exposing the head; both with the corpse displayed for three days; where no market existed, at a conspicuous place in village or pavilion. Next came decapitation, separating body and head. Next came strangulation—death without dismemberment. Four degrees in all. Second, exile—for offenses warranting death but reducible in circumstance: one hundred strokes each of whip and rod, head shaved, and exile to the frontier as a soldier. No gradations of distance were yet prescribed. Those not suited to distant exile—men to long-term convict labor, women to pounding grain—both for six years. Third, penal servitude—that is, service penalties. Terms ranged from five years down to one year. Five degrees in all. Each added one hundred strokes of the whip. Five-year terms added eighty rod strokes; four-year, sixty; three-year, forty; two-year, twenty; one-year, none. All were chained and sent to the left work camp without shaving the head. Those without guarantors wore the cangue. Women were assigned to pounding grain and palace weaving. Fourth, the whip—one hundred, eighty, sixty, fifty, and forty strokes; five degrees in all. Fifth, the cudgel—thirty, twenty, and ten strokes; three degrees in all. Fifteen degrees in all. When aggravating, apply the next higher degree; when mitigating, the next lower. Redemption formerly paid in gold was replaced with medium-grade silk. Death required one hundred bolts, exile ninety-two, five-year terms seventy-eight, four-year sixty-four, three-year fifty, two-year thirty-six. Whip and rod strokes were included in each calculation. One-year terms without rod strokes required twenty-four bolts including the whip. Every ten strokes of whip or cudgel required one bolt of silk for redemption. One hundred whip strokes required ten bolts of silk. Districts without silk collected cash equivalent to the silk value. From redeeming ten rod strokes upward through death, fifteen degrees of redemption were again established. Increases and decreases followed the method of regular sentencing. Those eligible for redemption included officials subject to exile, those of equivalent rank and salary, the old and young, eunuchs, idiots, and negligent offenders. Offenders subject to one bolt of silk or ten cudgel strokes and above were all classified as criminals. Robbers and murderers who fled had their names posted; one branch of the clan was assigned as courier households. Imperial clansmen were not posted for robbery, not assigned to Xi offices, and not subject to palace punishment. [9] Those guilty of exile or less eligible for redemption, women guilty of penal servitude or less, dwarfs, the seriously ill, and the crippled not guilty of capital crimes—all were detained with red cords. Year-term convicts wore chains; without chains, a cangue. Exile and above required cangue and shackles. Condemned prisoners wore the yoke. In exile sentences involving whip and rod, the back was whipped. The whip-bearer was changed every fifty strokes. Whip handles were all of tanned hide with the smooth edge shaved away. The whip lash was one chi in length. Rod strokes struck the buttocks, without changing the bearer midway. Cudgels were three chi five cun long, two and a half fen thick at the large end and one and a half fen at the small end. Cudgels for sentences of thirty strokes or less were four chi long, three fen thick at the large end and two fen at the small end. For officials committing offenses, ten strokes of whip or cudgel counted as one demerit. Leisure bureaus required six demerits for dismissal, ordinary bureaus eight, and busy bureaus ten. Penalties beyond dismissal were again calculated in demerits. On amnesty days, the Director of the Armory set up the golden rooster and drum to the right outside the Changhe Gate. Prisoners were assembled before the palace; the drum was beaten a thousand times and shackles were released. Ten grave offenses were also listed: rebellion, great treason, defection, surrender, wicked treason, unnatural conduct, disrespect, unfilial conduct, unrighteous conduct, and internal disorder. Those who committed these ten offenses were excluded from the eight deliberations and redemption. Thereafter statutes were clear and articles concise; sons of official families were ordered to study them regularly. Northern Qi people widely understood the law, largely because of this.
16
其不可為定法者,別制權令二卷,與之並行。 後平秦王高歸彥謀反,須有約罪,律無正條,於是遂有別條權格,與律並行。 大理明法,上下比附,欲出則附依輕議,欲入則附從重法,姦吏因之,舞文出沒。 至于後主,權幸用事,有不附之者,陰中以法。 綱紀紊亂,卒至於亡。
Matters that could not be fixed as permanent law were compiled separately as provisional ordinances in two scrolls, running parallel with the code. Later when Prince Ping of Qin, Gao Guiyan, plotted rebellion, no proper code article existed; separate provisional articles were therefore enacted alongside the code. The Court of Justice applied analogical reasoning—reducing sentences by lighter precedents, increasing by heavier ones—giving corrupt officials room to twist the law. Under the Later Lord, favorites wielded power; those who did not attach to them were secretly prosecuted. Discipline collapsed, ultimately leading to the dynasty's destruction.
17
周文帝之有關中也,霸業初基,典章多闕。 大統元年,命有司斟酌今古通變,可以益時者,為二十四條之制,奏之。 七年,又下十二條制。 十年,魏帝命尚書蘇綽,總三十六條,更損益為五卷,班於天下。 其後以河南趙肅為廷尉卿,撰定法律。 肅積思累年,遂感心疾而死。 乃命司憲大夫託拔迪掌之。 至保定三年三月庚子乃就,謂之大律,凡二十五篇:一曰刑名,二曰法例,三曰祀享,四曰朝會,五曰婚姻,六曰戶禁,七曰水火,八曰興繕,九曰衞宮,十曰市廛,十一曰鬬競,十二曰劫盜,十三曰賊叛,十四曰毀亡,十五曰違制,十六曰關津,十七曰諸侯,十八曰廐牧,十九曰雜犯,二十曰詐偽,二十一曰請求,二十二曰告言,二十三曰逃亡,二十四曰繫訊,二十五曰斷獄。 大凡定罪一千五百三十七條。 其制罪:一曰杖刑五,自十至五十。 二曰鞭刑五,自六十至于百。 三曰徒刑五,徒一年者,鞭六十,笞十。 徒二年者,鞭七十,笞二十。 徒三年者,鞭八十,笞三十。 徒四年者,鞭九十,笞四十。 徒五年者,鞭一百,笞五十。 四曰流刑五,流衞服,去皇畿二千五百里者,鞭一百,笞六十。 流要服,去皇畿三千里者,鞭一百,笞七十。 流荒服,去皇畿三千五百里者,鞭一百,笞八十。 流鎮服,去皇畿四千里者,鞭一百,笞九十。 流蕃服,去皇畿四千五百里者,鞭一百,笞一百。 五曰死刑五,一曰磬,二曰絞,三曰斬,四曰梟,五曰裂。 五刑之屬各有五,合二十五等。 不立十惡之目,而重惡逆、不道、大不敬、不孝、不義、內亂之罪。 凡惡逆,肆之三日。 盜賊羣攻鄉邑及入人家者,殺之無罪。 若報讎者,告於法而自殺之,不坐。 經為盜者,注其籍。 唯皇宗則否。 凡死罪枷而拲,流罪枷而梏,徒罪枷,鞭罪桎,杖罪散以待斷。 皇族及有爵者,死罪已下鎖之,徒已下散之。 獄成將殺者,書其姓名及其罪於拲,而殺之市。 唯皇族與有爵者隱獄。
When Emperor Wen of Zhou held the Guanzhong region, his hegemony was just beginning and institutions were largely lacking. In Datong 1, he ordered officials to adapt past and present for the times, producing a twenty-four-article system. In the seventh year, twelve more articles were issued. In the tenth year, the Wei emperor ordered Su Chuo to compile thirty-six articles into five scrolls and promulgate them throughout the realm. Zhao Su of Henan was then appointed Commandant of Justice to codify the law. Zhao Su worked for many years and finally died of heart disease. Tuoba Di, Grand Master of Censors, was then charged with the task. In Baoding 3, third month, day gengzi, it was completed as the Great Code in twenty-five chapters: Names of Punishments, Legal Precedents, Sacrifices, Court Audiences, Marriage, Household Prohibitions, Fire and Water, Construction, Palace Guard, Markets, Fighting, Robbery and Plunder, Rebellion and Treason, Destruction and Loss, Violating Regulations, Passes and Tolls, Feudal Lords, Stables and Herds, Miscellaneous Offenses, Fraud and Forgery, Requests, Accusation, Flight, Detention and Interrogation, and Trial and Judgment. Criminal offenses were defined in 1,537 articles. Punishments were graded as follows: first, cudgel punishment in five degrees, from ten to fifty strokes. Second, whip punishment in five degrees, from sixty to one hundred strokes. Third, convict labor in five degrees; one year required sixty whip strokes and ten rod strokes. Two years required seventy whip strokes and twenty rod strokes. Three years required eighty whip strokes and thirty rod strokes. Four years required ninety whip strokes and forty rod strokes. Five years required one hundred whip strokes and fifty rod strokes. Fourth, exile in five degrees; exile to the guard domain, 2,500 li from the capital, required one hundred whip strokes and sixty rod strokes. Exile to the essential domain, 3,000 li from the capital, required one hundred whip strokes and seventy rod strokes. Exile to the wild domain, 3,500 li, required one hundred whip strokes and eighty rod strokes. Exile to the garrison domain, 4,000 li, required one hundred whip strokes and ninety rod strokes. Exile to the frontier domain, 4,500 li, required one hundred whip strokes and one hundred rod strokes. Fifth, capital punishment in five degrees: strangulation by cord, strangulation, decapitation, exposing the head, and dismemberment. Each of the five punishments had five sub-degrees, totaling twenty-five grades. They did not establish the ten abominations as such, but emphasized wicked treason, unnatural conduct, great disrespect, unfilial conduct, unrighteous conduct, and internal disorder. For wicked treason, the corpse was exposed for three days. Killing bandits who jointly attacked villages or entered homes was not a crime. If one reported a vendetta to the authorities and then killed the offender, there was no punishment. Former robbers were marked on their household registers. Only the imperial clan was exempt. Capital convicts wore cangue and hand shackles; exiles wore cangue and leg irons; convict laborers wore cangue; those subject to whip wore leg stocks; cudgel offenders went unrestrained pending judgment. Imperial clansmen and nobles were chained for capital crimes and below, unrestrained for convict labor and below. Before execution, names and crimes were written on the shackles, and convicts were executed in the market. Only the imperial clan and nobles were held in private prisons.
18
其贖杖刑五,金一兩至五兩。 贖鞭刑五,金六兩至十兩。 贖徒刑五,一年金十二兩,二年十五兩,三年一斤二兩,四年一斤五兩,五年一斤八兩。 贖流刑,一斤十二兩,俱役六年,不以遠近為差等。 贖死罪,金二斤。 鞭者以一百為限。 加笞者,合二百止。 應加鞭笞者,皆先笞後鞭。 婦人當笞者,聽以贖論。 徒輸作者,皆任其所能而役使之。 杖十已上,當加者上就次,數滿乃坐。 當減者,死罪流蕃服,蕃服已下俱至徒五年。 五年以下,各以一等為差。 盜賊及謀反大逆降叛惡逆罪當流者,皆甄一房配為雜戶。 其為盜賊事發逃亡者,懸名注配。 若再犯徒、三犯鞭者,一身永配下役。 應贖金者,鞭杖十,收中絹一匹。 流徒者,依限歲收絹十二匹。 死罪者一百匹。 其贖刑,死罪五旬,流刑四旬,徒刑三旬,鞭刑二旬,杖刑一旬。 限外不輸者,歸於法。 貧者請而免之。 大凡定法一千五百三十七條,班之天下。 其大略滋章,條流苛密,比於齊法,煩而不要。
Cudgel penalties could be redeemed with one to five liang of gold. Whip penalties could be redeemed with six to ten liang of gold. Convict labor redemption: one year twelve liang, two years fifteen liang, three years one jin two liang, four years one jin five liang, five years one jin eight liang. Exile redemption required one jin twelve liang, with six years of labor regardless of distance. Capital crimes could be redeemed with two jin of gold. Whipping was capped at one hundred strokes. When adding rod strokes, the total was capped at two hundred. When both rod and whip applied, rod came first, then whip. Women subject to rod strokes were permitted to redeem their penalties. Convict laborers were assigned duties according to their abilities. For ten cudgel strokes and above, aggravation moved to the next degree; when the count was complete, the sentence was fixed. When mitigating, capital crimes became exile to the frontier domain; below that all reduced to five years convict labor. Below five years, each degree reduced by one grade. Robbers and those guilty of rebellion, great treason, defection, or wicked treason subject to exile had one branch of the clan assigned as miscellaneous households. Those who fled after robbery had their names posted and were assigned to penal service. A second convict-labor offense or third whip offense meant permanent assignment to menial service. Redemption for ten whip or cudgel strokes required one bolt of medium silk. Exiles and convict laborers paid twelve bolts of silk per year according to their term. Capital crimes required one hundred bolts. Redemption periods: capital fifty days, exile forty, convict labor thirty, whip twenty, cudgel ten. Failure to pay within the deadline reverted to regular sentencing. The poor could petition for exemption. The code comprised 1,537 articles, promulgated throughout the realm. Its outline grew increasingly detailed and redundant; compared with the Qi code, it was verbose without being essential.
19
又初除復讎之法,犯者以殺論。 時晉公護將有異志,欲寬政以取人心,然闇於知人,所委多不稱職。 既用法寬弛,不足制姦,子弟僚屬,皆竊弄其權,百姓愁怨,控告無所。 武帝性甚明察,自誅護後,躬覽萬機,雖骨肉無所縱捨,用法嚴正,中外肅然。 自魏、晉相承,死罪其重者,妻子皆以補兵。 魏虜西涼之人,沒入名為隸戶。 魏武入關,隸戶皆在東魏,後齊因之,仍供厮役。 建德六年,齊平後,帝欲施輕典於新國,乃詔凡諸雜戶,悉放為百姓。 自是無復雜戶。 其後又以齊之舊俗,未改昏政,賊盜姦宄,頗乖憲章。 其年,又為刑書要制以督之。 其大抵持仗羣盜一匹以上,不持仗羣盜五匹以上,監臨主掌自盜二十匹以上,盜及詐請官物三十匹以上,正長隱五戶及十丁以上、及地三頃以上,[10]皆死。 自餘依大律。 由是澆詐頗息焉。
Private revenge was initially abolished; offenders were judged as homicides. Duke Hu of Jin sought to relax governance to win hearts, yet poor at judging men—most of those he entrusted were unfit. Loose enforcement failed to control crime; relatives and subordinates manipulated power while the people groaned with nowhere to appeal. Emperor Wu was clear-sighted; after executing Hu he personally governed; even kin were not spared; law was strictly applied and the realm was orderly. Handed down from Wei and Jin, for severe capital crimes wives and children were assigned to the army. Wei captives from Western Liang were confiscated as bond households. When Cao Cao entered the pass, bond households remained in Eastern Wei; Northern Qi followed and kept them in menial service. In Jiande 6, after pacifying Qi, the emperor ordered all miscellaneous households released as commoners. Miscellaneous households were abolished. Qi's benighted customs persisted; banditry and treachery largely ignored the code. That year the Penal Essentials were compiled to enforce discipline. Armed group robbery of one bolt or more, unarmed group robbery of five bolts, supervisors stealing twenty bolts, robbery or fraud of thirty bolts of official goods, village heads concealing five households, ten adult males, or three qing of land [10]—all were capital offenses. All other cases followed the Great Code. Deceit and fraud largely ceased.
20
宣帝性殘忍暴戾,自在儲貳,惡其叔父齊王憲及王軌、宇文孝伯等。 及即位,並先誅戮,由是內外不安,俱懷危懼。 帝又恐失眾望,乃行寬法,以取眾心。 宣政元年八月,詔制九條,宣下州郡。 大象元年,又下詔曰:「高祖所立刑書要制,用法深重,其一切除之。」 然帝荒淫日甚,惡聞其過,誅殺無度,疎斥大臣。 又數行肆赦,為姦者皆輕犯刑法,政令不一,下無適從。 於是又廣刑書要制,而更峻其法,謂之刑經聖制。 宿衞之官,一日不直,罪至削除。 逃亡者皆死,而家口籍沒。 上書字誤者,科其罪。 鞭杖皆百二十為度,名曰天杖。 其後又加至二百四十。 又作礔礰車,以威婦人。 其決人罪,云與杖者,即一百二十,多打者,即二百四十。 帝既酣飲過度,嘗中飲,有下士楊文祐白宮伯長孫覽,求歌曰:「朝亦醉,暮亦醉。 日日恒常醉,政事日無次。」 鄭譯奏之,帝怒,命賜杖二百四十而致死。 後更令中士皇甫猛歌,猛歌又諷諫。 鄭譯又以奏之,又賜猛杖一百二十。 是時下自公卿,內及妃后,咸加棰楚,上下愁怨。 及帝不豫,而內外離心,各求苟免。 隋高祖為相,又行寬大之典,刪略舊律,作刑書要制。 既成奏之,靜帝下詔頒行。 諸有犯罪未科決者,並依制處斷。
Emperor Xuan was cruel and tyrannical; as heir he hated his uncle Prince Qi, Wang Gui, Yuwen Xiaobo, and others. Upon taking the throne he executed them all; fear spread throughout the court. Fearing loss of public support, he applied lenient law to win hearts. In the eighth month of Xuanzheng 1, a nine-article code was promulgated to prefectures and commanderies. In Daxiang 1, another edict abolished the Penal Essentials established by the High Ancestor as too severe. Yet debauchery grew daily; he hated criticism; executions were limitless; great ministers were cast aside. Repeated amnesties let criminals lightly violate the law; government orders lacked unity and none knew what to follow. The Penal Essentials were expanded and the law made harsher, styled the Penal Canon of Sage Governance. Palace guards who missed one day of duty were removed from office. Fugitives were executed and their households' registers confiscated. Memorials with character errors incurred punishment. Whip and cudgel were capped at one hundred twenty strokes, called the Heavenly Cudgel. Later the limit was raised to two hundred forty. A crushing cart was also devised to intimidate women. Sentences specifying cudgel meant one hundred twenty strokes; heavier beating meant two hundred forty. Given to excessive drinking, once while drunk lower officer Yang Wenyou asked Palace Steward Chief Sun Lan for a song: "Drunk in the morning, drunk in the evening. Daily drunk, government affairs daily in disorder. Zheng Yi reported this; the emperor ordered two hundred forty strokes until death. He later ordered middle officer Huangfu Meng to sing; Meng's song again remonstrated. Zheng Yi reported this again; Meng received one hundred twenty strokes. From dukes and ministers to consorts and empresses, all received beatings; resentment spread above and below. When the emperor fell ill, the court lost heart and all sought merely to survive. As Chancellor, Emperor Wen of Sui applied lenient statutes, abridged the old code, and compiled the Penal Essentials. When completed, Emperor Jing promulgated it by edict. All pending cases were decided according to the new code.
21
高祖既受周禪,開皇元年,乃詔尚書左僕射、勃海公高熲,上柱國、沛公鄭譯,上柱國、清河郡公楊素,大理前少卿、平源縣公常明,刑部侍郎、保城縣公韓濬,比部侍郎李諤,兼考功侍郎柳雄亮等,更定新律,奏上之。 其刑名有五:一曰死刑二,有絞,有斬。 二曰流刑三,有一千里、千五百里、二千里。 應配者,一千里居作二年,一千五百里居作二年半,二千里居作三年。 應住居作者,三流俱役三年。 近流加杖一百,一等加三十。 三曰徒刑五,有一年、一年半、二年、二年半、三年。 四曰杖刑五,自五十至于百。 五曰笞刑五,自十至于五十。 而蠲除前代鞭刑及梟首轘裂之法。 其流徒之罪皆減從輕。 [11]唯大逆謀反叛者,父子兄弟皆斬,家口沒官。 又置十惡之條,多採後齊之制,而頗有損益。 一曰謀反,二曰謀大逆,三曰謀叛,四曰惡逆,五曰不道,六曰大不敬,七曰不孝,八曰不睦,九曰不義,十曰內亂。 犯十惡及故殺人獄成者,雖會赦,猶除名。
In Kaihuang 1, after receiving the Zhou abdication, he ordered Gao Jiong, Zheng Yi, Yang Su, Chang Ming, Han Jun, Li E, Liu Xiongliang, and others to revise the new code. Five categories of punishment were established: first, capital punishment in two forms—strangulation and decapitation. Second, exile in three degrees—one thousand, one thousand five hundred, and two thousand li. Assignment terms: one thousand li, two years labor; one thousand five hundred li, two and a half years; two thousand li, three years. Those remaining to serve labor: all three exile degrees required three years. The nearest exile added one hundred cudgel strokes; each degree added thirty. Third, convict labor in five terms—one, one and a half, two, two and a half, and three years. Fourth, cudgel punishment from fifty to one hundred strokes. Fifth, rod punishment from ten to fifty strokes. Whip punishment and the methods of exposing the head, dismemberment, and tearing apart were abolished. Exile and convict labor penalties were all reduced toward leniency. [11] Only for great treason and plotting rebellion were fathers, sons, and brothers beheaded and household members confiscated. The ten abominations were established, largely drawn from Northern Qi with modifications. The ten abominations: plotting rebellion, plotting great treason, plotting defection, wicked treason, unnatural conduct, great disrespect, unfilial conduct, discord within the clan, unrighteous conduct, and internal disorder. Those guilty of the ten abominations or intentional homicide, even under amnesty, were removed from registers.
22
其在八議之科,及官品第七已上犯罪,皆例減一等。 其品第九已上犯者,聽贖。 應贖者,皆以銅代絹。 贖銅一斤為一負,負十為殿。 笞十者銅一斤,加至杖百則十斤。 徒一年,贖銅二十斤,每等則加銅十斤,三年則六十斤矣。 流一千里,贖銅八十斤,每等則加銅十斤,二千里則百斤矣。 二死皆贖銅百二十斤。 犯私罪以官當徒者,五品已上,一官當徒二年; 九品已上,一官當徒一年; 當流者。 三流同比徒三年。 [12]若犯公罪者,徒各加一年,當流者各加一等。 其累徒過九年者,流二千里。
Those in the eight deliberations and officials of rank seven and above received one degree of reduction. Officials of rank nine and above were permitted redemption. Redemption was paid in copper rather than silk. One jin of copper equaled one demerit; ten demerits equaled dismissal. Ten rod strokes required one jin of copper; one hundred cudgel strokes required ten jin. One year of convict labor required twenty jin of copper; each degree added ten jin, three years sixty jin. Exile one thousand li required eighty jin; each degree added ten jin, two thousand li one hundred jin. Both forms of capital punishment required one hundred twenty jin of copper for redemption. For private offenses, rank five and above could commute two years of convict labor per office held; rank nine and above, one year per office held; when commuting exile. All three exile degrees equaled three years of convict labor. [12] For public offenses, convict labor added one year; exile added one degree. Accumulated convict labor exceeding nine years became exile two thousand li.
23
定訖,詔頒之曰:「帝王作法,沿革不同,取適於時,故有損益。 夫絞以致斃,斬則殊刑,除惡之體,於斯已極。 梟首轘身,義無所取,不益懲肅之理,徒表安忍之懷。 鞭之為用,殘剝膚體,徹骨侵肌,酷均臠切。 雖云遠古之式,事乖仁者之刑,梟轘及鞭,並令去也。 貴礪帶之書,不當徒罰,廣軒冕之蔭,旁及諸親。 流役六年,改為五載,刑徒五歲,變從三祀。 其餘以輕代重,化死為生,條目甚多,備於簡策。 宜班諸海內,為時軌範,雜格嚴科,並宜除削。 先施法令,欲人無犯之心,國有常刑,誅而不怒之義。 措而不用,庶或非遠,萬方百辟,知吾此懷。」 自前代相承,有司訊考,皆以法外。 或有用大棒束杖,車輻鞵底,壓踝杖桄之屬,楚毒備至,多所誣伏。 雖文致於法,而每有枉濫,莫能自理。 至是盡除苛慘之法,訊囚不得過二百,枷杖大小,咸為之程品,行杖者不得易人。 帝又以律令初行,人未知禁,故犯法者眾。 又下吏承苛政之後,務鍛鍊以致人罪。 乃詔申勑四方,敦理辭訟。 有枉屈縣不理者,令以次經郡及州,至省仍不理,[13]乃詣闕申訴。 有所未愜,聽撾登聞鼓,有司錄狀奏之。
When finalized, an edict declared: "Emperors make law that changes with the times; therefore there are additions and reductions. Strangulation and decapitation already represent the utmost in eliminating evil. Exposing the head and dismembering the body serve no purpose; they do not increase deterrence, only display cruelty. The whip mutilates flesh and penetrates bone—cruelty equal to carving and cutting. Though called ancient forms, they depart from benevolent punishment; exposing the head, dismemberment, and the whip are all abolished. Honored officials should not receive convict labor; noble rank extends protection to kin. Exile service was reduced from six years to five; convict labor from five years to three. Elsewhere light replaced heavy and death became life—the articles are many, recorded in full. Let it be promulgated throughout the realm as the standard of the age; miscellaneous codes and harsh categories are abolished. Law is applied so people will not transgress; regular punishment means executing without anger. Setting punishment aside may not be far off; let all officials know our intent. Handed down from former dynasties, interrogation often went outside the law. Some used great cudgels, wagon spokes, sole-beating, ankle-pressing, and cudgel-yokes; torture produced many false confessions. Though cases conformed to the letter of the law, wrongful convictions were common and none could defend themselves. All harsh methods were abolished; interrogation was capped at two hundred strokes; cangue and cudgel sizes were standardized; beaters could not be changed. The emperor also recognized that when the new code first took effect, many violated it through ignorance. Lower officials, inheriting harsh practices, strove to forge cases against the accused. He ordered proclamation throughout the realm to earnestly settle lawsuits. Wrongful convictions unsettled at county level proceeded through commandery and prefecture to province; if still unsettled, [13] appeal went to the palace. If unsatisfied, petitioners could beat the petition drum; officials recorded and memorialized the case.
24
帝又每季親錄囚徒。 常以秋分之前,省閱諸州申奏罪狀。 三年,因覽刑部奏,斷獄數猶至萬條。 以為律尚嚴密,故人多陷罪。 又勑蘇威、牛弘等,更定新律。 除死罪八十一條,流罪一百五十四條,徒杖等千餘條,定留唯五百條。 凡十二卷。 一曰名例,二曰衞禁,三曰職制,四曰戶婚,五曰廐庫,六曰擅興,七曰賊盜,八曰鬬訟,九曰詐偽,十曰雜律,十一曰捕亡,十二曰斷獄。 自是刑網簡要,疎而不失。 於是置律博士弟子員。 斷決大獄,皆先牒明法,定其罪名,然後依斷。 五年,侍官慕容天遠,糾都督田元,冒請義倉,事實而始平縣律生輔恩,舞文陷天遠,遂更反坐。 帝聞之,乃下詔曰:「人命之重,懸在律文,刊定科條,俾令易曉。 分官命職,恒選循吏,小大之獄,理無疑舛。 而因襲往代,別置律官,報判之人,推其為首。 殺生之柄,常委小人,刑罰所以未清,威褔所以妄作。 為政之失,莫大於斯。 其大理律博士、尚書刑部曹明法、州縣律生,並可停廢。」 自是諸曹決事,皆令具寫律文斷之。 六年,勑諸州長史已下,行參軍已上,並令習律,集京之日,試其通不。 又詔免尉迥、王謙、司馬消難三道逆人家口之配沒者,悉官酬贖,使為編戶。 因除孥戮相坐之法。 又命諸州囚有處死,不得馳驛行決。
The emperor also personally reviewed prisoners each season. Regularly before the autumn equinox he reviewed crime reports from all prefectures. In the third year, reviewing the Punishments Section memorial, judged cases still reached ten thousand. He concluded the code was still too strict, trapping many in guilt. Su Wei, Niu Hong, and others were ordered to revise the code further. Eighty-one capital articles, one hundred fifty-four exile articles, and over one thousand convict-labor and cudgel articles were cut; only five hundred remained. Twelve scrolls in all. Twelve chapters: Names and Examples, Forbidden Guard, Office System, Households and Marriage, Stables and Granaries, Unauthorized Mobilization, Bandits and Robbers, Fighting and Litigation, Fraud and Forgery, Miscellaneous Statutes, Pursuit of Fugitives, and Trial and Judgment. The penal net became concise—sparse yet without loss. Doctor of Law disciples were established. Major cases first went to legal experts to fix the charge, then judgment followed. In the fifth year, Murong Tianyuan impeached Supervisor Tian Yuan for falsely requesting charity grain; the facts were true, yet legal student Fu En twisted the text to trap Tianyuan, reversing the charge. The emperor issued an edict: "Human life depends on the code; articles must be easy to understand. Appoint upright officials so great and small cases are decided without error. Yet following former practice, separate legal officials were established and treated as leaders in judgment. The power of life and death was entrusted to petty men; punishment was unclear and authority was wantonly exercised. No failure in governance is greater than this. Court of Justice Doctors of Law, Ministry legal experts, and prefectural legal students are all abolished. Thereafter all bureaus were ordered to cite the code text fully in their decisions. In the sixth year, all prefectural administrators and military adjutants were ordered to study the code and be tested on reaching the capital. Households confiscated from the rebellions of Yuchi Jiong, Wang Qian, and Sima Xiaonan were ransomed and restored as registered households. Family punishment and joint liability were thereby abolished. Prefectures were forbidden to execute prisoners by express relay.
25
高祖性猜忌,素不悅學,既任智而獲大位,因以文法自矜,明察臨下。 恒令左右覘視內外,有小過失,則加以重罪。 又患令史贓汚,因私使人以錢帛遺之,得犯立斬。 每於殿廷打人,一日之中,或至數四。 嘗怒問事揮楚不甚,即命斬之。 十年,尚書左僕射高熲、治書侍御史柳彧等諫,以為朝堂非殺人之所,殿庭非決罰之地。 帝不納。 熲等乃盡詣朝堂請罪,曰:「陛下子育羣生,務在去弊,而百姓無知,犯者不息,致陛下決罰過嚴。 皆臣等不能有所裨益,請自退屏,以避賢路。」 帝於是顧謂領左右都督田元曰:「吾杖重乎?」 元曰:「重。」 帝問其狀,元舉手曰:「陛下杖大如指,棰楚人三十者,比常杖數百,故多致死。」 帝不懌,乃令殿內去杖,欲有決罰,各付所由。 後楚州行參軍李君才上言,帝寵高熲過甚,上大怒,命杖之,而殿內無杖,遂以馬鞭笞殺之。 自是殿內復置杖。 未幾怒甚,又於殿庭殺人,兵部侍郎馮基固諫,帝不從,竟於殿庭行決。 帝亦尋悔,宣慰馮基,而怒羣僚之不諫者。 十二年,帝以用律者多致踳駁,罪同論異。 詔諸州死罪不得便決,悉移大理案覆,事盡然後上省奏裁。 十三年,改徒及流並為配防。 十五年制,死罪者三奏而後決。 十六年,有司奏合川倉粟少七千石,命斛律孝卿鞫問其事,以為主典所竊。 復令孝卿馳驛斬之,沒其家為奴婢,鬻粟以填之。 是後盜邊糧者,一升已上皆死,家口沒官。 上又以典吏久居其職,肆情為姦。 諸州縣佐史,三年一代,經任者不得重居之。 十七年,詔又以所在官人,不相敬憚,多自寬縱,事難克舉。 諸有殿失,雖備科條,或據律乃輕,論情則重,不即決罪,無以懲肅。 其諸司屬官,若有愆犯,聽於律外斟酌決杖。 於是上下相驅,迭行棰楚,以殘暴為幹能,以守法為懦弱。
Emperor Wen was suspicious and disliked learning; having risen through wit, he prided himself on legal knowledge and watched subordinates keenly. He constantly ordered attendants to spy inside and outside; small faults brought heavy punishment. Suspecting clerical corruption, he secretly sent bribes; violators were immediately executed. He beat people daily in the palace hall, sometimes three or four times in one day. Once angry that an interrogator's beating was too light, he ordered immediate execution. In the tenth year, Gao Jiong, Liu Yu, and others remonstrated that the court hall was no place for killing, the palace no place for punishment. The emperor did not accept their advice. Jiong and others then requested punishment at court: "Your Majesty nurtures the people and seeks to remove abuses, yet offenders persist, forcing excessively strict punishment. We ministers have failed; we beg to withdraw and yield to worthier men. The emperor turned to Chief of Attendants Tian Yuan: "Are my beatings too heavy?" Yuan replied: "Heavy." Yuan raised his hand: "Your Majesty's rod is thick as a finger; thirty strokes compare to several hundred ordinary strokes, so many die." Displeased, the emperor removed cudgels from the hall; punishments were assigned to the relevant offices. Later Li Juncai submitted that the emperor favored Gao Jiong excessively; enraged, the emperor ordered a beating; with no cudgel in the hall, Li was flogged to death with a horsewhip. Cudgels were restored to the hall. Soon angry again, he killed in the hall; Feng Ji remonstrated in vain; execution proceeded in the hall. He soon regretted it and consoled Feng Ji, yet was angry that other officials had not remonstrated. In the twelfth year, the emperor found that applying the code produced contradictions—identical crimes judged differently. Prefectures were forbidden to decide capital cases immediately; all went to the Court of Justice for review, then to the province for final decision. In the thirteenth year, convict labor and exile were both changed to frontier assignment. In the fifteenth year, capital crimes required three reviews before execution. In the sixteenth year, officials reported Hechuan granary short seven thousand shi; Hulu Xiaoqing was ordered to investigate, blaming the chief clerk. Xiaoqing was ordered by express relay to execute him; his household was enslaved; grain was sold to cover the deficit. Thereafter, stealing frontier grain of one sheng or more meant death and confiscation of household members. The emperor also found that long-serving clerks indulged in corruption. Prefectural and county clerks rotated every three years; former incumbents could not serve again. In the seventeenth year, an edict noted that local officials indulged themselves and failed to enforce the law. For all offenses, though code articles existed, when the code was light yet circumstances heavy, immediate judgment could not deter wrongdoing. Subordinate officials guilty of faults could be beaten beyond what the code prescribed. Thereafter superiors and subordinates drove one another to beatings; cruelty counted as capability, upholding the law as cowardice.
26
是時帝意每尚慘急,而姦回不止,京市白日,公行掣盜,人間強盜,亦往往而有。 帝患之,問羣臣斷禁之法。 楊素等未及言,帝曰:「朕知之矣。」 詔有能糾告者,沒賊家產業,以賞糾人。 時月之間,內外寧息。 其後無賴之徒,候富人子弟出路者,而故遺物於其前,偶拾取則擒以送官,而取其賞。 大抵被陷者甚眾。 帝知之,乃命盜一錢已上皆棄市。 行旅皆晏起早宿,[14]天下懍懍焉。 此後又定制,行署取一錢已上,聞見不告言者,坐至死。 自此四人共盜一榱桶,三人同竊一瓜,事發即時行決。 有數人劫執事而謂之曰:「吾豈求財者邪? 但為枉人來耳。 而為我奏至尊,自古以來,體國立法,未有盜一錢而死也。 而不為我以聞,吾更來,而屬無類矣。」 帝聞之,為停盜取一錢棄市之法。
The emperor favored cruel urgency, yet crime persisted; robbers snatched goods in broad daylight in the capital. Troubled, he asked ministers how to stop it. Before Yang Su and others could speak, the emperor said: "I know what to do. He ordered that informants receive the robber's confiscated property as reward. Within a month, peace was restored. Rogues then laid objects before wealthy youths; if picked up, they seized them and claimed the reward. Many were falsely framed. Learning this, he ordered execution in the market for stealing one coin or more. Travelers rested early and departed late; [14] the realm trembled with fear. Another regulation followed: taking one coin from a traveling office, or failing to report it, was punishable by death. Four people stealing one rafter bucket, three stealing one melon—all were immediately executed. Several men seized an official and said: "Are we seekers of wealth? We came only on behalf of the wronged. Report to the Supreme One—for since antiquity, no state ever executed a man for stealing one coin. If you do not report for us, we will return, and then there will be none of your kind left. The emperor heard this and abolished execution for stealing one coin.
27
帝嘗發怒,六月棒殺人。 大理少卿趙綽固爭曰:「季夏之月,天地成長庶類。 不可以此時誅殺。」 帝報曰:「六月雖曰生長,此時必有雷霆。 天道既於炎陽之時,震其威怒,我則天而行,有何不可。」 遂殺之。 大理掌固來曠上封事,言大理官司恩寬。 帝以曠為忠直,遣每旦於五品行中參見。 曠又告少卿趙綽濫免徒囚,帝使信臣推驗,初無阿曲。 帝又怒曠,命斬之。 綽因固爭,以為曠不合死。 帝乃拂衣入閣,綽又矯言,臣更不理曠,自有他事未及奏聞。 帝命引入閤,綽再拜請曰:「臣有死罪三。 臣為大理少卿,不能制馭掌固,使曠觸挂天刑,死罪一也。 囚不合死,而臣不能死爭,死罪二也。 臣本無他事,而妄言求入,死罪三也。」 帝解顏。 會獻皇后在坐,帝賜綽二金盃酒,飲訖,并以盃賜之。 曠因免死,配徒廣州。
Once enraged, he beat people to death in the sixth month. Vice Director Zhao Chuo contended: "In the fourth month of summer, Heaven and Earth nurture all living things. Execution is forbidden at this season. The emperor replied: "Though the sixth month is a season of growth, thunder must still strike. Since Heaven displays wrathful thunder in blazing heat, I act as Heaven—what is forbidden? He executed them anyway. Court clerk Lai Kuang submitted a sealed memorial praising Court official Si En for leniency. The emperor deemed Kuang loyal and ordered him to attend each morning among fifth-rank officials. Kuang then reported that Zhao Chuo improperly released convict laborers; investigation found no favoritism. The emperor grew angry at Kuang and ordered execution. Chuo firmly contended that Kuang did not merit death. The emperor brushed his robes and entered the side chamber; Chuo falsely said: "I will no longer settle Kuang; another matter awaits memorial." Brought into the side chamber, Chuo bowed: "I have three capital crimes. As Vice Director I could not control my clerk, causing Kuang to offend imperial punishment—capital crime one. The prisoner did not merit death, yet I could not argue to the death—capital crime two. I had no other business, yet falsely requested entry—capital crime three. The emperor's expression softened. Empress Xian being present, the emperor gave Chuo two golden cups of wine and bestowed the cups on him. Kuang escaped death and was assigned convict labor in Guangzhou.
28
帝以年齡晚暮,尤崇尚佛道,又素信鬼神。 二十年,詔沙門道士壞佛像天尊,百姓壞岳瀆神像,皆以惡逆論。 帝猜忌,二朝臣僚,用法尤峻。 御史監師,於元正日不劾武官衣劍之不齊者,或以白帝,帝謂之曰:「爾為御史,何縱捨自由。」 命殺之。 諫議大夫毛思祖諫,又殺之。 左領軍府長史考校不平,將作寺丞以諫麥𪌭遲晚,武庫令以署庭荒蕪,獨孤師以受蕃客鸚鵡,帝察知,並親臨斬決。
In his later years the emperor especially honored Buddhism and believed in ghosts and spirits. In the twentieth year, destroying Buddha images, the Heavenly Lord, or mountain and river spirit images was judged wicked treason. Suspicious toward officials of the two dynasties, he applied the law with especial severity. A censor who failed to impeach military officials for uneven dress on New Year's Day was told: "You are a censor—how do you indulge them? He was executed. Remonstrance Grandee Mao Sizu remonstrated; he too was executed. A chief administrator judged unfairly; a vice director remonstrated about late wheat; an armory director's courtyard was overgrown; Dugu Shi received a foreign parrot—the emperor personally executed them all.
29
仁壽中,用法益峻,帝既喜怒不恒,不復依準科律。 時楊素正被委任。 素又禀性高下,公卿股慄,不敢措言。 素於鴻臚少卿陳延不平,經蕃客館,庭中有馬屎,又庶僕氊上樗蒲。 旋以白帝,帝大怒曰:「主客令不灑掃庭內,掌固以私戲污敗官氊,罪狀何以加此。」 皆於西市棒殺,而榜棰陳延,殆至於斃。 大理寺丞楊遠、劉子通等,性愛深文,每隨牙奏獄,能承順帝旨。 帝大悅,並遣於殿庭三品行中供奉,每有詔獄,專使主之。 候帝所不快,則案以重抵,無殊罪而死者,不可勝原。 遠又能附楊素,每於塗中接候,而以囚名白之,皆隨素所為輕重。 其臨終赴市者,莫不塗中呼枉,仰天而哭。 越公素侮弄朝權,帝亦不之能悉。
In the Renshou era the law grew harsher; the emperor's whims replaced the code. Yang Su then held delegated power. Yang Su's temperament was volatile; officials trembled and dared not speak. Yang Su disliked Chen Yan; passing the foreign guests' hostel he found horse dung in the courtyard and servants gambling on felt. He reported to the emperor, who raged: "The host-guest director failed to sweep the courtyard; clerks gambled on official felt—how can this be punished enough? All were beaten to death at the Western Market; Chen Yan was posted and cudgeled nearly to death. Vice directors Yang Yuan and Liu Zitong loved harsh legal prose and tailored cases to the emperor's pleasure. The emperor was pleased and assigned them to attend among third-rank officials; edict cases were specially entrusted to them. When the emperor was displeased, they applied heavy penalties; countless died without special guilt. Yuan also attached to Yang Su, reporting prisoner names on the road—all sentences followed Su's whim. Condemned prisoners cried out injustice on the road to execution, weeping to Heaven. Duke Yang Su manipulated court power; the emperor could not fully restrain him.
30
煬帝即位,以高祖禁網深刻,又敕修律令,除十惡之條。 時斗稱皆小舊二倍,[15]其贖銅亦加二倍為差。 杖百則三十斤矣。 徒一年者六十斤,每等加三十斤為差,三年則一百八十斤矣。 流無異等,贖二百四十斤。 二死同贖三百六十斤。 其實不異。 開皇舊制,釁門子弟,不得居宿衞近侍之官。 先是蕭巖以叛誅,崔君綽坐連庶人勇事,家口籍沒。 巖以中宮故,君綽緣女入宮愛幸,帝乃下詔革前制曰:「罪不及嗣,既弘至孝之道,恩由義斷,以勸事君之節。 故羊鮒從戮,彌見叔向之誠,季布立勳,無預丁公之禍,用能樹聲往代,貽範將來。 朕虛己為政,思遵舊典,推心待物,每從寬政。 六位成象,美厥含弘,一眚掩德,甚非謂也。 諸犯罪被戮之門,期已下親,仍令合仕,聽預宿衞近侍之官。」
When Emperor Yang took the throne, finding Emperor Wen's prohibitions too harsh, he ordered revision of the code and abolished the ten abominations. Measures were half the old size, [15] and redemption copper doubled accordingly. One hundred cudgel strokes then required thirty jin. One year of convict labor sixty jin; each degree added thirty jin; three years one hundred eighty jin. Exile had no gradations; redemption required two hundred forty jin. Both capital forms required three hundred sixty jin for redemption. In substance there was no difference. Under the Kaihuang code, sons of tainted households could not hold palace guard or close-attendant posts. Previously Xiao Yan was executed for rebellion; Cui Junzhuo was implicated in Prince Yong's affair; their households were confiscated. Yan through the empress, Junzhuo through a favored daughter—the emperor abolished the old rule: "Punishment does not reach descendants—extending supreme filial piety; grace severed by righteousness encourages loyalty. Thus Yang Fuzhi's execution showed Shu Xiang's sincerity; Ji Bu's merit spared Lord Ding's punishment—establishing reputations for posterity. We govern with open hearts, following old canons and lenient policy. The six offices embody inclusive magnanimity; one fault should not cover all virtue. Relatives within one generation of executed criminals may again hold office and serve in palace guard and close-attendant posts."
31
三年,新律成。 凡五百條,為十八篇。 詔施行之,謂之大業律:一曰名例,二曰衞宮,三曰違制,四曰請求,五曰戶,六曰婚,七曰擅興,八曰告劾,九曰賊,十曰盜,十一曰鬬,十二曰捕亡,十三曰倉庫,十四曰廐牧,十五曰關市,十六曰雜,十七曰詐偽,十八曰斷獄。 其五刑之內,降從輕典者,二百餘條。 其枷杖決罰訊囚之制,並輕於舊。 是時百姓久厭嚴刻,喜於刑寬。 後帝乃外征四夷,內窮嗜慾,兵革歲動,賦斂滋繁。 有司皆臨時迫脅,苟求濟事,憲章遐棄,賄賂公行,窮人無告,聚為盜賊。 帝乃更立嚴刑,勑天下竊盜已上,罪無輕重,不待聞奏,皆斬。 百姓轉相羣聚,攻剽城邑,誅罰不能禁。 帝以盜賊不息,乃益肆淫刑。 九年,又詔為盜者籍沒其家。 自是羣賊大起,郡縣官人,又各專威褔,生殺任情矣。 及楊玄感反,帝誅之,罪及九族。 其尤重者,行轘裂梟首之刑。 或磔而射之,命公卿已下,臠噉其肉。 百姓怨嗟,天下大潰,及恭帝即位,獄訟有歸焉。
In the third year the new code was completed. Five hundred articles in eighteen chapters. Promulgated as the Daye Code in eighteen chapters: Names and Examples, Palace Guard, Violating Regulations, Requests, Households, Marriage, Unauthorized Mobilization, Accusation and Impeachment, Bandits, Robbers, Fighting, Pursuit of Fugitives, Granaries and Storehouses, Stables and Herds, Passes and Markets, Miscellaneous, Fraud and Forgery, and Trial and Judgment. Over two hundred articles within the five punishments were reduced toward leniency. Cangue, cudgel, sentencing, and interrogation were all lighter than before. The people, long weary of harshness, rejoiced at leniency. Thereafter he campaigned against foreign powers and indulged his desires; war and levies grew ever heavier. Officials coerced and extorted; statutes were abandoned; bribery flourished; the poor turned to banditry. He then imposed severe punishment: all robbery and above, regardless of severity, was beheaded without awaiting imperial review. People gathered in bands, attacking towns; punishment could not stop them. Because banditry did not cease, he further indulged excessive punishment. In the ninth year, robbers' household registers were confiscated. Great bands of robbers arose; prefectural officials again held life-and-death power at whim. When Yang Xuangan rebelled, the emperor executed him and punished nine generations of his clan. The most severe cases received dismemberment and exposure of the head. Some were dismembered and shot; dukes and ministers downward were ordered to carve and devour the flesh. The people groaned in resentment; the realm collapsed; when Emperor Gong took the throne, justice again had a place.
32
校勘記
Collation Notes
33
實難去弊冊府六一0,「弊」作「取」。
For "shi nan qu bi," Cefu yuangui 610 reads "qu" as "the cited text" (take).
34
斗械「斗」原作「升」,據冊府六一0改。 下文「斗械」,據冊府二六一改。
"Dou xie": "Dou" originally read "sheng"; corrected per Cefu yuangui 610. The following "dou xie" is corrected per Cefu yuangui 261.
35
熟靼不去廉「靼」原作「靻」。 御覽六四九引晉令也作「靻」,御覽注:「柔革也。」 按:說文解字「靼,柔革也」; 「靻」始見于廣韻。 是此字應作「靼」,不作「靻」,今改正。 下同。
"Shu ta bu qu lian": "Ta" originally read "zu." Imperial Readings 649, citing Jin ordinances, also has "zu," glossed as "soft hide." Shuowen jiezi reads: "Ta, soft hide." "Zu" first appears in Guangyun. The character should read "ta," not "zu"; corrected here. The same correction applies below.
36
廣三分「分」原作「寸」,據御覽六四九改。
"Guang san fen": "Fen" originally read "cun"; corrected per Imperial Readings 649.
37
其以職員應罰「員」疑當作「負」。 下文,北齊「鞭杖十為一負」,隋「贖銅一斤為一負」。
"Qi yi zhi yuan ying fa": "Yuan" is suspected to read "fu" (demerit). Below, Northern Qi has "ten whip or cudgel strokes equal one demerit"; Sui has "one jin of ransom copper equals one demerit."
38
於事為劇「事」原作「辛」,據冊府二六一改。
"Yu shi wei ju": "Shi" originally read "xin"; corrected per Cefu yuangui 261.
39
鎖二重冊府六一一,「鎖」作「鉗」。 下「並鎖一重」同。
"Suo er chong": Cefu yuangui 611 reads "suo" as "qian" (cangue). The same applies to "bing suo yi chong" below.
40
不計階品冊府六一一,「不計」作「亦許」。
"Bu ji jie pin": Cefu yuangui 611 reads "bu ji" as "yi xu" (also permitted).
41
不加宮刑「宮」原作「害」,據冊府六一一改。
"Bu jia gong xing": "Gong" originally read "hai"; corrected per Cefu yuangui 611.
42
正長隱五戶及十丁以上及地三頃以上「丁」上原脫「十」字,「頃」上原脫「三」字,據周書武帝紀下補。 通鑑一七三,「三頃」作「頃」。
For the passage on village heads concealing five households, ten adult males, and three qing of land: "ten" above "ding" and "three" above "qing" were missing; supplemented per Zhou shu, Wudi ji xia. Zizhi tongjian 173 reads "san qing" as "qing" (acre).
43
其流徒之罪皆減從輕「流」原作「法」,據冊府六一一改。
"Qi liu tu zhi zui jie jian cong qing": "Liu" originally read "fa"; corrected per Cefu yuangui 611.
44
三流同比徒三年「同」原作「周」,據通典一六四、冊府六一一、唐律疏義名例改。
"San liu tong bi tu san nian": "Tong" originally read "zhou"; corrected per Tongdian 164, Cefu yuangui 611, and Tang lü shuyi.
45
至省仍不理原脫「至」字,據通典一六四、冊府六一一補。
"Zhi sheng reng bu li": "Zhi" was originally missing; supplemented per Tongdian 164 and Cefu yuangui 611.
46
晏起早宿「早」原作「晚」,據御覽六四六改。
"Yan qi zao su": "Zao" originally read "wan" (late); corrected per Imperial Readings 646.
47
斗稱「斗」原作「升」,據冊府六一一改。
"Dou cheng": "Dou" originally read "sheng"; corrected per Cefu yuangui 611.