1
25%古之為國者，議事以制，不為刑辟，懼民之知爭端也。 後世作為刑書，惟恐不備，俾民之知所避也。 其為法雖殊，而用心則一，蓋皆欲民之無犯也。 然未知夫導之以德、齊之以禮，而可使民遷善遠罪而不自知也。
In ancient times, rulers governed by deliberating on affairs to set policy, not by drafting penal codes—they feared teaching the people where disputes might arise. Later generations wrote penal statutes and worried only that they might be incomplete, so that the people would know what to shun. Though their legal methods differed, their aim was the same: to keep the people from breaking the law. They did not yet understand that guiding the people with virtue and harmonizing them through ritual could move them toward goodness and away from crime almost without their noticing.
2
唐之刑書有四，曰：律、令、格、式。 令者，尊卑貴賤之等數，國家之制度也； 格者，百官有司之所常行之事也； 式者，其所常守之法也。 凡邦國之政，必從事於此三者。 其有所違及人之為惡而入于罪戾者，一斷以律。 律之為書，因隋之舊，為十有二篇：一曰名例，二曰衞禁，三曰職制，四曰戶婚，五曰廄庫，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。
Tang criminal law comprised four kinds of writings: the Code, Ordinances, Administrative Rules, and Formulas. Ordinances defined ranks from high to low and the institutions of the realm. Administrative Rules recorded what the various offices routinely did in practice. Formulas were the standard procedures they were to follow. All affairs of state had to proceed according to these three. Any breach of them, or any evil act that brought a person within the scope of punishment, was decided solely under the Code. The Code followed the Sui model in twelve chapters: General Provisions; Imperial Guard and Prohibitions; Official Regulations; Household and Marriage; Stables and Storehouses; Unauthorized Mobilization; Banditry and Theft; Assault and Litigation; Fraud and Forgery; Miscellaneous Statutes; Apprehension of Fugitives; and Trial and Punishment.
3
其用刑有五：一曰笞。 笞之為言恥也； 凡過之小者，捶撻以恥之。 漢用竹，後世更以楚。 書曰「扑作教刑」是也。 二曰杖。 杖者，持也：可持以擊也。 書曰「鞭作官刑」是也。 三曰徒。 徒者，奴也； 蓋奴辱之。 周禮曰：其奴，男子入于罪隸，任之以事，寘之圜土而教之，量其罪之輕重，有年數而捨。 四曰流。 書云「流宥五刑」，謂不忍刑殺，宥之于遠也。 五曰死。 乃古大辟之刑也。
Punishments were of five kinds. The first was beating with the light stick. The term chi means shame. Minor offenses were punished by flogging meant to humiliate. The Han used bamboo rods; later dynasties switched to the chu stick. This is what the Classic means by "beating as corrective punishment." Second was beating with the heavy stick. Zhang means "to hold"—a staff one could grasp to strike with. This is what the Classic means by "the whip as official punishment." Third was penal servitude. Tu means slave. It reduced the offender to servile humiliation. The Rites of Zhou state that male offenders became criminal bondsmen, were put to labor, confined within the round compound for instruction, and released after a term measured to the severity of the offense. Fourth was exile. The Classic says, "Exile commutes the five punishments"—because the court could not bear to execute the offender and instead spared him by banishment to a distant place. Fifth was death. This was the ancient supreme penalty.
4
自隋以前，死刑有五，曰：罄、絞、斬、梟、裂。 而流、徒之刑，鞭笞兼用，數皆踰百。 至隋始定為：笞刑五，自十至于五十； 杖刑五，自六十至于百； 徒刑五，自一年至于三年； 流刑三，自一千里至于二千里； 死刑二，絞、斬。 除其鞭刑及梟首、轘裂之酷。 又有議、請、減、贖、當、免之法。 唐皆因之。 然隋文帝性刻深，而煬帝昏亂，民不勝其毒。
Before the Sui, there were five forms of capital punishment: strangulation with a bowstring, strangulation with a cord, decapitation, exposure of the severed head, and dismemberment. Exile and penal servitude were often combined with flogging and beating, sometimes totaling more than a hundred strokes. The Sui first standardized five grades of chi, from ten to fifty strokes. Five grades of zhang, from sixty to one hundred; five grades of penal servitude, from one to three years; three grades of exile, from one thousand to two thousand li; and two forms of capital punishment: strangulation and decapitation. They abolished flogging as well as the cruel penalties of exposing the head and tearing the body apart with carts. There were also provisions for deliberation, petition, reduction, ransom, offset, and exemption from punishment. The Tang adopted all of these. Yet Emperor Wen of Sui was harsh by nature, and Emperor Yang was corrupt and chaotic, so the people could not endure their cruelty.
5
唐興，高祖入京師，約法十二條，惟殺人、劫盜、背軍、叛逆者死。 及受禪，命納言劉文靜等損益律令。 武德二年，頒新格五十三條，唯吏受賕、犯盜、詐冒府庫物，赦不原。 凡斷屠日及正月、五月、九月不行刑。 四年，高祖躬錄囚徒，以人因亂冒法者眾，盜非劫傷其主及征人逃亡、官吏枉法，皆原之。 已而又詔僕射裴寂等十五人更撰律令，凡律五百，麗以五十三條。 流罪三，皆加千里； 居作三歲至二歲半者悉為一歲。 餘無改焉。
When the Tang rose, Gaozu entered the capital and proclaimed a twelve-article compact: only murder, robbery, desertion, and treason were capital crimes. After he accepted the abdication, he ordered Palace Counselor Liu Wenjing and others to revise the code and ordinances. In Wude 2, fifty-three new administrative rules were issued; only bribery by officials, theft, and fraud involving government storehouses were excluded from amnesty. Executions were suspended on meat-abstention days and in the first, fifth, and ninth months. In the fourth year Gaozu personally reviewed prisoners. Because many had broken the law amid the turmoil, he pardoned all except robbers who injured their victims, deserters from military service, and officials who had perverted justice. He then ordered Vice Director Pei Ji and fourteen others to draft a new code and ordinances: five hundred articles of code, supplemented by fifty-three additional provisions. All three grades of exile were increased by one thousand li. Terms of compulsory labor from three years down to two and a half were all reduced to one year. Otherwise nothing was changed.
6
太宗即位，詔長孫无忌、房玄齡等復定舊令，議絞刑之屬五十，皆免死而斷右趾。 既而又哀其斷毀支體，謂侍臣曰：「肉刑，前代除之久矣，今復斷人趾，吾不忍也。」 王珪、蕭瑀、陳叔達對曰：「受刑者當死而獲生，豈憚去一趾？ 去趾，所以使見者知懼。 今以死刑為斷趾，蓋寬之也。」 帝曰：「公等更思之。」 其後蜀王法曹參軍裴弘獻駮律令四十餘事，乃詔房玄齡與弘獻等重加刪定。 玄齡等以謂「古者五刑，刖居其一。 及肉刑既廢，今以笞、杖、徒、流、死為五刑，而又刖足，是六刑也」。 於是除斷趾法，為加役流三千里，居作二年。
When Taizong ascended the throne, he ordered Zhangsun Wuji, Fang Xuanling, and others to revise the old ordinances. Fifty offenses punishable by strangulation were commuted from death to amputation of the right foot. But he soon took pity on mutilating the body and told his ministers, "Corporal punishments were abolished long ago. To cut off a man's toes again—I cannot bear it. Wang Gui, Xiao Yu, and Chen Shuda replied, "A man who deserves death but is allowed to live—would he shrink from losing a toe? Amputation warns others and inspires fear. Replacing execution with toe amputation is itself an act of mercy. The emperor said, "Think on it again. Later Pei Hongxian, a legal aide under the Prince of Shu, submitted more than forty criticisms of the code and ordinances, and the emperor ordered Fang Xuanling and Hongxian to revise them again. Fang Xuanling and the others argued, "In antiquity the five punishments included mutilation. Corporal punishments were abolished long ago; if chi, zhang, penal servitude, exile, and death are the five punishments, adding foot amputation would make six." They therefore abolished toe amputation and substituted exile to three thousand li with two years of penal labor.
7
太宗嘗覽明堂針灸圖，見人之五藏皆近背，針灸失所，則其害致死，歎曰：「夫箠者，五刑之輕； 死者，人之所重。 安得犯至輕之刑而或致死？」 遂詔罪人無得鞭背。
Taizong once studied an acupuncture chart of the Hall of Enlightenment and saw that the vital organs lie close to the back; a misplaced needle could kill. He sighed and said, "Flogging is the lightest of the five punishments, yet death is what people value most. How can the lightest punishment sometimes bring death? He therefore decreed that criminals must not be flogged on the back.
8
五年，河內人李好德坐妖言下獄，大理丞張蘊古以為好德病狂瞀，法不當坐。 治書侍御史權萬紀劾蘊古相州人，好德兄厚德方為相州刺史，故蘊古奏不以實。 太宗怒，遽斬蘊古，既而大悔，因詔「死刑雖令即決，皆三覆奏」。 久之，謂羣臣曰：「死者不可復生。 昔王世充殺鄭頲而猶能悔，近有府史取賕不多，朕殺之，是思之不審也。 決囚雖三覆奏，而頃刻之間，何暇思慮？ 自今宜二日五覆奏。 決日，尚食勿進酒肉，教坊太常輟教習，諸州死罪三覆奏，其日亦蔬食，務合禮撤樂、減膳之意。」
In the fifth year Li Haode of Henei was imprisoned for seditious talk. Assistant Director Zhang Yungu of the Court of Judicial Review argued that Haode was insane and not liable under the law. Investigating Censor Quan Wanji impeached Yungu, noting that Yungu was from Xiangzhou while Haode's elder brother Houde was then prefect there, and alleging that Yungu had falsified his report. Taizong in anger had Yungu executed at once, then deeply regretted it and decreed that even when capital punishment was ordered for immediate execution, it must be submitted for review three times. Long afterward he told his ministers, "The dead cannot be brought back to life. Wang Shichong killed Zheng Ting and still repented; recently I executed a prefectural clerk who had taken only a small bribe—that was careless thinking. Even with threefold review, what time is there to reflect in a few moments? Henceforth there shall be five reviews over two days. On execution day the Imperial Kitchen was to serve no meat or wine, the Music Office and Court of Imperial Sacrifices were to suspend performances, and provinces reviewing capital cases were likewise to abstain from meat—observing the ritual spirit of withdrawing music and reducing the imperial table."
9
故時律，兄弟分居，蔭不相及，而連坐則俱死。 同州人房彊以弟謀反當從坐，帝因錄囚為之動容，曰：「反逆有二：興師動眾一也，惡言犯法二也。 輕重固異，而鈞謂之反，連坐皆死，豈定法耶？」 玄齡等議曰：「禮，孫為父尸，故祖有蔭孫令，是祖孫重而兄弟輕。」 於是令：反逆者，祖孫與兄弟緣坐，皆配沒； 惡言犯法者，兄弟配流而已。 玄齡等遂與法司增損隋律，降大辟為流者九十二，流為徒者七十一，以為律； 定令一千五百四十六條，以為令； 又刪武德以來敕三千餘條為七百條，以為格； 又取尚書省列曹及諸寺、監、十六衞計帳以為式。
Under the earlier code, brothers who lived apart did not share inherited privilege, yet collective punishment still meant death for all. Fang Qiang of Tongzhou was to be punished because his brother had plotted rebellion. While reviewing prisoners the emperor was moved and said, "Treason takes two forms: raising an army, and seditious words that violate the law. Their gravity differs, yet both are called treason and kin are executed together—is that settled law? Fang Xuanling and others argued, "By ritual the grandson represents the father, so privilege extends from grandfather to grandson—grandfather and grandson weigh more heavily than brothers. They therefore ordained that in cases of armed rebellion, grandparents, grandchildren, and brothers implicated by kinship were all sentenced to confiscation and exile; for seditious speech alone, brothers were exiled and no more. Fang Xuanling and the legal offices then revised the Sui code, commuting capital punishment to exile in ninety-two articles and exile to penal servitude in seventy-one, producing the Code. They compiled 1,546 articles as Ordinances; They pared more than three thousand edicts since Wude to seven hundred Administrative Rules; and drew on the account ledgers of the Secretariat bureaus, directorates, offices, and Sixteen Guards for the Formulas.
10
凡州縣皆有獄，而京兆、河南獄治京師，其諸司有罪及金吾捕者又有大理獄。 京師之囚，刑部月一奏，御史巡行之。 每歲立春至秋及大祭祀、致齊，朔望、上下弦、二十四氣、雨及夜未明，假日、斷屠月，皆停死刑。
Every prefecture and county had a prison; Jingzhao and Henan administered prisons for the capital; officials of the central offices and persons arrested by the Gold Crow Guard were held in the Court of Judicial Review prison. Capital prisoners were reported monthly to the Ministry of Justice, and censors conducted inspections. Each year from Beginning of Spring through autumn, and on major sacrifices, purification days, new and full moons, quarter moons, the twenty-four solar terms, rainy days, before dawn, holidays, and meat-abstention months, capital punishment was suspended.
11
京師決死，涖以御史、金吾，在外則上佐，餘皆判官涖之。 五品以上罪論死，乘車就刑，大理正涖之，或賜死于家。 凡囚已刑，無親屬者，將作給棺，瘞于京城七里外，壙有甎銘，上揭以榜，家人得取以葬。
Capital executions in the capital were supervised by censors and Gold Crow Guards; in the provinces by the chief aide; elsewhere by judicial officers. Officials of fifth rank and above rode to the place of execution under supervision of the Court of Judicial Review, or were granted death at home. Executed prisoners without kin received coffins from the Directorate of Palace Buildings and were buried seven li outside the capital, with brick inscriptions and posted notices so relatives could claim the remains.
12
諸獄之長官，五日一慮囚。 夏置漿飲，月一沐之； 疾病給醫藥，重者釋械，其家一人入侍，職事散官三品以上，婦女子孫二人入侍。
Prison wardens reviewed cases every five days. In summer they were given broth and bathed once a month; the sick received medicine, the seriously ill were unfettered, and one family member could attend; for officials of third rank and above, two wives, children, or grandchildren could attend.
13
天下疑獄讞大理寺不能決，尚書省眾議之，錄可為法者送祕書省。 奏報不馳驛。 經覆而決者，刑部歲以正月遣使巡覆，所至，閱獄囚杻校、糧餉，治不如法者。
Cases the Court of Judicial Review could not decide were debated by the Secretariat, and precedents worthy of becoming law were sent to the Palace Library. Reports were not sent by express relay. After cases were decided on review, the Ministry of Justice each first month sent inspectors to examine fetters, rations, and prison administration, punishing violations.
14
杻校鉗鎖皆有長短廣狹之制，量囚輕重用之。
Fetters, cangues, shackles, and locks were prescribed in standard dimensions according to the severity of the offense.
15
囚二十日一訊，三訊而止，數不過二百。
Prisoners were interrogated every twenty days, no more than three sessions, and not more than two hundred blows.
16
凡杖，皆長三尺五寸，削去節目。 訊杖，大頭徑三分二釐，小頭二分二釐。 常行杖，大頭二分七釐，小頭一分七釐。 笞杖，大頭二分，小頭一分有半。
All beating sticks were three chi five cun long, with knots trimmed smooth. Interrogation sticks measured three fen two li at the thick end and two fen two li at the thin end. Regular execution sticks measured two fen seven li at the thick end and one fen seven li at the thin end. Chi sticks measured two fen at the thick end and one and a half fen at the thin end.
17
死罪校而加杻，官品勳階第七者，鎖禁之。 輕罪及十歲以下至八十以上者、廢疾、侏儒、懷姙皆頌繫以待斷。
Capital offenders wore the cangue with fetters; officials of the seventh rank of merit were confined with locks. Minor offenders, children under ten, the elderly over eighty, the disabled, dwarfs, and pregnant women were held with loose bonds pending judgment.
18
居作者著鉗若校，京師隸將作，女子隸少府縫作。 旬給假一日，臘、寒食二日，毋出役院。 病者釋鉗校、給假，疾差陪役。 謀反者男女奴婢沒為官奴婢，隸司農，七十者免之。 凡役，男子入于蔬圃，女子入于廚饎。
Convicts doing penal labor wore shackles or the cangue; in the capital, men were assigned to the Directorate of Works and women to the Palace Domestic Service for sewing. Every ten days they received one day off; on Laba and Cold Food Festival they received two days, but were not allowed to leave the labor compound. The sick had their shackles removed and were granted leave; once recovered, they resumed labor alongside the others. In cases of treason, all male and female household slaves were confiscated as government slaves and assigned to the Directorate of Agriculture; those aged seventy or older were exempt. In general labor service, men worked in vegetable gardens and women in kitchens.
19
流移人在道疾病，婦人免乳，祖父母、父母喪，男女奴婢死，皆給假，授程糧。
Exiles who fell ill en route, women nursing infants, those mourning grandparents or parents, and those whose male or female slaves had died were all granted leave and issued rations for the journey.
20
非反逆緣坐，六歲縱之，特流者三歲縱之，有官者得復仕。
Kin implicated in crimes short of treason or rebellion were released after six years; those specially exiled after three; officials among them could return to office.
21
初，太宗以古者斷獄，訊於三槐、九棘，乃詔：「死罪，中書、門下五品以上及尚書等平議之； 三品以上犯公罪流，私罪徒，皆不追身。」 凡所以纖悉條目，必本於仁恕。 然自張蘊古之死也，法官以失出為誡，有失入者，又不加罪，自是吏法稍密。 帝以問大理卿劉德威，對曰：「律，失入減三等，失出減五等。 今失入無辜，而失出為大罪，故吏皆深文。」 帝矍然，遂命失出入者皆如律，自此吏亦持平。
Early on, Taizong recalled that in antiquity judges held inquiries at the Three Pagoda Trees and Nine Thorns. He therefore decreed: "Capital cases are to be jointly reviewed by fifth-rank officials and above from the Secretariat and Chancellery, together with officials of the Ministry of State Affairs. Officials of third rank and above who committed public offenses were sentenced to exile and those who committed private offenses to penal servitude, without requiring their physical apprehension. Every fine-grained provision was rooted in kindness and forbearance. After Zhang Jungu's death, however, judges treated lenient misjudgment as the cautionary lesson, while harsh misjudgment went unpunished—and from that point the law grew gradually stricter. The emperor questioned Minister of Justice Liu Dewei, who replied: "According to the Code, a judge who imposes too harsh a sentence is reduced three degrees in rank, but one who is too lenient is reduced five. Today harsh misjudgment goes unpunished while lenient misjudgment is treated as a grave offense—so officials everywhere apply the harshest reading of the law. The emperor was startled and ordered both kinds of judicial error punished according to the Code; from then on officials also held to the middle course.
22
十四年，詔流罪無遠近皆徙邊要州。 後犯者寖少。 十六年，又徙死罪以實西州，流者戍之，以罪輕重為更限。
In the fourteenth year, an edict required all exiles, whatever the original distance, to be sent to key border prefectures. After that, repeat offenders dwindled. In the sixteenth year, capital offenders were sent to populate Xizhou, with exiles assigned as garrison troops; terms of service varied with the gravity of the offense.
23
廣州都督瓽仁弘嘗率鄉兵二千助高祖起，封長沙郡公。 仁弘交通豪酋，納金寶，沒降獠為奴婢，又擅賦夷人。 既還，有舟七十。 或告其贓，法當死。 帝哀其老且有功，因貸為庶人，乃召五品以上，謂曰：「賞罰所以代天行法，今朕寬仁弘死，是自弄法以負天也。 人臣有過，請罪於君，君有過，宜請罪於天。 其令有司設藳席于南郊三日，朕將請罪。」 房玄齡等曰：「寬仁弘不以私而以功，何罪之請？」 百僚頓首三請，乃止。
Tan Renhong, area commander of Guangzhou, had once raised two thousand local troops to aid Gaozu in his founding struggle and was enfeoffed as Duke of Changsha. Ren Hong colluded with tribal chieftains, accepted bribes of gold and jewels, enslaved surrendered Lao people, and unlawfully imposed levies on frontier tribes. On his return, he sailed home with seventy boatloads. When someone reported his graft, the law called for execution. The emperor, pitying his age and past service, commuted his sentence to commoner status. He then summoned officials of fifth rank and above and said: "Rewards and punishments are how the throne carries out Heaven's law. By sparing Ren Hong from death I am twisting the law and failing Heaven. When a minister errs, he confesses to his sovereign; when the sovereign errs, he ought to confess to Heaven. Have the officials lay out a straw mat in the southern suburbs for three days—I shall go there to confess. Fang Xuanling and others said: "You spared Ren Hong not from private favor but for his merit—what offense requires confession?" The assembled officials kowtowed three times in entreaty, and he relented.
24
太宗以英武定天下，然其天姿仁恕。 初即位，有勸以威刑肅天下者，魏徵以為不可，因為上言王政本於仁恩，所以愛民厚俗之意，太宗欣然納之，遂以寬仁治天下，而於刑法尤慎。 四年，天下斷死罪二十九人。 六年，親錄囚徒，閔死罪者三百九十人，縱之還家，期以明年秋即刑； 及期，囚皆詣朝堂，無後者，太宗嘉其誠信，悉原之。 然嘗謂羣臣曰：「吾聞語曰『一歲再赦，好人喑啞』。 吾有天下未嘗數赦者，不欲誘民於幸免也。」 自房玄齡等更定律、令、格、式，訖太宗世，用之無所變改。
Taizong had won the empire through martial brilliance, yet his nature was kind and forgiving. At the start of his reign some advisers urged him to terrify the realm with harsh punishments. Wei Zheng argued against it, telling the emperor that humane government rests on kindness and grace—the spirit of cherishing the people and strengthening custom. Taizong gladly accepted this counsel and governed with leniency and mercy, exercising particular caution in applying criminal law. In the fourth year, only twenty-nine death sentences were carried out empire-wide. In the sixth year he personally reviewed prisoners, took pity on three hundred ninety men sentenced to death, and sent them home with orders to return the following autumn for execution. When the day came, every prisoner reported to court on time. Taizong admired their integrity and pardoned them all. Yet he once told his ministers: "I have heard the saying, 'Two amnesties in one year, and good people fall silent. Since I took the throne I have never issued frequent amnesties, because I do not wish to teach the people to count on escaping punishment.' From the time Fang Xuanling and others revised the Code, Ordinances, Administrative Rules, and Formulas, they remained unchanged through Taizong's reign.
25
高宗初即位，詔律學之士撰律疏。 又詔長孫无忌等增損格敕，其曹司常務曰留司格，頒之天下曰散頒格。 龍朔、儀鳳中，司刑太常伯李敬玄、左僕射劉仁軌相繼又加刊正。
Early in Gaozong's reign, he ordered legal scholars to compile an annotated commentary on the Code. He also ordered Zhangsun Wuji and others to revise administrative edicts: rules for routine office business were called Retained Office Administrative Rules, and those issued empire-wide were called Broadly Issued Administrative Rules. During the Longshuo and Yifeng eras, Li Jingxuan, Grand Master of Ceremonies for Punishments, and Left Vice Director Liu Rengui successively made further revisions.
26
武后時，內史裴居道、鳳閣侍郎韋方質等又刪武德以後至于垂拱詔敕為新格，藏於有司，曰垂拱留司格。 神龍元年，中書令韋安石又續其後至於神龍，為散頒格。 睿宗即位，戶部尚書岑羲等又著太極格。
Under Empress Wu, Inner Secretary Pei Judao, Phoenix Pavilion Vice Director Wei Fangzhi, and others culled edicts from Wude through the Chuigong era into new Administrative Rules kept in the offices—the Chuigong Retained Office Administrative Rules. In Shenlong 1, Grand Counselor Wei Anshi continued the compilation through the Shenlong era as Broadly Issued Administrative Rules. When Ruizong took the throne, Minister of Revenue Cen Yi and others compiled the Taichi Administrative Rules.
27
玄宗開元三年，黃門監盧懷慎等又著開元格。 至二十五年，中書令李林甫又著新格，凡所損益數千條，明年，吏部尚書宋璟又著後格，皆以開元名書。 天寶四載，又詔刑部尚書蕭炅稍復增損之。
In Kaiyuan 3, Yellow Gate Commissioner Lu Huai-shen and others compiled the Kaiyuan Administrative Rules. By Kaiyuan 25, Grand Counselor Li Linfu compiled new Administrative Rules, revising several thousand articles; the next year Minister of Civil Appointments Song Jing compiled a later set—both bearing the Kaiyuan title. In Tianbao 4, an edict ordered Minister of Justice Xiao Jiong to revise the compilation once more.
28
肅宗、代宗無所改造。 至德宗時，詔中書門下選律學之士，取至德以來制敕奏讞，掇其可為法者藏之，而不名書。
Suzong and Daizong made no alterations. Under Dezong, the Secretariat and Chancellery were ordered to select legal scholars, gather edicts, memorials, and judicial reports since the Zhide era, extract provisions fit to serve as law, and store them in an untitled compilation.
29
憲宗時，刑部侍郎許孟容等刪天寶以後敕為開元格後敕。
Under Xianzong, Vice Minister of Justice Xu Mengrong and others culled post-Tianbao edicts into the Later Edicts to the Kaiyuan Administrative Rules.
30
文宗命尚書省郎官各刪本司敕，而丞與侍郎覆視，中書門下參其可否而奏之，為大和格後敕。 開成三年，刑部侍郎狄兼謩採開元二十六年以後至于開成制敕，刪其繁者，為開成詳定格。
Wenzong ordered each section director in the Ministry of State Affairs to cull his department's edicts; assistant directors and vice ministers reviewed them, and the Secretariat and Chancellery judged their fitness before memorializing—the Later Edicts to the Dahe Administrative Rules. In Kaicheng 3, Vice Minister of Justice Di Jianmo gathered edicts from Kaiyuan 26 through Kaicheng, trimmed the redundant portions, and produced the Kaicheng Detailed Administrative Rules.
31
宣宗時，左衞率府倉曹參軍張戣以刑律分類為門，而附以格敕，為大中刑律統類，詔刑部頒行之。
Under Emperor Xuanzong, Left Guard Command warehouse clerk Zhang Cui arranged the penal code by category, appended administrative edicts, and compiled the Dazhong Unified Categories of Penal Law; the Ministry of Justice was ordered to promulgate it.
32
此其當世所施行而著見者，其餘有其書而不常行者，不足紀也。 書曰：「慎乃出令。」 蓋法令在簡，簡則明，行之在久，久則信，而中材之主，庸愚之吏，常莫克守之，而喜為變革。 至其繁積，則雖有精明之士不能徧習，而吏得上下以為姦，此刑書之弊也。 蓋自高宗以來，其大節鮮可紀，而格令之書，不勝其繁也。
These were the compilations actually enforced and visibly in use in their day; the rest—texts that existed but were seldom applied—need not be recorded here. The Documents say: "Be careful in issuing commands. Laws succeed when they are brief—brief laws are clear; they succeed when applied steadily—steady application wins trust. Yet middling rulers and mediocre officials often cannot maintain them and delight in change. Once they pile up in complexity, even sharp minds cannot master them, and clerks exploit the gaps to commit fraud—this is the curse of penal codes. Broadly speaking, from Gaozong onward there is little worth recording in the broad outline, while the books of administrative rules and ordinances grow unbearably numerous.
33
高宗既昏懦，而繼以武氏之亂，毒流天下，幾至於亡。 自永徽以後，武氏已得志，而刑濫矣。 當時大獄，以尚書刑部、御史臺、大理寺雜按，謂之「三司」，而法吏以慘酷為能，至不釋枷而笞棰以死者，皆不禁。 律有杖百，凡五十九條，犯者或至死而杖未畢，乃詔除其四十九條，然無益也。 武后已稱制，懼天下不服，欲制以威，乃修後周告密之法，詔官司受訊，有言密事者，馳驛奏之。 自徐敬業、越王貞、琅邪王沖等起兵討亂，武氏益恐。 乃引酷吏周興、來俊臣輩典大獄，與侯思止、王弘義、郭弘霸、李敬仁、康暐、衞遂忠等集告事數百人，共為羅織，構陷無辜。 自唐之宗室與朝廷之士，日被告捕，不可勝數，天下之人，為之仄足，如狄仁傑、魏元忠等皆幾不免。 左臺御史周矩上疏曰：「比姦憸告訐，習以為常。 推劾之吏，以深刻為功，鑿空爭能，相矜以虐。 泥耳囊頭，摺脅籤爪，縣髮燻耳，臥鄰穢溺，刻害支體，糜爛獄中，號曰『獄持』； 閉絕食飲，晝夜使不得眠，號曰『宿囚』。 殘賊威暴，取快目前。 被誣者苟求得死，何所不至？ 為國者以仁為宗，以刑為助，周用仁而昌，秦用刑而亡。 願陛下緩刑用仁，天下幸甚！」 武后不納。 麟臺正字陳子昂亦上書切諫，不省。 及周興、來俊臣等誅死，后亦老，其意少衰，而狄仁傑、姚崇、宋璟、王及善相與論垂拱以來酷濫之冤，太后感寤，由是不復殺戮。 然其毒虐所被，自古未之有也。 大足元年，乃詔法司及推事使敢多作辯狀而加語者，以故入論。 中宗、韋后繼以亂敗。
Gaozong was weak and indecisive, and the Wu clan's turmoil followed; cruelty spread through the realm and the dynasty nearly perished. From the Yonghui era onward the Wu clan had already seized power, and punishments grew excessive. Major cases were jointly tried by the Ministry of Justice, the Censorate, and the Court of Judicial Review—a procedure called the "Three Offices." Magistrates competed in brutality; even beating prisoners to death without removing their cangues went unpunished. The Code prescribed one hundred blows in fifty-nine articles; offenders sometimes died before the beating was finished. An edict then struck forty-nine of those articles, yet it did no good. Empress Wu had already assumed regency, feared the realm would not submit, and sought to rule through terror. She revived the Later Zhou system of secret denunciation, decreeing that when offices received interrogations and anyone reported confidential matters, they were to dispatch fast relay to the throne. After Xu Jingye, Prince of Yue Zhen, Prince of Langye Chong, and others raised armies against her, the Wu clan grew even more fearful. She then put cruel officials such as Zhou Xing and Lai Junchen in charge of major cases. With Hou Sizhi, Wang Hongyi, Guo Hongba, Li Jingren, Kang Wei, Wei Suizhong, and others, they assembled several hundred informants to weave false charges and frame the innocent. From imperial clansmen to court officials, denunciations and arrests came daily beyond counting. People everywhere lived in dread; even men like Di Renjie and Wei Yuanzhong barely escaped ruin. Left Platform Censor Zhou Ju submitted a memorial saying: "Lately treacherous accusations and denunciations have become routine. Interrogators treat harsh severity as merit, inventing charges from nothing to outdo one another, each boasting of the other's cruelty. They pack the ears and bag the head, fold the armpits and prick the fingernails, suspend the hair and smoke the ears, force prisoners to lie beside filth and urine, and mutilate the limbs until flesh rots in the cell—they call this "prison holding." They cut off food and drink and keep prisoners from sleep day and night—they call this "overnight detention." They mutilate, brutalize, and terrorize for immediate gratification. Those falsely accused, if only to obtain death—what would they not confess? Those who govern a state take benevolence as their foundation and punishment as their support. Zhou relied on benevolence and flourished; Qin relied on punishment and perished. I pray Your Majesty will ease punishments and govern with benevolence—the realm would be greatly blessed! Empress Wu did not accept it. Palace Library corrector Chen Zi'ang also submitted a forceful remonstrance, which went unheeded. After Zhou Xing, Lai Junchen, and others were executed, the Empress had also grown old and her zeal somewhat faded. Di Renjie, Yao Chong, Song Jing, and Wang Jishan together discussed the cruel excesses and wrongful convictions since the Chuigong era; the Empress Dowager was moved, and from then on she no longer carried out mass killings. Yet the poison and cruelty that had spread were unmatched since antiquity. In Dazu 1, an edict declared that legal offices and special investigatory commissioners who dared to compose lengthy written defenses and add fabricated language would be prosecuted for deliberate misjudgment. Zhongzong and Empress Wei followed with disorder and ruin.
34
玄宗自初即位，勵精政事，常自選太守、縣令，告戒以言，而良吏布州縣，民獲安樂； 二十年間，號稱治平，衣食富足，人罕犯法。 是歲刑部所斷天下死罪五十八人，往時大理獄，相傳鳥雀不栖，至是有鵲巢其庭樹，羣臣稱賀，以為幾致刑錯。 然而李林甫用事矣，自來俊臣誅後，至此始復起大獄，以誣陷所殺數十百人，如韋堅、李邕等皆一時名臣，天下冤之。 而天子亦自喜邊功，遣將分出以擊蠻夷，兵數大敗，士卒死傷以萬計，國用耗乏，而轉漕輸送，遠近煩費，民力既弊，盜賊起而獄訟繁矣。 天子方惻然，詔曰：「徒非重刑，而役者寒暑不釋械繫。 杖，古以代肉刑也，或犯非巨蠧而棰以至死，其皆免，以配諸軍自效。 民年八十以上及重疾有罪，皆勿坐。 侍丁犯法，原之俾終養。」 以此施德其民。 然巨盜起，天下被其毒，民莫蒙其賜也。
From the time Xuanzong first took the throne, he applied himself diligently to governance, often personally selecting prefects and magistrates and admonishing them in person; capable officials spread through the prefectures and counties, and the people lived in peace. For twenty years the age was called well governed; food and clothing were ample and few people broke the law. That year the Ministry of Justice executed fifty-eight capital sentences empire-wide. It was once said of the Court of Judicial Review prison that not even birds would roost there; now magpies nested in its courtyard trees. The assembled ministers offered congratulations, believing punishments had nearly fallen into disuse. Yet Li Linfu was already in power. Since Lai Junchen's execution, major cases were raised again for the first time; dozens and hundreds were killed through framed charges. Men like Wei Jian and Li Yong were leading ministers of their day, and the realm deemed it unjust. Meanwhile the emperor also delighted in frontier glory, dispatching generals in separate columns to strike the barbarians; armies suffered great defeats, with tens of thousands of soldiers dead or wounded. State revenues were drained, and grain transport burdened the realm. Once the people's strength was exhausted, bandits rose and lawsuits proliferated. The emperor was deeply moved and decreed: "Penal servitude is not a heavy punishment, yet labor convicts are not released from shackles in heat or cold. The staff, in antiquity a substitute for corporal mutilation—yet some whose offenses were not grave were beaten to death. All such cases are pardoned; let them be assigned to armies to redeem themselves through service. Commoners eighty years and older, and those gravely ill who have committed offenses, are not to be prosecuted. When sons supporting elderly parents violate the law, pardon them so they may complete their filial duty. In this way he dispensed kindness to the people. Yet great bandits arose; the realm suffered their ravages, and the people never tasted his grace.
35
安、史之亂，偽官陸大鈞等背賊來歸，及慶緒奔河北，脅從者相率待罪闕下，自大臣陳希烈等合數百人。 以御史大夫李峴、中丞崔器等為三司使，而肅宗方喜刑名，器亦刻深，乃以河南尹達奚珣等三十九人為重罪，斬于獨柳樹者十一人，珣及韋恆腰斬，陳希烈等賜自盡於獄中者七人，其餘決重杖死者二十一人。 以歲除日行刑，集百官臨視，家屬流竄。 初，史思明、高秀巖等皆自拔歸命，聞珣等被誅，懼不自安，乃復叛。 而三司用刑連年，流貶相繼。 及王璵為相，請詔三司推覈未已者，一切免之。 然河北叛人畏誅不降，兵連不解，朝廷屢起大獄。 肅宗後亦悔，歎曰：「朕為三司所悞。」 臨崩，詔天下流人皆釋之。
During the An-Shi rebellion, puppet officials such as Lu Dajun and others deserted the rebels to submit; when Qingxu fled to Hebei, coerced followers came in succession to the palace gate to await judgment—from Grand Counselor Chen Xilie and others, several hundred in all. Censor-in-Chief Li Xian and Vice Censor-in-Chief Cui Qi and others were appointed Three Offices commissioners. Suzong was then enamored of harsh law, and Qi was also severe. Thirty-nine men including Henan Intendant Daxi Xun were judged for grave offenses: eleven beheaded at the Lone Willow Tree; Xun and Wei Heng were cut in two at the waist; seven including Chen Xilie were granted permission to kill themselves in prison; the remaining twenty-one were beaten to death. Executions were carried out on New Year's Eve with all officials assembled to witness; families were exiled and banished. At first Shi Siming, Gao Xiuyan, and others had all willingly defected and submitted. Hearing that Xun and others had been executed, they feared for their lives and rebelled again. Meanwhile the Three Offices applied punishments year after year, and exile and demotion followed in succession. When Wang Yu became chancellor, he requested an edict pardoning all cases still under Three Offices investigation. Yet rebels in Hebei, fearing execution, refused to surrender; warfare continued without end, and the court repeatedly launched major investigations. Suzong later regretted it and sighed: "I was misled by the Three Offices. On his deathbed he decreed that all exiles throughout the realm be released.
36
代宗性仁恕，常以至德以來用刑為戒。 及河、洛平，下詔河北、河南吏民任偽官者，一切不問。 得史朝義將士妻子四百餘人，皆赦之。 僕固懷恩反，免其家，不緣坐。 劇賊高玉聚徒南山，啗人數千，後擒獲，會赦，代宗將貸其死，公卿議請為葅醢，帝不從，卒杖殺之。 諫者常諷帝政寬，故朝廷不肅。 帝笑曰：「艱難時無以逮下，顧刑法峻急，有威無恩，朕不忍也。」 即位五年，府縣寺獄無重囚。 故時，別敕決人捶無數。 寶應元年，詔曰：「凡制敕與一頓杖者，其數止四十； 至到與一頓及重杖一頓、痛杖一頓者，皆止六十。」
Daizong was by nature kind and forgiving, and constantly took the harsh punishments since the Zhide era as a warning. When the Yellow and Luo regions were pacified, he issued an edict that officials and commoners in Hebei and Henan who had served puppet offices would not be questioned at all. More than four hundred wives and children of Shi Chaoyi's soldiers and officers were captured—all were pardoned. When Pugu Huai'en rebelled, his family was exempted and not punished by kinship implication. The notorious bandit Gao Yu gathered followers on South Mountain and killed several thousand people. After he was captured, an amnesty was proclaimed. Daizong was inclined to spare his life, but the chief ministers argued he should be dismembered and salted. The emperor did not consent, yet in the end Gao Yu was beaten to death. Remonstrators often criticized the emperor's lenient rule, saying the court had grown undisciplined. The emperor smiled and said, "In hard times one could not reach down to the people; all one could do was rely on harsh penal law—stern authority without kindness. I cannot bear that. Five years into his reign, prefectural, county, and tribunal prisons held no serious prisoners. Formerly, special edicts ordering beatings had been without number. In the first year of Baoying, an edict stated: "For all imperial orders imposing one session of beating, the number shall not exceed forty; For cases involving one full session of beating, one session of heavy beating, or one session of painful beating, the limit shall be sixty strokes."
37
德宗性猜忌少恩，然用刑無大濫。 刑部侍郎班宏言：「謀反、大逆及叛、惡逆四者，十惡之大也，犯者宜如律。 其餘當斬、絞刑者，決重杖一頓處死，以代極法。」 故時，死罪皆先決杖，其數或百或六十，於是悉罷之。
Dezong was suspicious by nature and sparing of kindness, yet punishments under him were not greatly abused. Vice Minister of Justice Ban Hong said, "Rebellion, great treason, desertion, and wicked treason—these four are among the gravest of the Ten Abominations, and offenders should be punished according to law. All others liable to decapitation or strangulation shall instead receive one session of heavy beating followed by death, as a substitute for the supreme penalty. Formerly all capital sentences had been preceded by beating, sometimes as many as a hundred or sixty strokes; now this practice was entirely abolished.
38
憲宗英果明斷，自即位數誅方鎮，欲治僭叛，一以法度，然於用刑喜寬仁。 是時，李吉甫、李絳為相。 吉甫言：「治天下必任賞罰，陛下頻降赦令，蠲逋負，賑飢民，恩德至矣。 然典刑未舉，中外有懈怠心。」 絳曰：「今天下雖未大治，亦未甚亂，乃古平國用中典之時。 自古欲治之君，必先德化，至暴亂之世，始專任刑法。 吉甫之言過矣。」 憲宗以為然。 司空于頔亦諷帝用刑以收威柄，帝謂宰相曰：「頔懷姦謀，欲朕失人心也。」 元和八年，詔：「兩京、關內、河東、河北、淮南、山南東西道死罪十惡、殺人、鑄錢、造印，若彊盜持仗劫京兆界中及它盜贓踰三匹者，論如故。 其餘死罪皆流天德五城，父祖子孫欲隨者，勿禁。」 蓋刑者，政之輔也。 政得其道，仁義興行，而禮讓成俗，然猶不敢廢刑，所以為民防也，寬之而已。 今不隆其本、顧風俗謂何而廢常刑，是弛民之禁，啟其姦，由積水而決其防。 故自玄宗廢徒杖刑，至是又廢死刑，民未知德，而徒以為幸也。
Xianzong was heroic, resolute, and clear in judgment. From his accession he repeatedly punished regional commanders, seeking to suppress usurpation and rebellion through uniform application of the law; yet in punishing crimes he favored leniency and benevolence. At this time Li Jifu and Li Jiang served as chancellors. Jifu said, "To govern the realm one must rely on rewards and punishments. Your Majesty has frequently issued amnesties, remitted overdue taxes, and relieved the hungry—Your kindness could scarcely be greater. Yet the canonical punishments have not been enforced, and throughout the court and bureaucracy minds have grown slack. Jiang said, "The realm today, though not greatly well governed, is also not greatly chaotic—it is a time like those of old when tranquil states applied the moderate code. Since antiquity rulers who wished to govern well began with moral transformation; only in ages of violent chaos did they rely exclusively on penal law. Jifu has gone too far. Xianzong agreed. Minister of Works Yu Di also urged the emperor to use harsh punishments to recover sovereign authority. The emperor told the chancellors, "Di harbors treacherous designs and wants me to lose the people's hearts. In the eighth year of Yuanhe, an edict stated: "In the Two Capitals, Guannei, Hedong, Hebei, Huainan, and the eastern and western circuits of Shannan, death penalties for the Ten Abominations, murder, counterfeiting coin, forging seals, armed robbery within the Jingzhao boundaries, and theft of goods exceeding three bolts of silk shall be judged as before. All other capital crimes shall be commuted to exile in the Five Cities of Tiande; fathers, grandfathers, sons, and grandsons who wish to accompany the offender shall not be forbidden. For punishments are the auxiliary of governance. When governance follows the Way, benevolence and righteousness flourish and courtesy and yielding become custom; yet one still dare not abolish punishments—they serve as safeguards for the people, and need only be moderated. Now, without strengthening the foundation yet abandoning ordinary punishments—what becomes of customs and mores?—this loosens the people's restraints and opens the way to villainy, like breaking a dike when water has already accumulated. Thus from Xuanzong's abolition of penal servitude and beating down to this further abolition of the death penalty, the people had not yet learned virtue and regarded the change merely as good fortune.
39
穆宗童昏，然頗知慎刑法，每有司斷大獄，令中書舍人一人參酌而輕重之，號「參酌院」。 大理少卿崔𣏌奏曰：「國家法度，高祖、太宗定制二百餘年矣。 周禮正月布刑，張之門閭及都鄙邦國，所以屢丁寧，使四方謹行之。 大理寺，陛下守法之司也。 今別設參酌之官，有司定罪，乃議其出入，是與奪繫於人情，而法官不得守其職。 昔子路問政，孔子曰：『必也正名乎。』 臣以為參酌之名不正，宜廢。」 乃罷之。
Muzong was immature and dull-witted, yet he was fairly conscientious about penal law. Whenever responsible offices tried major cases, he ordered one Secretariat drafter to review and adjust the severity of sentences—an office called the "Review and Deliberation Office." Assistant Director of the Court of Judicial Review Cui Yuan memorialized: "The state's laws and institutions were established by Gaozu and Taizong more than two hundred years ago. The Rites of Zhou prescribe that in the first month punishments are promulgated and posted at gates and lanes, in districts and prefectures, and throughout the realm—all to repeat admonitions and ensure the four quarters carefully observe them. The Court of Judicial Review is Your Majesty's office for upholding the law. Now a separate office of review and deliberation has been established: after the responsible offices determine guilt, it revises the sentence up or down—so that life and death depend on personal sentiment and judicial officers cannot perform their duties. Formerly Zilu asked about governance, and Confucius said, 'What is necessary is to rectify names.' Your subject holds that the name 'Review and Deliberation' is improper and should be abolished. The office was then abolished.
40
大和六年，興平縣民上官興以醉殺人而逃，聞械其父，乃自歸。 京兆尹杜悰、御史中丞宇文鼎以其就刑免父，請減死。 詔兩省議，以為殺人者死，百王所守； 若許以生，是誘之殺人也。 諫官亦以為言。 文宗以興免父囚，近於義，杖流靈州，君子以為失刑。 文宗好治，躬自謹畏，然閹宦肆孽不能制。 至誅殺大臣，夷滅其族，濫及者不可勝數，心知其冤，為之飲恨流涕，而莫能救止。 蓋仁者制亂，而弱者縱之，然則剛彊非不仁，而柔弱者仁之賊也。
In the sixth year of Dahe, Shangguan Xing, a commoner of Xingping County, killed a man while drunk and fled; when he learned his father had been put in fetters, he surrendered himself. Jingzhao Intendant Du Cong and Vice Censor-in-Chief Yuwen Ding, because Xing had surrendered to save his father, requested that his death sentence be reduced. An edict ordered the Two Departments to deliberate; they held that murderers must die—a principle upheld by kings through the ages; To grant him life would be to entice men to murder. Remonstrating officials said the same. Wenzong, considering that Xing had freed his imprisoned father—a deed close to righteousness—sentenced him to beating and exile to Lingzhou; men of principle regarded this as a failure of justice. Wenzong loved good governance and personally exercised caution and restraint, yet eunuchs ran wild and he could not control them. Eventually ministers were executed and their clans exterminated; those wrongfully implicated were beyond counting. Wenzong knew in his heart they were unjustly condemned and wept bitter tears for them, yet could not save or stop it. The benevolent restrain disorder; the weak indulge it. Firmness and strength are not unkind, but weakness and softness are the enemies of kindness.
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武宗用李德裕誅劉稹等，大刑舉矣，而性嚴刻。 故時，竊盜無死，所以原民情迫於飢寒也，至是贓滿千錢者死，至宣宗乃罷之。 而宣宗亦自喜刑名，常曰：「犯我法，雖子弟不宥也。」 然少仁恩，唐德自是衰矣。
Wuzong, relying on Li Deyu, executed Liu Zhen and others; harsh punishments were fully applied, and his nature was stern and harsh. Formerly petty theft did not incur the death penalty, forgiving the people's plight under hunger and cold; now theft of goods worth a thousand cash brought death—a policy not abolished until Xuanzong's reign. Xuanzong also delighted in penal law and often said, "Whoever violates my law shall not be pardoned, even if he is my own kin. Yet he lacked benevolence and grace, and from this Tang virtue declined.
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蓋自高祖、太宗除隋虐亂，治以寬平，民樂其安，重於犯法，致治之美，幾乎三代之盛時。 考其推心惻物，其可謂仁矣！ 自高宗、武后以來，毒流邦家，唐祚絕而復續。 玄宗初勵精為政，二十年間，刑獄減省，歲斷死罪纔五十八人。 以此見致治雖難，勉之則易，未有為而不至者。 自此以後，兵革遂興，國家多故，而人主規規，無復太宗之志。 其雖有心於治者，亦不能講考大法，而性有寬猛，凡所更革，一切臨時苟且，或重或輕，徒為繁文，不足以示後世。 而高祖、太宗之法，僅守而存。 故自肅宗以來，所可書者幾希矣； 懿宗以後，無所稱焉。
From Gaozu and Taizong's removal of Sui cruelty and disorder, their lenient and moderate governance made the people secure and wary of breaking the law—their achievement in good governance nearly matched the flourishing age of the Three Dynasties. Considering their wholehearted devotion and compassion for all beneath Heaven, they may truly be called benevolent! From Gaozong and Empress Wu onward, poison flowed through the realm; the Tang mandate was severed and then renewed. At first Xuanzong exerted himself in governance; within twenty years criminal cases were reduced, and yearly death sentences amounted to only fifty-eight. From this one sees that achieving good governance, though difficult, becomes easy with effort—nothing attempted with diligence fails to succeed. From this time onward warfare arose and the state faced many troubles; sovereigns grew petty-minded and no longer possessed Taizong's aspiration. Even those with some desire to govern well could not examine and apply the great law; with natures ranging from lenient to severe, all their reforms were temporary expedients—sometimes harsh, sometimes lenient—empty formalities that could not instruct posterity. The laws of Gaozu and Taizong were barely preserved. Thus from Suzong onward, almost nothing worth recording remained; After Yizong, there was nothing worth praising.
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Collation notes for this chapter.