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漢文帝十三年，齊太倉令淳于意有罪，逮繫長安當刑。其女緹縈上書曰：「妾父為吏，齊中皆稱廉平，今坐法當刑。妾痛死者不可復生，刑者不可復屬，雖欲改過自新，其道無繇。妾願沒入為官婢，贖父刑罪。」天子憐悲其意，遂下令曰：「蓋聞有虞氏之時，畫衣冠、異章服以為戮，而人弗犯。今法有肉刑三，而姦不止，吾甚自愧！夫訓道不純，愚人陷焉。詩曰：『愷悌君子，民之父母。』今刑者，斷支體，刻肌膚，終身不息。或欲改行為善，而道無繇，豈稱為民父母之意哉！其除肉刑。」丞相張蒼、御史大夫馮敬奏：「議正律令：諸當完者，完為城旦舂；當黥者，髡鉗為城旦舂；當劓者，笞三百；當斬左趾者，笞五百。」 |
| | In the thirteenth year of Emperor Wen's reign in the Han dynasty, Chunyu Yi, the Tai Cang ling of Qi, was found guilty of a crime and was arrested and detained in Chang'an for punishment. His daughter Tiying submitted a memorial, saying: "My father served as an official and was universally regarded as upright and fair in Qi. Now he has been sentenced to corporal punishment for breaking the law. I am distressed that those who die cannot be brought back to life, and those who are subjected to corporal punishment cannot have their limbs restored. Although he wishes to reform and start anew, there is no way for him to do so. I wish to be registered as an official servant girl in order to redeem my father's punishment." The Son of Heaven was moved by her sincerity and thus issued an edict, saying: "I have heard that in the time of Youyu Shi, people were marked with painted clothing and distinctive attire as a form of punishment, yet no one dared to commit crimes. Now there are three forms of corporal punishment in the law. Yet crimes still do not cease; I feel deeply ashamed! The moral instruction is impure, and the ignorant fall into it. The Book of Poetry says: "A kind and benevolent gentleman is the father and mother of the people." Now, corporal punishment severs limbs and scars the flesh, leaving a lifelong mark. Some may wish to reform and do good deeds, but there is no way for them to do so; how can this be in line with the meaning of being a father or mother to the people! Therefore, let us abolish corporal punishment." Chancellor Zhang Cang and the Minister of Justice Feng Jing presented: "Let us discuss and correct the laws and regulations: those who should be subjected to castration will instead serve as Chengdan Chong; those who should receive facial branding, will have their hair shaved off and wear an iron collar while serving as Chengdan Chong. Those who should undergo nose cutting will instead be flogged three hundred times; those who are to have their left foot amputated, will be flogged five hundred times."
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班固曰： |
| | Ban Gu said:
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善乎！孫卿之論刑也，曰：「時俗之為說者，以為治古無肉刑，有象刑墨黥之屬，菲履赭衣而不純，是不然矣。以為治古，則人莫觸罪邪，豈獨無肉刑哉，亦不待象刑矣。以為人或觸罪矣，而直輕其刑，是殺人者不死，而傷人者不刑也。罪至重而刑至輕，人無所畏，亂莫大焉。凡制刑之本，將以禁暴惡，以懲其未也。殺人者不死，傷人者不刑，是惠暴而寬惡也。故象刑非生於治古，方起於亂今也。凡爵列官職，賞慶刑罰，皆以類相從者也。一物失稱，亂之端也。德不稱位，能不稱官，賞不當功，刑不當罪，不祥莫大焉。夫征暴誅悖，治之盛也。殺人者死，傷人者刑，是百王之所同，未有知其所由來者也。故治則刑重，亂則刑輕，犯治之罪固重，犯亂之罪固輕也。書云：『刑罰代重代輕。』此之謂也。」所謂「象刑惟明」者，言象天道而作刑，安有菲屨赭衣者哉？ |
| | Well said! Sun Qing's discussion on punishment states: "Those who speak of the customs and trends of his time claimed that in ancient times there were no corporal punishments. 藟 there were symbolic punishments such as tattooing and branding; they wore simple straw sandals, yellowish-red clothes but not purely so. This is not correct. If one believes that in the well-governed ancient times, no one would commit crimes, then it is not only corporal punishment that was unnecessary; symbolic punishments were also unnecessary. To think that if someone commits a crime, one should merely impose a light punishment is to suggest that those who kill others will not die and those who injure others will escape corporal punishment. When the crime is grave but the punishment is light, people have nothing to fear; this can lead to no greater disorder than that. The fundamental purpose of establishing punishments is to prevent violent and evil acts, and to serve as a warning to those who have not yet committed them. If those who kill are not put to death and those who injure are not punished, this is rewarding violence and showing leniency toward evil. Therefore, symbolic punishments did not originate in the well-governed times of antiquity; they arose precisely during this chaotic present era. All ranks and official positions, rewards and punishments, are assigned according to their respective categories. If one item is improperly matched, it becomes the beginning of disorder. When virtue does not match one's position, ability does not correspond to the office held, rewards are not commensurate with merit, and punishments do not fit the crime, there can be no greater ill omen than this. Punishing violence and eradicating rebellion is the height of good governance. Those who kill shall die, those who injure shall be punished—this is a principle followed by all past rulers; no one knows its origin. Therefore, in times of good governance, punishments are severe; in times of disorder, they are lenient. Crimes committed in times of good governance are naturally severe, while crimes committed in times of disorder are naturally lenient. The Book of Documents says: "Punishments alternate between severity and leniency." This is what it means. " The phrase "Xiangxing Wei Ming" means that punishments are modeled after the principles of Heaven's way. How could there be those who wear simple straw sandals and yellowish-red clothes?
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孫卿之言既然，又因俗說而論之曰：禹承堯舜之後，自以德衰而制肉刑，湯武順而行之者，以俗薄於唐虞故也。今漢承衰周暴秦極弊之流，俗已薄於三代，而行堯舜之制，是猶以鞿而御駻突，違救時之宜矣。且除肉刑者，本欲以全人也，今去髡鉗一等，轉而入於大辟。以死罔人，失本惠矣。故死者歲以萬數，刑重之所致也。至乎穿窬之盜，忿怒傷人，男女淫佚，吏為姦贓，若此之惡，髡鉗之罰又不足以懲也。故刑者歲十萬數，人既不畏，又曾不恥，刑輕之所生也。故俗之能吏，公以殺盜為威，專殺者勝任，奉法者不理，亂名傷制，不可勝條。是以罔密而姦不塞，刑蕃而人愈嫚。必世而未仁，百年而不勝殘，誠以禮樂闕而刑不正也。豈宜惟思所以清源正本之論，刪定律令，谶二百章，以應大辟。其餘罪次，於古當生，今獨死者，皆可募行肉刑。及傷人與盜，吏受賕枉法，男女淫亂，皆復古刑，為三千章。詆欺文致微細之法，悉蠲除。如此，則刑可畏而禁易避，吏不專殺，法無二門，輕重當罪，人命得全，合刑罰之中，殷天人之和，順稽古之制，成時雍之化矣。 |
| | Sun Qing's words are clear, and he further discusses based on popular interpretations: Yu, succeeding the rule of Yao and Shun, instituted corporal punishments due to a decline in virtue; Tang and Wu followed this practice because customs had deteriorated compared to those of the Tang and Yu eras. Now, the Han dynasty inherited the extreme decline of the later Zhou and brutal Qin dynasties; customs have deteriorated more than in the Three Dynasties era. Yet it implements the system of Yao and Shun—this is like using a bridle to control a wild horse. This goes against what is appropriate for the current situation. Moreover, abolishing corporal punishment was originally intended to preserve human life; now, by removing one level of punishment—hair shaving and iron collars—it instead leads directly to capital punishment. To threaten people with death is to lose the original intent of mercy. Therefore, the number of those executed each year runs into the tens of thousands—this is caused by excessive severity in punishment. Down to thieves who burgle through walls, those who harm others out of anger, men and women engaged in licentiousness, and officials committing corruption— For such evils, punishments like shaving hair and wearing an iron collar are still insufficient to serve as a deterrent. Therefore, the number of people subjected to corporal punishment each year reaches into the hundreds of thousands; since people no longer fear it and do not feel ashamed, this is a consequence of overly lenient punishments. Therefore, among the corrupt officials in society, those who publicly execute thieves to establish authority are considered capable; those who take matters of killing into their own hands are seen as competent, while those who follow the law are ignored. This leads to confusion and damage to legal systems—its consequences cannot be fully enumerated. Therefore, even with a dense net of laws, corruption is not stopped; the more punishments there are, the bolder people become in their defiance. It takes generations to achieve benevolence, and a hundred years still cannot overcome cruelty—this is indeed due to the lack of rites and music, and improper punishment. How could it be appropriate to merely consider measures aimed at clearing the source and correcting the root, revising laws and regulations, drafting two hundred chapters of statutes, in order to correspond with capital punishment? For other crimes that were punishable by life imprisonment in ancient times but now result in death, corporal punishments could be offered as an alternative. Regarding crimes such as assault, theft, officials accepting bribes and perverting the law, and men and women engaging in licentious behavior, all should revert to ancient corporal punishments, forming three thousand chapters of laws. All minute and trivial legal provisions that involve defamation or excessive interpretation should be completely abolished. If this is done, then punishments will be feared and prohibitions easily avoided; officials will not have exclusive power over life and death, the law will have no double standards, severity of punishment will match the crime, human lives will be preserved, achieving a balance in penal justice that harmonizes with Heaven's will. This would follow the ancient system and achieve a well-governed society in harmony with the times.
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後漢獻帝之時，天下既亂，刑罰不足以懲惡，於是名儒大才崔實、鄭玄、陳紀之徒，咸以為宜復肉刑。及曹公令荀彧博訪百官，欲復申之，少府孔融議以為：「古者敦厖，善否區別，吏端刑清，政無過失，百姓有罪，皆自取之。末代凌遲，風化壞亂，政撓其俗，法害其教。故曰『上失其道，人散久矣』。而欲繩之以古刑，投之以殘棄，非所謂與時消息也。紂剒朝涉之脛，天下謂之無道。九牧之地，千八百君，若各刖一人，是天下常有千八百紂也，求俗休和，弗可得已。且被刑之人，慮不念生，志在思死，類多趨惡，莫復歸正。夙沙亂齊，伊戾禍宋，趙高、英布為世大患，不能止人遂為非也。雖忠如鬻拳，信如卞和，智如孫臏，冤如巷伯，才如史遷，達如子政，一罹刀鋸，沒世不齒。是太甲之思庸，穆公之霸秦，陳湯之都賴，魏尚之臨邊，無所復施也。漢開改惡之路，凡為此。故明德之君，遠度深惟，棄短就長，不苟革其政者也。」朝廷善之，卒不改焉。 |
| | During the reign of Emperor Xian of the Later Han dynasty, when the world was already in chaos and punishments were insufficient to deter evil, prominent scholars such as Cui Shi, Zheng Xuan, and Chen Ji all believed that corporal punishment should be restored. When Cao Gong issued an order for Xun Yu to consult with officials and wished to revive the proposal, the Shaofu Kong Rong argued: "In ancient times, society was harmonious; good and bad were clearly distinguished. Officials administered punishments fairly, governance had no errors, and when commoners committed crimes, it was of their own doing. In later dynasties, corruption ran rampant; customs deteriorated and became chaotic, governance disrupted the people's traditions, and laws harmed moral instruction. Hence it is said: "When rulers lose their way, the people have long since dispersed." Yet to impose ancient punishments upon them and cast them aside as ruined is not what is meant by adapting to the times. Zhou cut off Chao She's shins, and all under heaven called him a tyrant. In the nine regions of Yu, there were 1800 rulers. If each amputated one person's foot, this would mean that throughout the world there were constantly 1800 Zhis; to seek a peaceful and harmonious society would be impossible. Moreover, those subjected to corporal punishment no longer think of life; their minds are set on death. They tend toward evil and rarely return to righteousness. Susha caused chaos in Qi, Yili brought disaster to Song, Zhao Gao and Ying Bu became great troubles of their age—corporal punishment could not prevent people from committing wrongdoing. Even those as loyal as Yuquan, as trustworthy as Bian He, as wise as Sun Bin, as wronged as Xiangbo, as talented as Sima Qian, or as enlightened as Zizheng, once subjected to the blade and saw, would be disgraced for all time. Thus, even the thoughts of Taijia on reforming his ways, Duke Mu's dominance in Qin, Chen Tang's achievements at Duli, and Wei Shang's service on the frontier would have no place to be applied. The Han dynasty opened a path for reforming wrongdoing; this was done precisely for these reasons. Therefore, enlightened rulers of virtue, with far-reaching vision and deep contemplation, abandon the short-sighted for the long-term benefits; they are not hasty in changing their policies." The imperial court approved this view and ultimately did not make any changes.
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魏武秉漢政，下令又欲復肉刑，御史中丞陳群深陳其便，相國鍾繇亦贊成之，奉常王循不同其議。魏武亦難以藩國改漢朝之制，遂不行。 |
| | Wei Wu held power in the Han government and issued an order once again proposing to restore corporal punishment. The Zhongcheng of the Yushi, Chen Qun, strongly advocated its benefits; the Prime Minister Zhong Yao also supported it, but Wang Xun, the Fengchang, disagreed with their proposal. Wei Wu found it difficult to alter the Han dynasty's system as a vassal state and thus did not proceed.
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至齊王芳正始中，征西將軍夏侯玄、河南尹李勝又議肉刑，竟不能決。夏侯太初著論曰：「夫天地之性，人物之道，豈自然當有犯，何荀、班論曰：『治則刑重，亂則刑輕。』又曰：『殺人者死，傷人者刑，是百王之所同也。』夫死刑者，殺妖逆也，傷人者不改，斯亦妖逆之類也，如其可改，此則無取於肉刑也。如云『死刑過制，生刑易犯』。『罪次於古當生，今觸死者，皆可募行肉刑。及傷人與盜，吏受賕枉法，男女淫亂，皆復古刑』。斯罔之於死，則陷之肉刑矣，舍死折骸，又何辜邪？猶稱以『滿堂而聚飲，有一人向隅而泣者，則一堂為之不樂』，此亦願理其平，而必以肉刑施之，是仁於當殺而忍於斷割，懼於易犯而安於為虐。哀泣奚由而息，堂上焉得泰邪？仲尼曰：『既富且教。』又曰：『苟子之不欲，雖賞之不竊。』何用斷截乎！下愚不移，以惡自終，所謂翦妖也。若飢寒流溝壑，雖大辟不能制也，而況肉刑哉！赭衣滿道，有鼻者醜，終無益矣。」李勝曰：「且肉刑之作，乃自上古。書載『五刑有服』，又曰『天討有罪，而五刑五用哉』。割劓之屬也。周官之制，亦著五刑。歷三代，經至治，周公行之，孔子不議也。今諸議者惟以斷截為虐，豈不輕於死亡邪？云『妖逆是翦，以除大災』，此明治世之不能去就矣。夫殺之與刑，皆非天地自然之理，不得已而用之也。傷人者不改，則刖劓何以改之？何為疾其不改，便當陷之於死地乎？妖逆者懲之而已，豈必除之邪？刑一人而戒千萬人，何取一人之能改哉！盜斷其足，淫而宮之，雖欲不改，復安所施。而全其命，懲其心，何傷於大德？今有弱子，罪當大辟，問其慈父，必請其肉刑代之矣。慈父猶施之於弱子，況君加之百姓哉！且蝮蛇螫手，則壯士斷其腕；系蹄在足，則猛獸絕其蹯：蓋毀支而全生者也。夫一人哀泣，一堂為之不樂，此言殺戮，謂之不當也，何事於肉刑之閒哉？赭衣滿道，有鼻者醜，當此時也，長城之役死者相繼，六經之儒填谷滿坑，何恤於鼻之好醜乎？此吾子故猶哀刑而不悼死也。」夏侯答曰：「聖賢之治世也，能使民遷善而自新，故易曰『小懲而大戒』。陷夫死者，不戒者也。能懲戒則無刻截，刻截則不得反善矣。」李又曰：「易曰：『屨校滅趾，無咎。』仲尼解曰：『小懲而大戒，此小人之福也。』滅趾，謂去足，為小懲明矣。」夏侯答曰：「暴之取死，此自然也。傷人不改，縱暴滋多，殺之可也。傷人而能改悔，則豈須肉刑而後止哉？殺以除暴，自然理也。斷截之政，末俗之所云耳。孔少府曰：『殺人無死，斫人有小瘡，故刖趾不可以報尸，而髡不足以償傷。』傷人一寸，而斷其支體，為罰已重，不厭眾心也。」李又曰：「暴之取死，亦有由來，非自然也。傷人不改，亦治道未洽，而刑輕不足以大戒。若刑之與殺，俱非自然，而刑輕於殺，何云殘酷哉？夫刖趾不可報尸，誠然；髡輸固不足以償傷。傷人一寸，而斷其支體，為罪已重；夷人之面，截其手足，以髡輸償之，不亦輕乎？但慮其重，不惟其輕，不其偏哉！孔氏之議，恐未足為雅論師也。」 |
| | It was not until the Zhengshi period of Emperor Fang of Qi that General of the Western Expedition Xiahou Xuan and the Yinyin of Henan, Li Sheng, again proposed corporal punishment, but they ultimately could not reach a decision. Xiahou Taichu wrote an essay stating: "The nature of heaven and earth, the way of human beings and things—how could it naturally be that there must be crimes? Why then do Xun and Ban argue: 'In times of good governance punishments are severe; in disorder they are lenient.' They also said: 'Those who kill shall die, and those who injure shall receive punishment—this is the common principle followed by all rulers.' Capital punishment is for killing those who are monstrous and rebellious; if one who injures others does not reform, he too belongs to the category of monsters and rebels. If such a person can be reformed, then there would be no need for corporal punishment at all. If it is said that 'capital punishment is excessive and corporal punishment is easily incurred,' 'Crimes less severe than those of ancient times would warrant life, but today, those who commit offenses punishable by death could instead be offered the option of corporal punishment.' And for cases involving injury, theft, officials accepting bribes and perverting justice, and men and women engaging in licentiousness, the ancient corporal punishments should be restored.' This is to deceive them with death and then subject them to corporal punishment; if one avoids death by suffering broken bones, what guilt remains? It is still claimed that 'if many gather in a hall to drink, and one person sits at the corner weeping, then the entire gathering becomes unhappy.' This argument wishes for fairness but insists on applying corporal punishment; it shows mercy toward those who should be killed yet cruelty in cutting flesh. It fears easy offenses but takes comfort in being cruel. How can sorrowful weeping ever cease, and how can peace prevail in the hall? Confucius said: "First enrich them, then educate them." He also said: "If the superior himself does not desire it, even if rewards are offered, people will not steal." What need is there for amputation then! The lowest of the foolish cannot be changed and will end their lives in wickedness; this is what is called cutting off monsters. If people are starving and cold, drifting into the ditches and ravines, even capital punishment cannot control them, let alone corporal punishment! The roads would be filled with prisoners in yellow garments; those who have noses cut off become ugly. In the end, it will achieve nothing." Li Sheng said: "Moreover, corporal punishment originated in ancient times. The Book records 'five punishments with corresponding garments,' and also says, 'Heaven punishes the guilty, thus employing the five punishments accordingly.' These refer to punishments such as cutting off limbs or the nose. The system of Zhou officials also records the five punishments. Through the three dynasties, during times of ideal governance, Duke of Zhou implemented them, and Confucius did not question them. Now those who argue only consider amputation as cruel—would this not be lighter than death? It is said, 'Monsters and rebels are cut off to eliminate great disasters,' which clearly shows that in a well-governed era, one cannot simply abandon or adopt such measures. Killing and corporal punishment are both contrary to the natural order of heaven and earth; they are used only when absolutely necessary. If those who injure others do not reform, how can amputation or nose-cutting make them change? Why, upon disliking their failure to reform, should one immediately condemn them to death? Monsters and rebels need only be punished; is it absolutely necessary to eliminate them? Punishing one person serves as a warning to thousands. Why then should we care whether that single individual reforms! Thieves have their feet cut off, and those guilty of licentiousness are castrated; even if they wish to reform, where else can they apply themselves? Yet by sparing their lives and punishing their hearts, what harm is done to great virtue? Now suppose there is a weak son whose crime warrants capital punishment; if asked by his kind father, he would surely request to have corporal punishment substituted for it. A compassionate father is willing to impose such punishment on a weak son; how much more so should the ruler apply this to his people! Moreover, if a venomous snake bites one's hand, even a brave warrior will cut off the wrist; if a tether is tied to its foot, then a fierce beast will lose its paw: This is about destroying part in order to preserve the whole life. That one person's sorrowful weeping can make an entire gathering unhappy refers to the inappropriateness of killing; how then is corporal punishment any different? The roads are filled with prisoners in yellow clothes, and those who still have their noses appear ugly. At such a time, when the Great Wall project caused deaths to follow one another, and Confucian scholars of the Six Classics were buried in valleys and pits, how could one care about whether someone has or lacks a nose? This is why you still grieve over corporal punishment but do not mourn death." Xiahou replied: "When sage and virtuous rulers govern the world, they can lead people to change for good and renew themselves. Hence, the Book of Changes says, 'Minor punishments serve as warnings against greater offenses.' Those who are condemned to death receive no warning. If one can be punished and warned, there is no need for amputation; once amputated, one loses the chance to return to goodness." Li added: "The Book of Changes says: 'Shoes with shackles that cover the toes, no blame.'" Confucius explained: "Minor punishment serves as a warning against greater offenses; this is the fortune of the small man." "To cover the toes" means to remove the feet, clearly indicating minor punishment," he said. Xiahou replied: "To expose oneself to death through violence is natural. If one injures others and does not reform, allowing violence to multiply, then killing him is justified. If someone who has injured another can truly repent and change, would corporal punishment be necessary for them to stop? Killing to eliminate violence is in accordance with natural principles. The policy of amputation is merely what the corrupt customs of later times have claimed. Kong Shaifu said: "If one kills another and yet faces no death, but cutting someone causes only a minor wound, then amputating the toes cannot repay murder, nor is shaving sufficient to compensate for injury." To injure someone by an inch and yet cut off their limbs is a punishment already too severe, failing to satisfy the people's hearts," he said. Li added: "To invite death through violence also has its origins; it is not natural. If someone injures another and does not reform, this indicates that the way of governance is still incomplete, and light punishments are insufficient to serve as a great warning. If both punishment and killing are unnatural, yet corporal punishment is less severe than death, how can it be called cruel? That amputating toes cannot repay a murder is indeed true; yet shaving the head and laboring in service are certainly insufficient to compensate for an injury. To injure someone slightly yet cut off their limbs makes the punishment already excessive; To disfigure a person's face, sever their hands and feet, and then expect them to compensate through shaving or labor—would that not be too lenient? But by only fearing severity and disregarding leniency, is this not biased! The views of Kong Shi may not be sufficient to serve as the standard for refined discourse."
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| | 肉刑議: |
丁謐又論曰：「堯典曰：『象以典刑，流宥五刑，鞭作官刑，朴作教刑，金作贖刑，眚災肆赦，怙終賊刑。』咎繇曰：『天討有罪，五刑五用哉。』呂刑曰：『蚩尤惟始作亂，延及于平人，罔不寇賊鴟義，姦宄寇攘矯虔。苗人弗用靈，惟作五虐之刑曰法，殺戮無辜，爰始淫為劓、刵、椓、黥。』按此肉刑在於蚩尤之代，而堯、舜以流放代之，故黥、劓之文不載唐、虞之籍，而五刑之數亦不具於聖人之旨也。禹承舜禪，與堯同治，必不釋二聖而遠，則兇頑固可知矣。湯武之王，獨將奚取於呂侯？故叔向云：『三辟之興，皆叔世也。』此則近君子有徵之言矣。」 |
| | Ding Mi also argued: "The Classic of Yao says: 'Xiang was punished with the standard punishment, and five punishments were applied to those who were exiled. Whipping served as official punishment, caning as educational punishment, money as redemption punishment; for unintentional offenses or calamities, pardon was granted, but for those who persisted in their wickedness, criminal punishment was enforced.'" Gouyou said: "Heaven punishes the guilty; thus the five punishments are applied accordingly." The Lüxing says: "Chiyou was the first to start chaos, spreading it even among peaceful people. No one escaped from banditry and violence; both internal and external criminals committed thefts and rebellions." The Miaoren people did not heed the divine, but instead created five cruel punishments called 'law,' killing the innocent. Thus began the excessive use of nose-cutting, ear-cutting, castration, and tattooing." According to this, corporal punishment existed in the time of Chiyou, but Yao and Shun replaced it with exile. Hence, records of tattooing or nose-cutting do not appear in the annals of Tang (Yao) and Yu (Shun), nor are the five punishments fully detailed in the teachings of sages. Yu succeeded Shun through abdication and governed alongside Yao; he certainly would not have abandoned the two sages so far away, thus it is clear that these were indeed wicked and stubborn people. The kings Tang and Wu, when they ruled, would have had no reason to adopt anything from the Lü Hou (Lüxing). Hence Shuxiang said: "The rise of the three punishments all occurred in later, corrupt times." This is a statement by a near gentleman that has clear evidence behind it."
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| | 肉刑議: |
晉武帝初，廷尉劉頌上言曰： |
| | At the beginning of Emperor Wu of Jin's reign, Liu Song of Tingwei submitted a proposal saying:
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| | 肉刑議: |
臣昔上行肉刑，竊以為議者拘孝文之小仁，而輕違聖王之典刑，未詳之甚，莫過於此。 |
| | In the past, I proposed restoring corporal punishment and secretly believed that those who opposed it were bound by Emperor Xiaowen's minor benevolence while lightly disregarding the established punishments of sage kings. Nothing is more unfounded than this.
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| | 肉刑議: |
今死刑重，故非命者眾；生刑輕，故罪不禁姦。所以然者，肉刑不用之所致也。今為徒者，類性元惡不軌之族也，去家懸遠，作役山谷，飢寒切身，志不聊生，雖有廉士介者，苟慮不首死，則皆為盜賊，豈況本性姦兇無賴之徒乎！又令徒富者輸財，解日歸家，乃無役之人也。貧者起於姦盜，又不制之虜也。不刑，則罪無所禁；不制，則群惡橫肆。為法若此，近不盡善也。 |
| | Now that capital punishment is severe, many people who are not truly guilty face death; corporal punishment is lenient, so crimes cannot be restrained. The reason for this situation lies in the non-application of corporal punishment. Now, those sentenced to penal servitude are originally wicked and lawless people. Removed from their homes and sent far away to labor in mountains and valleys, they suffer hunger and cold, with no hope of life left. Even if there were upright and virtuous individuals among them, as long as they fear death more than confessing, they will all become thieves and bandits—how much more so for those who are inherently wicked and untrustworthy! Moreover, wealthy convicts can pay money to reduce their sentences and return home early; they become people who have escaped labor altogether. The poor turn to theft, yet there is no control over them—these are not even properly managed captives. Without corporal punishment, crimes cannot be restrained; without control, all sorts of evils will run rampant. If the law is like this, it is clearly not entirely sound.
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| | 肉刑議: |
古者用刑以止刑，今反於此：諸重犯亡者，髮過三寸輒重髡之，此以刑生刑；加作一歲，此以徒生徒也。亡者積多，繫囚猥畜。議者曰囚不可不赦，復從而赦之，此為刑不制罪，法不勝姦。下知法之不勝，相聚而謀為不軌，月異而歲不同。故自頃年以來，姦惡陵暴，所在充斥。議者不深思此故，而曰肉刑於名忤聽。忤聽孰與賊盜不禁？ |
| | In ancient times, punishment was used to stop further punishment; now it is the opposite: for those who repeatedly commit serious crimes and escape, their hair is cut again as soon as it grows over three cun. This is using punishment to generate more punishment; adding an extra year of labor—this is using penal servitude to produce more penal servitude. Escaped convicts accumulate in large numbers, and prisoners are crowded together like livestock. Commentators say that prisoners cannot be left without pardon; thus, they are pardoned again and again. This means punishment fails to restrain crime, and the law is powerless against evildoers. The people below know that the law cannot prevail; they gather together to plot disorder, with each month and year bringing new forms of crime. Therefore, since recent years, wickedness and violence have grown rampant, filling the land everywhere. Commentators do not deeply consider this cause but instead say that corporal punishment offends public sentiment in name alone. Which is worse: offending public opinion or failing to stop thieves and bandits?
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| | 肉刑議: |
聖王之制肉刑，遠有深理，其事可得而言，非徒懲其畏剝割之痛而不為也，乃去其為惡之具，使夫姦人無用復肆其志，止姦絕本，理之盡也。亡者刖足，無所用復亡；盜者截手，無所用復盜；淫者割其勢，理亦如之。除惡塞源，莫善於此，非徒然也。此等已刑之後，便各歸家，父母妻子，共相養恤，不流離於塗路。有今之困，瘡愈可役，上准古制，隨宜業作，雖已刑殘，不為虛棄，而所患都塞，又生育繁阜之道自若也。 |
| | The sages of old established corporal punishment with deep reasoning, and its rationale can be clearly explained. It is not merely to punish through fear of pain but to remove the means by which evil can be committed, preventing wicked people from acting on their desires again. This cuts off the root of crime and represents the ultimate principle of governance. Those who escape with amputated feet have no means to flee again; thieves with severed hands can no longer steal; those who commit adultery have their genitals removed—the principle is the same. Eliminating evil and blocking its source could not be better than this—it is no mere formality. After receiving such punishment, these individuals return home to be cared for by their parents, spouses, and children; they do not become homeless wanderers on the roads. With today's hardships, once their wounds heal they can still be put to work. Following the precedent of ancient systems and assigning them suitable labor according to circumstances, even though they are maimed by punishment, they are not wasted. Moreover, this prevents widespread suffering while maintaining normal population growth.
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| | 肉刑議: |
今宜取死刑之限輕，及三犯逃亡淫盜，悉以肉刑代之。其三歲刑以下，已自杖罰遣，又宜制其罰數，使有常限，不得減此。其有宜重者，又任之官長。應四、五歲刑者，皆髡笞，笞至一百，稍行，使各有差，悉不復居作。然後刑不復生刑，徒不復生徒，而殘體為戮，終身作戒。人見其痛，畏而不犯，必數倍於今。且為惡者隨發被刑，去其為惡之具，此為已刑者皆良士也，豈與全其為姦之手足，而蹴居必死之窮地同哉！而猶曰肉刑不可用，臣竊以為不識時務之甚也。 |
| | Now it is advisable to replace the lighter limits of capital punishment, as well as cases involving three offenses of escape, theft, or adultery, entirely with corporal punishment. For crimes punishable by imprisonment for less than three years, which are currently handled through beating and release, it is also advisable to establish fixed limits on the number of punishments imposed so that they cannot be reduced below this standard. For those whose offenses warrant heavier punishment, local officials should have the authority to decide accordingly. Those who deserve four or five years of imprisonment should all be subjected to 髡 (hair shaving) and flogging, with the number of lashes reaching up to one hundred. The punishment should be gradually administered so that there are clear distinctions in severity, and they will no longer need to serve time in prison labor. Only then can punishment not give rise to further punishment, and imprisonment no longer lead to more imprisonment; instead, maiming the body serves as a lifelong warning. When people see the pain involved, they will fear and refrain from committing crimes, surely reducing crime by several times compared to now. Moreover, those who commit evil are punished immediately upon being caught, and their means of committing further crimes are removed. Thus, all the punished become good citizens; how could this be compared to leaving evildoers with intact hands and feet for crime, only to push them into a desperate situation where death is inevitable! And yet it is still said that corporal punishment cannot be used. I secretly believe this to be an extreme failure to understand the realities of the times.
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| | 肉刑議: |
周禮三赦三宥，施於老幼悼耄，黔黎不屬逮者，此非為惡之所出，故刑法逆舍而宥之。至於自非此族，犯罪則必刑而無赦，此政之理也。暨至後代，以時險多難，因赦解結，權而行之，又不以寬罪人也。而今恆以罪積獄繁，赦以散之，是以赦愈數而獄愈塞，如此不已，將至不勝。原其所由，肉刑不用之故也。今行肉刑，之徒不積，且為惡無具則姦息。去此二端，獄不得繁，故無取於數赦，於政體勝矣。 |
| | The Rites of Zhou mention three pardons and three acts of clemency, which are applied to the elderly, young children, and those who have not been caught committing crimes. These people do not produce evil deeds; therefore, criminal law should be reversed in their case and they should be shown mercy. As for those who do not belong to this category, if they commit crimes, they must inevitably face punishment without pardon—this is the principle of sound governance. In later generations, due to frequent dangers and difficult times, pardons were issued temporarily to ease tensions; this was an expedient measure, not a means of leniency toward criminals. Yet today, because crimes accumulate and prisons become overcrowded, pardons are used to relieve the situation. As a result, the more frequent the pardons, the more crowded the prisons become. If this continues without end, it will eventually reach a point where the system can no longer cope. Tracing back to its root cause, this is due precisely to the non-use of corporal punishment. If corporal punishment were implemented now, convicts would not accumulate, and if people lacked the means to commit evil, then wickedness would cease. Eliminating these two factors—accumulated convicts and the means for committing crimes—the prisons cannot become overcrowded; thus, there would be no need to issue frequent pardons. This is a great advantage in governance.
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| | 肉刑議: |
疏上，又不見省。 |
| | The memorial was submitted but again went unheeded.
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| | 肉刑議: |
東晉元帝即位，廷尉衛展上言：「古者肉刑，事經前聖，漢文除之，增加大辟。今人戶凋荒，百不遺一，而刑法峻重，非句踐養胎之義也。」詔內外通議。於是王導等議，以：「肉刑之典，由來尚矣。肇自古先，以及三代，聖哲明王所未曾改也，豈是漢文常主所能易者乎！時蕭曹已沒，絳灌之徒不能正其義。逮班固深論其事，以為外有輕刑之名，內實殺人。又死刑太重，生刑太輕，生刑縱於上，死刑怨於下，輕重失當，故刑政不中也。且原先王之造刑也，非以過怒也，非以殘人也，所以救姦，所以當罪。今盜者竊人之財，淫者好人之色，亡者避叛之役，皆無殺害也，則加之以刑。刑之則止，而加之斬戮，戮過其罪，死不可生，縱虐於此，歲以巨計。此乃仁人君子所不忍聞，而況行之於政乎！或者乃曰，死猶不懲，而況於刑？然甿者冥也，其至愚矣，雖加斬戮，忽為灰土，死事日往，生欲日存，未以為改。若刑諸市朝，朝夕鑒戒，刑者詠為惡之永痛，惡者睹殘刖之長廢，故足懼也。然後知先王之輕刑以御物，明誡以懲愚，其理遠矣。」尚書令刁協等議以：「今中興祚崇，大命惟新，誠宜設肉刑寬法以育人。然懼群小愚蔽，習玩所見而忽異聞，或未能咸服。愚謂行刑之時，先明申法令，樂刑者刖，甘死者殺，則心服矣。古典刑不上大夫，今士人有犯者，謂宜如舊，不在刑例，則進退為允。」尚書周顗等議，以為：「復肉刑以代死，誠是聖王之至德，哀矜之弘覆。然竊以為刑罰輕重，隨時而作。時人少罪而易威，則從輕而寬之；時人多罪而難威，則宜死刑而濟之。肉刑平代所應立，非救弊之宜也。方今聖化草創，人有餘姦，習惡之徒，為非未已，截頭絞頸，尚不能禁，而乃更斷足劓鼻，輕其刑罰，使欲為惡者輕犯官刑，蹈罪更眾，是為輕其刑以誘人於罪，殘其身以加楚毒也。昔之畏死刑以為善人者，今皆犯輕刑而殘其身，畏重之常人，反為犯輕而致困，此何異斷刖常人以為恩仁也！恐受刑者轉廣，而為非者日多，踊貴屨賤，有鼻者醜也。徒有輕刑之名，而實開長惡之源。不如殺以止殺，重以全輕，權小停之。須聖化漸著，兆庶易感之日，徐施行也。」議奏，元帝猶欲從展所上，大將軍王敦以為：「百姓習俗日久，忽復肉刑，必駭遠近。且逆寇未殄，不宜有慘酷之聲，以聞天下。」於是乃止。 |
| | In the Eastern Jin dynasty, when Emperor Yuan ascended the throne, Wei Zhan of the Ministry of Justice submitted a memorial stating: "Ancient corporal punishment was established by sages of old. Emperor Wen of Han abolished it and replaced it with an increase in capital punishment. Now, the population is greatly reduced, with less than one percent remaining, yet criminal punishments are severe and heavy. This does not conform to the meaning of Goujian's practice of nurturing life." The emperor issued an edict calling for a general discussion by officials inside and outside the court. Thus, Wang Dao and others deliberated, stating: "The practice of corporal punishment has a long-standing tradition. It began with the ancient ancestors and continued through the Three Dynasties, never altered by sage kings or wise rulers. How could it be changed by a mere ordinary ruler like Emperor Wen of Han!" At that time, Xiao He and Cao Can had already died, and figures such as Jiang Zong and Han Xin could not uphold the principle. When Ban Gu later thoroughly discussed this matter, he argued that it appeared to be lenient punishment on the outside but in reality resulted in killing people. Moreover, capital punishment is too severe while corporal punishment is too lenient. Leniency at the top leads to resentment below; the balance of severity and leniency is thus out of proportion, resulting in unjust legal administration. Furthermore, when the ancient kings established punishments, it was not out of excessive anger nor to maim people, but rather to curb wickedness and ensure that punishment corresponded to the crime. Now, thieves steal others' property, adulterers take the beauty of others, and deserters evade their duties; none of these involve killing. Yet they are still subjected to corporal punishment. Corporal punishment would suffice to deter them, yet they are executed instead. The death penalty exceeds the severity of their crimes; once dead, one cannot be revived—thus, great cruelty is inflicted in this way year after year. This is something that benevolent and virtuous people would find unbearable to hear; how much more so for implementing it in governance! Some may say, "Even death does not serve as a deterrent, let alone corporal punishment?" Yet the common people are ignorant and extremely foolish; even if they are beheaded and reduced to dust, as death passes away day by day and desires for life persist, it does not lead them to reform. If punishments are carried out in public squares and courts, where people see them morning and evening as a warning, the punished will forever remember their pain from wrongdoing, while evildoers witness the lasting consequences of maiming. Thus, it is truly frightening. Only then will people understand that the ancient kings used relatively light punishments to govern the people and clear warnings to correct ignorance—this principle is far-reaching indeed." Shangshu Ling Diao Xie and others argued: "Now that the dynasty has been revived with great auspices, a new mandate is in place. It would indeed be appropriate to establish corporal punishment alongside lenient laws to cultivate virtue among the people. Yet we fear that petty and ignorant officials, accustomed to what they see and dismissive of new ideas, may not all be convinced. The foolish believe that when carrying out punishments, the laws and decrees should first be clearly announced: those who prefer amputation will have their legs cut off; those who are willing to die will be executed. In this way, people's hearts would be convinced. According to classical law, corporal punishment does not apply to high-ranking officials. Now, if scholars commit crimes, it is said they should be treated as before and excluded from the category of those receiving corporal punishment; this would be fair in terms of both advancement and restraint." Shangshu Zhou Yi and others deliberated, believing: "Restoring corporal punishment as a substitute for capital punishment is indeed the highest virtue of sage kings, demonstrating profound compassion and benevolence. Yet I secretly believe that the severity or leniency of punishments should be adjusted according to circumstances. When people commit few crimes and are easily intimidated, punishment should be lightened and made more lenient; when the populace commits many crimes and is difficult to intimidate, then capital punishment should be applied as a means of deterrence. Corporal punishment may seem appropriate in times of stability, but it is not the suitable remedy for correcting current problems. At present, the moral order is just beginning to take root; people still harbor lingering wickedness. Those accustomed to evil continue to commit crimes without ceasing. Even beheading and hanging cannot prevent them, so how could amputating feet or cutting off noses—lighter punishments—deter those who wish to do evil? This would only encourage more people to lightly defy official punishment, leading to an increase in crime. It is as if we are using leniency to entice people into wrongdoing and maiming their bodies to add further suffering. In the past, those who feared capital punishment and thus became virtuous people now commit minor offenses that result in maiming. Ordinary people who once feared severe punishments are now caught in hardship for committing lesser crimes—how is this any different from amputating ordinary people's limbs as an act of so-called kindness! I fear that the number of those subjected to corporal punishment will increase, and wrongdoing will grow daily. The price of prosthetics will rise while normal shoes become cheap; even those with intact noses will be considered ugly. This would merely give the appearance of leniency, yet in reality open a long-term source for growing wickedness. It is better to use execution to stop killing and apply heavier punishments to preserve lighter ones, at least temporarily suspending corporal punishment as an expedient measure. We should wait until the moral influence of the sage ruler gradually becomes evident and the people become more responsive, then implement it at a gradual pace." After the deliberation was submitted, Emperor Yuan still wished to follow Wei Zhan's proposal. General-in-Chief Wang Dun believed: "The people have grown accustomed to current practices over a long time; suddenly restoring corporal punishment would surely alarm both near and distant regions. Moreover, the rebellious enemies have not yet been completely crushed; it is inappropriate to spread news of cruel punishments across the land." Thus, the plan was abandoned.
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| | 肉刑議: |
安帝元興末，桓玄輔政，又議欲復肉刑斬左右趾之法，以輕死刑，命百官議。蔡廓上議曰：「肉刑之設，肇自哲王。蓋由曩代風淳人謹，圖像既陳，則機心遂戢，刑人在塗，則不逞改操，故能勝殘去殺，化崇無為。季末澆偽，設網彌密，利巧之懷日滋，恥畏之情轉寡，終身劇役，不足止其姦，況乎黥劓，豈能反於善？徒有酸慘之聲，而無濟俗之益。至於棄市之條，實非不赦之罪，事非手殺，考律同歸，輕重均科，減降路塞，鍾、陳以之抗言，元皇所為留愍。今英輔翼贊，道邈伊、周，誠宜明慎用刑，愛人弘育，申哀矜以革濫，移大辟於肢體，全性命之至重，恢繁息於將來。」而孔琳之議不同，用王朗、夏侯玄之旨。時論多與琳之同，故遂不行。 |
| | At the end of Yuangxing reign period of Emperor An, Huan Xuan assisted in governance and again proposed a plan to restore corporal punishment by amputating the left and right feet as an alternative to capital punishment, thereby reducing the severity of death sentences. He ordered all officials to deliberate on the matter. Cai Kuo submitted a memorial stating: "The establishment of corporal punishment originated with wise kings. This was because in past generations, the people were virtuous and cautious; once exemplary images were displayed, selfish desires naturally ceased. When criminals were punished publicly on the roads, those with ill intentions would reform their conduct. Thus, they could overcome cruelty and eliminate killing, cultivating a society guided by wuwei (non-action). In later times, as morality declined and deceit increased, the legal net became ever more tightly woven. Greedy and cunning minds grew daily, while feelings of shame and fear diminished. Even lifelong hard labor was insufficient to stop their wickedness; how much less could branding or nose-cutting possibly lead them back to virtue? It would only produce cries of pain and suffering, yet bring no benefit in improving the customs. As for the provisions of execution in public, these are not crimes that cannot be pardoned. The offenses do not involve direct killing; according to the law, they fall under similar categories and receive comparable punishments. With no avenues left for reduction or mitigation, Zhong Rong and Chen Qun once protested against this, and Emperor Yuan ultimately chose mercy. Now, with outstanding ministers assisting in governance and moral principles surpassing those of Yi Yin and Zhou Gong, it is indeed appropriate to use punishments clearly and cautiously, cherish the people, and promote their cultivation. We should express compassion to correct abuses, transfer capital punishment from execution to corporal punishment on limbs, preserve the most precious value of life, and ensure a flourishing future generation." Yet Kong Linzhi held a different view, following the principles of Wang Lang and Xiahou Xuan. At that time, many opinions aligned with Kong Linzhi's, so the proposal was ultimately not implemented.
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| | 詳讞: |
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| | 詳讞: |
周易噬嗑卦云：「雷電噬嗑，先王以明罰敕法。」又賁卦曰：「君子以明庶政，無敢折獄。」又豐卦曰：「君子以折獄致刑。」 |
| | The Zhou Yi, Shi Ke Gua, says: "Thunder and lightning represent Shi Ke; the former kings used this to clarify punishments and establish laws." The Bi Gua also states: "A junzi uses clarity in governance, daring not to bend the law in judging cases." The Feng Gua further says: "A junzi administers punishments and enforces justice."
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| | 詳讞: |
禮記王制曰：「刑者，侀也。侀者，成也。一成而不可變，故君子盡心焉。」 |
| | The Book of Rites, Wang Zhi, states: "Punishment is pattern; it is the shaping of conduct." "Cheng means to complete or perfect." Once formed, it cannot be changed; therefore, a junzi dedicates his utmost care to it."
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| | 詳讞: |
周西伯立，有明德，時諸侯有獄，皆請決平。虞、芮有爭田者，久不能決，乃來求平。及入周，見耕者讓畔，少者讓長，皆慚而返，兩棄其田。 |
| | When the Western Lord of Zhou was established, he possessed virtuous conduct; at that time, when feudal lords had legal cases, they all requested his fair judgment. Yu and Rui once had a dispute over land, which could not be resolved for a long time; thus, they came to seek fair judgment. When they entered Zhou, they saw farmers yielding their field boundaries to each other and the younger yielding to the elder; both felt ashamed and returned home, abandoning their dispute over the land.
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| | 詳讞: |
周官司寇：「以兩造禁人訟，入束矢於朝，然後聽之。以兩劑禁人獄，入鈞金三日，致於朝，然後聽之。以三刺斷庶人獄訟之中：一曰訊群臣，二曰訊群吏，三曰訊萬人。聽人之所刺宥，以施上服下服之刑。又以五聲聽獄訟，求人情：一曰辭聽，二曰色聽，三曰氣聽，四曰耳聽，五曰目聽。」 |
| | The Zhou dynasty's Guikou stated: "Use both parties involved to restrain litigation; present a bundle of arrows in court, and then listen to the case." Use two copies of evidence to restrain those in prison; present three jin of bronze for three days, deliver it to the court, and then hear the case. Use the Three Ci method to decide cases involving commoners: First, consult with ministers; second, consult with officials; third, consult with the common people. Listen to what people accuse and pardon, then apply the appropriate punishments for higher or lower offenses. Also use the Five Sounds to judge cases and discern human nature: first, Ci Ting (word examination): Second, Se Ting (expression observation): Third, Qi Ting (breath observation): Fourth, Er Ting (hearing examination): Fifth, Mu Ting." (eye observation).
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| | 詳讞: |
禮記王制：「凡聽五刑之訟，必原父子之親，立君臣之義，以權之；意論輕重之序，慎測淺深之量，以別之；悉其聰明，致其忠愛，以盡之；疑獄，汎與眾共之，眾疑，赦之，必察小大之比以成之。成獄辭，史以獄成告於正，正聽之；正以獄成告於大司寇，大司寇聽之棘木之下；大司寇以獄之成告於王，王命三公參聽之；三公以獄之成告於王，王三宥，然後制刑。」 |
| | The Book of Rites, "Wang Zhi," states: "Whenever hearing cases involving the Five Punishments, one must always consider the affection between father and son and establish the righteousness between ruler and subject to weigh the matter; Carefully deliberate the order of severity, carefully assess the depth and extent of the offense, to distinguish between them; Fully utilize one's wisdom and discernment, and devote loyalty and love to thoroughly understand the case; In doubtful cases, consult broadly with the people; if there is widespread doubt, grant pardon, and be sure to examine the comparison of minor and major offenses to reach a decision. When the case is finalized and the written record prepared, the official in charge submits it to the Zheng (chief judge), who then hears the matter; Zheng then reports the finalized case to the Da Sikou (Grand Judicial Officer), who hears it under the thorny wood; The Da Sikou reports the finalized case to the king, who then orders the Three Dukes to participate in the hearing; The Three Dukes report the finalized case to the king; after three pardons, the king then decides on the punishment."
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| | 詳讞: |
穆王作呂刑曰：「兩造具備，師聽五辭。五辭簡孚，正于五刑。五刑弗簡，正于五罰。五罰弗服，正于五過。五過之疵，惟官，惟反，惟內，惟貨，惟來。其罪惟均，其審克之。」 |
| | King Muwang composed the Lü Xing, which states: "When both parties are present, the judge hears the Five Statements. If the five statements are concise and trustworthy, then judgment is rendered according to the Five Punishments. If the Five Punishments do not apply, then determine the case based on the Five Penalties. If the Five Penalties are not applicable, then determine the case according to the Five Faults. The five faults are: 1) official misconduct, 2) rebellion, 3) internal corruption, 4) bribery with goods, and 5) coming to court with ulterior motives. Their guilt is equal; carefully examine and determine it."
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| | 詳讞: |
孔子曰：「君子之於人也，有其語也，無不聽者，皇於聽獄乎？必盡其辭矣。」又曰：「聽獄者，或從其情，或從其辭。」又曰：「聽獄之術，三理必寬；寬之術，歸於察；察之術，歸於義。是故聽而不寬，是亂也；寬而不察，是慢也。」又曰：「今之聽人者，求所以殺之；古之聽人者，求所以生之，不得其所以生之，乃刑殺焉。」 |
| | Confucius said: "Regarding people, a junzi has his words; there is no one who does not listen. How much more so in hearing cases?" One must certainly hear all their words." He also said: "Those who judge cases may follow the facts, or they may be swayed by words." He also said: "The method of judging cases is to show leniency in three situations; the way of leniency lies in careful investigation; The method of investigation returns to righteousness. Therefore, if one hears a case but does not show leniency, it is disorder; if one shows leniency without careful investigation, it is negligence." He also said: "Nowadays, those who judge people seek reasons to kill them; in ancient times, those who judged people sought ways to spare their lives. Only when no way of sparing could be found would they resort to punishment or execution."
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| | 詳讞: |
漢高帝詔曰：「獄之疑者，吏或不敢決，使有罪不論，無罪久繫。自今以後，獄疑者各讞所屬二千石官，二千石官以其罪名當報之。所不能決者，皆移廷尉。廷尉不能決，具為奏，附所當比律令以聞。」 |
| | Emperor Gaozu of Han issued an edict stating: "In doubtful cases, officials may be too afraid to decide, resulting in guilty people not being punished and the innocent remaining imprisoned for long periods. From now on, in cases of doubt, each official shall submit the matter to their respective Dushiliang (a high-ranking local official), who will determine and report the appropriate charge. Cases that cannot be decided shall all be transferred to the Tingwei (Ministry of Justice). If the Tingwei is unable to decide, a full report must be submitted, including relevant legal precedents and statutes for reference.
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| | 詳讞: |
景帝中五年，詔曰：「獄，人之大命，死者不可復生。吏或不奉法，以貨賂為市，朋黨比周，以苛為察，以刻為明。有罪者不伏罪，姦法為暴，甚無謂也。諸獄疑，若雖文致於法，而人心不厭者，則讞之。」後元初，詔曰：「獄，重事也。人有智愚，官有上下。獄疑者讞有司。有司所不能決，移廷尉。有令讞而後不當，讞者不為失。欲令理獄者務先寬。」自此，獄刑益詳，近於五聽、三宥之意。 |
| | In the fifth year of Zhongwu reign period of Emperor Jingdi, an edict was issued stating: "A court case concerns a person's life; once someone is executed, they cannot be brought back to life. Some officials do not abide by the law but trade justice for bribes, forming factions and cliques. They take severity as prudence and harshness as wisdom. The guilty do not admit their crimes; they commit violence under the guise of law, which is utterly meaningless. All doubtful cases, or those that may technically conform to legal procedures but fail to satisfy public sentiment, shall be reviewed." In the early years of Houyuan, an edict was issued: "A court case is a matter of great importance. People vary in wisdom and foolishness; officials differ in rank and position. Doubtful cases must be reviewed by the responsible authorities. If the responsible officials cannot decide, the case shall be transferred to the Tingwei. If a review is conducted and still results in an inappropriate decision, the reviewer is not considered at fault. It is desired that those handling court cases prioritize leniency first." From this time onward, the administration of justice became more detailed and approached the principles of "Wuting" (five methods of judging) and "Sanyou" (three forms of leniency).
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| | 詳讞: |
宣帝置廷平員四人，使平刑獄。 |
| | Emperor Xuan established four positions for Tingping, tasked with reviewing criminal cases.
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| | 詳讞: |
魏廷尉高柔，時護軍營士竇禮近出不還，營以為亡，表言逐捕，沒其妻盈及男女為官奴婢。盈連至州府，稱冤自訟，莫有省者，乃辭詣廷尉。柔問曰：「汝何以知夫不亡？」盈垂泣對曰：「夫少單特，養一老嫗為母，事甚恭謹，又哀兒女，撫視不離，非是輕狡不顧室家者。」柔重問曰：「汝夫不與人有讎乎？」對曰：「夫良善，與人無讎。」又曰：「汝夫不與人交錢財乎？」對曰：「嘗出錢與同營士焦子文，求不得。」時子文適坐小事繫獄，柔乃見子文，問所坐。言次，曰：「汝頗曾舉人錢不？」子文曰：「自以單貧，初不敢舉人物也。」柔察子文色動，遂曰：「汝舉竇禮錢，何言不耶？」子文怪知事露，應對不次。柔曰：「汝殺禮，便宜早伏！」子文於是叩頭，具首殺禮本末、埋藏處所。柔便遣吏卒承子文辭往，掘得其屍。詔書復盈母子為平人。班下天下，以為體式。 |
| | Wei Tingwei Gao Rou, at that time, a soldier named Dou Li from the Hu jun (military command) had gone out and not returned. The camp assumed he had fled and reported it to authorities for pursuit and capture; as a result, his wife Ying and their children were seized and made state slaves. Ying repeatedly went to the local government offices, pleading her innocence and seeking justice, but no one heeded her. She then submitted a petition to the Tingwei. Gao Rou asked: "How do you know your husband did not flee?" Ying wept and replied: "My husband was young, an orphan, who raised an elderly woman as his mother. He treated her with great respect and care. Moreover, he pitied our children and never left them unattended. He is not the kind of person to be frivolous or neglect his family." Gao Rou then asked again: "Did your husband have any enmity with others?" She replied: "My husband was virtuous and had no enemies." Gao Rou also asked: "Did your husband have any financial disputes with others?" She replied: "He once lent money to a fellow soldier in the camp named Jiao Ziwen, but it was never repaid." At that time, Jiao Ziwen happened to be in prison for a minor offense. Gao Rou then summoned Ziwen and questioned him about the charges against him. While speaking, he said: "Have you ever borrowed money from others?" Ziwen replied: "Because I am poor and alone, I have never dared to borrow anything from others." Gao Rou observed that Ziwen's expression changed and said: "You borrowed money from Dou Li, why are you denying it?" Ziwen was surprised that the matter had been discovered and responded incoherently. Gao Rou said: "You killed Li, you should confess early!" Ziwen then kowtowed and fully confessed the entire course of killing Li and where he had buried him. Gao Rou immediately sent officials and soldiers, following Ziwen's confession, to dig up the body, which was found as described. liğinde The imperial decree restored Ying and her children to common civilian status. The case was circulated throughout the empire as a model for judicial conduct.
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| | 詳讞: |
吳孫權太子登出遊，時有彈丸飛過，左右往捕，得一人挾彈懷丸，抗言實不放彈，左右請付法。登即使求過丸，比之非類，乃釋之。 |
| | In Wu, Crown Prince Deng of Sun Quan went out for a tour. At that time, an elastic ball flew past; the attendants pursued and caught one man carrying a slingshot and balls, who protested that he had not actually thrown it. The attendants requested to hand him over for legal punishment. Deng immediately ordered the retrieval of the ball in question and, upon comparison, found that it was not the same type; he then released the man.
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| | 詳讞: |
孫亮出西苑，食生梅，使黃門至中藏取蜜漬梅。蜜中有鼠矢，召問藏吏，藏吏叩頭。亮問吏：「黃門從汝求蜜邪？」吏曰：「向求，實不敢與。」黃門不伏。侍中刁玄、張邠啟：「黃門、藏吏辭語不同，請付獄推盡。」亮曰：「此易知耳。令破鼠矢，裏燥，必是黃門所為。」黃門首服。左右莫不驚悚。 |
| | Sun Liang went out to Xiyuan and ate fresh plums, ordering a Huangmen official to go to the Zhongcang (Imperial Treasury) to fetch honey to soak the plums. There was a rat dropping in the honey, and Sun Liang summoned the treasury official for questioning; the official kowtowed. Liang asked the official: "Did the Huangmen official request honey from you?" The official replied: "He requested it earlier, but I really dared not give him any." The Huangmen official did not admit guilt. Shizhong Diao Xuan and Zhang Bin advised: "The statements of the Huangmen official and the treasury official differ; we request that they be handed over to prison for thorough investigation." Liang said: "This is easy to determine. Order them to break open the rat dropping; if it is dry inside, it must have been done by the Huangmen official." The Huangmen official then confessed. Those around him were all greatly startled and fearful.
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| | 詳讞: |
晉陸雲為浚儀令。雲到官肅然，下不能欺，市無二價。人有見殺者，主名不立，雲錄其妻，而無所問。十許日遣出。密令人隨後伺之，謂曰：「不出行十里，當有男子候之與語，便縛來。」既而果然。問之具服，云與此妻通，共殺其夫，聞妻得出，欲與語，憚近縣，故遠相邀候。於是一邑稱為神明。 |
| | In the Jin dynasty, Lu Yun served as the magistrate of Junyi. Upon assuming office, Lu Yun maintained a strict and upright administration; subordinates could not deceive him, and in the marketplace there were no double prices. When someone was found murdered with the identity of the perpetrator unknown, Lu Yun detained the victim's wife but asked her no questions. After about ten days, he released her. He secretly ordered someone to follow and watch her, saying: "If she does not go beyond ten li, there will be a man waiting for her to speak with. When that happens, seize him." As expected, this indeed happened. When questioned, he confessed in full: he had an affair with the wife and together they killed her husband. Upon hearing that his wife was to be released, he wanted to meet her but feared being caught by local authorities, so he waited for her from a distance. Thus, the entire district hailed him as a wise and divine official.
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| | 考訊: |
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大唐律： |
| | The laws of Da Tang:
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| | 考訊: |
諸察獄之官，先備五聽，又驗諸證信，事狀疑似，猶不首實者，然後拷掠。每訊，相去二十日，若訊未畢，更移他司，仍須拷鞫者，則通計前訊，以充三度。即罪重害，及疑似處少，不必皆須滿三者，囚因訊致死者，皆俱申牒當處長官，與糾彈官對驗。 |
| | All officials in charge of examining prisoners must first prepare the five methods of listening, and also verify various pieces of evidence. If the case remains doubtful or ambiguous, and the suspect still does not confess to the truth, then they may resort to interrogation through coercion. Each time an interrogation takes place, there must be a gap of twenty days. If the interrogation is not yet completed and needs to be transferred to another office for further examination, Then the previous interrogations shall be counted cumulatively to fulfill the three rounds. If the crime is serious and harmful, or if there are few suspicious points, it is not necessary for all cases to reach three rounds of interrogation. If a prisoner dies as a result of interrogation, an official report must be submitted to the local superior officer together with the examining official, who will jointly verify the case with the censure official.
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諸拷囚不得過三度，數總不過二百。杖罪以下，不得過所犯之數。拷滿不承，取保放之。若拷滿三度，及杖外以他法拷掠者，杖一百。數過者，反坐所剩。以故致死者，徒二年。即有瘡痛，不待差而拷者，亦杖一百。若決杖笞者，笞五十。以故致死者，徒一年半。若依法拷決，而邂逅致死者，勿論。仍令長官等勘驗。違者，杖六十。 |
| | All prisoners may not be subjected to more than three rounds of coercion, and the total number of times must not exceed two hundred. For offenses punishable by caning or lesser penalties, the number of strokes shall not exceed that prescribed for the specific crime committed. If a prisoner does not confess after reaching the maximum limit of coercion, they must be released with a guarantor. If an official exceeds three rounds of coercion or uses other methods beyond caning to interrogate, they shall be caned one hundred times. If the number exceeds the limit, the official will receive punishment corresponding to the excess amount. If someone is thereby caused to die, the official shall be sentenced to two years of penal servitude. If a prisoner has wounds or pain and is subjected to coercion without waiting for medical clearance, the official shall also be caned one hundred times. If someone administers caning or flogging improperly, they shall receive fifty lashes with the bamboo stick (chi). If this results in death, the official shall be sentenced to one and a half years of penal servitude. If someone dies by chance as a result of lawful interrogation or punishment, no penalty shall be imposed. The local superior officials must still investigate and verify the case. Those who violate this shall be caned sixty times.
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諸拷囚，限滿不首，反拷告人。其被殺、盜家人親屬告，不反拷。拷滿不首，取保並放。違者以故失論。 |
| | All officials interrogating prisoners must not extend the limit of coercion if the prisoner does not confess; instead, they should investigate and punish those who make false accusations. If a family member or relative reports a case involving murder or theft, the accuser shall not be subjected to counter-interrogation. If a prisoner does not confess even after reaching the limit of interrogation, they shall be released with a guarantor and set free. Those who violate this rule will be punished according to the law for intentional negligence.
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諸赦前斷罪不當者，若處輕為重，宜改從輕；處重為輕，即依輕法。其常赦所不免者，依常律。赦書定罪名，合從輕者，不得引律比附入重。違者，各以故失論。 |
| | If a punishment previously imposed before a pardon was inappropriate, and if it was wrongly made lighter into heavier, it should be corrected to the lighter penalty; if it was wrongly made heavier into lighter, then the lighter legal provision shall apply. For those who are not exempted by a general pardon, the usual laws shall still apply. If the amnesty decree specifies a crime and prescribes a lighter punishment, one must not cite legal provisions to analogize it into a heavier penalty. Those who violate this shall each be punished according to the laws for intentional or negligent misconduct.
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諸犯罪在市，杖以下，市決之。應合蔭贖及徒以上，送縣。其在京市，非京兆府，並送大理寺。 |
| | All crimes committed in the market, if punishable by caning or less, are to be adjudicated and punished at the market. Those who should receive privileges of exemption through sponsorship, redemption, or penal servitude and above shall be sent to the county office for adjudication. For crimes committed in markets within the capital city but not under the jurisdiction of Jingzhao Fu, they must all be sent to the Dali Temple (Ministry of Justice).
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諸決大辟罪，在京者，行決之司五覆奏；在外府，刑部三覆奏。若犯惡逆以上，及部曲、奴婢殺主者，唯一覆奏。其京城及駕在所，決囚日尚食進蔬食，內教坊及太常寺並停音樂。 |
| | For those sentenced to capital punishment, if they are in the capital city, the office responsible for carrying out the execution must submit five reports for review; for cases outside the capital under the jurisdiction of a prefecture, the Ministry of Punishment shall submit three reports for review. If the crime involves serious offenses such as filial impiety or if a servant or slave kills their master, only one report for review is required. On the day of executing prisoners in the capital city or wherever the imperial court resides, the Imperial Cuisine Office shall serve only vegetarian food, and both the Inner Music Bureau and the Ministry of Rites shall suspend all musical performances.
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諸決大辟罪，皆防援至刑所，囚一人防援二十人，每一囚加五人，五品以上聽乘車，並官給酒食，聽親故辭訣，宣告犯狀。皆日未後乃行刑。即囚身在外者，奏報之日，不得驛馳行下。 |
| | For all cases of capital punishment, the prisoner must be escorted to the place of execution by guards. One prisoner requires twenty escorts; for each additional prisoner, five more escorts are added. Officials of fifth rank or higher may ride in a carriage, and official provisions of wine and food shall be provided. The prisoner is allowed to bid farewell to relatives and friends, and their crime must be publicly announced before the execution. Executions are carried out only after noon each day. If a prisoner is located outside the capital city, on the day of submitting reports for execution, they must not be transported by urgent imperial courier.
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諸決大辟罪，官爵五品以上，在京者大理正監決，在外者上佐監決，餘並判官監決。從立春至秋分，不得奏決死刑。若犯惡逆以上及奴婢、部曲殺主者，不拘此令。在京決死囚，皆令御史、金吾監決。若囚者冤枉灼然者，停決聞奏。 |
| | For those sentenced to capital punishment who hold an official rank or title of fifth grade or higher, if they are in the capital, the Chief Magistrate of the Dali Temple shall supervise the execution; if outside the capital, a senior deputy official shall supervise it. For others, a judge shall oversee the execution. From the Beginning of Spring to the Autumnal Equinox, no death penalty cases may be reported for execution. If the crime involves serious filial impiety or a servant/slave killing their master, this regulation does not apply. For executions of death row prisoners in the capital city, both the Censorate and the Jinwu Commandery officials must supervise the execution. If it is clearly evident that a prisoner has been wrongfully convicted, the execution shall be halted and reported to higher authorities for review.
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諸囚死，無親戚者，皆給棺，於官地內權殯。置塼銘於壙內，立牓於上，書其姓名。仍下本屬，告家人令取。即流移人在路及流所、徒在役死者，亦准此。 |
| | For prisoners who die in custody without any relatives or close friends, the government shall provide a coffin and temporarily bury them on official land. , official land shall not be provided; instead, they are to be buried in an area at least seven li outside the capital with no more than one qing of land allocated. All death row prisoners under various offices shall be inspected and supervised by the Dali Temple.}} A brick inscription must be placed inside the grave, a plaque erected on top, and the name of the deceased written upon it. The local authorities should also notify the family members to come and retrieve the remains. Those who are exiled or on their way to exile, as well as those sentenced to penal servitude who die while serving their sentence, shall also follow this procedure.
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諸枷長五尺以上、六尺以下，頰長二尺五寸以上、六寸以下，共闊尺四寸以上、六寸以下，徑三寸以上、四寸以下。杻長六寸以上、二尺以下，闊三寸，厚一寸。鉗重八兩以上、一斤以下，長一尺以上、一尺五寸以下。鎌長八尺以上、丈二尺以下。 |
| | The length of a wooden stocks (jia) must be no less than five chi and no more than six chi, the distance between the cheeks must be no less than two chi and five cun and no more than six cun, the width must be no less than one chi and four cun and no more than one chi and six cun, and the diameter of each hole for the head or limbs must be no less than three cun and no more than four cun. The length of handcuffs (chou) must be between six cun and two chi, the width three cun, and the thickness one cun. The weight of leg irons (qian) must be no less than eight liang and no more than one jin, with a length between one chi and one chi five cun. The length of the executioner's sickle (lian) must be no less than eight chi and no more than twelve chi.
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諸杖皆削去節目，長三尺五寸。訊囚杖，大頭三分二釐，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，小頭一分半。其決笞者腿分受，決杖者背、腿、劍分受，須數等。考訊者亦同。笞以下，願背、腿均受者，聽。即殿廷決者，皆背受。 |
| | All caning rods must have their knots removed, with a length of three chi five cun each. For interrogation canes used on prisoners, the thicker end should be 3.2 li in diameter and the thinner end 2.2 li. For regular caning rods used for punishment, the thicker end should be two fen seven li in diameter and the thinner end one fen seven li. For bamboo sticks (chi) used for flogging, the thicker end must be two fen in diameter, and the thinner end must be one fen and a half. When administering flogging with bamboo sticks (chi), the punishment should be distributed on both legs; when caning, it must be divided among the back, legs, and sword area (a traditional reference to a specific part of the body). The number of strokes must be equal. The same applies for interrogations involving physical punishment. For punishments of flogging or lesser severity, if the prisoner wishes to have the blows distributed equally on their back and legs, it may be permitted. If the punishment is carried out in the palace courtyard, all strokes must be administered on the prisoner's back.
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