First, guess that cutting power will stop and die.
In the Examination of Criminal Law in Past Dynasties, Shen Jiaben listed various opinions and viewpoints on the restoration of corporal punishment in the Han, Wei and Jin Dynasties, and said in the final remarks:
In addition to corporal punishment, Emperor Wen of the Han Dynasty has been benevolent in past dynasties, and Ban Gu first discussed its right and wrong. ..... Since its founding in that year, Ban Gu has been adding fuel to the flames until the end of the Eastern Jin Dynasty, which can be said to be one of the major disputes between Legalists. If we infer the reason, Zhang Cang's law will change the right to give up the market, which means from birth to death. Therefore, people have to regard it as their own ears. On that day, the original purpose of the law is bound to be without cause, especially if it is said that it is not passed on, and the commentators will not keep it. All corporal punishment will also be discussed and disputed. How can it be solid? 〔 1〕
Shen Jiaben's statement is quite reasonable. If we use some imagination to pursue the realistic situation that Wendi may face in the reform according to various scattered documents, we may find the essence of the law at that time.
In the era of corporal punishment, if we refer to the explanation of adding a crime recorded in "Questions and Answers to Laws" in Qin bamboo slips "Sleeping Tiger Land", we can see that in the case of one crime, the highest punishment is just to cut off the left and stop the shackles.
What is an "aggravated crime"? Five people stole, stole more than one piece, and stopped on the left, thinking that Cheng Dan; If you don't earn five people, you will steal 660 yuan, and you still think it is a city. If you don't make a profit of 660 to 220 yuan, it is a city; If you can't make a profit of 220 1 dollar, then move. 〔2〕
From this Qin law, we can guess that if the highest penalty for theft is to stop being left for the city, then the ordinary theft calculated by stolen goods will not be sentenced to death in the Qin Dynasty; Another possibility is the opposite, that is, if the maximum penalty for theft is not an aggravated crime, it may be executed after the amount of stolen goods reaches a certain amount. Then, as a crime, the maximum aggravated penalty for theft is only added to the level of cutting the left, and then it is not an aggravated crime but directly put into death. No matter what the facts are, we can make the following assumptions first:
A. cutting left is generally regarded as an aggravated crime.
Secondly, because it is difficult to be understood by later generations to change the right to abandon the market in the reform of Wendi, considering that Wendi is not a mediocre generation, it is impossible not to know that he will be sentenced to death indefinitely. If there is no sufficient reason, it will be criticized by future generations. Zhang Cang, the prime minister, and a group of experienced court ministers agreed with the reform plan put forward afterwards. If it was unreasonable, they simply changed their power to stop abandoning the market. This was definitely a disagreement among all the people involved in the discussion at that time. What's more, without proper analysis and explanation, Emperor Wendi of China was also very sad about this last pass. Emperor Wen did not put forward any opinions on the obviously unreasonable things, but approved them without hindrance. Then, when we analyze this matter, we must find a reason for this inevitable change in practice, although it is invisible in history books. Needless to say, the key to the problem is under what circumstances. According to the relevant literature, it seems that we can make a second guess:
B deprivation of rights may be used as aggravating punishment or recidivism. Once the right stop is imposed, it may mean that the sinner's left stop no longer exists. This is divided into two situations: First, the sinner is beheaded at the same time because he is sentenced to several crimes at one time. Second, the sinner who committed the crime of left beheading before will be beheaded right if he commits the crime of left beheading again; Or because of repeated crimes, he has been beheaded on the left, and if he commits a criminal offence above Cheng Dan again, he should be beheaded on the right.
For example, Biography of Sun Tzu Wu Qi in Historical Records tells that Pang Juan was jealous of his classmate Sun Bin's talent and called him to Wei, saying, "I want to hide it."
Another example is "Everything is done by Han Feizi and Shi Bi": "Chu people and their families got jade in Chu Mountain and presented it to the king. Li, the king of Qi, made the jade man look at each other, and the jade man called the stone. The king of Qi took peace as his death and cut off his left foot. , Qiu, acceded to the throne, and others have also made suggestions. The prince of Wu made the jade people look at each other, which is also called the stone. The king also died of peace and beheaded his right foot. "
These are all examples of the pre-Qin era. What can reflect the situation of the Han Dynasty is a section of the Han Dynasty found in Zhang Jiashan's Han Bamboo Slips "Shu Yu Shu"
Initial case. The case is that the woman escaped, and then she occupied the book number and automatically registered her identity with the government, so she concealed her original identity and registered her name, and then she became a slave to the doctor. Ming married her to a hidden official. Xie, who was humiliated before, is now a hidden official. A hidden official refers to a prisoner who has been subjected to corporal punishment, but is no longer regarded as a prisoner for reasons such as pardon and exemption from crime, and is arranged to live and work in a place that is not easy to be seen.
The case was brought to court because Fu was found by people (probably the original owner of Fu) and sent to the government, and his escape was reported. Yin was sentenced to corporal punishment and hard labor for marrying the deceased as a person who violated this law. According to the law, "The person who marries the deceased is Shi Dan." It is the lowest corporal punishment, which has several levels in turn, such as "hello", "cut left" and "cut right". However, it is not the first time to solve the punishment in this case. Because he had been punished by corporal punishment before, he was no longer punished. As a result, the punishment is "cutting the left for the market." 〔3〕
It can be inferred that if Xie is pardoned as a hidden official again, he will be beheaded if he commits crimes above the city official in the future. In this case, if it is in line with the situation at that time, then "solution" needs to commit at least three criminal offences before it can reach the level of beheading. On the other hand, if a person commits the crime of beating the city many times, it takes four times to get beheaded. Even as the most serious case of "five people stealing, stealing more than money, and cutting the left to think that it is a city Dan", it is necessary to commit the crime of cutting the right again to achieve heavy corporal punishment. In this case, the number of recidivists is large and the crimes committed are heavy, which should be rare.
If the above inference is related to the reform of the penalty system during the reign of Emperor Wen, then the plan put forward by Zhang Cang and others to change the right of decapitation to the right of abandoning the city may actually be to change repeated offenses to the death penalty. As for whether there was a first offense in the Han Dynasty, it was A.
It is not certain that the crime will be beheaded. My personal opinion is that there is no such thing.
In the laws of the Tang Dynasty, which were respected by later generations, there were legal provisions that aggravated recidivism. Please look at a rule in the Law on Thieves and Bandits: after being beheaded, thieves still steal more, and the first and last three offenders flow for two thousand miles; Three criminals, strangled.
Although this only refers to theft, it is not a universal principle. However, from the legislative purpose of informal interpretation, it is essentially to increase the punishment for those who have committed crimes for many times without remorse. The discussion goes like this: "The thief is really a giant cockroach. Repeatedly violated the constitution and showed no concern for you. Going to the punishment department three times before and after is the end of this matter, which is used to punish his crimes. " This legal provision in the Tang Dynasty is not necessarily offensive, because it is expressly stipulated. If the punishment of corporal punishment in Han dynasty is linked, it will be abolished. If it was for the same reason at that time, we should reasonably give up the market for recidivists who should be punished by corporal punishment, so as to severely punish those who "repeatedly violate the Constitution", so as to avoid the problem that corporal punishment is abolished and the punishment for such people is too light after the prescribed sentence.
Because Wendi's reform was criticized by later generations, it was inappropriate for those who could not understand the specific situation at that time to change their power and abandon the market. However, during the political reform, officials and ministers such as Wendi and Zhang Cang didn't think there was anything wrong with this, and there must be reasons that later generations didn't know. I want to find a more reasonable explanation according to the newly unearthed Han bamboo slips, so I put forward the above views. According to scholars who sorted out Zhang Jiashan's bamboo slips, there are still a lot of corporal punishment contents in the laws and regulations of Han bamboo slips, such as fu, fu, cutting left and cutting right. [4] The related items of "cutting power" are of key significance to explain the reform of Emperor Wen. The viewpoint of this paper can only be used as a reference hypothesis, hoping to be partially verified after the complete publication of Zhangjiashan Han bamboo slips.
Second, the reflection on the current statement.
In China, there are many opinions on the evaluation of corporal punishment of Emperor China, all of which are analyzed from the economic point of view, that is, from the aspects of destroying or preserving social productive forces. For example, some scholars believe that the reform of the penalty system in Wenjing era clearly put forward the specific content of abolishing corporal punishment. This is an important change in China's legal system after the transition from slavery to feudalism, and it is a significant historical progress in the development of the penalty system. As the core content of slavery punishment system, corporal punishment is a brutal and cruel punishment that mutilates people's limbs, destroys people's physiological functions and cripples people for life. It has seriously damaged the healthy development of social productive forces and hindered the normal development of social and economic activities through personal injury to some workers. This can no longer meet the social requirements of the feudal era when the feudal individual small-scale peasant class has developed into a broad social foundation and the feudal individual small-scale peasant economy has become the main economic component, and can not meet the growing demand of the ruling class for exploitative labor. Therefore, the reform of abolishing corporal punishment in Wenjing era not only expanded the targets of exploitation, increased the social sources of creating material wealth, objectively contributed to the development of production and economic recovery, and promoted the historical progress of human society, but also made the penal system gradually transition from extreme cruelty to relatively lenient and humane, thus eliminating the negative impact of slavery remnants on the legal system and promoting the in-depth development of the feudal legal system.
Personally, I have always held the view that corporal punishment is beneficial to social and economic development and related to labor demand. Now it seems that if we analyze the reform of Emperor Wendi in a specific time, our views may be far-fetched.
During the period of Emperor Wen's reform of the penal system, it seems that there was no such thing as corporal punishment, which seriously damaged social productive forces. Ban Gu said this in a passage before the abolition of corporal punishment in Records of Han Criminal Law: "When filial piety acceded to the throne, ... is both romantic and generous, and should not be neglected and lenient. Zhang Shizhi was elected as Tingwei, and those suspected of committing crimes were handed over to the people. As for the imprisonment of 400, there is a trend of wrong punishment. " In the year mentioned here, there were only 400 criminal trials. Of course, this may be a rough figure, but since there is an exact basic figure of 400, it should have certain credibility. If you think this is just a compliment from Ban Gu, I'm afraid you need to produce other evidence to prove it, otherwise it will be hard to convince people. Now, if we continue to ask questions according to this figure, it is inevitable that some difficult questions will arise. For example, only 400 prisoners are sentenced to prison every year. If the punishments accepted by the tried criminals include death penalty, corporal punishment, imprisonment, relocation punishment and property punishment, then the number of people sentenced to corporal punishment is very limited, accounting for only a part of 400 cases. From the point of view of labor force, these people are insignificant compared with the tens of millions of people already in the Han Dynasty. For another example, even if Shigu commented that these 400 people are "felonies all over the world" (I don't know whether Shigu has a basis or inferred this meaning), it is difficult to connect with labor issues, because it is not necessary to say that felonies should include the death penalty, even if the punishment of the criminals involved in these 400 cases is corporal punishment, it is only 400. Simply from the aspect of labor, it seems that retaining corporal punishment cannot meet the growing demands of the ruling class for exploiting labor. There is a more important thing that has been neglected, that is, according to the actual situation, even if a person is subjected to corporal punishment, it does not mean that he is completely incapacitated. The punishment of flogging should be the most widely used corporal punishment, and flogging is not widely used. Judging from the ability to work, people who are flogged are almost unaffected. As for the punishment of beheading, we at least know that beheading leftists usually leads to imprisonment for Cheng Dan. According to Ying Shao, a native of Han Dynasty, Cheng Dan "started to run a city", that is, he wanted to build a city in the early morning. Whether criminals divide their work in this way or not, at least Cheng Dan also refers to manual labor. This shows that people parked on the left can still undertake heavy work even if their physical activities are limited. As I mentioned in an article before, people who have been punished for amputation may have only a part of their feet amputated (if we speculate boldly, it may also be that their toes have been amputated, and the victims can still stand on their feet and even walk, but some of them walk unsteadily).
On the analysis of corporal punishment itself, it should be said that the viewpoint put forward by Japanese scholars can better reveal its essence. Mr Shiga Xiusan believes that in ancient China, "people tortured by corporal punishment were no longer regarded as members of society, and no one cared whether they were alive or dead, which was exactly the same as the most primitive form of exile. It can be considered that this is the original intention of corporal punishment. In other words, like the death penalty, the purpose pursued by corporal punishment is essentially the same as exile. The pain of knives and axes and disability is not the main purpose of corporal punishment. The main significance of corporal punishment lies in its increased harm to the body, a symbol of social waste and a lifelong deprivation of civil rights. " It may be that these people abandoned by society can't live any longer, so they are taken care of and let them spend the rest of their lives making a living. Later, I realized that these people still have certain use value, and gradually developed the relevant system for criminals. Mr Shiga also put forward a very incisive view on the origin of China's early punishment, that is, the correct method should be to understand the death penalty, corporal punishment and exile punishment from the perspective of "expelling society". 〔5〕
Therefore, it seems that the analysis is not enough to judge that corporal punishment is a serious damage to productivity, or that the abolition of corporal punishment has the intention of expanding the targets of exploitation. If we talk about the matter, we should admit the original intention of Emperor Wendi to abolish corporal punishment, or what Emperor Wendi himself said was to implement moral policies and open the way for sinners to change their behavior.
During the reign of Cao Cao at the end of Han Dynasty, corporal punishment was once considered, but Kong Rong, who was appointed as a junior official, resolutely opposed it. The main opinions he put forward are as follows: First, times have changed. Today's social conditions are different from those in ancient times, and the punishment of retro is out of date. The second is the cruelty of corporal punishment, which is easily reminiscent of Shang Zhouwang. Zhou Wang once cut off the calves of people involved in the DPRK and studied why these people dared to wade through the cold current in the early morning, so the world had no way to evaluate Zhou Wang. In corporal punishment, it is the same to cut off the feet of servants. "The husband has nine pastures and eight thousand eight hundred kings. If there is one person in each, there will always be eight thousand eight hundred felling in the world." How can world peace be achieved? Third, people who have received corporal punishment in history "care about life, but they want to die. Many people tend to be evil, so they can't be rehabilitated". Some people, such as Zhao Gao and Qing Bu, are often in chaos. It shows that the use of corporal punishment can't stop people from doing bad things again. Some good people were punished by corporal punishment. "Although loyalty is like a fist, trustworthiness is like Bian He, wisdom is like Sun Bin, and injustice is like Xiang Bo, it is like history, like politics, like a knife saw, and it is despised by the world." Although they all have admirable and regrettable places, as people after punishment, they can never lose the opportunity to make progress like ordinary people because of their low status. "Han has opened the road to change evil and return to the right, and everything is for this." That is to say, the abolition of corporal punishment in the Han Dynasty will help the punished people not lose hope for the future. The purpose of punishment is to make people return to society, not to make people never turn over. Kong Rong's words are equivalent to a powerful and detailed argument that Emperor Wen of Han abolished corporal punishment. Some of the examples he cited are not appropriate, but the central argument is very convincing, such as the cruelty of corporal punishment. Corporal punishment can't stop the wicked from doing evil, but sometimes it hurts the good. Corporal punishment cuts off people's hope of turning evil into good, so his opinions have been heard and the punishment has not changed. (See Records of Criminal Law in the Book of Jin)
In Kong Rong's argument, I think the most important thing is what he said: "If you cut it with a knife, you will be humiliated", and the corporal punishment in Han Dynasty is "clearing the way and changing evil". Mr. Shiga pointed out more clearly: "The focus of Emperor Wendi's reform is to open up a road of rehabilitation. Once corporal punishment is accepted, it will be abolished and will not be changed for life. Abolishing the life-long penal servitude and stipulating the term of penal servitude are also necessary measures to open up the road to rehabilitation. " 〔6〕
I totally agree with Mr. Huihe's above views and opinions. Based on these basic viewpoints, I want to make a further inference: perhaps we can understand the actual consequences of corporal punishment in Qin and Han Dynasties from the perspective of "excluding ordinary society". In other words, Mr. Shiga is concerned with the original meaning and function of punishment, the origin and purpose of punishment; At the same time, the direct and indirect, obvious and inconspicuous effects of corporal punishment on prisoners in Qin and Han Dynasties were studied. Third, the comprehensive consequences of corporal punishment and the significance of abolishing corporal punishment.
Kong Qingming classified the torture punishment in Qin Dynasty as insulting punishment, regarded it as "a sign of apparent crime to insult it" and investigated it outside the corporal punishment. When discussing punishment in Han dynasty, it was included in the corporal punishment, but at the same time it was considered that punishment was also insulting. [7] This seems to be quite different from the view of ancient people. Frankly speaking, I don't agree with this naming method that regards punishment as insult, but on the other hand, I also admit that these corporal punishments and even all corporal punishments will bring "humiliating" nature. However, what I mean by "humiliation" and "insulting punishment" here are essentially different.
The corporal punishment in Qin and Han dynasties, if analyzed from the prisoner's sense, can be considered to have a series of comprehensive consequences for prisoners. As people know and often talk about, first, the body is disabled and can never be restored to its original state. Second, in addition to slaves, they are generally sentenced to hard labor. The third point, which is more important, is often ignored by scholars in our country today, that is, the person who is physically punished also means the loss of his normal identity. It is in this sense that it can be said that corporal punishment is not an insult punishment, but an identity punishment caused by physical disability. As for his influence, as Kong Rong said, he is "unworthy and contemptible", or more specifically, as Mr. Shiga said, he is looked down upon because of his low status, and can only serve as a humble job, which is regarded as unclean and ominous. But I further think that it can be said that the consequences of corporal punishment should also include 1. Due to the accompanying personal identity reasons, it also has a considerable impact on future generations. Once ordinary people are subjected to corporal punishment, it is a disgrace to their ancestors and a legacy of future generations. 2. Even if released, a considerable part of personal freedom will be lost forever. 3. According to the newly unearthed bamboo slips of Han Dynasty, once the criminals in Qin and early Han Dynasty were subjected to corporal punishment, their personal small families were immediately destroyed.
The seventeenth case of Zhang Jiashan's Han bamboo slips "Playing the Apocalypse" tells that the musician was accused of conspiring to steal cattle and was demoted to the city. After the verdict, his family was confiscated, that is, his wife and other family members were sold as slaves, and his family property was also confiscated. All these show that he not only suffered from the disability of corporal punishment and the forced labor of prisoners, but also his home was empty and empty. Although he was later rehabilitated, the fact that Ba Cheng Dan was subjected to such corporal punishment cannot be changed, nor can he restore his original identity (civilian) after his release, and he can only be a humble hidden official. 〔8〕
By the first year of Emperor Wendi, the collection law was abolished. At that time, such people will no longer be punished by confiscating extra relatives and family property. But this only makes the innocent family members stop sitting still, and even if the criminals who have been corporal punishment are released, I am afraid they can only become hidden officials. As a hidden official, my freedom is obviously greatly restricted. He can neither choose his job freely nor appear in front of others. In particular, he may not be as good as a slave because slaves are probably not forbidden to appear in front of people and go to some public places. Pang Juan's vicious scheme mentioned above made use of the restriction of "hiding but not seeing", so that Sun Bin not only lost the opportunity to make progress forever, but also never appeared in public again.
To make matters worse, people who have suffered corporal punishment are accompanied by low status throughout their lives. As mentioned earlier, an anonymous official married a man named Fu, an official. If it can finally be confirmed that "official" refers to slaves, then the social status of hidden officials is equal to that of slaves, so this kind of marriage appears. Even Sun Bin, who was smuggled to the State of Qi by the emissary of the State of Qi, was highly valued by the King of Qi for his outstanding talents. When Qi Weiwang planned to appoint him as the general who led the troops to fight, he had to politely decline, because what he said was that "those who stayed should not be punished". As for why "no", the history books did not say. In connection with the description of criminals' social status in other documents, it is estimated that people who have been subjected to corporal punishment can't stand in front of everyone like ordinary people, let alone give orders to everyone. In Mr. Shiga's article, he quoted the following examples recorded in Zuo Zhuan: Qi
There was a war between Lu and Zang Jian of Lu was injured and captured by Qi. Qi Gongling sent eunuch Javert to see Zang Jian and told him not to commit suicide for fear of being captured. While expressing gratitude, Zang Jian died because he was dissatisfied with Qi Gongling's "making his criminal officials be polite". It may be that Duke Ling of Qi, out of a noble kindness, inadvertently sent a message to his cronies. As a result, Zang Jian, who also paid attention to aristocratic manners, committed suicide, not because he was captured, but because Qi Jun had sent an unforgivable person. But couldn't bear this humiliation and chose to commit suicide. In connection with this case, it is not difficult to guess that Sun Bin's improper general mentioned above is not only due to various unfavorable superficial influences (because these are not necessarily incompetent, otherwise the King of Qi would not consider this appointment), but is closely related to the most realistic issues such as battlefield command and the outcome of the war. Just imagine, if someone in the army is ashamed to accept Sun Bin's orders to punish others and would rather die than accept Sun Bin's command, how can the war be fought? In a word, "contempt for the world", like a mountain, weighs on the heads of these torturers, making them shorter than ordinary people and subject to many restrictions, which is almost impossible to change under any circumstances. The influence of corporal punishment not only affects oneself, but also affects future generations.
For example, in the Nineteen Years of Zuo Zhuan and Zhuang Gong, it was recorded: "At the beginning, I was remonstrated with fists and was rejected. Fight when you face it, and fight when you are afraid. The fist said,' I'm afraid you'll fight, which is a big sin.' From then on, the Chu people thought it was a big shovel and called it uncle, so that they could manage it later. "Kuai boxing is out of loyalty and takes the form of strong remonstrance. Because Chu Jun wouldn't listen, he had no choice but to use weapons to force him to do what he advocated. Chu Jun obeyed because of fear, but Ji Quan thought he had committed a great crime against the monarch, so he cut off his own foot as punishment. Because people who have been punished are often gatekeepers, they are regarded as the number one gatekeeper. If the gatekeeper is generally held by torturers, it is obviously not a good job but a humble occupation. However, his descendants have also become the leaders of this profession, which cannot be said to be caused by his corporal punishment.
Another example is the situation in Zhao Gao described in Historical Records and Biographies of Meng Tian: "Zhao Gao is the person who alienated all of Zhao. Both Zhao brothers were born in a secluded palace (the word' secluded palace' here, some scholars think it should be changed to' secluded official', which I think is reasonable), and their mother suffered a lot and made her humble. " It was only because "the king of Qin heard that Zhao Gao was very powerful and knew all about prison law" that he was given special treatment as an official according to the standards at that time. As a matter of fact, Zhao Gao's generation is the offspring of people who have been subjected to corporal punishment, but it is still not exempt from being classified as humble. Even when Qin Ershi ascended the throne, he had already reused Zhao Gao, and discussed with Zhao Gao how to solve the problems such as "the minister refuses to obey, the official is strong, and the childe will contend with me". Zhao Gao still had to talk about his identity. Zhao Gao replied at that time: "I am willing to talk, but I dare not. The ministers of the first emperor were all valuable people in the world and made great contributions to the world for a long time. Today, your majesty is fortunate to call it a move, making it superior and doing things. " (See Historical Records of Qin Shihuang) Zhao Gao became a doctor at this time, and his official position was already very high. However, the phrase "today's quality is low" still shows that his humble position as a descendant of criminals can never be erased.
Corporal punishment, a lifelong identity, has an indelible impact on future generations, and it should be said that the long-term harm to people is the heaviest. Because the physical pain is only temporary, even the punishment of hard labor is not endless, and disability is sometimes just a deformity of appearance or inconvenience of movement. Sadness is greater than death in the heart. Only the humble position after corporal punishment is the key to make people lose hope and the opportunity to repent and be good forever. When analyzing the significance of abolishing corporal punishment, it seems that this point cannot be ignored. The greatest significance of abolishing corporal punishment and stipulating prison terms lies in opening up the road of rehabilitation, making it possible for criminals to return to society and protecting themselves and future generations from long-term social discrimination. According to Records of Criminal Law in Hanshu, Ti Ying's sad words of "having been subjected to corporal punishment and wanting to turn over a new leaf for no reason" can impress Emperor Wen. Can't we touch today's researchers a little, instead of understanding the significance of abolishing corporal punishment from the economic point of view of expanding the targets of exploitation?
The abolition of corporal punishment by Emperor Wen of the Western Han Dynasty, as a famous reform measure in the history of criminal law in China, has attracted people's attention. There are many comments from predecessors and modern people, but in the study of Chinese legal history after becoming a discipline, all kinds of comments basically hold a positive attitude towards Wendi's reform of the penalty system. The author of this paper is completely consistent with scholars in this respect. Now the re-evaluation is put forward, only considering that some problems have not been properly explained due to insufficient literature records; Some evaluations themselves need to be evaluated; Although I admire the opinions of some scholars, I think it can be further analyzed and supplemented. However, it should be noted that innovation is inevitably wrong, and in-depth analysis cannot guarantee correctness. This paper just wants to provide a way of thinking, in order to play a role in attracting jade from the academic community.
First, guess that cutting power will stop and die.
In the Examination of Criminal Law in Past Dynasties, Shen Jiaben listed various opinions and viewpoints on the restoration of corporal punishment in the Han, Wei and Jin Dynasties, and said in the final remarks:
In addition to corporal punishment, Emperor Wen of the Han Dynasty has been benevolent in past dynasties, and Ban Gu first discussed its right and wrong. ..... Since its founding in that year, Ban Gu has been adding fuel to the flames until the end of the Eastern Jin Dynasty, which can be said to be one of the major disputes between Legalists. If we infer the reason, Zhang Cang's law will change the right to give up the market, which means from birth to death. Therefore, people have to regard it as their own ears. On that day, the original purpose of the law is bound to be without cause, especially if it is said that it is not passed on, and the commentators will not keep it. All corporal punishment will also be discussed and disputed. How can it be solid? 〔 1〕
Shen Jiaben's statement is quite reasonable. If we use some imagination to pursue the realistic situation that Wendi may face in the reform according to various scattered documents, we may find the essence of the law at that time.
In the era of corporal punishment, if we refer to the explanation of adding a crime recorded in "Questions and Answers to Laws" in Qin bamboo slips "Sleeping Tiger Land", we can see that in the case of one crime, the highest punishment is just to cut off the left and stop the shackles.
What is an "aggravated crime"? Five people stole, stole more than one piece, and stopped on the left, thinking that Cheng Dan; If you don't earn five people, you will steal 660 yuan, and you still think it is a city. If you don't make a profit of 660 to 220 yuan, it is a city; If you can't make a profit of 220 1 dollar, then move. 〔2〕
From this Qin law, we can guess that if the highest penalty for theft is to stop being left for the city, then the ordinary theft calculated by stolen goods will not be sentenced to death in the Qin Dynasty; Another possibility is the opposite, that is, if the maximum penalty for theft is not an aggravated crime, it may be executed after the amount of stolen goods reaches a certain amount. Then, as a crime, the maximum aggravated penalty for theft is only added to the level of cutting the left, and then it is not an aggravated crime but directly put into death. No matter what the facts are, we can make the following assumptions first:
A. cutting left is generally regarded as an aggravated crime.
Secondly, because it is difficult to be understood by later generations to change the right to abandon the market in the reform of Wendi, considering that Wendi is not a mediocre generation, it is impossible not to know that he will be sentenced to death indefinitely. If there is no sufficient reason, it will be criticized by future generations. Zhang Cang, the prime minister, and a group of experienced court ministers agreed with the reform plan put forward afterwards. If it was unreasonable, they simply changed their power to stop abandoning the market. This was definitely a disagreement among all the people involved in the discussion at that time. What's more, without proper analysis and explanation, Emperor Wendi of China was also very sad about this last pass. Emperor Wen, on the other hand, didn't put forward opinions on things that were obviously unreasonable, but "made it possible", that is, approved them without hindrance. So, when we analyze them, we should do so.