Chapter 28 To be cautious about the death penalty is to respect life

To understand the laws of a country, the most important thing is to look at its criminal laws. To understand a country's criminal law, the most important thing is to look at its attitude towards the death penalty. The main reason why the rule of law in Zhenguan is talked about by later generations is the concept of "lenient benevolence and prudent punishment" and the strict review system of death sentences. As early as the first year of Zhenguan, Li Shimin made strict regulations on the "death penalty review" in the form of imperial edicts based on the legislative thought of "the dead cannot be regenerated, and the legal affairs are lenient": , The official of the nine thorns, now the Sangong and the Jiuqing are their positions. From now on, all major crimes (death sentences) will be discussed by the Zhongshu, the fourth grade under the sect, and the Shangshu Jiuqing. In this way, the common people will be free from injustice!" ( Volume 8)

This is the well-known death penalty review system in Chinese history of "Three Judges and Nine Ministers Discuss Sentences".As we said in the previous chapter, Li Shimin abolished more than 50 kinds of hanging clauses in the first month of the first year of Zhenguan, and when he continued to revise the law, Zhenguan monarchs and ministers added as many as 92 kinds of clauses on the basis of the laws of the Sui Dynasty. The death penalty was downgraded to exile, and seventy-one kinds of exile were downgraded to imprisonment.In addition, "Anyone who cuts troubles and removes beetles, and changes from heavy to light, is invincible" ("Old Tang Book·Criminal Law").Under the guidance of this concept of "lenient benevolence and prudent punishment", in the fourth year of Zhenguan, the country had a good public security situation of "death penalty, twenty-nine people in the world, and almost punishment".At that time, the number of households in the Tang Dynasty was nearly three million. If calculated on an average of six people per household, the total population would be about 18 million.Judging from this population, the proportion of the death penalty is obviously very low.

"Several criminal measures" is a term often used in Chinese history to describe the world's peace and social stability. It means that the criminal law has almost reached the point where it has been put on hold.If we refer to the relevant figures in modern Europe, it will be easier to understand that this adjective is by no means overrated. In Britain in the 18th century, there were as many as 222 crimes of death penalty. A threatening letter, or even the mere association of gypsies, could carry the death penalty.In the early 19th century, a 13-year-old boy was sentenced to hang for stealing a spoon.Due to the harshness and proliferation of criminal laws, more than 1,000 people were sentenced to death every year, and the total population of Britain at that time was only 10 million.

The right to life is the most important human right. Prudence towards the death penalty means respect for life and human rights. In this sense, we seem to have reason to believe that the Tang Dynasty of China in the 7th century was obviously much more advanced in the "field of human rights" than Britain in the 18th century. Of course, it goes without saying that no matter how advanced the spirit of the rule of law in the Zhenguan era was, China at that time was still a society of absolute monarchy; no matter how much Tang Taizong Li Shimin respected the law and used the death penalty cautiously When you act arbitrarily and pervert the law and kill indiscriminately.

The "Zhang Yungu Incident" that happened in the fifth year of Zhenguan illustrates this point. Zhang Yungu, a native of Xiangzhou, Hanoi (now Anyang City, Henan Province), used to be the secretary of Youzhou. In December of the ninth year of Wude, he presented a memorial "Dabao Zhen" with "the meaning of the text is very beautiful, and it can be used as a precept". He won the appreciation of Li Shimin and was promoted to be the prime minister of Dali Temple. However, even such a person who was single-handedly promoted by the emperor would inevitably be wrongly killed in the emperor's fury.

The incident was caused by a man named Zhang Haode, who was arrested and imprisoned by the relevant department because he suffered from mental illness and "made false statements".Zhang Yungu Shangzuo defended him, saying that his epilepsy symptoms are very obvious, and nonsense is inevitable, and he should be sentenced to innocence according to the law.Li Shimin thought it made sense, so he agreed to his request.Zhang Yungu immediately went to visit the prison, revealed to Zhang Haode the news that the emperor was going to pardon him, and played chess with Zhang Haode in the prison rather forgetfully.In Zhang Yungu's capacity, doing so has obviously violated the law, and it is law enforcement breaking the law.Shi Yuquan Wanji immediately impeached Zhang Haode, claiming that Zhang Haode's elder brother Zhang Houde had served as the governor of Xiangzhou in Zhang Yungu's hometown and had friendship with Zhang Yungu, so Zhang Yungu's defense for Zhang Haode was obviously not just to enforce the law, but Covering up for selfishness.

Li Shimin was furious, and ordered Zhang Yungu to be executed in Chang'an East City before investigation. Not long after Zhang Yungu was killed, Li Shimin deeply regretted it after some calm introspection.He said to Fang Xuanling and others: "Public servants who cannibalize people must worry about people's worries. There are no big or small things, so you should pay attention to them. If you don't ask, you don't talk. If you don't ask questions, how can you help the prime minister? Ru Yun As a judge in ancient times, he played games with prisoners and leaked my words. This is also a very serious crime. According to ordinary laws, the punishment would not have reached the death penalty. I was very angry at the time and ordered to deal with it immediately. Is it reasonable to decide?"

The reason why Li Shimin blamed the ministers for not remonstrating in time is precisely because he realized that even if Zhang Yungu did show favoritism, he would not die if he was convicted of a crime. He obviously made a wrong case in anger. In order to learn lessons and prevent similar wrongful and unjust cases from happening in the future, Li Shimin immediately issued an edict, stipulating that in the future, "where there is a death penalty, even if it is ordered to be executed, it must be repeated five times." Even if it is ordered to be executed immediately, it must be repeated five times within two days in the Gyeonggi area, and at least three times in other counties to ensure judicial justice and avoid killing innocent people indiscriminately.

This move is a further improvement of the death penalty review system of "three judges and nine ministers discussing punishment".Subsequently, the death penalty review provisions of the "Five Reviews" were incorporated into the "Yonghui Law" and became a formal statutory law.The later "Tang Laws and Discussions" made a detailed explanation and strict regulations on the implementation of this law: all officials who execute the death row criminals without waiting for a reply will be sentenced to "two thousand miles" in exile; The replay must also be executed three days after the last approval from the superior is issued. If the execution is carried out within three days, the relevant officials must be sentenced to one year in prison.

From this, we can see the strictness of the death penalty review system in the Tang Dynasty and the prudence in its attitude towards the death penalty. In the fifth year of Zhenguan, shortly after Li Shimin made the provision of "five repetitions", he found that many judicial officials were completely rigid in the legal provisions in the trial, and did not dare to deal with lenient cases even for extenuating cases.Although the law enforcement was strict, Li Shimin was still worried that such unjust cases would be unavoidable, so he issued an edict again, stipulating: "From now on, the family will be punished, and those who die together according to the law and have feelings for them should be recorded. "(Volume 8) That is to say, when Menxia province is reviewing death penalty cases, if it finds that there are people who should be executed according to law but are indeed justifiable, they should write down the situation and report directly to the emperor.

The Zhenguan rule of law spirit of "the dead can't be regenerated, and the legal affairs are lenient" has been fully reflected here again. If it is said that making a strict and fair law requires the rulers to have a kind of outstanding political wisdom, then in the process of law enforcement, both the implementation of "jurisprudence" and the consideration of "human feelings" not only require the rulers to have excellent wisdom , more need to have a feeling of compassion. In Li Shimin, we obviously see this kind of compassion. In the sixth year of Zhenguan (AD 632), Li Shimin did another incredible thing, which fully demonstrated this rare and precious compassion. This is the famous "long prisoner incident" in history. At the end of December in the sixth year of Zhenguan, the end of the new year was approaching. When Li Shimin inspected the prison where the death row prisoners were held, he thought that the Spring Festival was approaching, but these prisoners were behind bars and could not be reunited with their families. Prisoners sentenced to death were released to go home, but it was stipulated that they must return to Chang'an next autumn to be sentenced. I believe that at that time, many officials must have sweated for this. Because condemned prisoners are required to keep their promises and come back to die automatically when the time comes, this is simply a fantasy.Moreover, there were a total of 390 prisoners in this group, and as long as one tenth of them did not come back, the judicial departments at all levels would be overwhelmed.Moreover, before they are brought back to justice, no one can guarantee that they will not commit crimes again. This is obviously adding to social instability for no reason. However, to people's surprise, in September of the seventh year of Zhenguan (AD 633), 390 death row prisoners "all went to the court as scheduled, and no one died. Hidden Ones" (Volume 194). Li Shimin smiled gratifiedly. He ordered the release of all 390 death row prisoners that day. This "prisoner incident" quickly became a good story at that time, and it became a political story in the Tang Dynasty. The famous poet Bai Juyi's "Xin Yuefu" poem praised this event with "four hundred dead prisoners returned to prison". However, there are also many descendants who criticize this. They think this is a political show performed by Li Shimin in order to establish his image as a wise king.Ouyang Xiu of the Northern Song Dynasty wrote a special article "On Longitudinal Prisoners" to criticize, saying that Li Shimin's move was purely for fame and publicity.He said that this kind of unconventional thing can only be "occasional", if it happens again and again, then "no murderer will die, is it a common law in the world?" Therefore, Ouyang Xiu believes that the real "sage" "The law of the law", "must be based on human feelings, do not think it is high if you do not innovate, and do not go against the sentiment to dry up the reputation".That is to say, a really good law must be in line with human nature, and there is no need to be unconventional and unconventional, and there is no need to use unreasonable means to gain fame. Ouyang Xiu's opinion cannot be said to be unreasonable.If this kind of "long imprisonment" is done frequently, the law will become a dead letter.But having said that, Li Shimin wouldn't be so stupid, he definitely wouldn't come here to engage in "long imprisonment" every year.In all fairness, although the "Prisoner Incident" cannot completely exclude the element of show, if you think that this act has no meaning other than show, then you obviously underestimated Li Shimin and misunderstood Li Shimin's good intentions. Li Shimin did this for at least two purposes. The first purpose is to let the people of the world understand that punishment is only a means, not an end. As we all know, "penalty" is only an auxiliary means of social governance, and it is a last resort. Its purpose is not only to punish "existing crimes", but more importantly, to prevent "premature crimes".Theoretically speaking, if the method of moral education can also achieve this goal, then the meaning of punishment will no longer exist.Therefore, when those condemned prisoners can abide by the "gentleman's agreement" and return within the specified time, it at least shows that they really have the determination and behavior to reform themselves, abandon evil and do good.That being the case, it is not surprising that Li Shimin canceled their punishment. The second purpose is to make people realize the value and dignity of life. As Li Shimin has been emphasizing, "The dead cannot be regenerated, and the law is lenient." Life is only once for everyone, and it is precious no matter what the situation is.Even if someone commits a crime and must be punished by law, the value and dignity of life will not be diminished on him.Moreover, the whole society, from law enforcement officers to ordinary people, has the responsibility and obligation to save these people who have stumbled and provide every possible opportunity for them to start a new life.In fact, this is the real intention of the law.Of course, it is very simple to take away a person's life, but it is much more difficult to transform a person's life, but the latter is definitely more valuable and meaningful than the former.Li Shimin's "long-term imprisonment" behavior actually highlights the above-mentioned ideas, but he adopts the most typical, special, and most irreproducible method. It can be seen from this that the "long-term imprisonment" incident is by no means a product of Li Shimin's whim, nor is it purely for fame and reputation. "It is an inevitable result after the spirit of the rule of law in Zhenguan is exerted to the extreme. From today's point of view, we can even say that according to the legislative thoughts and the spirit of the rule of law of the Zhenguan dynasty, if the historical and social conditions at that time allowed, it is entirely possible for the Zhenguan monarch and ministers to implement this "lenient benevolence and prudent punishment" rule of law. Carrying it out to the end, the result of "abolition of the death penalty" is logically deduced. In fact, our assumption is not without historical basis. ——In the early years of Tianbao, Li Longji, Emperor Xuanzong of the Tang Dynasty, upheld the spirit of the rule of law in Zhenguan, and once abolished hanging and beheading.He emphasized in an imperial edict issued in the sixth year of Tianbao (747 A.D.) that this was to "inherit the teachings of the Dao and cultivate the virtues of life" ("Cefu Yuangui · Ministry of Criminal Law").Although this reform of the criminal law was stopped due to the "Anshi Rebellion" and failed to continue, it is enough to show that the spirit of the rule of law in Zhenguan has a profound influence on later generations. Almost at the same time as Emperor Xuanzong of the Tang Dynasty drastically reduced the death penalty, Emperor Shomu of the Heian Dynasty of Japan also stopped the application of the death penalty in the second year of Kameki (724 AD), and reduced all capital crimes to exile crimes, thus creating a 347-year history of criminal law in Japan. The miracle of capital punishment.Japan's move was undoubtedly influenced by the Tang Dynasty.Japanese scholar Kuwahara Zozo once said: "From Nara to the Heian period, the laws of our country's dynastic era, both in form and spirit, are based on the laws of Tang Dynasty." Today, restricting and abolishing the death penalty has become a symbol of a country's civilization and rationality. Since the 19th century, with the progress of mankind and the development of the human rights movement, restricting and abolishing the death penalty has gradually become a trend of the times.According to the statistics of relevant scholars, as of 2001, among the 194 countries and regions in the world, the number of countries that have legally abolished the death penalty and de facto stopped the application of the death penalty has reached 123, accounting for 64% of the total; only 71 countries have retained the death penalty , accounting for 36%.In Europe, "abolishing the death penalty" has even become one of the conditions for joining the European Union.In addition, in the United States, although the federal law still retains the death penalty, 12 states have abolished the death penalty. In these countries and regions that retain the death penalty, although it is impossible to completely abolish the death penalty in the short term, there is undoubtedly a general consensus on the judicial principle of "fewer killings, careful killings, and prevention of wrongful killings".Our country also regards "cautious use of the death penalty and gradual reduction of the death penalty" as the reform direction of the criminal law, and many jurists have proposed that we hope that my country can completely abolish the death penalty by 2050 at the latest, that is, after the 100th anniversary of the founding of the People's Republic of China. In this sense, even though more than 1,300 years have passed, and fundamental changes have taken place in the social environment and the conditions of the times, until today, the chastity and rule of law spirit of "lenient benevolence and prudent punishment" is still worthy of our attention. Inherit and learn from.And the core of this spirit, in a word, is the respect for life.