鐔津文集 5.14

5.14

問曰。在古法寬刑省而民之過姦者庸寡。後世法謹刑繁而民之過姦者滿多。斯何故爾。曰古之以刑法者存其本。故民過者鮮也。後之以刑法者存其末。故民過者多也。曰何謂本末乎。曰政教者其本也。刑法者其末也。苟輕本而重末也。與夫灑油救焚用之雖甚而其焚愈熾何由熄哉。或曰。僕也故不識政教之所以為本者也。幸吾子盡言之。曰人之善惡豈其性之素爾。是物移之而然也。故開之利則喜焉。推之害則怒焉。自古聖人知其如是也。制田里以通其安所生養致庠塾以導其為相孝弟澤梁交通教其不相爭利關譏市平教其不相欺負。十一之賦教其效私奉公。為之禮以節其哀樂之情。為之樂以正其遺風舊俗。號令以定其言。刑法以防其失。不幸有一坐法當刑。而聖人猶求諸己曰。使民如此。蓋朕教之未至政之未修。而寬之不以刑為。禹南狩至蒼梧。視其市以罪殺人泣而下車。問之左右。曰若罪人也不順而至。然君王何以傷之。禹曰。堯舜之人皆以堯舜心為其心。今朕為君。而人自其心。是以痛之也。文王之時。有虞芮兩國爭封而訟於文王。文王詞而釋之。既而曰。政之不明使其然也。而篤務政虞芮。由是息訟。夫人情孰不愛好而憎惡貪生而懼傷。苟同有以得安樂其生得和同其族類得遂性人得美稱。豈肯恝然不相從而為之也。雖夷貊之人必不能如此之不變也。斯古聖人之所以力推於教化者也。故古之人鮮過者善其俗者也。蓋其政教之致也。政教致故無所用其刑法者矣。君子不得已而用之。非專之也。孔子曰。道之以德。齊之以禮。有恥且格。道之以政。齊之以刑。民免而無恥。故曰。刑也者成也。上古一切而成之者也。刑不預章。故民不知法。民不知法則無所生其訟端。有虞氏知其後世益薄懼吏巧法苟陳。故制五刑於其書曰。流宥五刑鞭作官刑。朴作教刑。金作贖刑。眚災肆赦怙終賊刑。後世其德益衰。而書其刑名不可勝數。刑愈繁而民愈惡。蓋其本末倒持故也。逮韓非申子商鞅輩苟作慘酷之刑。秦人用之。未終世而其國滅亡不暇。然若甫侯之刑。酇侯之法。以至公而持。尚可以救一世之敝。柰何又後之俗吏僥倖。文法從其心以淺深。刑罰從其情以輕重。夫法者先王所以務禁姦也。及其敝也。為姦刑者先王所以制沮暴也。及其敝也。為暴非特為暴。亦所以引人生暴。非特為姦。亦所以引人生姦。是故君子之論刑法者。重其本而不重其末也。或曰。子之言可謂迂矣。非適時變也。如子之論宜古而非宜於今也。今之民滋惡。非刑法不能治。古之民尚淳。必教化而可勸。苟尚以教化于今世。則獄犴益豐而殺人者罔間。曰子誠通於時而乃塞於道也。謂時則古猶今也。謂道則善猶惡也。古之民淳。蓋得其道也。今之民偽。蓋失其道也。予患道德之不修。不患其民之不速化。患政教之不臻。不患其民之不淳。詩曰。伐柯伐柯。其則不遠。執斧以伐柯。睨而眎之。猶以為遠。言道之不遠可修而至之也。孔子曰。德之流行速於置郵而傳命。言政教化民之疾也。漢文帝修縣默為之政務於寬厚。恥語人之過失。化行而世無告訐之俗。命張釋之為廷尉。欲其持法甚輕。於是刑罰大省。歲卒斷獄四百。天下有刑錯之風唐太宗平世禍亂。欲以文治天下。引房喬杜如晦諸儒輔相力興王道。天下遂大治。正觀三十年民家外戶不閉。嶺表行旅而不裏糧。歲卒斷獄不過三十人。肆之還家而其人應期畢至。當是時也。天下亦幾乎刑錯之風。然漢唐二世各接乎秦隋舊俗。其民也豈唯雅善乎。而其教治之如此也。豈非在其道而不在其時乎。古語曰。治天下顧其力行如何耳。或人默然再拜而去。

A questioner asked: "In antiquity, laws were lenient, punishments were few, and those among the people who committed transgressions and villainy were very rare. In later ages, laws became meticulous, punishments proliferated, yet those among the people who committed transgressions and villainy became exceedingly numerous. What is the reason for this?"
I replied: "When the ancients employed penal laws, they preserved the root; therefore, those among the people who transgressed were few. When later generations employed penal laws, they preserved the branches; therefore, those among the people who transgressed were many."
The questioner asked: "What do you mean by the root and the branches?"
I replied: "Governance and moral instruction are the root; penal laws are the branches. If one makes light of the root and gives weight to the branches, it is like sprinkling oil to put out a fire: the more intensely one applies it, the more fiercely the blaze burns—how could it ever be extinguished?"
Someone said: "I truly do not understand how governance and moral instruction constitute the root. I hope you will explain it fully, sir."
I said: "Are human goodness and wickedness merely innate nature? They are shaped and altered by external things. Thus, when presented with profit, people rejoice; when thrust into harm, they become enraged. The ancient sages knew it was like this. They instituted the well-field system to secure their means of livelihood and sustenance; they established schools to guide them toward mutual filial piety and fraternal respect; they made bridges and waterways freely passable and instructed them not to contend over profit; they inspected border passes and stabilized market prices, teaching them not to deceive one another; they taxed one-tenth of their produce, teaching them to subordinate private interest to public duty; they instituted ritual to moderate their feelings of sorrow and joy; they created music to correct their remaining unhealthy habits and obsolete customs; they issued decrees to settle their speech; and they used penal laws to prevent their lapses. If, unfortunately, someone violated the law and faced punishment, the sage would still search within himself, saying: 'That the people have come to this must be because my instruction has not reached them and my governance is not perfected.' Thus he acted with leniency rather than relying on punishment. When Yu hunted in the south and reached Cangwu, he observed an execution of a criminal in the marketplace, wept, and descended from his carriage. When he asked his attendants about it, they said: 'That criminal was insubordinate and brought this upon himself; why does the lord grieve for him?' Yu said: 'The people in the times of Yao and Shun took the minds of Yao and Shun as their own minds. Now I am the ruler, yet the people act on their own private minds; that is why I mourn.' In the time of King Wen, the two states of Yu and Rui contended over their borders and brought their suit to King Wen. King Wen addressed them with words and released them. Afterward he said: 'It was my governance not being enlightened that caused them to be so.' He devoted himself diligently to governance, and the states of Yu and Rui thereupon ceased their litigation. Indeed, among human emotions, who does not love the pleasant and hate the foul, cling to life and fear injury? If everyone can equally secure comfort and joy in their livelihood, live in harmony with their kin, fulfill their human nature, and attain a good name, how could anyone be indifferent and refuse to follow along? Even barbarian peoples would surely not remain unchanged like this. This is why the ancient sages strove so forcefully for moral transformation. Therefore, the reason why people in antiquity rarely transgressed and had wholesome customs was entirely due to the perfection of governance and instruction. Because governance and instruction were perfected, there was no place to use penal laws. The gentleman uses them only when there is no other choice; he does not rely on them exclusively. Confucius said: 'Guide them by virtue, regulate them by ritual, and they will have a sense of shame and moreover become upright. Guide them by governance, regulate them by punishment, and the people will avoid the punishments, but have no sense of shame.' Therefore it is said: 'Punishment means completion.' In high antiquity, it was applied only as a final completion. Penalties were not promulgated in advance, so the people knew nothing of laws; and since the people knew nothing of laws, no disputes arose. The Lord of Youyu (Shun) knew that later ages would become increasingly superficial and feared that minor officials would deceitfully set forth arbitrary laws. He therefore established the five punishments in his documents, saying: 'Pardon the five punishments through exile; make the whip the punishment for officials, the rod the punishment for instruction, and metal (fines) the punishment for redemption. Misfortunes and disasters are to be freely pardoned, while repeat and unrepentant offenders are to be punished with death.' In later ages, virtue declined further, and the names of crimes and penalties recorded in books became countless. The more numerous punishments became, the more wicked the people became, precisely because the root and branches had been inverted. Down to the likes of Han Fei, Shen Buhai, and Shang Yang, cruel and merciless punishments were carelessly instituted. The people of Qin employed them; before one generation had ended, their state was destroyed without delay. Still, punishments such as those of the Marquis of Fu or the laws of the Marquis of Zan, if upheld with utmost fairness, could yet remedy the defects of a single era. How much worse it is that mediocre officials of later times rely on opportunism: the penal texts are interpreted deeply or shallowly according to their private caprice, and penalties are made light or heavy according to their personal feelings! The law was originally that by which the former kings sought to suppress villainy; yet when it degenerated, it became villainy. Punishments were originally that by which the former kings sought to curb violence; yet when they degenerated, they became violence. Not only did they become violence, they also induced people to generate violence; not only did they become villainy, they also induced people to generate villainy. For this reason, when the gentleman discusses penal law, he values the root and does not value the branches.
Someone said: 'Your words may well be called impractical; they do not adapt to the changes of the times. Such arguments as yours are suitable for antiquity, but not suitable for today. Today's people are increasingly wicked; without penal law, they cannot be governed. Ancient people were still simple and honest; they could be encouraged through moral instruction. If one were to rely solely on moral instruction in today's world, prisons would become even more crowded and murderers would carry on without pause.'
I said: 'You may truly understand the times, but you are blocked concerning the Way. As for the times, antiquity is just like today; as for the Way, goodness is just like wickedness. The people of antiquity were simple because they attained the Way; the people of today are false because they lost the Way. I worry that virtue is not cultivated; I do not worry that the people are not quickly transformed. I worry that governance and moral instruction do not attain their zenith; I do not worry that the people are not simple and honest. The Book of Odes says: "In hewing an axe-handle, in hewing an axe-handle, the pattern is not far off. Grasp the axe to hew an axe-handle, and looking askance at it, one still thinks it far off." This means that the Way is not far off; it can be cultivated and reached. Confucius said: "The flow of virtue is swifter than the transmission of orders by post-horses." This speaks of the rapidity with which governance and instruction transform the people. Emperor Wen of the Han dynasty practiced hidden and quiet governance, striving for leniency and generosity, and felt ashamed to speak of others' faults. As his transformation took effect, the custom of bringing accusations ceased in his era. He appointed Zhang Shizhi as the Minister of Justice, intending that he administer the laws with great leniency. Thereupon, punishments were greatly reduced, so that in a whole year only four hundred criminal cases were decided, and the realm showed the spirit of setting aside punishments. Emperor Taizong of the Tang dynasty pacified the chaotic world and sought to rule the empire through civil culture. He engaged Fang Xuanling, Du Ruhui, and other Confucians to assist him in strenuously reviving the kingly way, whereupon the empire was greatly ordered. In the thirtieth year of Zhenguan, the outer gates of households were not barred, and travelers across the southern passes did not pack provisions. In an entire year, those condemned to death did not exceed thirty people; released to go home, they all returned precisely at the appointed time. At that time, the realm also came close to the spirit of setting aside punishments. Yet both the Han and Tang eras directly succeeded the former customs of the Qin and Sui. Were their people alone inherently elegant and good? That their moral transformation and governance reached such a state—was this not due to the Way rather than the times? An old saying states: "Governing the empire depends solely on how vigorously one puts it into practice." The other person fell silent, bowed twice, and withdrew.