五刑

聖人治天下，必有刑罰何?所以儉。德助治，順天之度也。故懸爵黨者，示有 [所] 勸也。刑罰者，明有所懼也。

[《傅》曰]:"[三王肉刑]，[應世以 立]。" [五刑者]、[五常之鞭策]。

刑所以五何? 演五行也。[大辟、法水滅火]，[宮者、法土之壅水]，[臏者、 法金之剋木)，[劓者、法木之穿土]。[墨者、法火之勝金也] 。

[五帝畫象者]，[其服象五刑也]。[犯墨者蒙巾]，[犯劓者赭其衣]，[犯臏者以墨幪其臏 處而畫之]，[犯宮者履屝]，[犯大辟者布衣無領]。

科條三千者，應天地人情也。五刑之屬三千，大辟之屬二百，宮辟之屬三百，腓辟 之屬五百，劓、墨、辟之屬各千，張布羅眾，非耳刑不見。

劓、墨何?其下刑者也。

[墨、墨其額也]，[劓、劓其鼻也]，腓者、[脫]其臏[也]。宮者、女子淫， 執置宮中，不得出也。丈夫淫，割去其勢也。大辟者、謂死也。

刑不上大夫何? 尊大夫。禮不下庶人，欲勉民使至於士。故禮為有知制，刑為無知 設也。庶人雖有千金(衣弊) [之幣]，不得服。刑不上大夫者，據禮無大夫刑。

或曰:撻笞之刑也。禮不及庶人者，謂酬醉之禮[也]。 [周禮、三王始有獄]，[夏日夏臺]，[桀拘湯]，[殷曰羑里)，[周曰囹 圄]。[古者刑殘之人]，[公家不畜]，[大夫不養]，[士遇之路不與語]，[放諸 墝埆不毛之地]，[與禽獸為伍]。

XXXVIII. The Five Punishments

226---The Articles of the Penal Code (IV A. 6a-7a).

a. Why is it that the Sage in governing all under Heaven must have [a system of] punishments? To assist his spiritual power, to aid [him in his task of] government, and to conform to the measures [instituted] by Heaven. Therefore he proffers ranks and rewards, showing that there are things to strive for; and he establishes [a system of] punishments, to make it clear that there are things to be afraid of.

b. The Chuan¹ says: "The Three August Ones had no written code; the Five Emperors employed 'punishment by effigy' ²; the Three Kings promulgated penal laws which, in response to [the needs of] the time, consisted of five [kinds]". The Five Punishments constitute the whip for the Five Constant [Virtues] ³.

c. Why are there five punishments? They model themselves on the Five Elements. The 'capital punishment' ta-p'i models itself on water, which extinguishes fire. The 'punishment of castration' kung models itself on earth, which blocks up water. The 'punishment of cutting off the knee-cap' pin models itself on metal, which cuts wood. The 'punishment of cutting off the nose' pi models itself on wood, which pierces through earth. The 'punishment of branding' mo models itself on fire, which smelts metal ⁴.

d. The 'punishments by effigy' [employed] by the Five Emperors consisted in the representation of the Five Punishments by means of clothing. Those who had committed a crime [which should be punished by] branding [had their heads] covered with a cloth ⁵. Those who had committed a crime [which should be punished by] cutting off the nose had their upper-garments dyed red. Those who had committed a crime [which should be punished by] cutting off the knee-cap had a black spot painted on the place of the knee-cap. Those who had committed a crime [which should be punished by] castration had to walk in variegated straw sandals ⁶. Those who had committed a capital crime had to wear clothes without a collar.

e. [The criminal code comprised] three thousand articles, so as to correspond with the [number of] emotions in Heaven, Earth, and Man. There were three thousand [offences] which fell under the jurisdiction of the Five Punishments. Two hundred belonged to cases of capital punishment, three hundred to those of castration, five hundred to those of cutting off the knee-cap, one thousand either to those of cutting off the nose or to those of branding. The nets set out [to suppress crimes were] numerous, but without the Five Punishments they would be invisible ⁷.

f. What do the punishments of cutting off the nose and branding stand for? They are [considered as] minor punishments ⁸.

g. The mo [punishment] consists in branding the forehead. The pi [punishment] consists in cutting off the nose. The fei [punishment] ⁹ consists in taking away the knee-cap. The kung [punishment], when applied to women who have committed adultery, consists in their being cloistered in 'buildings' kung which they are not allowed to leave; when applied to men who have committed adultery it consists in cutting off their testicles. The ta-p'i [punishment] means death.

227---The Meaning of the Punishments Not being Applied to Great Officers (IV A. 7a).

a. Why are punishments not applied to the great officers ¹⁰? It is to honour them. The rites are not extended to the common man ¹¹, and [the task of] actuating the people is left to the common officer. Therefore the rites have been instituted for those who know [their import], while the punishments have been established for those who know it not. A common man, though he may have a treasure of a thousand gold-pieces, is not allowed [to show it in] his apparel ¹². That the punishments do not apply to the great officers is based on the fact that the rites make no provisions with respect to them.

b. Another opinion is: "[It is only] the punishment of flogging [,which is not applied to the great officers]. By the rites which are not extended to the common man are meant the rites of pledging each other ¹³.