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On Temporary Release of Convicts..........Ouyang Xiu

2023-03-25 01:12Source:Chinese Literature Translation


纵囚论

欧阳修


信义行于君子,而刑戮施于小人。刑入于死者,乃罪大恶极,此又小人之尤甚者也。宁以义死,不苟幸生,而视死如归,此又君子之尤难者也。方唐太宗之六年,录大辟囚三百余人,纵使还家,约其自归以就死。是以君子之难能,期小人之尤者以必能也。其囚及期,而卒自归无后者。是君子之所难,而小人之所易也。此岂近于人情哉?

或曰:罪大恶极,诚小人矣;及施恩德以临之,可使变而为君子。盖恩德入人之深,而移人之速,有如是者矣。曰:太宗之为此,所以求此名也。然安知夫纵之去也,不意其必来以冀免,所以纵之乎?又安知夫被纵而去也,不意其自归而必获免,所以复来乎?夫意其必来而纵之,是上贼下之情也;意其必免而复来,是下贼上之心也。吾见上下交相贼以成此名也,乌有所谓施恩德与夫知信义者哉?不然,太宗施德于天下,于兹六年矣,不能使小人不为极恶大罪,而一日之恩,能使视死如归,而存信义。此又不通之论也!

然则何为而可?曰:纵而来归,杀之无赦。而又纵之,而又来,则可知为恩德之致尔。然此必无之事也。若夫纵而来归而赦之,可偶一为之尔。若屡为之,则杀人者皆不死。是可为天下之常法乎?不可为常者,其圣人之法乎?是以尧、舜、三王之治,必本于人情,不立异以为高,不逆情以干誉。


On Temporary Release of Convicts

Ouyang Xiu


  Being faithful is practised among gentlemen of honour, while punishments are meted out to men of iniquity. Those who are sentenced to capital punishment are the most heinous criminals and the worst of the men of iniquity. To die for justice instead of shamefully resigning themselves to the circumstances and to face death unflinchingly is the hardest thing even for men of honour. During the sixth year after his enthronement, Emperor Taizong of the Tang Dynasty kept in record the names of over 300 convicts of capital punishment and then released them home, on the condition that by the date as fixed upon they should automatically return for execution. That was a matter of keeping a promise which could hardly be carried out even by gentlemen of honor, whereas the worst of the men of iniquity should be supposed to fulfill it for certain. On the appointed date, all the convicts returned without delay.It was a difficult matter even for the gentlemen, but it was easily done by the worst of the men of iniquity. Is that in line with general human nature?  

  Some people say: those who have committed hideous crimes are really men of iniquity; however, if they are granted treatment of benevolence, they may be changed into gentlemen of honor. As the treatment of benevolence deeply touched their hearts, the convicts in question may be quickly changed, which explained why such a thing took place. I would like to say that Emperor Taizong did so in order to earn himself a fame. But how do you know that before he released the convicts, he had not expected them to return automatically in order to obtain pardon; and how do you know that before they were released, those convicts had not craved pardon for their crimes so that they returned to the prison? Emperor Taizong released the convicts home since he felt sure that they would come back. This was a conjecture of the Emperor from above into the minds of the convicts below. The convicts came back because they were sure of being pardoned. This was a conjecture of the convicts from below into the mind of the Emperor above. What I see is that this fame was built by conjecturing about each other’s minds. Where can I see the Emperor’s practice of virtue and the convicts’ maintenance of faith? On the contrary, by the time of the release in question, it had already been six years since Emperor Taizong had applied his policy of spreading virtue and benevolence throughout the country, yet it was still impossible to keep men of iniquity from committing hideous crimes, whereas a mere day’s treatment of benevolence should quickly turn the convicts into men that faced death unflinchingly and remained faithful. That’s one of the things which do not make any sense.

  So what is the right way to do this?In my opinion, convicts who return to the jail after being released home should still be executed without pardon. Then another batch of convicts are released and, if they also return, it can be said that they are moved by treatment of benevolence. Such a thing, however, can never be possible in reality. This kind of measure can be taken occasionally for convicts to be allowed home and then pardoned from capital punishment upon their return. If the practice is adopted all the time, it means the murderers will not be executed. Can this be the law of the the country? If it can’t, can it be regarded as the law of the saints? Therefore, Emperor Yao, Emperor Shun and the Three Kings must have ruled the land on the basis of general human nature, instead of regarding something unconventional as outstanding and doing things against reason for their own fame.


Translated by Jin Deming