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Preface:
While Song Shenzong sighed, Yushi Tengfu came, not to see the excitement, but to solve the problem. However, his method of solving the problem was not at all new, he said: "Since Wang Anshi and Sima Guang cannot reach a consensus, let the other officials of the two systems agree." "Meaning, keep arguing." That's it. ”
Debate again
Song Shenzong agreed to this proposal. However, this time he had an extra eye, and the people assigned to participate in the discussion became three people. Two people often form a "confrontation", and three people can only "discuss" together. These three people are: Hanlin bachelor Lu Gongshu, knowledge system Han Wei, Qian Gongfu.
Lü Gong, a native of Shou County, Anhui Province, is studious and enterprising, indifferent to fame and wealth. After succeeding to the throne, Emperor Shenzong of Song was summoned as a Hanlin bachelor and Zhitong into the Yintai Division, because he returned Song Shenzong's edict to remove Sima Guang, and then opposed the new law and became a conservative. After Emperor Zhezong of Song ascended the throne, Duke Lü and Sima Guang assisted the government with one heart and became a generation of good ministers.
Han Wei, a native of present-day Qi County, Henan, was the fifth son of Han Yi, a counselor in political affairs. When his father assisted the imperial government, he automatically avoided failing to take the imperial examination, and could only enter the officialdom by virtue of his father's grace. He and Wang Anshi were both protégés of Ouyang Xiu and had similar political views, so he recommended Wang Anshi many times during his lectures to Prince Zhao Yan. In the second year of Xining (1069), he was appointed by Emperor Shenzong of Song as a Hanlin scholar and a scholar of Kaifengfu, belonging to the Fa Reform faction.
Qian Gongfu, a native of present-day Changzhou, Jiangsu, was a scholar and a former scholar. After Emperor Shenzong of Song succeeded to the throne, he was once again appointed as the Zhi Zhi Yuan and the Zhi Yuan. He is the same age as Wang Anshi and is also an old friend. From the resumes of the three people, it can be seen that one is Sima Guang's old friend and the other is Wang Anshi's friend, but at this time, the law change has not yet begun, there is no new party and old party, and they will not and cannot put aside official affairs to take care of anyone's feelings.
Sitting in front of the chessboard, the first thing must be to clean the board. The three people learned the lessons of the first two-system discussion and did not dwell on specific issues, but started from the root of legislation: "Several of us have explored the original intention of the saint to create the law, and there are basically three points: First, 'measure the situation and take the right thing', because the degree of injury caused to people is different, so the sentence of wounding people with a knife and the sentence of roding people with objects and fists can satisfy the crimes committed, which is the meaning of appropriate sentencing according to the severity of the crime."
The second is 'heavy prohibition to eliminate evil', for those who have planned to kill people in the place of death, mutual vendetta cannot be prohibited without heavy punishment, so murder and injury should be sentenced to hanging, which is the meaning of increasing the punishment to prohibit people from doing evil; the third is 'the original head to open up good', if the murder does not cause death, the thing can be compensated, and the matter can still maneuver, and they are allowed to turn themselves in, which is the meaning of forgiving those who surrender and thus opening the door to good. Although these three points involve different laws, they are consistent in turning people away from evil and moving towards good.
The legislation of the first emperors often starts from the common feelings of people, and it is impossible to take care of all changes, which is the reason why the ancients set up principled norms. The meaning of the law of the first emperor is eternal, but the specific law needs to be gradually perfected according to the changing situation. However, the participants in the discussion each cited special circumstances to interpret seemingly contradictory laws, so I am afraid that the Year of the Monkey and the Moon will not reach agreement. In particular, some people, when they see the law that 'no surrender is allowed if injured, and if murder is wounded, they are hanged', they interpret it as not allowing surrender in murder, which is that they have not understood the original intention of the pre-imperial law, so that the law cannot play its due role. ”
From the above analysis, it can be seen that the legislation of the Song Dynasty paid more attention to the balance of reason, reason and law. The so-called love is the common feeling of human beings, which contains the essence of "customary law"; The so-called reason is heavenly reason, similar to the concept of "natural law"; The so-called law is a specific law, which is equivalent to today's "written law". Professor Jiang Bixin, an authority on domestic law, explained that the ancients emphasized the integration of heavenly reason, human favor and national law.
Among them, heavenly reason refers to the objective law of the existence of things, human favor refers to human nature and needs, and national law refers to the legal provisions of the country. Integrating heavenly reason and human feelings into the application of law should become the realm that judicial trials unremittingly pursue. Since the law itself is based on heavenly reason and human feelings, in most cases the three are consistent, but in some cases the three will also conflict.
When there is a conflict between the three, it is necessary for the adjudicator to consider the factors of natural reason and human feelings within the discretionary space granted by the law, and integrate natural reason and human feelings into discretion to make a ruling. When considering non-legal factors, judges should consider natural reason and human feelings, and integrate natural reason, human feelings and the spirit of law.
It is necessary not only to meet the requirements of legality, but not only to be limited to the scope of legality, but also to consider multi-level value judgments, so as to achieve the unity of formal justice and substantive justice, the unity of subjective justice and objective justice, and to guard against legal dogmatism and mechanical law enforcement.
After figuring out the intent of the legislation, they found out the reasons for the controversy. They believe: "As Wang Anshi and Sima Guang said, the edict and law are clear and complete. The focus of the dispute in the case is only whether 'premeditation' is the 'cause' of the 'injury'. According to the ministers, there are six types of crimes under the law that one cannot surrender voluntarily, and that acts that cause harm to others are not within the scope of voluntary surrender. The interpretation of the law says that a person who commits the crime of killing and surrenders voluntarily shall be exempted from the crime for which he was caused, and the law of killing for the cause shall still be followed.
It probably means that those who surrender, although they are exempted from the crime for which they were committed, are still punished according to the law of killing. That is to say, although the crime of 'premeditation' can be exempted, the one who caused the injury should still be convicted of the crime of injury, and the one who caused the death should still be convicted of the crime of killing. Although the law has a clause that 'if the artifact is not compensated, it is not applicable to surrender', and now Ayun still has an appropriate punishment that can be imposed for causing injuries to the other party, but is it not too much to let her die to compensate for the crime?
The ancients first legislated that the murderer pays for his life, and the injured person is punished accordingly. Later, it was stipulated that those who were injured as a result of robbery and murder were aggravated to the penalty of beheading; Injuries caused by murder are aggravated by hanging. If it were not for "premeditation" in advance, then it would only be a sentence of imprisonment, a third-degree cane, etc., how could it be aggravated to hanging, beheading? If the surrender was premeditated, the crime of 'injury' remains.
It is clear that the act that caused the 'injury' cannot surrender itself, but the 'cause' can surrender, and that the act of 'premeditated' in advance is the "cause" of the 'injury'. The reason why the law establishes the provision that voluntary surrender can reduce criminal responsibility is not only to open up the way for the people to change evil and turn from good, but also to prevent those who hurt others from knowing that they cannot be exempted from the death penalty, and thus generating more vicious thoughts, which will cause serious consequences that kill people.
If this conclusion is promulgated and implemented now, it will block the road to surrender in the future, so in the future, regardless of the seriousness of the crime, the relevant judicial organs will execute them according to the article, although the imperial court wants to give leniency, can there still be a chance? If the murder is considered to be of a heinous nature and the law does not allow him to surrender, then among the six acts of non-surrender, it should be indicated that 'murder has been injured' is not within the scope of voluntary surrender.
According to the records in the Edict, if the murder is premeditated, the person who has caused injury and has not caused injury, and whose nature and heinousness do not amount to the death penalty, is allowed to play the sentence. Now let the criminals 'premeditate' and invoke the old law to be exempted, and the crimes that have been 'wounded' are then executed by later edicts, then why not! Finally, the three of them jointly reported to Song Shenzong: "The ministers and others think that it is appropriate to be as An Shi discussed." They believe that Wang Anshi's opinion should be adopted.
One-sided result
The second proposal was actually one-sided, which greatly surprised the ministers. I analyzed that the reason for this situation is mainly because the legal system of the Northern Song Dynasty originated from the chaotic era of the five dynasties. In troubled times, heavy laws were used, and in the early years of the Northern Song Dynasty, not only legislation was severe, but also judicial strictness. However, over time, people of insight gradually developed expectations towards broadness.
Why is it not allowed to turn yourself in if you kill someone to see blood? Otherwise, how many wounded fugitives will there be in the world? Su Shi's "On the Ultimate Theory of Punishment and Loyalty to Punishment" can stand out in the imperial examination, which already shows that Shi Dafu has a tendency to be lighter and lenient in his judicial concept. It is precisely on the basis of this position that the three ministers of the two systems will collectively agree with Wang Anshi's opinion.
Seeing the three of them playing, Song Shenzong smiled and said "Yes". Psychologically speaking, all people who are entangled in making choices have long had the answer in their hearts, and asking for advice just wants to get the choice that their hearts prefer. At this time, Song Shenzong also learned that there were indeed contradictions between the "surrender" and "wounded" laws in the "Song Penal System".
In order to make up for this legal loophole, Emperor Shenzong of Song issued an edict on July 3 (癸酉日) in the first year of Xining (1068): In the future, if a person who is injured by murder in the future, he will be counted as a voluntary surrender and treated as a second degree commuted from the crime of murder. According to this edict, after a murder surrenders, it is no longer necessary to be sentenced under the "Murder Law", but under the "Murder Law", which is straightforward, easy to operate and less troublesome.
This also means that Song Shenzong not only adopted Wang Anshi's opinion, but also proved that Xu Zun did not have the problem of "seeing and pedantic" and could still be his Dali Temple Secretary. There are birds in the South Mountain, Zhang Luo in the North Mountain, birds fly high, Luo Dang helps? The impeachment is fine, and the law involving Ayun's case is also regulated in the form of an edict. Now, everyone has nothing to say, right? The history books tell us: none!
Of course, it means that the three judicial bodies were wrong in their review opinions on Ayun's case. According to the law, judges should bear the responsibility for the crime of "incursence". Although the emperor absolved the judges of their guilt, the men were not convinced. Subsequently, Qi Hui, Wang Shiyuan, and Cai Guanqing respectively wrote to impeach Lu Gongshu and others, and the content of the impeachment was that the discussion on the Ayun case was incorrect.
Qi Huan, the Western Court of the Prosecutor's Office, whose duty is to picket major criminal cases in Beijing; Wang Shiyuan, a detailed deliberator of the Criminal Court, is a professional official responsible for the review of major criminal cases; Cai Guanqing, the young secretary of the Dali Temple, specializes in the trial of major criminal cases. All three are professional judges.
Ordinary officials have an opinion and say that the collective protest of the three justices cannot be ignored. Song Shenzong stayed for a long time, and could not come up with a perfect solution, so he had to order Wang Anshi to "assemble" with the judges, that is, to discuss collectively. Speaking of which, this is the third round of debate, and the debate has also changed from two people in the first round, three people in the second round, to many people at the moment.
The square debater is Wang Anshi appointed by the emperor. The debaters put forward by the judges were Wang Shiyuan, Cai Guanqing and others. As for the man named Qi Hui, who was 68 years old, fell ill and died the following year, it was estimated that he was no longer breathless, so he did not come forward to participate in the debate.
But anyone with discerning eyes will think that this big debate must be a war of words, and the debate will not produce any results. Sure enough, the historical record says that the two sides "repeatedly discussed difficulties", the judges "insisted on their opinions", and Wang Anshi "insisted on his own opinion". As the saying goes, a cobbler has no good shoe samples; Two clumsy tanners, good to discuss; Three stinkers, one at the top. The judges felt that if the stalemate continued, I am afraid that there would be no result, let alone a good result, because Wang Anshi was too hard-mouthed, and behind Wang Anshi stood Song Shenzong.
So, can you think differently? For several nights in a row, the judges held their cheeks and stared at the starry night. "There you have it!" One judge winked slyly and said to a few colleagues, "We might as well 'retreat into progress.'" To convince his colleagues, he gave an example from the Han Dynasty. Gongsun Hong's family was very poor when he was a teenager, and later became a prime minister, and his life was still very frugal, with only one meat dish for eating and only an ordinary quilt for sleeping.
When the minister heard this, he asked Emperor Wudi of Han for a copy, saying that Gongsun Honggui was a prime minister and had a rich fortune, but he only covered ordinary quilts, which was in essence a reputation fishing for fame in order to deceive the reputation of frugality and incorruptibility. One day, Emperor Wudi of Han asked Gongsun Hong, "Is what Ji Yao said the truth?" Gongsun Hong replied, "Ki Yao is not wrong at all. The Manchu minister, who had the best friendship with me and knew me best, accused me in public today, and he hit me to the point. As a prime minister, I only cover a quilt, and my standard of living is the same as that of ordinary people.
If it weren't for Ki Yao's loyalty, how could His Majesty hear such criticism of me? When Emperor Wudi of Han heard this, he respected him even more. Because the more he argues, the more blackened he will become. And he admitted it all, but he looked cautious, isn't this a typical "retreat to advance"?
Fall into the trap
The next day, you still quarreled with me, arguing with reason. When the two sides fought over the red, a judge suddenly lowered his head and seemed helpless to propose: "If the murder has been injured, if you are allowed to surrender, then according to the same jurisprudence, if the murder is dead, you should also be given the treatment of surrender and reduced sentence." ”
West Point has a catch-all: when your attack goes well, you must have fallen into the enemy's trap. But Wang Anshi is a conceited man, and his first feeling is that the other party is persuaded, so he is very useful, so he agrees to the judges' proposal without thinking. At that moment, Wang Anshi's mouth reached the side of his cheek, and his 48-year-old heart was like an autumn field, immersed in the golden yellow of the harvest; The judges looked solemn one by one, as if they had lost their own house, but they had other plans in their hearts.
Wang Anshi presented the results of the "assembly" to Song Shenzong, "Emperor Daxi". On the third day of February (Gengzi Day) in the second year of Xining (1069), the water forest was lush and the magpie ascended the branch. Emperor Shenzong of Song issued the second edict: from now on, murder has died and surrendered, and the case is to be questioned, and the edict is played.
According to this edict, from today onwards, the scope of application of the sentence that can be reduced by the surrender of a criminal has been expanded from "murder has been injured" to "murder is dead". Because this day is Gengzi Day, this edict is called "Gengzi Edict". Just this month, perhaps because Wang Anshi won the "assembly", or perhaps because Song Shenzong accepted Wang Anshi's idea of changing the law, Wang Anshi was appointed to participate in political affairs, that is, deputy prime minister.
What happened next caught Wang Anshi and Song Shenzong off guard. Once the "Gengzi Edict" was promulgated, it was like pouring a bucket of oil on the fire, stirring up a flame that rushed into the sky. In ancient China, "killing people to pay for their lives and borrowing debts to pay for money" was regarded as a natural and righteous move, and "to stop and fight violence with violence" was regarded as the mainstream legal concept. "Murder is dead" is also allowed to turn himself in, which is tantamount to breaking the ground, can everyone easily accept it?
At the court meeting on February 15, the Purple Palace was filled with the smell of gunpowder. In front of Song Shenzong, Tang Jie, who was involved in the political affairs, had a fierce debate with Wang Anshi, and when it came to excitement, Tang Jie said loudly: "This decree is considered unimplementable by the whole world, but Zeng Gongliang and Wang Anshi believe that it can be implemented." Wang Anshi was also anxious, stomping his foot and shouting: "Those who think that they cannot be the leader are all friends." This means that those who think that they cannot be implemented are all "friends" who pull gangs and factions.
Obviously, this is an urgent word, but also an overstatement. At this time, the law change has not yet been implemented, and there has not yet been a confrontation between the law changers and conservatives, because of a legal problem, you Wang Anshi will give Tang Jie of the same level the hat of "friends", is it appropriate? The emperor also felt a little inappropriate, so he hurriedly announced the "withdrawal of the dynasty".
Immediately afterwards, Liu Shu of the Sentencing Department returned the edict to the prime minister on the grounds that it was "unclear" and refused to carry it out. Even Han Wei, who has always supported Wang Anshi, also stood up and expressed concern about expanding the scope of application of voluntary surrender and commutation of sentence without restraint, saying: Wang Anshi and Xu Zun's previous proposal to allow self-surrender before the murder is not dead, and it is of great significance to consider forgiving the criminal. This point has been discussed in detail by me and Lu Gong.
Now that criminals after murder are also allowed to turn themselves in, I cannot but object to this. The Holy Lord could not accept the suggestion that 'murder is dead' and turn himself in just because he took care of Wang Anshi and Xu Zun's emotions. In the future, difficult issues must be fully debated and agreed upon before an edict can be prepared and adjudicated.
For a time, doubts and accusations rose one after another, as if the pot had opened. Only then did Wang Anshi suddenly realize that he had fallen into the trap of the judges.
Bibliography:
[Southern Song Dynasty] Yang Zhongliang, "Imperial Song Tong Jian Chang Ed. Chronicle at the End of the Book", vol. 59, Heilongjiang People's Publishing House, 2006 edition.
Jiang Bixin, "Considerations of Non-legal Factors in Judicial Trials", originally published in People's Justice, No. 34, 2019.
[Northern Song Dynasty] Fang Wei "Po Zhai Ed.", Zhonghua Book Company, 1997 edition.