秦漢時代の爵と刑罰

Abstract

As Dr. TOMIYA Itaru 冨谷 至 suggests, the person who held Shang Zao 上造 (i.e. the second lowest aristocratic rank) or above was allowed commutation of the mutilating punishment according to the Qin statutes. Mutilation was an indication to the public that the mutilated criminals were not accepted as their members, and were kept away from their community. Thus this commutation implies that rank holders were allowed to stay in the community by virtue of their achievements made for the empire. Accepting this remarkable view, the author examines the relationship between the aristocratic rank and the penalty, especially the labor punishment. The fact that the mutilated criminals were banished from their community also implies that they sank so low as to be a social inferior. From this point of view, we may say that the aristocratic rank was effective to protect the rank holders from falling into slavery from which they could not recover throughout their lives. Under the Qin dynasty, the term of servitude for labor punishment was not definitely stated. Hence there was little difference between labor convicts and slaves. If the aristocratic rank functioned as mentioned above, then what kind of commutation was granted to the rank holders in case they committed a crime warranting the labor punishment？ Among the Qin labor punishments, Gui Xin and Bai Can 鬼薪・白粲 (i.e. males collecting firewood for the spirits; females sifting white rice) was quite unique. This punishment was adopted only for the privileged class, namely, rank holders and Bao Zi 孫子 (some scholars believe that it means hostage) who was exempted from the mutilating punishment. Unlike other labor convicts, the collectors of firewood for the spirits and the sifters of white rice were allowed not to wear red clothes, and not to be manacled or fettered. The things like led clothes, manacle and fetter were marks of slave as well as labor convict. Thus the fact that Gui Xin and Bai Can was adopted for the rank holders implies that the aristocratic rank was also, though barely, effective to protect them from falling into slavery in case the labor punishment was imposed