明代流刑考

A Study of the System of Banishment in the Ming Dynasty

在传统的五刑制中 ,流刑处于降死一等的重刑地位。但从司法实践来看 ,隋唐以来 ,流刑惩治力度不足的问题一直很突出 ,宋、金、元等朝代均采取了不同的调整措施。至明初洪武朝 ,传统流刑已经基本废而不用。《大明律》定以流罪的条目基本以“宽”、“减”的形式 ,以徒役或赎免的方式得到落实。而流刑所承担的司法任务则由五刑之外的口外为民与充军 。

Within the traditional system of five punishments, banishment was a severe sentence second only to a sentence of death. In practice, however, banishment had not been effectively implemented since the Sui and Tang dynasties. In the Song, Jin and Yuan dynasties, adjustments were made, and by the early years of the Hongwu period of the Ming dynasty the system of banishment had been all but abolished. According to The Laws of the Ming banishment should be implemented leniently or the period of punishment be reduced. Banishment was replaced by imprisonment or paying a fine, but in fact prisoners were moved to north of the Great Wall as ordinary citizens.