从非刑到常法:清代锁带杆墩源流考

From Illegal to Legal Penalty: A History of Attaching the Iron Bar and Stone to the Prisoner in the Qing Dynasty

清代乾嘉以后,地方政府为解决盗窃等犯罪“情重法轻”的困境,创设了锁带杆墩之法。以嘉庆朝四川总督上奏为开端,锁带杆墩逐渐摆脱了“非刑”身份,但也形成了一省一例、多有抵牾的参差局面。实践中,锁带杆墩形成了依照条例适用与权宜适用并行的局面,虽然施行之初取得了一定的成效,但也带来了日益严重的犯人脱逃与借机讹诈的问题。锁带杆墩同时包含了耻辱刑与自由刑双重属性,以及惩罚、限制再犯与改造的功能,在一定程度上改变了传统刑罚体系的执行方式,推动了以监禁为核心的刑罚模式的形成,预示了刑罚变迁的方向。

Since the reign of Emperor Jiaqing of the Qing dynasty,the local government created a new penalty,attaching an iron bar and stone to the prisoner(Suodaigandun,锁带杆墩),to solve the problem of serious crime but light punishment.Starting with the memorial of the governor of Sichuan during the reign of Jiaqing,it gradually got rid of the Feixing(非刑)status.However,different provinces had formed different legal provisions and there were conflicts between them.In practice,it had formed a parallel situation of application according to the regulations and expedient application.Although the initial implementation had achieved some success,it also brought about the increasingly serious problem of escape and blackmail of prisoners.This penalty also consisted of attributes such as humiliating punishment and restricting freedom punishment.Additionally,it had the functions of punishing criminals,restricting recidivism and reforming criminals.It had changed the execution mode of traditional criminal law system to some extent,creating a penalty model with imprisonment as the core.It foreshadowed the direction of penalty change.