清督捕则例研究

【作者】 吴爱明；

【导师】 柏桦；

【作者基本信息】 南开大学 ， 中外政治制度， 2009， 博士

【摘要】 《督捕则例》是清朝重要的政治法律制度,也是清初五大弊政之一(剃发、异服、圈地、投充、逃人法)。《督捕则例》的主要内容是清代关于抓捕逃人的法律规定。《督捕则例》在形式上经过了入关前的“逃人法”和入关后的《兵部督捕则例》和刑部《督捕则例》;在时间上从努尔哈赤“缉捕逃人,特为创典”(1587)开始到道光十四年(1834)增入最后1条例,前后进行了240余年,各朝都有修订,其内容最终为109条373款,主要包括处罚“逃人”、惩治隐匿“逃人”的窝主、规定有关人员的缉捕措施和奖惩办法三个方面;在实施上,经历了清初到康熙三十八年(1699)严厉实施、康熙三十八年(1699)到雍正二年(1734)缓和实施和雍正二年(1734)到清末懈怠实施三个阶段;在机构上,顺治十年(1653)十二月特设兵部都捕衙门专掌逃人事务、地方各省由派驻各省的满洲将军审理有关逃人案件,康熙三十八年(1699)裁撤兵部督捕衙门而将督捕事务“归并刑部审理”改称“督捕司”,雍正二年(1734)将刑部督捕二司一厅(前、后司,司务厅)改为一司。《八旗处分例·捕逃》、《吏部处分例·缉捕逃人》、《理藩院刑法·捕逃》补充了《督捕则例》的内容。清统治者非常重视《督捕则例》的修订与实施,在康熙三十八年(1699)以前,一直被朝廷视为“第一急务”,因此《督捕则例》不但与当时的社会政治生活有密切的关系,而且关系到清王朝的政治体制与法律权威,也体现出当时的司法过程和行政管理过程。《督捕则例》的实施,并没有带来清朝统治者所希望的结果,反而成为满洲贵族入关以后执行民族高压政策的罪证,它不仅给以汉族为主体的各族劳动人民造成了精神上、物质上的巨大苦痛和灾难,遭到了他们的强烈反抗,而且极大地影响到社会发展历史的进程,其社会效果极为恶劣。一是激化了当时的民族矛盾。由于清初大批逃人是满洲在与明朝的战争中从关内掠取的,许多逃人有家难归、求生无门,大量奴仆纷纷走上造反的道路;逃人法的实施使流民问题更难以解决;因逃人法严,对窝逃处罚更严,满汉官民矛盾突出。二是激化了阶级矛盾。由于在审理逃人案件上,满汉官员因认识和利益不同而出现分歧;逃人法重在窝逃,不但处理严厉,而且刑罚残酷,大大危及到汉官汉民的利益,因此遭到众多汉官的反对;逃人法波及范围广泛,官员为了保住自己的权位,不惜以扩大株连以彰显功绩,不法奸棍借机欺诈勒索,受害的人数众多,民间怨声载道。三是毁灭了人们的爱心和人性。逃人法体现了统治阶级的意志,承认了满族贵族占有奴仆的合法性,而且利用国家权力制止奴仆逃亡,以保证满族贵族有剥削奴仆的权利;因为查解逃人是考核官吏的重要指标,地方官宁可误抓而不愿漏查,宁可造成冤案,也不愿冒失察之险;窝逃之法十分严厉,“一遇面生可疑之辈,即使不是逃人,也该疑作逃人”,更不敢施舍救济,否则极可能杀身破家、连累无数。四是阻碍了社会经济的发展。逃人法不利于流民的招抚,不但影响了荒地的开垦,社会生产难以恢复,而且严峻的逃人法使许多人惨遭杀害,破坏和减少了劳动力,在人人自危的情况下,也直接阻碍了商业发展。《督捕则例》在政治上体现了清王朝从“满汉畛域”到“满汉合一”的统治政策,表现出贵族与官僚政治的结合;在立法上,反映了以君主为主体的立法程序和融合应变的立法原则;在制度上,以连坐、利诱来构建国家的搜查体制,因而忽略了人与人之间的利益关系及社会文化基础,连坐或牵连,实际使得官吏们无心防逃与缉逃,最后导致难以协调运作。《督捕则例》也试图和其他制度相衔接,首先是试图发挥奖惩制度的效用,但轻赏重罚;其次是试图与考核制度结合起来,但以一项指标而定升降,忽略了综合评定;再次试图与监督机制相结合,但严厉督促不能替代连坐带来的后果。因此《督捕则例》规定虽然具体,但很难发挥其应有的功效。清初力行逃人法,是为了扩大满族的利益,满族的社会准则是以他们多杀为荣耀、以抢掠为富足、以“杀”、“抢”为核心,这也就决定了逃人法的实施带有民族镇压的性质。法律的良好运行需要法制的稳定,虽然法律有顺应时势发展的特征,但统治者为达某一特定目的而不顾整体时局,对法律任意变更,这一方面使法律更难执行,另一方面也威胁政治统治秩序,更会使人们对法律失去信任。法律的实施需要社会力量的支持,在传统政治体制弊端日益显露的情况下,恶法作为权宜之计会一时发挥作用,达到统治者某些方面的目的,但没有社会力量支持的法律,迟早会推出历史舞台。更多还原

【Abstract】 DuBuZeLi, an important political and legal system in the Qing Dynasty, was one of the five misrules (including tonsure, Manchu clothes compelling, land enclosure, penal servitude and the Escapee Law) of that time. DuBuZeLi was the law mainly about arresting escapees in the Qing Dynasty. With revision in different emperors’ periods, its form evolved from "the Escapee Law", BinBuDuBuZeLi and DuBuZeLi, lasting more than 240 years. The final form was 109 articles 373 items. It mainly stipulated in concrete terms of arresting escapees, punishing those who sheltered escapees, and arresting measures, rewards and punishment. In practice, DuBuZeLi was strictly put into effect in 1699, lenitively implemented from the year 1699 to the year 1734, while loosely carried out in the late Qing Dynasty. In the institution setting, the Ministry of Military was in charge of the escapee affair in 1653. In 1699, the Arresting Department of the Ministry of Punishment was responsible for it. In 1734, the Arresting Department was rearranged. DuBuZeLi was supplemented by BaQiChuFenLi, LiBuChuFenLi and LiFanYuanXingFa.The governors in the Qing Dynasty paid great attention to the revision and implementation of DuBuZeLi and it was regarded as the priority of the court till 1699. Therefore, DuBuZeLi was not only closely connected with the current social and political life of that time, but also was related to the political system and legal authority of the Qing Dynasty, and it reflected the judicial process and administrative management as well.The implementation of DuBuZeLi did not bring the result that the governors expected; instead, it became the evidence of high-handed policy practiced by Manchu aristocrats after they took the regime. It not only made all nationalities suffered a lot physically and mentally and thus strongly resisted, but also greatly hindered the historical process of social development. The first bad result was that the nationality conflicts became acute. Many escapees were seized in the war between Manchu and the Ming Dynasty, they in succession became rebellious because they had no home to return and they barely lived. The Escapee Law made the refugee problem even harder to solve. The contradiction between Manchu and Han was prominent because of the restrict punishment on escapees and those who sheltered them. The second bad result was that class contradiction was intensified. Manchu and Han officials held different opinions on the issues of escapee because of their different understanding and interest. The Escapee Law punished escapee protectors severely even cruelly, so large number of Han officials opposed it. The Escapee Law was practiced extensively and involved many victims, so complaints among civilians were heard everywhere. The third bad result was that people’s benevolence and humanity were ruined. The Escapee Law represented the interest of governing class; acknowledged the validity of Manchu possessing slaves and entitled Manchu aristocrats the right to use nation power to forbid escape and to exploit slaves. Identifying and arresting escapee was a very important guide line to evaluate officials, so the local officials preferred to mistakenly arrest a person rather than let him or her free. "A new face should be suspected as an escapee, if not an escapee". The punishment on sheltering escapees was even severe, so no one would give help to any escapee, or he and his family would be killed. The fourth bad result was that the social and economic development was greatly hindered. The Escapee Law made it difficult to console refugees, thus it influenced the reclamation of wasteland. What’s more, the severe law killed many innocent people and reduced labor forces. The situation in which everyone felt unsafe directly held back the development of business.In politics, DuBuZeLi displayed that the governing policy changed from "separated Manchu and Han" into "united Manchu and Han" and it indicated the combination of aristocrats and bureaucrats in politics. In legislation, it showed that the principle was emperor-oriented and synergetic. In system, the searching system of embroilment and inducement ignored the interests between people and people as well as social and cultural basis. Thus, embroilment made it difficult for officials to fulfill their obligations. DuBuZeLi had been tried to combine with other systems, for instance, with the system of rewards and punishment, but with more emphasis on punishment. It had been tried to combine with examine system, but promotion or demotion based on this only item instead of on comprehensive evaluation. And the combination with supervision system was not effective, either. Therefore, DuBuZeLi could not give itself to full play although it was specifically regulated.The implementation of the Escapee Law in the early Qing Dynasty was to expand the interest of Manchu who took pride in excessive killing and plundering and snatching. It possessed a distinguishing feature of nationality suppression. Although law should keep up with times, it still needed a stable legal system. If governors arbitrarily changed law without considering the situation in order to reach a particular purpose, on one hand, it would be hard to implement law; on the other hand, it would threaten the social and political order and people would loose confidence in law. The evil law might be somewhat effective as makeshift and let governors achieve particular purposes, but the disadvantages of traditional political system were increasingly emerging. The implementation of law needed the support of people, and without it, the law would become useless and would be abandoned.更多还原