As well known,
T'ang-lü-shu-i (T'ang Code and Commentaries) consists of the Penal Code revised in 651 AD and its official commentaries compiled in 653, both having been slightly amended in 737. The Code includes the following provision: "Those who, taking advantage of authorized entrance to the Imperial Palace, shall talk with a court lady without permission or hand on a letter, clothing and other things shall be condemned to death by strangulation" (paragraph 2 of article 69). A decade ago, Mituo Riko argued pursuasively that the provision had not appeared in the Code until the text was revised in 737. The ground of his argument was a passage in
T'ang-hui-yao which runs: "The 17th day of the 8th month, the 5th year of Yung-hui (September 2, 654) : A male court musician named Sung Ssu-t'ung, on an occasion of entrance as a matter of duty to the office of female musicians located in the inner section of the Palace, carried message for a court lady (in this situation, a musician). The Emperor ordered to behead him and to enact a provision to that effect to be added (_??_) to the Penal Code (_??_). Hsiao Chiin said in his memorial to the Throne, 'Ssu-t'ung's offence was committed before the enactment of the provision. He is not liable to capital punishment'. The Emperor said, We are happy to hear Hsiao Chün's argument'. By His order, Ssu-t'ung's capital punishment was mitigated to exile"(
chüan 55).
From the obvious correspondence of the two materials, Riko has concluded that the provision must have come from an enactment which took place in 654 or later, i. e., after the promulgation of the Code and commentaries, and that it was incorporated in the Code on the next occasion of its total revision, i. e., in 737.
Makoto Okano's recent article argues, based on a linguistic analysis of the expression ft _??__??_, that the amendment of the Code itself took place as an exceptional case immediately after the event of Sung Ssu-t'ung's offence without waiting for the total revision in 737.
I agree wit. Okano as far as the linguistic analysis is concerned. However I question a premise in the arguments of Okano as well as Riko; they assume that the date (17/8/YH5) mentioned in
T'ang-hui-yao was the date on which Sung committed the crime. According to my hypothetical opinion, the crime had been committed sometime in 653 or earlier when the drafting work of the Commentaries had been still in progress, and the mentioned date (17/8/YH5) was the date on which the case was finally settled. I assume that the insertion of the provision took place in 653 when the Commentaries were drafted and the Code itself was possibly revised. It was no exception to the rule that codes were to be amended only on an occasion of total revision. All the three authors see in Hsiao Chün's argument a resistance against the retroactive application of enactment.
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