情慾與刑罰：清前期犯奸案件的歷史解讀(1644-1795)

本文是利用清代刑部的檔案來討論犯奸案件。從法律層面來看，儘管法律上對於男女犯奸或者丈夫買賣休妻的行爲有所處分，但由於當事人不提出告訴，地方衙門亦不主動追究，造成男女情奸事件延續了好幾年。不過，男性若拐騙婦女逃走或者殺了丈夫，顯然將家庭問題轉變爲地方治安問題，經由保長、鄉約、胥役等鍥而不捨的追蹤，最後都落得法律制裁。清代情奸之事難容於天地間，主要是社會輿論、秩序能夠配合，使法律能順暢運行。其次，犯奸案件說明了清代人口發展與遷徙時，男女比例懸殊，新開發的地區較常發生奸情。像清朝早期限制婦女遷徙台灣，容易發生情奸和雞姦的案件。再進一步分析，男女情奸並不只求情慾的抒解，還有代表下層社會人士的生活模式。社會上一些家無恆產的傭工，冀望以通姦或拐騙得到婚姻的機會，他們也想要與該婦女長相廝守，以便於傳宗接代。而若干寡婦或者縱容妻子通姦的丈夫，也期望從情夫那兒獲得錢財。如此看來，管仲說的：「衣食足然後知榮辱，似乎比較接近清代庶民的思想，而宋儒程頤所謂：「餓死事極小，失節事極大」的高道德標準，並未成爲民眾奉行的準則。

關鍵字

清朝前期；犯奸案件；刑部

並列摘要

This paper discusses adultery cases based on the files of the Ching Dynasty's Ministry of Punishments. From the legal perspective, Ching laws stipulated punishments against adulters, and forbade husbands selling off or dismissing their wives, yet, in reality, these cases were not prosecuted by the Ya-men unless a charge had been filed. This led to the extension of adultery practice for several years. However, in cases when a man seduced women to elope or killed a woman's husband, then these so called family problems turned into an criminal issue of peace and order, authorities like the Security Grand Head (pao-chang), Community Compact (hsiang-yueh) and Suboffical Functionary (hsu-di) spared no effort to pursue the case, and the culprits eventually are brought to justice. The seriousness with which adultery cases were handled in the Ching Dynasty was attributed to coordination between social opinion and order, as well as the smooth enforcement of laws. Adultery cases give an idea on the disparity between male and female populations during the Ching Dynasty and especially among mass migration societies. Newly populated areas usually had a higher incidence of adultery. In the early days of the dynasty, for instance, women were forbidden to immigrate to Taiwan, a situation that easily led to adultery and sodomy. Furthermore, adultery was not merely committed for sexual reasons; it was also a matter of the lifestyle for the lower class. Poor men who could hardly offer the expenses of marriage, they would try to marry a wife by resorting to seduction or adultery. Sometimes, they would accept adultery in order to remain in marital union with a woman for procreation purpose. Financial aids or material interests were the other strong drives. It was not unusual that widows and husbands would put up with adultery in order to receive some material gains from this arrangement. Judging by these adultery cases, it seemed that, Kuan Chung's statement that ”honor and humiliation come after satisfying man's basic needs” would appears closer to the mentality of the ordinary folks rather than any lofty moral standards enshrined. Such saying, as those by the Sung Confucian Cheng-yi, ”dying of hunger is a matter of small significance while losing one's chastity is a grave issue,” was not a standard followed by the ordinary populace.