試論秦漢的「遝(逮)」、「逮捕」制度

The Institution of “dài” (逮) and “dài bǔ” (逮捕) in the Qin and Han Dynasties

關於秦漢簡中的「遝（逮）」，學界至今有兩種意見。一派認為「遝（逮）」指逮捕，另一派認為只是傳喚而未捕。本文認為兩說都只把握到一部分的事實。根據本文的考察，「遝（逮）」是描述官吏治獄時，以某種方式使案情關係人到案，作為治獄參考的程序。根據所「遝（逮）」對象涉案深淺與情節輕重不同，會採取不同的手段。若是傳喚證人或輕罪者，治獄吏一般會發文至欲「遝（逮）」對象的縣或所屬單位，告知當事人主動到案說明或應訊。這種辦法稱為「逮」，差似於今日之傳喚。但針對可能逃跑或拒捕之重罪犯，治獄吏會以密件通知所「遝（逮）」對象的縣或所屬單位，要求在當事人不知情的情況下予以拘捕，並傳送至治獄單位。由於是根據「遝（逮）書」拘捕人，因而當時稱為「遝（逮）捕」。「遝（逮）捕」是「遝（逮）」的一種辦法，卻不完全等同於「遝（逮）」。與今日普遍意義的「逮捕」一詞可用於描述拘捕現行犯、通緝犯不同，秦漢的「遝（逮）捕」只用於描述因應「逮」程序的拘捕。當時針對通緝重犯的捉拿稱為「名捕」、「命捕」或「逐命」，不稱「逮捕」。從唐代、明代史料看來，「遝（逮）」作為類似今日傳喚程序的制度，至少延續到明代中葉。故今日「逮捕」意義的寬泛化，可能是很晚近的事。

Regarding “dài”(逮) in the Qin wooden slips, there are primarily two scholarly explanations. According, “dài” denotes either “to arrest” or “to summon.” However, these explanations are accurate only partially. This article argues that “dài” originally referred to a legal procedure wherein suspects were brought to the court through different means by the magistrates, who would then render their adjudications according to the severity of the crime committed. If the purpose was to summon witnesses or suspects of petty crimes, the magistrates would issue official documents called “dài shu”(逮書) to the counties or affiliated units of said targets, requesting their presence at the court to deliver further explanations. In short, this usage is similar in function to today’s summons. As regards felons at large or escaping arrest, the magistrates would issue classified arrest warrants to request relevant counties or units to make swift arrests of the criminals without their prior knowledge and transport them to the judicial court. Such arrests made as per “dài shu” were therefore called “dài bǔ”(逮捕). However, “dài bǔ” was one of many methods of “dài” but not necessarily its equivalent. The usage is different in present-day meaning in regards to making an arrest of a person in flagrante delicto or a wanted criminal. In the Qin and Han dynasties, “dài bǔ” meant capture and detainment in the process of “dài.” As such, the capture of wanted felons was called “míng bǔ” (名捕)” or “zhú mìng” (逐命), rather than “dài bǔ.” According to historical materials of Tang and Ming dynasties, the practice of “dài” similar to today’s summoning procedure lasted until mid-Ming. The multiplicity in the definition of “dài bǔ” may have been a much later occurrence.