1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 1

Political Crime in the United States and Japan: A Comparative

Study
B. L. Ingraham*
and
Professor Kazuhiko Tokoro**

1. INTRODUCTION
As long as there have been states, there have been crimes against
the state. They have been numerous and diverse and have gone by
many names: prodosia tes poleos, perduellio, lése majesté, Verrat,
treason, to name a few. Up till the time of the French Revolution
these crimes were always viewed by the state as the gravest of
offenses and were normally requited with the most severe and
barbaric punishments, since an attack against the holders of power
was not seen as an assault on their personal prerogatives, nor as an
attack against the interests of a privileged class, but as an attack on
the society itself, comparable to the attack of a foreign country. I In
the first half of the Nineteenth Century there appeared in Western
Europe (but not in England) a new conception of crime against the
state expressed by the phrase "political crime." As Papadatos tells us
in his thesis on political crime: 2
The crime against the State is now looked upon as an infraction,
conditioned by the circumstances in which it was produced, by the
legitimacy or illegitimacy of the power it is attacking, and whose
antisocial character is relative; its author, generally driven by noble
motives, witnesses by his deeds a turbulence rather than a corruption
of the spirit, an audacity rather than perversity, fanaticism rather than
vice. Also, he seemed worthy of indulgence, and they thought that the
punishments they inflicted on him should only be light and not
dishonorable.
The definition of "political crimes" is no easy matter, as several
English and American courts have on occasion observed in the field
of extradition law. The diffculty of definition has also been pointed
out by several

*B. L Ingraham received his A.B. (Harvard, 1952), LLB.

(Harvard Law School, 1957), M.Crim. (U. C. Berkeley, School of
Criminology, 1968). Mr. Ingraham, who is a member of the Bars of
the States of New York, New Jersey, New Mexico and California, is
presently working for a degree of Doctor of Criminology at the
School of Criminology at Berkeley, California.
* *Kazuhiko Tokoro is an Associate Professor of Criminal Law
and Criminology at the School of Law and Politics, Rikkyo
University, Tokyo, Japan, and, at the time he participated in preparing
this paper he was a Fullbright Research Associate at the School of
Criminology at Berkeley, California.

145
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 2

foreign commentators who have had a closer experience with its

operation in the domestic penal law of their own countries for well
over a hundred years.3 But, very generally, political crime may be
defined by grouping the acts constituting it into two main categories:
(1) those acts which, by their very nature, tend to injure the state or its
machinery of government either internally, or externally with regard
to foreign powers (These are classified as "pure" political crimes;
examples are treason, subversion, insurrection, etc.); (2) all criminal
acts, regardless of kind, which have as their motive or object some
rearrangement of political power within the state and which entail at
the same time both an attack on the state and the private interests of
its citizens (These are called "mixed" or "relative" political crimes,
e.g., assassination of a political figure, robbery, theft or vandalism
committed during an insurrection, etc.) .4 There is not sufficient time
or space in this study to go into the refinements of the legal doctrines
surrounding this concept, nor to trace the history of its development
in Civil Law countries from its first adoption in France in the 1830's
to the present time. These matters have been covered in other articles
and books.5 Let it suffce to state here that the domestic criminal law
application of the concept in Europe had its origin in the Nineteenth
Century liberal idea that the state and society are not one in the same,
that the state is limited by law and that the citizen has the right to
resist the state when it violates the law, when it is unjust or immoral,
or when it ceases to reflect the will or act in the best interests of the
people. According to this view, the state administration, or those in
power, may be wrong and the opposition, or those out of power, may
be right — a view which makes the nature of the "crime" relative to
the legitimacy of the existing government and its laws.
No government, of course, really questions the legitimacy of its
right to rule or its laws. Nevertheless, liberal parliamentarian regimes
in Europe during the Nineteenth Century, confident of their powers
and adopting such a relative attitude toward political crime, were
disposed to take a rather mild view of the political criminal, when his
motives were altruistic and honorable. Some of the reasons for this
will be offered later in this study. Also, in line with Guizot's belief
(followed later by the positivists, Lombroso, Ferri, and Garofalo) that
political criminals, unlike ordinary criminals, were not deterrable by
the law's threats and penalties,6 the punishments prescribed for them
were softened (the death penalty being abolished in France in 1848
for political crimes) . Political criminals were either banished from
the country or given a special type of imprisonment involving no
forced labor, special privileges and respectful treatment by their
jailors. In France this special form of imprisonment was known as
détention; in Germany it was called Festungshaft; in Italy; custodia
honesta; and in Japan, as we shall see, it was and is known as kinko.
Some appreciation of the rigors of such confinement may be derived
from this description of the German Festungshaft. 7

Imprisonment in a fortress (Festungshaft) was a colorful but rare

form of punishment applied where the motives of the offense were
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 3

consid• ered honorable. The term could be for one day to life. The
prisoner was allowed to carry on his life under mere supervision, a
fact which was made famous by Hitler, who underwent this form
of confinement after his Putsch of 1923 and used it profitably to
compose Mein Kampf.
Preferential treatment of the political offender in the domestic law
of European states was preceded by preferential treatment of political
refugees in the international law of extradition in the granting to them
of asylum. Long before 1830, many European states and principalities
regularly followed the practice recommended by Grotius of excepting
political exiles from the class of criminal fugitives who would be
delivered for extradition upon the request of a foreign government. 8
After the development of the political crime doctrine in the criminal
codes of these European governments, definitions of political crime
embodied in these codes were used in the extradition field to help to
determine whether the crimes of the fugitives qualified as "political
crimes"— a term which was increasingly found in extradition
treaties.9 We shall not concern ourselves with the doctrine as applied
in international extradition law in this paper, however, even though
this is the only field where the term is employed in Anglo-American
law. We wish to confine ourselves to the phenomenon of political
crime in domestic penal law, regardless of the banner under which it
appears.
Since the latter part of the last century, and especially since the end of
the First World War, the doctrine of political crime has become
increasingly limited in its scope and application and hedged with
exceptions in those European democracies and constitutional
monarchies which had adopted it into their codes.lO In Germany and
Italy during their fascist interludes, the political crime doctrine was
used, not as a device for affording favored treatment as formerly had
been the case, but as an instrument of suppressing the political foes of
the regime. The doctrine has not fared well since the end of World
War Il. For instance, although Article 20 of the German Penal Code
(providing for special imprisonment in the case of certain political
crimes) was restored after the war to its form prior to the Nazi
takeover, many political crimes of a serious nature, such as
Hochverrat,11 remained excluded from its application. In the 1956
draft, Festungshaft (now called Einschliessung) was totally eliminated
from the German code, one of the reasons given being that it was
impractical to provide for it because of its limited application, but the
real reason, according to Dreher , being that "the ethical judgment of the
society in the form of law should not give way before the ethical belief of an
individual.
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 4
This, we believe, represents a complete reorientation in the
conception of the rights of the political offender in relation to the state
from that which gave rise to the doctrine of political crime in the
Nineteenth Century. We shall suggest in the last parts of this paper
some reasons for this shift away from the doctrine in the Twentieth
Century.
This paper will be concerned principally with two matters: (I) a
description of the different ways in which Japan and the United States
have handled the problem of political crime in their laws; and (2) an
attempt to provide a theory suffcient to explain why the United States
never introduced the concept of political crime into its domestic law,
whereas Japan did. We turn first to a brief description of the
American experience with, and method of handling, political crime.

11. AMERICAN EXPERIENCE

A. Treason and lesser offenses —"purd' political crimes.
American legal concepts are derived from the English. The English
practice prior to the American Revolution was to include a great
number of acts of both an internal and external nature under the
heading of treason and constructive treason, but later to limit the
harshness and abuse inherent in this approach by affording
procedural guarantees which made it diffcult to obtain a conviction. 13
The American modification of English treason law was to greatly
narrow the definition of treason, to eliminate the doctrine of
constructive treasons, to fix the definition by constitutionalizing it,
and to make stringent the evidence required for conviction. 14 As a
result, since the adoption of the Constitution there have been few
treason prosecutions in United States history (less than forty pressed
to trial 15 ), even less convictions, and no federal executions. However,
the United States (and this is also true of England) has enacted many
other statutory crimes which, while not treason, are analogous to
treason in that their primary purpose has been both to protect the
external security of the United States in its relations with hostile
foreign powers and also to protect its internal security from the
subversion, sedition and insurrection of domestic foes. 16 As far as
internal security goes, the United States has seldom in its history been
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 5
threatened on a national scale, with the notable exception, of course,
being the Civil War. Most insurrections17 have been local affairs and
have usually been handled under state treason, sedition or subversive
conspiracy statutes or under statutes designed to control riots and
public disturbances.

B. Mixed political crimes.

As to "mixed" or "relative" political crimes,18 the practice in the
United States has been to treat such crimes as strictly conventional
crimes and to ignore their political motivation. For instance, an
anarchist bomber who blows up a building as a means of "propaganda
through action" is simply an arsonist. An assassin who murders the
President of the United States is simply guilty of murder, is punished
as an ordinary murderer, and until 1965 could only be prosecuted by
state authorities under the state law of the jurisdiction where he
murdered the President.19 The English method of handling mixed
political crimes would appear to be the same.20
C. Attitude toward the political criminal.
As we pointed out in the introduction, the primary purpose of the
domestic application of the political crime doctrine seems to have
been to "honor" the idealism and altruism of the genuine political
criminal with a lenient form of imprisonment. In order to determine
which criminals are, in fact, motivated by altruistic concerns, it would
seem essential for a court to make some determination as to the
accused's motives.21 The American doctrine, however, is an objective
one — i.e., it does not concern itself with motives, although it does
with intent.22 The American practice, at least since the Civil War, has
been to regard illegal forms of political dissent as immoral and
dishonorable, as well as impermissible, and the offcial view has not
infrequently been that it is even less worthy of leniency than
conventional crime. Notwithstanding this, the harshness of this view
has been somewhat mollified (1) by the reluctance of juries to convict
persons accused of pure political crimes, except in wartime, and
sometimes not even then, (2) by the frequent use of pardons,
amnesties and suspended sentences once the danger to the nation has
subsided or the political criminal has had a "change of heart," and (3)
by the sometimes special treatment which is extended to political
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 6
criminals in federal prisons solely as a matter of informal
administrative policy.23

111. JAPANESE EXPERIENCE

Japan has the political crime doctrine as part of its domestic
criminal law.24 It has two kinds of imprisonment: imprisonment with
forced labor (cho-eki) 25 and imprisonment without forced labor
(kinko).26 These two forms of punishment are of rather ancient origin.
Before 1880, when the Japanese Penal Code was revised on the model
of the French Penal Code, the samurai class and public offcials (even
if not samurai) were entitled to kinko. Thus, it came to have the
connotation of being reserved to crimes committed by persons of
honor or status, persons entitled to more respect than the common
criminal. The 1880 Penal Code eliminated the status criterion for
kinko. Kinko was now prescribed for offenses against the security of
the state and "offenses which were against the social order but not the
moral code. Crimes committed against the Emperor were excluded,
however, as he was seen as beyond the reach of changes in the
political structure of the nation. The court under this code was given
no discretion in choosing between cho-eki and kinko after conviction
of a specific offense for which either one or the other type of
imprisonment was prescribed. No jury was provided for at this time.
In 1900 a Peace Code was enacted which prescribed kinko for
"anyone who has organized any secret association or who has
participated in such an association."28 In 1893 a Press Code was
adopted which prescribed kinko for "anyone who has published any
paper to profane the dignity of the Emperor, destroy the Constitution,
or disturb the constitutional order.29 This was repeated in the
Newspaper Code of 1911.

The 1907 Penal Code for the first time authorized the court to
choose between cho-eki and kinko for certain offenses, such as
interference with public offcials in the performance of their duties,
riot and misuse of public offce. No standards for the exercise of this
discretion were laid down in the Code, however.30 In 1926 the
Advisory Council for Legal Institutions resolved that provision should
be made for giving the court the option of imposing kinko in cases
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 7
where cho-eki was the prescribed penalty and cho-eki in cases where
kinko was prescribed. The first half of this recommendation was
taken up in the 1927 Preliminary Draft of the Penal Code revision,
which provided that the court could impose kinko if the offense
charged had been committed "with a motive tolerable in the view of
the moral code or the public interest," even when cho-eki was
normally the only prescribed penalty for the offense. The last half was
also followed, in that the Preliminary Draft provided that cho-eki
might be imposed where the defendant had earlier received two or
more kinko sentences, or if he had committed the kinko offense with
an immoral motive.

A tendency toward absolutism in the development of the

political crime doctrine in Japan in the twenty years preceding the
outbreak of World War Il can most clearly be noted in the measures
which governments during that period adopted to control
Communism. A decree of 1923 authorized the court to make a choice
between cho-eki and kinko in the case of anyone
who has committed any crimes endangering life, person or property,
who has spread any rumor for the purpose of disturbing the peace, or
who has spread any fictitious story with the purpose of confusing the
minds of the people, by whatever means used.
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 8

This decree was soon supplemented by the Peace Maintenance Act of

1925. This Act prescribed a choice between cho-eki and kinko for
anyone who organized any association for the purpose of changing
the fundamental constitutional order of society based on the principle
of the supremacy of the Emperor (kokutai) or which repudiated the
system of private property. The courts, vested as they were with this
amount of discretionary authority and directed to take into
consideration the motives of the criminal, were placed in an
ambiguous position. If they decided for kinko because a defendant
charged and convicted of violating the Peace Maintenance Act was
motivated by morally respected motives, then, in effect, they were
conceding a certain morality in attacks on kokutai and private
property. In a case which came before the Nagoya Appellate Court
not long after the enactment of the Peace Maintenance Act involving
a Communist defendant, that court interpreted the legislation giving
the courts discretion in the choice between cho-eki and kinko as
implying the power of the court to decide in favor of kinko,
notwithstanding an attack on the fundamental order of society, in
those cases where the crime was committed from altruistic motives.
The Supreme Court of Japan later reversed this decision without
opinion and changed the judgment to impose cho-eki.31
In 1928 the Peace Maintenance Act was amended to separate
an attack on kokutai from an attack on the system of private
ownership, in order to prescribe the death penalty in the former case.
In 1941 the Act was again amended to eliminate kinko for any attack
against kokutai. For some reason — perhaps as a conciliatory gesture
to the Communitst Party — kinko was retained for crimes involving
attacks against the system of private ownership, even though the
Japanese Communist Party always maintained at this time that the
system of private ownership and Emperor-supremacy principle were
inextricably linked and that both would have to be swept away before
socialism could be realized in Japan.32
The 1940 Draft of the Penal Code added cho-eki as a
discretionary alternative to kinko in the case of nairan (insurrection
for the purpose of overthrowing the government, usurping the
territorial sovereignty of the State or otherwise subverting the
national constitution ) .
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 9

At the present time the Japanese Penal Code prescribes either

death or kinko for acts of internal treason (i.e., nairan. Arts. 77-79);
death or cho-eki for acts of external treason (i.e., acts in conjunction
with a foreign enemy in the commission of aggression against Japan.
Arts. 81, 82, 87 and 88 ) ; kinko for the preparation or conspiracy to
commit aggression against a foreign country (Art. 93 ) ; a choice of
either kinko or fine for involving Japan in war with foreign countries
(Art. 94) ; and a choice of either cho-eki and kinko in the case of riots
(Art. 106) and resistance to public offcials in the performance of their
duties (Art. 95). In addition, the choice between cho-eki and kinko, or
fine and kinko, has been extended to several other kinds of crime
which are not, strictly speaking, political, but which are considered as
not necessarily involving an immoral state of mind on the part of the
defendant: negligent arson, negligence as to trains or ships, negligent
homicide or bodily injury inflicted in the conduct of one's occupation
(Arts. 117a, 129 (2 ) , 211 ) , crimes involving offcial corruption,
except bribery (Arts. 193-195), disrespect of places of public worship
(Art. 188), defamation (Art. 230), false reporting to public authorities
by a doctor (Art. 160), aiding and abetting a suicide (Art. 202) , and
disclosing the contents of mail (Art. 263) . All other crimes are
punishable by cho-eki and/or a fine, except as to minor offenses
where a person may be detained for not more than 30 days in a penal
detention house or given a minor fine.
The institution of kinko thus seems to have drifted a little
from its original purpose of being a form of respect shown toward a
person of status or personal honor, and now seems to be merely a
milder form of punishment which may be imposed by the judge in
cases which do not necessarily reflect a depraved state of mind. It is
now only in the cases of insurrection and the violation of Article 93
that the judge must impose kinko, unless (as to insurrection) the
defendant happens to be the ringleader, in which case the sentence of
death may be passed. In actual practice, the use of kinko for political
crimes seems to be on the decline, whereas its use for non-political
crimes, such as negligent homicide, is very much on the increase.
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 10

IV. COMPARISON OF DIFFERING JAPANESE AND

AMERICAN
ATTITUDES TOWARD THE STATE AND THE
POLITICAL CRIMINAL
A. Two Theses.
The doctrine of political crime involves in its criminal law
application, as we have seen, the honorable and respectful treatment
of the offender, and thus implies the concept of an "honorable" or
"moral" crime or criminal. It may seem highly paradoxical to the
reader to juxtapose those seemingly mutually contradictory adjectives
and nouns. How can there by a "moral" crime or criminal from the
point of view of the state or the society? If the law of the State is the
perfect embodiment of the morality of the society, so that the two are
seen as congruent, then any infraction of the law would be immoral,
and the notion of a "moral" or "honorable" crime would be
impossible. But that perfect congruence between legal and moral
obligations is rare in modern societies. The usual situation is
otherwise, for, although the overlap between the demands of law and
morality is considerable, situations of conflict can arise and do arise,
most acutely in periods of value shifts and political and social
revolution. In these conflict situations there is, in effect, a double
standard of morality extant in the society — the duties imposed on the
individual by virtue of his political, moral or religious convictions or
duties attached to his membership in a subcollectivity versus those
imposed on him by reason of the laws of the total collectivity, the
state or society. The result is a conflict of loyalties.
The state could choose to ignore the conflicting demands and
take the position either that there was only one valid moral position
and that was embodied in the law (as the Soviet Union seems to have
done) , or the position that, if there were other demands, they should
be subordinated to the limited but necessary demands of the total
society as embodied in the law (the position which, as we shall see,
seems to have been adopted by both England and the United States).
In order for the idea of political crime to become incorporated into the
domestic criminal law of the state, the state must not only recognize
the existence of conflicting moral demands, it must, while continuing
to prohibit certain acts as detrimental to the existence of the state and
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 11

society, give recognition and honor to the primacy of political, moral

or religious obligations of subcollectivities or conscience in conflict
situations by extending honorable punishment to those who act in
accordance therewith out of conviction. In explaining the reason why
Japan adopted the European doctrine of political crime whereas the
United States did not, our first thesis is that it is only in those
societies where the dualism or pluralism of morality is well
recognized and where the demands of subcollectivities or individual
conscience are granted a preeminence in common esteem over the
demands of the state that the doctrine can gain a foothold and
flourish. The common attitude cannot be, however, that one is thereby
excused from the demands of duly constituted authority, for this
would make the existence of the state and obedience to its law too
precarious. By using the terms "dualism" or rpluralism" of morality,
we mean to convey the idea that the citizen views the individual as
bound by the claims of both systems, so that, while honorably and
morally opting to violate the law out of conviction, the individual is
nevertheless subject to and accepts the punishment meted out by the
state.33
The state must, moreover, reciprocate in this attitude, and it is a very
hard thing for it to do in political matters where its existence may be
at stake. It is also very unlikely for it to adopt such a tolerant attitude
toward moral rebellion when its claims to legitimacy have a firm or
absolute moral basis, as in the case of a theocracy, a divinely-
ordained monarchy, or a popular democracy. This leads to our second
thesis: that the penal concept of political crime has only arisen and
been adopted in those nations and in those historical conditions ( 1) in
which the dominant political philosophy was liberalism, (2) where the
state's claim to legitimacy was infirm and relativistic, (3) where there
was a clear division between the concept of the state (as merely
representative of those interests in society politically in the ascendant)
and the society as a whole, and (4) where the government's or the
state bureaucracy's conception of itself was not as the representative
of all the people of the society, but rather as the custodian or Protector
of a constitutional order which ensured the institutions constituting
the source of its political and economic power. This was the situation
that obtained in most European parliamentary and constitutional-
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 12

monarchical governments during the Nineteenth Century.

13 ISSUES IN CRIMINOLOGY No.2
vol. 4,

In such societies the custodial function of the government in

maintaining peace and harmony within the whole society is
particularly emphasized. Governments in such cases are typically
patrimonial in their conception of the relationship between the
governors and the governed. Since political criminals are normally
dissatisfied members of the ruling class who are out of power, 34 acts of
rebellion can both be treated leniently as the idealistic rebellion of
errant "sons" and "brothers," or, if so aggravated in nature as to
indicate serious dissension within the ranks of the ruling class or a
loss of control by those vested with the custodial responsibility, they
may also be the cause of government resignation, regardless of the
extent of popular discontent represented by the rebellion.
Perhaps, where such relativistic views of the legitimacy of
governments are prevalent, and where there has been a prior history of
change of governments through revolution, it is, after all, only good
politics to treat political crime leniently. As Papadatos suggests, this
tolerance may have been born originally of a political skepticism,
there having been so many government overthrows in France in the
early part of the Nineteenth Century. 35
The parties in power had found themselves alternately
conquerors and vanquished; the political offenders seemed
unlucky players rather than criminals. They condemned
them because they had been vanquished in the struggle;
happy, in their turn, were those who proclaimed themselves
the legitimate government and who defended themselves in
the name of the same moral laws formerly invoked against
them.
Governments in such societies only maintain their legitimacy to the
extent to which they are successful in absorbing their opposition and
in maintaining a well-ordered society in the eyes of their particular
constituencies or in the eyes of the reigning monarch. They show a
concern, also common to bureaucracies, with maintaining the
institutions on which the power of their class rests, and less concern
with the particular policies of those temporarily in power (especially
if those policies are not capable of producing widespread support).
(Hence, a distinction is commonly made in all codes defining political
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 14
crimes entitled to favored treatment and those which are not, between
crimes which attack the underlying constitutional order of society and
those which merely seek to upset a particular governmental regime). It
is, of course, quite otherwise with popular democracies or
parliamentary governments on the English model, where what is to be
preserved is the will of the people and the rule of law, and that will
has its expression in the laws of popularly elected legislatures, and the
rule of law through judicial restraints on the acts of government. Here
the legitimacy of the government and its laws rests directly on its
adherence to its Constitution and its representation of the majority
will of its inhabitants —a very firm base —and the government is
charged with the duty of repelling all attacks which would frustrate
the popular will or endanger the rule of law.
Such are the two theses and the theoretical perspective from
which we shall attempt to explain the incorporation of the political
crime in Japan and its non-incorporation in the United States.
B. Japan.
In Japan the state has never had a claim to the undivided loyalty of
its subjects. By "state" we do not mean, of course, the Emperor, but the
organs of government below the Emperor. The Emperor has for a long time
represented both the nation and the historical tradition of the Japanese; he is
above the state, is beyond political change, and is the unifying focus of
competing loyalties within the society. The state, however, at various times
in Japanese history, has had to compete with the citizen's loyalty to other
groups, persons and principles. In pre-Tokugawa Japan (i.e., prior to 1603)
the model for loyalty was the duty of loyalty under the moral code of the
warrior (samurai) to his lord (daimyo). This loyalty was due, however,
to the status of the lord as head of the "household of which the samurai
was a part, and therefore it was not a mere passive obedience to the will of
the lord, but the vindication of the samurai's loyalty to that status and that
household through active deeds, including at times the act of bringing an
erring lord back to the path of duty. 37 The traditional ideal of loyalty in Japan
thus from the start carried within it the concept of moral rebelliousness, a
rebelliousness that nevertheless had to be paid for by the acceptance of the
punishment which the moral code or the legal code decreed for such
breaches of etiquette.38
During the Tokugawa Shogunate ( 1603-1868), this personal
allegiance of the samurai to his lord was rationalized and institutionalized
through the infusion of Confucian ethics, in order to support an elaborate
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 15
state bureaucracy with the Shogun at its apex, with the Confucian principle
of filial piety being transformed to place loyalty to the polity over loyalty to
the family.39 Thus, the daimyo was made loyal to the Shogun, the samurai to
the diamyo, and so on down through the hierarchical levels of society. On
the other hand, the old personal devotion of the warrior to his lord did not
die out and was not completely assimilated into the patrimonial-
bureaucratic pattern. Defiance by the samurai to the laws of the Shogun in
obedience to the moral obligations owed to their lord was not unknown
during the Tokugawa era, as the legend of the 47 Ronin would seem to bear
out.40 Institutionalization of the feudalistic loyalty principle was not the only
outcome of Confucian philosophy, which in its pristine form contained the
idea of loyalty to principle, to the "Ways of Heaven," rather than merely
loyalty to a person or group. Primitive Confucianism, born as it was during
China's time of troubles (the Ch'un Ch'iu and Chan Kuo periods) was
imbued with a reforming ideology, an ideology of dynamic change which
stated that incompetent rulers should abdicate or be replaced, and that the
absolutism of the sovereign was not the natural "will of Heaven."41 Thus,
the Confucian ideal too could be used to justify on moral grounds
disobedience and, in extreme cases, even rebellion. It was the view of
Professor Maruyama in his leading article, "The Problem of Loyalty and
Rebellion in the Intellectual History of Modern Japan, that it was both the
dynamic element in the feudalistic loyalty principle and the reforming
ideology implicit in Confucian ethics that contributed to the radicalization
of the younger samurais, the group that ultimately rebelled against the
Shogun, restored the Emperor Meiji as the supreme titular head of the state,
and began the process of modernization of Japanese society in 1868.
Therefore, at the time (1880) when the political crime doctrine was adopted
along with most of the French penal code into Japanese law, it was
perfectly possible (and still may be) for the Japanese to conceive of a
person violating the laws of his country and rebelling against the state in
honorable fulfillment of his duties under the moral code. That is essentially
what the younger samurai had done in toppling the Shogun and restoring
the Emperor, and that is what Saigö Takamori did in leading the Satsuma
Rebellion ( 1877) of discontented samurai against the very same Emperor.
Although Saigö paid the supreme penalty for his unsuccessful rebellion
(i.e., the self-inflicted punishment demanded by the samurai code of honor,
hara kiri), he, no less than the younger samurai, was acting in obedience to
principle and has been honored in public remembrance. This latter
illustration serves to highlight an important point in this dualistic moral
code: that it binds the individual both to the demands of his subcollectivity
or moral principle and to the laws and customs of the country, so that in
fulfilling his duties in the performance of his obligations to one, he
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 16
willingly accepts the punishment demanded by the other. It would appear,
therefore, that the conditions stated above under our first thesis for the
existence of a political crime doctrine — moral dualism — were met in the
case of Japan, where the idea of political crime as a "moral" crime was
perfectly congenial to the way of thinking of the people.
Are the conditions of the second thesis met? We stated that, first, the
dominant political philosophy must be liberalism, i.e., the idea that the state
exists to ensure the liberties of its inhabitants. This is often supposed not to
have existed at the time of the Meiji Restoration, which, it is commonly
thought, was busily engaged in establishing an absolutist national
government based on the principle of the Supremacy of the Emperor. 43 This
viewpoint, however, overlooks considerable evidence of a strong liberal
movement in Japan, known as the "Freedom and People's Rights"
movement, which involved millions of Japanese and which developed
between 1874 and 1887.44 This movement culminated in the establishment of
a national Diet constructed on the European parliamentary model, and the
development of political parties. It is clear also that the state's claim to
legitimacy was infirm and relativisic at this time, and had not yet established
itself on the absolutist principles that later became dominant during the
fascist period.45 The crust of the old order had been broken, and several
clashes with the state regime of the Emperor (we have already mentioned
the Satsuma Rebellion) took place during this period. In short, it was a time
of ferment, and the radical nature of some of the ideas afloat in society at
this time may best be illustrated by citing the following selection of a draft
proposal of a suggested Constitution for Japan: 46
Article 72. If the Government willfully breaks the provisions of the
Constitution or willfully acts to the detriment of the rights of the liberty
of the people, and stands in the way of the aims embodied in the
foundation of the State, the Japanese people may overthrow it and set
up a new government.
This provision, reminiscent of section 61 of Magna Carta, was never
adopted into the Japanese Constitution, which was erected on the German
model." Since the German state during the time of Bismark was particularly
bureaucratic, patrimonial and custodial (and also had the political crime
doctrine embodied in its penal code) , this fact serves to bear out our third
and last condition: namely, that the Japanese government and state
bureaucracy viewed its role as primarily custodial and protective of the new
order (an alliance of the zaibatsu, or merchant class, and the military) which
had been introduced by the Meiji Restoration.
This custodial function of Japanese governments also has its roots in
the culture of the society. In Japan the head of the household is responSible
to the rest of the community for the behavior of other members of his
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 17
household. He is expected to control their behavior and maintain harmony
and concord within the household; if he doesn't he loses face in the eyes of
the community. If there is a revolt within the household, whether it is based
on justified grievances or not, it is considered a reflection on the head of the
household's ability to maintain unity, harmony and control. He is expected to
correct the situation or suffer the loss of his right to be considered as head of
the household. Similarly with Japanese governments, even to the present
day. They are expected to maintain peace and harmony within the society (a
household writ large) or resign. It makes no difference whether a
revolutionary group voices general popular dissatisfaction with the
government or not, or whether this opposition is eejustified" or not; their
revolt, in and of itself, represents a failure of policy on the part of the
government in the eyes of those in whose name it rules, and the expected
course of action is resignation. 48 This may be illustrated by the resignation of
the Kishi government in 1960, after its failure to prevent the riots and
disorder that stemmed from the activities of the revolutionary Zengakuren
student movement in opposition to the renewal of the Japanese-American
Security Treaty. The resignation was not brought about by reason of any
widespread popular dissatisfaction with the Kishi government or its policy
in foreign affairs, but because of its failure to prevent the student riots.49

Thus, both theses presented earlier seem to be confirmed in the case

of Japan. The leniency of treatment afforded to certain political criminals
through the adoption of the political crime doctrine can be understood both
in the light of the grudging admiration that governments were forced to give
to acts of idealistic moral rebellion, and in the light of the political and
cultural conditions which prevailed in Japan at the time of adoption, which
fostered a relativistic view of the legitimacy of governments in relation to
the opposition which they were capable of engendering.
In Japan at the present moment there have been some recent
proposals to abolish the special punishment of kinko for political crimes and
to treat them as conventional crimes.50 These proposals have been rigorously
resisted by those in favor of the retention of the concept. Nevertheless, Japan
shows many of the effects of late Twentieth Century urbanization of its
social life, one of which is the slow, but steady, decline of the "household"
pattern in its institutions and another of which is the increasing ideologizing
of the concept of the state as the result of increasing democratization of the
society. We may expect the loyalties of the younger generation of Japanese
to become invested either in the state or in the society as a whole (a
resurgent nationalism) or in some ideological movement opposed to the
existence of the state in its present form. In this atmosphere, as has also been
true in Western European nations, it is diffcult for the concept of political
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 18
crime as an "honorable" or "moral" crime to survive.

C. The United States.

Western thinking has also been marked by a dualism of morality,
but of a completely different kind from the Japanese. In the West, man is
conceived as being in equal moral relation with every other member of his
society, and, perhaps, with all men everywhere. In general, he owes no
obligations to his family or other group that he does not also owe to the rest
of society, the possible exception to this being the relationship between
husband and wife.51 Therefore, theoretically, there should be no conflict
between the moral demands of the family or other group and those of the
state. However, during most of European history, the state has not had a
claim to the undivided loyalty of its subjects, although it has frequently
asserted such a claim. Why is this? The reason, as we see it, is that Western
man has traditionally been divided between his moral obligations to
something supranational or suprasocietal (God," "Morality," "Conscience,"
"Humanity," etc.) and his moral obligations to the state. In the eyes of any
traditional moralist, if there is any conflict, the former takes preference over
the latter. This seems to be the opinion of most theologians and moral
philosophers. During several hundred years prior to the French Revolution,
however, the established Churches allied themselves with the state and
supported its claims to preeminence in the temporal realm. As the result of
the French Revolution that alliance was almost totally and permanently
destroyed, or rendered nugatory by men's search for moral justification
outside the doctrines of established religions. Thereafter, whereas the state
obtained its right to speak for the majority of the people, it lost its right to
speak for God in matters temporal — i.e., to speak in terms of moral
absolutes. This qualification gave the state's claims to moral legitimacy a
rather relative aspect: the state was legitimate and had the right through law
to command absolute and unquestioning obedience so long, and only as
long, as it was basically moral in its constitution, its purposes and its
administration. It was thought in an age of liberalism that each member of
society could in his own conscience disagree on the question of the
government's legitimacy, and if he so disagreed that he attacked the
administration in power, the state could do no more than enforce the law for
its own protection; it could not on any absolute basis condemn his behavior
as immoral or dishonorable. Libertarian society on the continent of Europe
during the last century was thus conceptually able to afford respectful
treatment for the political offender without violating its own belief in the
morality and propriety of its forms of government or the rule of law. Such an
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 19
attitude could persist, however, only so long as two conditions prevailed: (1)
political or moral dissent did not become so pervasive and aggravated as to
seriously jeopardize the continued existence of popular constitutional
governments and the fundamental institutions upon which their economic
and political power was based; and (2) attitudes concerning the moral
position of the political dissenter remained relative. As soon as ideological
movements, which had their origin in the Nineteenth Century but which
were opposed to its liberal philosophy, came to full flower in the early
Twentieth Century, relativistic attitudes as to the moral position of the
political offender disappeared, because the ideological movements gave rise
to activities which threatened the continued existence of libertarian
governments, and, secondly, because these movements embodied absolutist
moral positions which denied the relativistic basis for the favored treatment
of political criminals.52
It is not a simple matter to explain why the United States never
incorporated the political crime concept into its domestic jurisprudence. The
short answer may be that it did not because England did not. The United
States rarely, if ever, looks to the Continent for legal inspiration and only
allows its legal reservoirs to be fed from common law springs. Thus, we
must start by trying to answer the question as to England.
History reveals that England has not suffered any major violent political
upheavals since the Seventeenth Century. England had its French
Revolution during that century and learned from bitter experience where
moral absolutism usually leads. From that time on, the British have
developed a rather pragmatic and skeptical attitude toward moral questions
which pervades the thinking of most of their political, legal and moral
philosophers. Also, from that time they have elevated the doctrine of
legalism (the rule of law) into a kind of moral absolute in its own right, so
that the average Englishman (and American, as well) has come to regard
obedience to the law as a moral demand in itself, separate and apart from the
moral basis underlying the law. The situation in English and American
society is often viewed as if all members of these societies had agreed to
disagree on matters of morals and politics (we may doubt, however, how
deep this disagreement has ever been) , but agreed that all would respect the
law because the law protected the right of each to his own separate opinion
and a certain freedom in the expression of it. It is on a spirit of compromise
and limited struggle within the legal rules of the game that the stability of
English and American political institutions depends, and it is commonly felt
that there would be anarchy without it.53
An objection might be raised at this point that the foregoing is
contradicted by the history of the United States, which was born in
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 20
revolution and which less than eighty years later suffered another major
internal upheaval in the form of a civil war. Certainly those events cannot be
denied, but they can be misinterpreted. It must be conceded, we think, that
the American Revolution was probably the most "legalistic" revolution that
has ever taken place. It was essentially political, not social. ne political
institutions were changed in some particulars, but the laws and constitutional
limitations on government were taken over from the English almost without
change, or were expanded in some respects. The Americans were almost
fetishistic in their adherence to English traditions of tolerance of political
minorities and of providing pragmatic legal and political guarantees for the
protection of their rights. Thus, the founding fathers provided a political
mechanism for political opposition without the necessity of revolution (the
ballot) and a legal mechanism for the individual to obtain redress against the
unconstitutional excesses of the central government (the constitutional
court). It is true that certain theorists, such as Jefferson, who were greatly
influenced by the natural law theories current in that age, continued to speak
of a "right of revolution" as the ultimate moral right of a citizen faced with a
tyrannical government. Southern secessionists later took a page from
Jefferson's book when they propagandized their ideas as to the right of the
people of the several states to dissolve the federal union, as did their
antagonists, the abolitionists, when they contended for the moral right and
duty of every citizen to resist, by insurrection if necessary, the enforcement
of laws supporting the institution of slavery. Had these beliefs gained
general acceptance in the thinking of Americans during that age, the
doctrine of political crime might have found fertile soil in which to take root
in the law. However, this position was crushed during the Civil War. After
that frightful conflict, Americans did not, on the whole, react favorably to
talk about insurrection or the "right of revolution." It would seem, therefore,
that the conditions of our first thesis are not met in the case of the United
States or England. It is diffcult for Americans to think in terms of "moral
crime" or conceive of "honorable criminals." He who violates the law in a
manner not protected by the Constitution is no more moral than the ordinary
criminal; in fact, he may be more immoral than the ordinary criminal
because his act places in jeopardy the fundamental structure of the whole
society and the basis of all liberties.54
The conditions of the second thesis are also not met. Although
liberalism in Nineteenth Century America was just as pervasive as on the
continent of Europe, American governments conceived of their legitimacy
and their function in an entirely different light. In the United States
popularly-elected governments are conceived of as the embodiment of the
will of the majority of the members of the society. This view has been
fostered by the presence of only two national parties, the members of which
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 21
must obtain a majority vote of the entire electorate in order to hold public
offce. Their representation of the collective will and their adherence to the
rule of law is their sole claim to legitimacy. Given these two prerequisites of
legitimacy, however, there are no permissible grounds for for challenge to
"duly constituted authority," except through regular democratic and legal
processes. Revolutionary activity by a political minority, insofar as it
exceeds the permissible scope of legitimate public dissent ( i.e., such dissent
as is protected by the free speech, assembly and petition guarantees of the
First Amendment of the Constitution) is thus, by definition, illegitimate. Far
from being expected to resign in the face of such opposition, governments
are expected by their electors to combat the illegitimate form of political
dissent by minorities by all means at their disposal so that the will of the
majority may not be subverted. This fairly represents the position of all
American governments from the founding of the Republic; we admit,
however, that we cannot state with confidence that it represents the position
of English parliamentary majorities either in the last century or the present
one, and therefore express no opinion on that question.
The doctrine of political crime did make one brief, belated (albeit futile)
bid for incorporation into the domestic law of the United States. This
happened in the years following the First World War. Labor unrest and
conflict had been building in the United States with ever-increasing intensity
and ferocity since the 1880's. Certain elements of the labor movement
(particularly, the I.W.W.) were radical socialists committed to the realization
of their hopes through revolution. They also tended to be pacifist in their
sentiments toward U. S. involvement in the First World War, and engaged in
many acts obstructing the war effort. Many were arrested under the
Espionage Act of 1917 and the Sedition Act of 1918, and given long terms
of imprisonment, not unlike the Anti-Viet Nam War demonstrators of today.
Their convictions were in almost every instance affrmed by the United
States Supreme Court in opinions which reveal a willingness, in view of the
wartime emergency, to lean over backward to uphold the legislation under
which they were convicted (which legislation in peacetime would almost
certainly have been struck down as violative of the First Amendment) . 55
When the war was over, however, there was a great hue and cry in liberal
circles for the release of these "political criminals" and at least one
recommendation for the introduction of the European doctrine of political
crime into domestic criminal law. 56 On October 7, 1920, Senator Warren
Harding (who was running for election as President of the United States) felt
compelled to address himself to the issue of the imprisonment of these
"political criminals" in a speech delivered in Omaha, Nebraska. He said: 57
No true American will argue that our laws should not be enforced. I
refer to laws, no matter of what nature, whether they be those which
deal with ordinary crimes and misdemeanors, or those which deal with
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 22
acts of treason to the United States, threatening the Constitution and the
fabric of our social organization.
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 23
IN

I wish no one to misunderstand me, and therefore, I will say as plainly

as I can that for my part I can see no essential difference between
ordinary crimes on the one hand and political crimes and political
prisoners on the other hand. If there is a distinction, surely it is not a
distinction which favors political crimes or political prisoners. The
thief, or ordinary criminal, is surely less of a menace to those things
which we hold dear than the man or woman who conspires to destroy
our American institutions.
This speech was followed later by an address of Harding's Attorney General
(H. M. Daugherty) to the American Bar Association in 1921, entitled:
"Respect for the Law: Certain Theories of Political Philosophy Tending to
Undermine This Essential Fact of Our Civilization, Which Have Been
Actively Asserted Since the War Ended. In his speech the Attorney General
addressed himself to the various arguments raised in favor of the
incorporation of the doctrine into American law, and answered them in a
way that we think remarkably covers most of the diffculties that the concept
presents for the American legal mind. The first part of his remarks,
unfortunately, reflects a confusion between the international usage of the
concept in extradition law and its domestic usage in criminal law and also a
confusion in his mind of the doctrine as being one of exculpation, rather
than merely of mitigation of punishment. But these misunderstandings need
not detain us here. In the latter part of his argument, however, Daugherty
gets into the heart of his subject and adduces four reasons why the doctrine
is inapplicable to the American scene. First, he states that to recognize it
would violate the principle of the sovereignty of the state and the uniform
application of its laws — i.e., it would permit two standards, each repugnant
to the other, to exist side by side: the standard of the law and the standard of
some individual or group acting in conformity with their political
consciences. Secondly, he argues, it is a dangerous concept because it is
incapable of definition; "if sought to be applied, it would be as omnibus in
meaning as the various shades of elasticity of the political conscience of
those who sought to apply it."59 Thirdly, there is no need for the doctrine in
a country like the United States where there are peaceful and lawful means
to effect political change (the ballot box) and where there is a Constitution
which protects the rights of every citizen from government abuses. Fourthly,
political crimes are actually more reprehensible than ordinary crimes since
they threaten the basic fabric of our social organization, our laws and our
freedom.60 They go too far to be justified as the legitimate expression of
political dissent.
There is not time in this study to discuss each argument. It is
suffcient to say that in our opinion there is an answer to each point
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 24
consistent with underlying American legal and political precepts, so that the
intrcy duction of the doctrine of political crime into American criminal
jurisprudence could be accomplished without violence to the principles of
the legitimacy of the State or the supremacy of the law. It is our purpose
here merely to point out the reasons why the doctrine has not gained
entrance into the body of American criminal law.
With the recent efforescence of revolutionary political activity in the
United States, talk of political crime is again being heard. Two recent
pronouncements from offcial or semioffcial sources have made reference to
the "ideological criminal with the same bitterness and contempt revealed by
Attorney General Daugherty in 1921.62 Reading these diatribes, it seems
almost inconceivable that preferential treatment, or at least different
treatment, would be extended by the government to political "radicals and
renegades" under the political crime doctrine, whatever good the
introduction of such a concept into American law might do. Nevertheless,
there are some indications that the time might be ripe for attempting such an
introduction. Not only is the moral position of a good many Americans
changing with respect to active opposition to their government, popularly-
elected or not, but the governments themselves, in their desperate search for
consensus, their willingness to "resign," as it were (i.e., not run for re-
election) , in the face of active opposition, reveal many of the attributes of
those patrimonial-custodial regimes of the Nineteenth Century which,
unsure of their legitimacy, attempted simply to conserve existing institutions
and to temporize with the opposition by softening the impact of political
struggle.

V. SUMMARY
We have attempted in this study to provide a comparative analysis of
the phenomenon of political crime in two quite distinct societies, the
American and the Japanese, by discussing their laws with regard thereto, and
by providing a historical and criminological analysis of their different
receptions of the political crime doctrine, which had its origin in civil law
countries in Europe during the Nineteenth Century. We provided two theses
to account for the fact that Japan received the doctrine into its domestic
criminal law, whereas the United States rejected it: first, that the reception of
the doctrine depended upon a moral dualism which legitimized (at least in a
moral sense) moral opposition to the state, while recognizing the state's right
to exact punishment for infractions of its laws; and secondly, that the
reception of the doctrine depended to a large degree on the political
philosophy of the times, the nature of the government, and its conception of
its own function and legitimacy. It is our belief that the theoretical analysis
presented in this paper not only accounts for the difference between the laws
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 25
of the United States and Japan with respect to political crime, but also
accounts for the decline of the doctrine in Europe during the Twentieth
Century.

FOOTNOTES
Pierre A. Papadatos, Le Délit Politique: Contribution å l'Étude des Crimes
I

Contre l'État. These No. 507, Librairie E. Droz, Geneve, 1954, First Part, p. 2.
2
1dem, at p. 43 (Translation by B. L. Ingraham).
See, for instance, remarks of Judge Hawkins in In Re Castioni, I Q.B. 149
3

(1891) at p. 165, and of District Judge Morrow in In Re Ezeta, 62 Fed. 972, 997-
1005 (N.D. Cal., 1894); see also T. Schroeder, "Political Crime Defined," Michigan
Law Review, 18: 30 (1919). For complaints of foreign commentators on the
imprecision of the concept, see Papadatos, op. cit., footnote 1, supra, Second Part,
pp. 87-88; Otto Kirchheimer, Political Justice. Princeton: Princeton University
Press, 1961, Chapter 9.
4
See discussion in Papadatos, op. cit., Second Part, Chapter 4; Robert Ferrari,
"Political Crime and Criminal Evidence," Minnesota Law Review, 3: 365 ( 1919);
W. G. C. Hall, Political Crime. London: Geo. Allen and Unwin, Ltd., 1923, Chapter
1, 13-14.
5
(Articles) : T. Schroeder, op. cit., footnote 3; R. Ferrari, op. cit., footnote 4;
R. Ferrari, "Political Crime," Columbia Law Review, 20: 308 (1920); K. Tokoro,
"Custodia Honesta," Rikkyo Hogaku, 2:81-128 ( 1961) (in Japanese); (Books) : P.
Papadatos, op. cit., footnote I; O. Kirchheimer, op. cit., footnote 3, Chapter 2.
6
Franqois Guizot, Des Conspirations et la Justice Politique (1821) and De la Peine
de Mort en Matiére Politique (1822), reprinted in Mélanges Politiques et
Historiques. Paris: M. Lévy Fréres, 1869.
7
William W. Fearnside, National Socialist Ideology in German Criminal Law,
1933-1945. Dissertation for degree of Ph.D. in History, University of California,
Berkeley, 1949, pp. 85-86.
8
Papadatos, op. cit., Second Part, Chapter Ill; Sir Edward G. Clarke, A Treatise
Upon the Law of Extradition, 4th Ed. London: Stevens and Haynes, 1903, pp. 22,
137, 186-187, 211, 260.
91dem.
10
Kirchheimer, op. cit., footnote 3, p. 40; Papadatos, op. cit., footnote I, Third
Part, Chapter I, p. 89.
11
Hochverrat, or "high treason," consists of violent attacks on the internal
security of the state or an attempt on the life of the head of state.
12
Eduard Dreher, Die erste Arbeitstagung der Grossen Strafrechtskommission,
Z St W. Bd. 66, S. 580 (1956).
13
See first English Treason Act, 25 Edw. Ill, Stat. 5, Ch. 2 (1351); see also
William Hurst, "Treason in the United States," Harvard Law Review, 58:226-272,
395-444, 806-857 ( 1945 ) ; Bradley Chapin, The American Law of Treason.
Seattle: University of Washington Press, 1964. 14Hurst, op. cit., supra, pp. 395-409.
15
1dem, at p. 806.
16
A few of the many examples that could be cited are: The Alien and Sedition
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 26
Law of 1798, the Espionage Act of 1917, the Sedition Act of 1918, the Smith Act of
1940, the Internal Security Act of 1952, and the Communist Control Act of 1954.
17
Examples of such local insurrections are Shay's Rebellion (Massachusetts,
1786-87), the Whiskey Rebellion (Pennsylvania, 1794), Dorr's Rebellion (Rhode
Island, 1842), John Brown's seizure of the federal arsenal at Harper's Ferry
(Virginia, 1859) and the Haymarket Square Riot (Illinois, 1886).
18
See supra for definition of "mixed" or "relative" political crimes.
19
By Pub. Law 89-141, 1, Aug. 28, 1965, 79 stat. 580 (Tide 18, U.S.C.A.
1751, supplement, p. 25), assassinating, kidnapping and assaulting a U. S.
President, President-elect, or Vice-President was for the first time made a federal
crime. 20W. G. C. Hall, op. cit., footnote 4, supra.
21
This was, in fact, done by Judge Wyzanski in United States v. Sisson 297 F.
Supp. 902 (D. C. Mass., 1969) as to a conscientious objector, and the
discounted. Compare parallel developments in the field of extradition law: Ex parte
Koicznski, 2 Weekly law Rep. 116, 1 All E.R. 31 (1955) and In Re Gonzales, 217
F. Supp. 717 (S.D. N. Y., 1963) "subjectivizing" the definition of "political
offender" by introducing the element of motive.
22
See opinion of Mr. Justice Jackson in Cramer v. United States, 325 U.S. I, 31,
65 s.ct. 918, 933, 89 L.Ed. 1441 (1944).
23
Although it is commonly felt that political criminals fare badly at the hands
of juries, a survey of political trials in U. S. history by the authors indicates the
contrary is true. As to the U. S. practice of granting pardons and amnesties to
political prisoners, see James D. Barnett, "The Grounds of Pardon," Journal of
American Institute of Criminal Law and Criminology, 17:490, 510-511, 525-526
( 1926). That there seems to be an unwritten federal administrative policy treating
certain offenders whose crimes are reputedly political differently from other
criminals is merely inferred from the writings of former self-avowed "political
criminals" during the 192(Ys and at the present time. No "hard" data is available at
this time.
24
Yasoji Kazahaya, Seiji Hanzai no Sho-mondai (Problems of Political Crime).
Tokyo: Kenshin-sha, 1948; Shozo Sase, Seiji Hanzrai-ron (On Political Crime).
Kyoto: Seikei Shoin, 1936.
25
Article 12 Japanese Penal Code (hereinafter referred to as J.P.C.], English
edition published by Ministry of Justice, 1960.
26
Artic1e 13, JP.c.
Gustave Émile Boissonade, Project Révisé de Code Pénal pour I'Empire du
27

Japon. Tokyo: Kokubunsha, 1886, para. 48.

28
ArticIe 28.
29
Article 26.
30
This failure to provide standards for the exercise of judicial discretion in
sentencing is alleviated in Japan and many other countries by the provision for
appellate review of sentences. Appellate courts by their decisions reviewing
sentences ultimately provide sentencing standards for the lower courts.
31
Supreme Court decision, February 21, 1930; Daishin-in Keiji Hanreshu
(Supreme Court Criminal Case Report) , vol. 9, p. 79.
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 27
82
Kazahaya, op. cit., footnote 24, supra.
33
A good example of this attitude (although by no means typical of the general
American viewpoint, or even of the viewpoint of the American civil disobedience
movement) was the moral position adopted by Martin Luther King. Addressing the
Association of the Bar of the City of New York on April 21, 1965, he attempted to
justify the moral position of disobedience of the law by distinguishing between just
and unjust laws, and then stated:
"We, on the other hand, believe that he who openly disobeys a law that
conscience tells him is unjust, and then willingly accepts the penalty,
gives evidence thereby that he so respects the law that he belongs in iail
until it is changed (Emphasis added)
Supplement to The Record of the Association of the Bar of the City of New
Yorlg 23, no. 6, June, 1968, p. 15.
1969 POLITICAL CRIME IN THE UNITED STATES AND JAPAN 28
Many revolutionary movements since the French Revolution have been, or at
34

least have started, as student movements, and most political criminals have been of
bourgeois origin, especially from the professional and intellectual segments of the
bourgeoisie. See statistics cited in Lewis S. Feuer, The Conflict of Generations.
New York: Basic Books, 1969, pp. 15-17.
Papadatos, op. cit., footnote I, supra, Second Part, p. 44 (Translation by B. L.
35

Ingraham).
36
The Japanese concept of "household" has a peculiar significance which
differs from the Western concept of "family" (or even "extended family"). In the
family individual members directly interrelate and depend upon one another.
However, in Japan the household constitutes the institutional framework within
which family life takes place; it is the community into which one is born, and it
provides the normative framework for it. It has an existence independent of the
individual family members at any particular time. Chie Nakane, Tate Shakai no
Ningen Kankei (Human Relationships in a Unilateral Society). Tokyo: Kodansha,
1967. This "household" concept is also replicated to form the model for
relationships within other groups, as for instance an employer's labor force being
considered as part of his employer's "household." The samurai was part of his lord's
"household"; and in "fascist" Japan there was an attempt to inculcate the notion of
the entire nation as a giant "household" with the Emperor as the head of the
household (Sohonke). Takenobu Kawashima, Nihon Shakai no Kazokuteki Kosei
(Family Structure of Japanese Society). Tokyo: Nihon Hyoron-sha, 1950; Masao
Maruyama, "The Ideology and Movement of Japanese Fascism," The Japan Annual
of Law and Politics, No. I, Tokyo: Science Council of Japan, 1952, pp. 95-128, at
pp. 101-102. Thus, whenever we use the word "household" in quotation marks we
are referring to the institutional normative framework applying to certain groups in
Japanese society and not to the groups themselves, and we are extending the use to
include other groups besides the family group.
37
See Masao Maruyama, "The Problem of Loyalty and Rebellion in the
Intellectual History of Modern Japan," edited by the Japanese Political Science
Association and appearing in English in The Japan Annual of Law and Politics, No.
9, Tokyo: Science Council of Japan, 1961, pp. 1-2.
This may be illustrated by the popular legend of the Tokugawa period of the
38

47 Ronin (Chushingura), which honors the loyalty and devotion to the moral code
of 47 samurai, who sacrified all other goals (even the welfare of their own
households) to avenge the death of their daimyo, even in defiance of the Shogan's
law against vendettas. Having broken this law in the course of fulfilling their duty
to to the dead daimyo's "household," they peacefully surrender themselves to the
Shogun for punishment without a plea for mercy.
See Robert N. Bellah, Tokugawa Religion. Glencoe: Free Press, 1957, p. 13;
39

and Marion J. Levy, Jr., "Contrasting Factors in the Modernization of China and
Japan," Economic Development and Culture Change, 2, Oct. 1953:161-197.
40
See footnote 38.
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 29
See Irokawa Daikichi, "Freedom and the Concept of People's Rights," Japan
41

Quarterly, 14, no. 2, April-June, 1967:175-183, at 181.

42
See footnote 37.
That this seems to have been the prevailing historical opinion can be inferred
43

from Daikichi's article referred to above in footnote 41.

44
This movement is fully described in Daikichi's article, footnote 41, supra. It
was a widespread and popular movement which worked its way into all levels of
society, as can be seen from this song which was being sung by all the women and
children in the villages and towns (from the Diary of Sasaki Takayuki) : "No one is
set over another. We all have equal rights since we are all men.
"My life of which I have not two— if I were not to have Liberty, I would
throw it away without regret.
"Divided into five are the Five Continents. Among them Asia is semicivilized.
How shameful this is!
"To think of times past, America's independence, too, was won under the flag
of revolt. How brave this is! "
It will be noted in this song how closely the political ideas of the West are
associated with the West's technological superiority in the Japanese mind. It is
inconceivable that those in the Japanese government, who were busily
incorporating Western legal codes into a Japanese legal system, did not feel that
they also had to adopt along with them the liberal political philosophy that was part
and parcel of them.
45
See Maruyama, op. cit., footnote 36, supra, and op. cit., footnote 37.
46
This draft proposal was the work of Ueki Emori of the Tosa democratic
society ( 1881 ). See Daikichi, op. cit., p. 183.
47
See Tomio Nakano, The Ordinance Power of the Japanese Emperor.
Baltimore: Johns Hopkins Press, 1923, pp. 1-10.
48
Something of the same attitude can be noted in the resignation of Guizot as
Louis-Philippe's Minister of State during the Paris revolt of February, 1848. Guizot
felt that the disturbances which had caused dissension in the ranks of his
conservative party and boldness in the ranks of the opposition, and loss of
confidence in the bosom of the Royal Family, dictated his resignation, even though,
as he points out, his party was in the majority and had the support of the electorate.
Frangois Guizor, The Last Days of the Reign of Louis-Philippe. London: Richard
Bentley, 1867: 483-544.
49
To find something comparable to this attitude on the American scene, one
has to look at the offcer corps of the U. S. military. Commanders of military units
are expected to maintain order and discipline within their units and to prevent
discontent among the enlisted men which might result in mutinies or a breakdown
of discipline. If such mutinies occur, whether justified or not, the mutineers are
usually punished. But the commander has also failed in the eyes of his fellow
offcers: "he has made the Army look bad." Therefore, after a suitably discreet
period of time has passed, he may be transferred or demoted; but, in any case his
career is under a cloud, and he may never again be entrusted with a command
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 30
position.
50
Kameji Kimura, Keiji Seisaku no Sho-mondai (Problems of Penal Policy),
5th ed. Tokyo: Yuhikaku, 1959, pp. 165 ff,; Tadashi Uematsu, Keiho Gairon
(Outline of Criminal Law). Tokyo: Keiso Shobo, 1957, p. 321.
51
1n Anglo-American jurisprudence husband and wife are privileged not to
testify against one another in a criminal case, and are in fact incompetent to do so.
Edmund Morgan, Basic Problems of Evidence, Vol. I. Philadelphia: Committee of
Continuing Legal Education of the American Law Institute, 1954: 85-90. This small
concession to the moral principle of marital fidelity in the law of evidence is not
carried over into the criminal law where the wife can be prosecuted as an accessory
after the fact for harboring her fugitive husband after the commission of a crime or
for suppressing evidence of his guilt. Under Japanese law, when this is done by any
relative of the criminal or fugitive, the punishment may be remitted entirely. See
Art. 105, J.P.C., English edition, Ministry of Justice of Japan, 1960.
52
Kirchheimer, op. cit., footnote 3, supra, pp. 137-138, 240-241.
53
See, for instance, the statement of William T. Gossett, President of the
American Bar Association, relative to the recent student disorders on the campuses,
released to the press on June 4, 1969, American Bar News, 14, No. 6, June, 1969: 3.
Because this statement so succinctly expresses the essence of the American offcial
position with regard to political crime, we have quoted it in full in Appendix A at
the end of this paper. As can be seen from our discussion, the position is not a new
one; it can probably be traced back to the writings of the English jurist who had the
greatest influence on American legal thought, William Blackstone. See Blackstone,
Commentaries, Vol. I; 125-126. Blackstone's position is a curious amalgam of the
philosophies of Locke and Hobbes.
54
See, infra, statement of Warren Harding.
55
Schenck v. United states, 249 U. S. 47, 39 s.ct. 247, 63 L.Ed. 470 (1919);
Froewerk v. United states, 249 U.s. 204, 39 s.ct. 249, 63 L.Ed. 561 (1919); Debs v.
United states, 249 U.S. 211, 39 s.ct. 252, 63 L.Ed. 566 (1919); Abrams v. United
states, 250 US. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919).
56
See Ferrari, "Political Crime," op. cit., footnote 5, supra; most of the
recommentations were for political amnesty or pardon. See "Amnesty," New
Republic, 21 (Jan. 7, 1920) : 158-9; "Growing Amnesty Movement," Survey, 42
(Sept. 20,
1919) :882-3; "America and her Political Prisoners," L. D. Lasker, Survey, 44
(Aug. 2, 1920) : 578-82; "Forgiving War Offenders," Literary Digest, 67 (Oct. 2,
1920) : 18-19; and many other articles.
57
Quoted in "Respect for the Law: Certain Theories of Political Philosophy,
Tending to Undermine This Essential Fact of Our Civilization, Which Have Been
Actively Asserted Since the War Ended," address by Hon. H. M. Daugerty,
Attorney General of the United States, American Bar Association Journal, 7
(1921) :
505-511, at p. 509.
58
0p. cit., supra.
1969 POLITICAL CRIME THE UNITED STATES AND JAPAN 31
59
1dem, at p. 509.
For a corresponding English view that political crime should be dealt with
60

more severely than ordinary crime, see Hall, op. cit., footnote 4, supra, pp. 83-89.
But, then, Hall was an officer of the Territorial Force charged with the duty of
suppressing the Irish Independence Movement after the First World War, and his
views may not be representative of the English viewpoint, even at that time.
61
1t is interesting to note that the phrase "ideological criminal" is almost an
exact translation of Radbruch's Überzeugungsverbrecher. See Gustave Radbruch,
zit. nach Nagler, Der Überzeugungsverbrecher, Gerichtsaal, Bd. 94, S. 52.
Radbruch was one of the leading German philosophical exponents of lenient
treatment of the political criminal during the 1920's.
62
See Law Day address of Deputy Attorney General Richard Kleindienst,
Washington Post Friday, May 2, 1969, p. 1; see also William A. Stanmeyer, "The
New Left and the Old Law," American Bar Association Journal, 55, (April, 1969) :
319-323, at p. 321.
32 ISSUES IN CRIMINOLOGY No.2

APPENDIX A
Statement of William T. Gossett, President of the American Bar
Association, released to the press, June 4, 1969, relating to student
disorders on the campuses of American universities, and reprinted in
American Bar News 14, No. 6 (June, 1969), p. 3:
The American Bar Association views with profound disquiet the
current tendency among groups of our citizens, and especially among
many young people, to disregard the rule of the law upon which a
democratic society must depend for its viability and progress.
Those who elect to defy a law because of some dictate of
conscience or the intensity of their cause must be prepared to accept the
normal penalties of non-compliance, subject of course to the
requirements of due process. They cannot expect to escape those
penalties by questioning the legitimacy or the moral validity of the law;
for the consequences of allowing such conduct to occur with impunity
would be anarchy, not order, and an anarchic sociegr is a lawless
society. The ancient maxim that liberty is derived through restraint, that
freedom comes through order, is no less true today than in past times in
our history.
These considerations apply with special force to the current state
of unrest in our colleges and universities, where groups of students,
aided in some cases by faculty members, have defied the legitimate
authority of the institutions and have sought by recourse to intimidation
and violence to disrupt normal academic operations. Whatever may be
the virtue of the ends desired, there can be no justification in law or
morality for this flagrant denial by a minority of the overriding right of
the majority of students and faculty. In these days, institutions of higher
education are at the core of our society. If they are prevented, through
violence, from discharging their duties, our entire society will be placed
in jeopardy.
The right to dissent and protest is an indispensable part of
democrag, and our institutions must respond appropriately to just
grievances and reasonable demands for change. Thus, orderly change
effected by peaceful procedures is at the heart of the democratic
process. Because such peaceful procedures do exist in the institutions
of American society, there can be no justification for recourse to
violence; and our society is threatened not only by those who resort to
violence, but also by the unduly repressive measures that are being
adopted in response to violence. Therefore, the current tendency to
reject peaceful procedures and to impose the will of a minority must be
opposed with all appropriate means by those who believe in liberty and
justice.