I have heard it rumored that the Spanish minister designs to prosecute the matter in the Prussian consulate on the ground that the two Manilla men who were killed were unjustifiably brought into jeopardy through the violent proceedings of the captain of the steamer, and this may bring out more of the details of the expedition. Its effects upon the Corean people and rulers may lead them to shut themselves up within their borders more closely than ever; but it is not unlikely, too, that the authorities there may be alarmed, and make inquiries through the Chinese or Japanese what steps they should take for their future protection. In one way and another, they have latterly been so much disturbed in their seclusion and repulsive policy that they may begin to doubt whether it is as safe a mode as they have heretofore found it.

With regard to the question of jurisdiction of the United States consular courts in China over such an offense as this now charged against Mr. Jenkins, it appears to me to be complete, as long as the domicile of the accused is in China, who cannot be allowed to have the license to use this country as a base of operations for proceeding against another with which the United States have no political relations, and for the reason that they have none. If this view is not correct, then the admiral on the station would be competent to try the offense as one done on the high seas, like piracy or illegal privateering.

Between these two views of the jurisdiction, I do not think any new legislation is necessary.

I have the honor to be, sir, your obedient servant,

Hon. WILLIAM H. SEWARD,

Secretary of State, Washington, D. C.

LIAMS

S. WELLS WILLIAMS.

A.

Mr. G. F. Seward to Mr. Williams.

UNITED STATES CONSULATE GENERAL,
Shanghai, July 13, 1868.

SIR: I inclose the supreme court and consular Gazette's report of the trial in the consulate of F. H. B. Jenkins, for setting on foot an expedition to Corea, having for its object to exhume the remains of a dead sovereign, or other person or persons of that country, and to hold the bones for profit.

This expedition left Shanghai in April last. There were apparently three leaders: a French priest named Farout, a citizen of Hamburg named Oppert, and our countryman above named.

A steamer under the North German flag, named the China, of 648 tons, was chartered for it, and a steam tender of 60 tons, about, also provided. About eight Europeans, 20 Manilas, and 100 Chinese sailors, beyond the complement of the ship, were engaged and embarked. At Nagasaki muskets enough were taken to arm all these. Arrived on the coast of Corea, two small boats were seized, and within a few hours the tender towing them steamed up a river about 40 miles. Here the crowd of armed men landed and made their way across the country to a graveyard, where the surrounding hills were covered with Coreans; they went to work to exhume the bones for which they had come. These were contained in a stone or mason work sarcophagus, and having penetrated through the earth to it, they found themselves unable to do more, and returned to the large steamer, having met no opposition which they had not overcome by the simple display of their arms, or by firing them in the air. The vessel was at once transferred to another point on the coast. Here communication was opened with native officials, and carried on during three days. Of its nature I know nothing, excepting that on the third day a number of people landed from the steamer, and, although apparently taking no hostile steps, were fired upon. Two men were killed and one severely wounded. The China then started for Shanghai, where she arrived after an absence of about two weeks.

Before the departure of the expedition, Mr. Jenkins had told me that he was about making a visit to Corea with a French priest and Mr. Oppert, to open negotiations, which he said were invited by the Corean government, looking to the sending of an embassy to Europe and America for the purpose of explaining the treatment of the French missionaries in 1866, and of the crew of the General Sherman. After his return he told me of the real object of the expedition-to exhume the bones of a former king, and to hold them, to force a large payment of money. He at the same time declared that he was innocent of any knowledge of the purpose until after sailing from Nagasaki, when it was too late to leave the vessel.

I was not at all satisfied with this statement, and set to work to sift it. The result of my inquiries was a conviction that Mr. Jenkins ought to be put on trial.

I accordingly instituted legal procedure against him, as seen in the above-mentioned report of the Gazette, resulting in his acquittal.

The indictment as noticed charged him with setting on foot an expedition, &c. I did not feel authorized to take jurisdiction of anything done outside of my consular district, but had I been authorized to do so, the result on the evidence gleaned must have been the same.

You will notice that the verdict is a simple acquittal. This is equivalent, under our rules, to the Scotch verdict not proven. For while the evidence would not at all justify a conviction, it left an unfavorable impression on my mind, and with the associates. The presence of the accused with the expedition, his furnishing a large amount of money, although ostensibly this was a loan, and a large quantity of arms; his failure to indicate that he remonstrated when told of the real purpose of the expedition, and his reliance on the weakness of the prosecution rather than on the strength of his own case, all conspired to prevent us from giving him a verdict of honorable acquittal. But it was completely evident that not he, but the French priest and the Hamburgher Oppert were the persons most concerned.

presume that no future steps will be taken. The evidence given is not sufficient to enable the consul general for Prussia to institute proceedings against the master and crew of the steamer. The French priest has wisely gone off from Shanghai. The Hamburgh consul has not sufficient judicial powers. So the persons who set on foot this disgraceful expedition will all go clear, and an offense which must be ranked in the opinions of the Chinese and of Coreans, who have, I believe, common ideas of the sacredness of burial places, one which might have resulted in severe loss of life, and which cannot but grievously interfere with efforts to open relations with Corea, will remain unredressed.

As I understand, under our law our people can be punished in the respective consular courts in China for setting on foot expeditions such as these. For their offenses, however grave, committed outside of China, even should they go from hence with full preparations, and return with their booty in their hands, they cannot be punished here. If my opinion is wrong on this point I should be glad to have it corrected. If it is right, I respectfully submit that the premises require legislation.

It will be expensive to send such offenders to the United States for trial, and perhaps impossible to send witnesses. On the other hand, there seems no reason why jurisdiction should not be granted to the consular courts.

I have the honor to be your obedient servant,

Hon. S. WELLS WILLIAMS,

United States Chargé d'Affaires.

GEORGE F. SEWARD.

B.

COURT OF THE UNITED STATES CONSULATE GENERAL.

(Before G. F. Seward, esq. United States consul general, and associates.)

THE UNITED STATES vs. F. H. B. JENKINS.

Mr. Eames for the United States government.

Mr. Hannen and Mr. Harwood for the defendant.

The indictment charged the defendant in eight counts with having, in concert with others, prepared an unlawful and scandalous expedition, having for its object the exhuming of the remains of a dead sovereign, or of some other person or persons in the Corea.

Mr. Hannen raised a preliminary objection to the indictment. The gist of it was intent to exhume. This was not necessarily an offense except the exhuming were to be committed within the jurisdiction of the law. In Russell on Crimes, vol. 1, p. 629, the whole reason why taking up a dead body was an offense was given, namely, that it was an offense against decency; but this principle could not be universally applied to other

countries, or it would have to be held that the taking away the Egyptian mummies was punishable. He submitted, therefore, that the mere exhuming of a dead body was not an offense unless it was so made by the law applying in the country where the act was committed. Secondly, he objected that as the indictment accused the defendant of entering upon an expedition, the offense must be against the law of the country prosecuting; and it could not be held that exhuming a body in the Corea was an offense against the peace and dignity of the United States, as alleged. Again, the indictment ought to have laid the charge as being against the laws of the Corea; as even if exhuming is against the laws of the United States, it must be shown that it is against those of the Corea. As illustrative of this view, he would suggest the case of a conspiracy to assist a Turk to commit an act of bigamy, which would not be an illegal act in the country where it was committed. There was also the case where an act might be lawful but the means taken to attain it unlawful. If this was intended to be relied on, then it ought to have been explained in the indictment. (Russell on Crimes, vol. 3, p. 149.)

Mr. Eames, in reply, said that the objection taken by his learned friend was one always raised in cases where a new offense was tried, the attempt being always made to show that it was not a misdemeanor. The definition of a misdemeanor as given by Russell amounted to anything contrary to or injurious to the public morals, and it was also a misdemeanor to incite another to such an act. In Archbold's Criminal Practice, it was laid down that an indictment for misdemeanor at common law lay in all cases where an attempt was made to commit a criminal act; and an action would lie for any offense which came within the definition. The learned counsel cited a case from the Massachusetts Reports in support of this, where a house had been let with the object of being devoted to an immoral purpose, and in view of the design it was held to be a misde

meanor.

With regard to the specific objections raised, the learned gentlemen observed, first, as to the question of its being necessary to prove that the action was illegal according to the laws of the Corea, it was so well known to be contrary to everybody's ideas of right, and to be such an invasion of the feelings of the relatives of the deceased, that it did not require any proof to show that it was contrary to public morals. Secondly, with regard to the suggested bigamy, if the bigamy was charged as illegal the case would hold. The indictment had been made more full than usual in the United States consular court; there the rule has been as much as possible to avoid mere technicalities. It would of course be necessary to prove the offense as laid, and this would be done by showing the nature of the expedition.

Mr. Hannen agreed with the first portion of his friend's remarks in reference to the definition of misdemeanors; but his argument was that the charge was not, as in the case cited, of conspiracy to do what was acknowledged to be wrong and against the public morality. The fact of exhuming a body far out of the dominions of the United States could not be held to be against the public morals. This the learned counsel for the prosecution assumed, forgetting that exhuming was a thing done every day legiti mately in China, and repeatedly done in Egypt, in a way which no one would hold to be a misdemeanor. In regard to the necessity of alleging the act to be illegal, it must be alleged to be so not only according to the customs of the Corea, concerning which his learned friend admitted it was impossible to speak, but also according to the laws of the United States. To point out that what is charged as a new offense was not a misdemeanor was surely to take no idle technicality. It was a grave matter if an act was charged as an offense which was none at all, and the court were bound to see whether it was a legal crime, and not content themselves with setting it down as such, however much it might be against their feelings for the moment. Such a course must lead to gross abuses.

Mr. Eames suggested that the court would be able to determine the force of the objection.

Mr. Hannen suggested that the associates' opinions, he understood, should also be taken.

His honor said it was not the practice of the court to take the associates' opinion on any points of law. They could not be expected to be familiar with law. And moreover, there could not be any sufficient opportunity for consultation. He was not disposed to admit the objection taken by Mr. Hannen; as in charging any crime committed in China, the same objection might be taken if the indictment failed to set forth that the crime was contrary to the laws of China. In none of the consular courts had this ever been considered necessary, and it had always been held by the United States consular courts that it was sufficient if it were shown that the offense was contrary to the laws of the United States. With regard to its being against the laws of the Corea, that was a fact which should be adduced in evidence rather than now. If the defendant were shown to have gone away in such a manner as proved that he anticipated a necessity to resort to force, or danger, the attempt might result in loss of life; it could hardly be possible to urge that the expedition could be for a lawful purpose. Mr. Eames then proceeded to open the case for the prosecution; and premised that

although not officially appointed as government prosecutor, he appeared only to discharge a duty of a public nature, and would personally be as glad as any one if the innocence of the defendant were shown. The law having been so far disposed of, he pointed out that what the court had to consider was whether the act of the defendant was opposed to public morality; and he thought that their feelings of propriety could not be shocked by an attempt such as had been made to exhume a body. It would be shown that the steamer China was chartered, and a smaller one as well; that they went to Nagasaki, supplied themselves with arms and ammunitions; went up the country armed, and after an eight hours' march went to a grave and set to digging, giving up the attempt only when stopped by some stones. There was some show of fight, although it seemed only pretended, but still showing the inimical nature of the acts; and that those engaged in them knew them to be illegal and opposed to the Corean's sense of propriety as much as they would be to that of Englishmen or Americans.

The only point which was doubtful was how far the accused could be connected with the affair. It would, Mr. Eames believed, be shown that he had furnished funds; but this was not sure, as one of the witnesses, a banker, thought it improper to state the circumstances except upon compulsion. After returning from the expedition to the grave, it seems they went ashore again to get provisions and were fired upon, one man being killed and another seriously wounded; and it appeared the accused had told this man he would provide for him here. If it were proved that defendant was instrumental in getting up the expedition, the only question to consider would be whether the action were contrary to good morals, and the evil effects which would result towards people our inferiors in strength were manifest if such an offense could not be punished; for instance, there would be no means of preventing expeditions for smuggling and aiding in the civil war in Japan being organized here. We look to ultimately obtaining friendly intercourse with the Corea; and actions such as this must strengthen their illwill against us, and confirm them in the opinion that we are barbarians. The whole expedition was characterized by great deliberation, and its object seemed evidently to be illegally and clandestinely to exhume a body for the purpose of obtaining profit and advantage. Mr. Eames then called

ERNEST OPPERT. Some time last spring the steamer China was fitted out for the Corea. I made the arrangements. That is the charter-party, bearing my signature, (put in.) The purpose of the expedition was to conclude treaties and possibly obtain an embassy. Mr. Jenkins among others left in the China. He had nothing to do with getting up the expedition. He lent me some money, that was all. He knew that my purpose was to conclude treaties and get an embassy sent, but nothing more. I went up into the country. I decline to say what I did there. Mr. Jenkins did not know what the purpose was, either when we left Shanghai or Nagasaki. There were 21 Manillamen and some 100 or 120 Chinese. I took them to have some sort of protection. I knew it would be necessary to land to make the treaties. They were not concluded. We took no arms from here. I bought a few arms from Mr. Jenkins in Nagasaki. There were no particular stipulations made as to payment. It was to be in part out of the profits of the expedition; that is to say, if we had concluded the treaties we could have made some contracts for goods. I had reason to believe the Coreans would enter upon the negotiation. There were a few small guns on board, belonging to the ship. We had no fighting. At one place we fired into the air merely to show we were armed. I am bound to pay to Mr. Jenkins the 5,000 taels he lent me, and also the price of the arms. I told Mr. Jenkins I would give him, for the Shenandoah, any charts or information required. They were not applied for. Shortly after I saw Mr. Jenkins, and he consented to come, as he wanted a trip. My object was to have some one on board who could read Chinese. He went merely as a passenger. He had no interest in the expedition. If we had made the contracts for goods which we anticipated he would have had a share in them. Mr. Jenkins knew nothing whatever of the arrangements as to how the treaty was to be made before leaving.

Cross-examined. There was no special agreement as to how the arms were to be paid for. I never said to Mr. Jenkins that the expedition was to derive direct benefits. It was collateral advantages that we looked for. The 5,000 taels were a private loan. That (shown) is Mr. Jenkins's passage ticket. Mr. Jenkins did not go on shore, or participate in anything done there, and it was not till after we left Nagasaki that he knew any details of the expedition.

H.A. K. MÖLLER. I am master of the steamer China. I signed that charter-party, (shown him.) It is for a trip to the Corea. We left here about the 30th April. I heard nothing of the objects of the expedition. I do not think it unusual for a charter-party to agree for payment at so much per month, and also freight on specie. There were some ten Europeans with us, among them Mr. Jenkins. We went first to Nagasaki. We remained there two days, and took in coals and a couple of cases, I think containing muskets. We then went to the Corea, first to Prince Imperial gulf and the Prince Jerome gulf. I do not know exactly how many boxes were taken on board. We remained in the Corea ten days. I went ashore once or twice, for an hour or so. I did not go up the country. The charterer and the men he had with him did. They took

muskets with them. They left at night in a small steamer. They left at about 2 or 3 a. m. on Sunday morning, and came back about noon. There was a thick fog at the time. I had no conversations with Mr. Jenkins. I heard no disputes between him and the charterer.

Cross-examined.-Mr. Jenkins did not go ashore, nor did he interfere with the management. I looked upon him simply as a passenger. He expressed anxiety to get back, complaining of want of time. The China is under the North German flag. Re-examined. I deposit my papers at the Prussian consulate.

Mr. Hannen objected, that as the indictment charged the defendant with preparing the expedition in and upon the China, the matter was clearly without the jurisdiction of the court. The vessel was legally Prussian territory.

Mr. Eames considered this a somewhat novel position. He had yet to learn that a passenger on board a vessel in port in Shanghai was not amenable to his authorities. If he belong to the crew, it would be different.

Mr. Hannen hardly thought the point was novel. This was not an American but a Chinese port; and the jurisdiction would devolve upon the Chinese if it did not by treaty belong to the nationality of the ship.

His honor said this question had arisen before he had been three days in Shanghai, and he had referred it to his superior, who had been disposed to support the view that an American in such case would be amenable to his consulate. He must, therefore, thus rule the point; but Mr. Hannen's objection should have due weight attached to it. W. WINTER. I am mate of the China. I was on board on her late trip to the Corea, about May. We went from this to Nagasaki. We there took in coals and ten cases. I did not know what they contained. From Nagasaki we went to the Corea. There were about 150 on board. There were, besides the Chinamen, Manillamen, and crew, three Europeans, Mr. Jenkins, Mr. Oppert, and a priest. Remained at the Corea ten days. Mr. Oppert and the priest went ashore.

Mr. Hannen here objected to questions concerning acts done after leaving Shanghai, as the defendant had not yet been connected with the expedition.

Mr. Eames admitted it might be a little irregular; but he asked the question because the China, as he was informed, wanted to get away. Under the circumstances, he would ask the witness to wait, and recall him as to the point.

W. SHULTZ. I am carpenter of the China. I went on the expedition to the Corea. There were on board Mr. Jenkins, Mr. Oppert, and the French missionary.

YEH-SU-DONG. Some time in April I was engaged to go on board a steamer. Mr. Jenkins engaged me. He told me he wanted me to assist in Chinese public business.

He said it was to be done at Chefoo. I went on board the steamer. I do not know where the steamer went to. She stopped at the mouth of the Yangtsze; took in tow a small steamer, and went to Nagasaki. The steamer left there; I did not know where for; but it arrived at a country called the Corea. Mr. Jenkins was on board. He engaged me for two or three weeks. Mr. Jenkins did not say what public business he wanted me to do. I did none whatever. I had nothing to do with the Chinamen on board. I did not see my master talking with these men. I saw arms given to the men. I do not know who served them out. I do not know English, and therefore could not understand what went on. I did not see any one tell them how to use these

arins.

Cross-examined.-I was only to do Mr. Jenkins's business. I did not go on shore, nor did Mr. Jenkins.

CHING A-BAY. I was on board the China. Mr. Oppert asked me to go and get eighty Coolies. I did so. Mr. Jenkins was on board the steamer. Mr. Oppert gave us our instructions. I received no instructions from any one else. I saw some boxes come on board, and subsequently they were opened and muskets given to each man.

Mr. Eames asked whether any instructions had been received from defendant; and Mr. Haunen again objected, on the grounds that defendant had not yet been connected with any conspiracy. It was necessary first to show the existence of the conspiracy. Mr. Eames observed that the accused had been proved already to have accompanied the expedition throughout. It was now necessary to show the purpose with which he

went.

I received instructions from no one but Mr. Oppert. He served them out, and told the coolies they were not to fight, but merely to take them. The coolies could not use them. No one instructed them.

Mr. Eames said he would now have to ask some questions which might possibly be objected to by his friend, as he desired to get at some evidence which it would be difficult to arrive at without a witness called Chow-Ming-Yuen. He thought, however, he could now go on to prove the corpus delicti.

Mr. Hannen said his friend was right; but the corpus delicti was not in the Corea, but here; he should first show the conspiracy here, and after that what was done in the Corea.

Mr. Eames pointed out that the management of a conspiracy was often intrusted only to one man, though others might be connected with it. He observed that if a