Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Williams to Mr. Seward
August 1, 1868.
Sir: I have the honor to send, as relevant to the same general subject as my last dispatch, a copy of a letter just received from the United States consul general at Shanghai, reciting the principal points of an unlawful and violent attempt recently made to land in Corea, in which an American citizen named Jenkins was implicated, and for which he was tried in the consular court. The published report of the trial furnishes all the facts that could be gathered concerning the expedition, but it is evident that many details are yet concealed. The French priest was probably one of those missionaries who were obliged to escape from Corea in 1866, after the murder by the authorities of the foreign and native Christians, for his guidance led the armed party to the grave, which could have been known only to one intimate with the region. Mr. Jenkins’s own statement to Mr. Seward also shows that he was well aware of the main objects in view and took great interest in their accomplishment. I deem the effort of the consul general to bring him to punishment worthy of particular commendation, and the publicity thereby given to this violent outrage on the Coreans will doubtless serve as a warning to those who may be tempted to repeat it.
[Page 548]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.
A.
Mr. G. F. Seward to Mr. Williams
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.
[Page 549]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.
I 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.
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 [Page 550] 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 misdemeanor.
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 legitimately 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 [Page 551] 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 ill-will 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
[Page 552]muskets with them. They left at night in a small steamer. They left at about2 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 arms.
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. Hannen 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 [Page 553] man got into a boat in a creek which ultimately engaged in plunder, each act from the time he entered the boat to the time of the robbery would tend to show his intent.
Mr. Hannen held there was no evidence as yet as to the connection of the defendant with a conspiracy. On the contrary, that given proved distinctly the exact opposite. In order to convict in a case of conspiracy it was necessary to prove, first, the existence of the conspiracy; secondly, that the defendant was a member of it; and thirdly, that he acted in furtherance of the design.
Mr. Eames did not deny the correctness of this law; but he thought the court the right judge how far the evidence proved these points.
His honor held that his being on the steamer established some connection between him and the things actually done. It was difficult, in a court constituted as the United. States consular court, to refuse to admit evidence when by so doing an end would be put to the trial. He was to decide cases brought before the court in conjunction with his associates, and he could not consent to make a ruling that would take the general matter out of their hands.
Mr. Hannen would not object to the evidence after the conspiracy was proved.
His honor ruled that a presumption of the conspiracy was shown by the facts deposed to.
(Evidence continued.)—After leaving Nagasaki, we went to a place which I do not know, not having seen it before. I went with my master, and some foreigners and Manillamen, on board the small steamer. There were some 30 or 40. Some were men whom I took for seafaring men. The large steamer anchored outside and the small steamer entered the river. We went some 60 li up the river, and then 10 or 12 li overland, and arrived at a spot. We carried with us four spades.
There was an elevation of earth, with each side a stone slab. I do not know what the place was. We commenced digging. We continued the excavation till we came to some heavy stone; when we came to it, having only spades, we had to abandon the operation, and returned to the small steamer and on her back to the China.
Cross-examined.—Mr. Jenkins had no business with me, or I with him, as I had been engaged by Mr. Oppert.
Sien-Pan-Ling. I left here some time last spring, in the China, to go to Japan. Mr. Oppert engaged me to go to Japan, and to a place that had not been opened. I went in no particular capacity. My ordinary vocation is that of a shroff. The only foreign passengers were Mr. Oppert, Mr. Jenkins, and a French priest. We went to the Corea. Some of them went on shore. We objected to going when so ordered. Mr. Jenkins did not order us to go. I can speak a little English. Nobody else but Mr. Oppert gave me orders.
To the court.—The eases came on board in Nagasaki; but I did not know, otherwise than by hearsay, what was in them till they were opened. After getting back there was some difficulty about the payment of wages, and I went to Mr. Jenkins to ask about it. Mr. Jenkins had nothing to do with it. I only consulted him, and he said my master was soon coming back from Ningpo.
Sun-Kee. I went in the China to the Corea; I was told by Mr. Oppert that there was business to be done. We went to Nagasaki. We there took on board some cases. There were several. I did not know what was in them. They were opened and the contents distributed to the coolies; but I did not see them given out. I did not see the marks on them. I went with the coolies when they landed, from 12 to 1 in the morning. I can speak English a little, and a Ningpo man also interpreted. We went some distance and met several Coreans. We were accompanied by a French priest, who spoke to them in their language. The coolies then fired in the air, and after a little passed on; we went further, and after resting at a species of temple, we went to a grave, and we dug down till we came to stone, through which we could not penetrate. I saw Mr. Jenkins on board the steamer when we were going ashore. He did not advise us to abstain from doing so, nor did he interfere in any way.
Cross-examined.—I expressed my unwillingness to Mr. Oppert to go ashore. I saw Mr. Jenkins on board at 12 o’clock before we left.
To the court.—The men were arranged to receive the guns, and Mr. Jenkins was moving about here and there.
Capt. Möller, (recalled.) The arms were distributed to the coolies. I really do not know who gave them. The small steamer was manned by my chief officer, chief engineer, and one man. I had no idea what they were going after. I was on deck at the time the small steamer left. I did not go on the expedition into the country. I heard no dispute or disagreement with Mr. Oppert.
Cross-examined.—The small steamer was picked up in Shanghai.
Re-examined.—The charter money has not, I believe, been paid. There is something due.
To the court—We reached the Corea at 10 p. m. on Friday, the 8th April. The expedition started for the interior the next night, say about 28 or 30 hours afterwards. We moved further in at 10 o’clock of the morning after our arrival. Nobody left the steamer before the expedition left. On Saturday afternoon the French [Page 554] clergyman got two sanpans, after speaking to the natives on shore. This was about 6 o’clock. They ordered them to be taken. I cannot say positively that they were taken against the will of the Coreans, but I think they did not quite agree as to terms.
R. Heinssen, (charter-party shown to him.)—Mr. Oppert is the charterer. He has not any money to my knowledge. I received one-half the money, and gave the captain instructions to receive the balance on his return. Mr. Jenkins did not himself pay anything on account of the charter. The check was made out to him, and indorsed, I think, on the back. I had no other agreement than the charter-party. I looked to that and Mr. Oppert alone. There were some arms on board, which we took in virtue of the charter-party. These were sent to Hong Kong in the Benares, and lost. There is due about $3,600. I do not. think Mr. Oppert can pay it without assistance. I wanted an extra sum for the charter because the ship was going to a non-open port. I knew nothing of the nature of the expedition. I expected the French missionaries would pay the charterer some compensation. I cannot say positively whether Mr. Jenkins was in the office when Mr. Oppert paid me the check.
To the court—The check I received was for 5,000 taels. The first payment should be $4,000. I returned to Mr. Oppert in cash $900 or so, and made payments to his order to balance.
Mr. Winter, (recalled.)—Some Chinese, Mr. Oppert, the priest, myself, and second mate went in the small steamer. I remained on board when the rest landed. Mr. Oppert requested me to go—no one else. The China arrived on the 7th, and the expedition left next day at 12 or 1 o’clock. Mr. Oppert superintended the operations. Mr. Jenkins was about, but did not assist. We took two Corean boats. We got to our destination about 1 o’clock in the afternoon. I do not know where Mr. Jenkins was when the steamer went off and got the boats. I did not see him noticing them. The arms were served out the same day we arrived. He was on deck during the operation. He said nothing about it. We were 58 hours on the expedition up country. I heard no disputes between Mr. Jenkins and the other gentlemen on board.
Cross-examined—Mr. Jenkins did not serve out the arms. His being on deck was accidental.
Mr. Eames here suggested that, if the court saw fit, he would propose to adjourn the case for the evidence of Chang-Man-Yuen; but it appearing that witness had gone away to Tsung Ming, and that it would take some days to find him, his honor decided not to allow such adjournment.
Mr. Eames then summed up his case, saying he had little to add to the remarks he had already made. The exhuming of the body could not be regarded otherwise than as a gross outrage, if not on the laws at least upon the feelings of the Coreans. The only point of doubt was the connection of the accused with the expedition; with regard to which it was to be borne in mind that he was on the steamer from the first, and that he had lent a sum of money to Mr. Oppert. It was beyond doubt, therefore, that he was on the expedition and had furnished funds. Mr. Heinssen had said he was not sure, but he thought Mr. Jenkins was in his office when the payment of the 5,000 taels was made. If it were necessary in a case of conspiracy to bring specific proof against each of those concerned in it, it was clear that in almost all cases the subordinates would escape; and it would appear that the presence of the defendant without his making any remonstrance was enough to show his complicity. It was scarcely to be supposed that he was ignorant of the terms of the charter-party, which showed completely that something extraordinary was contemplated. It was not likely he would lend the money to Mr. Oppert unless he expected some return of which nobody knew anything; it would certainly not be a compliment to the accused to suppose he did not know how the matter lay; and his being in the expedition, his lending the money, and his sale of the arms at Nagasaki, were strong prima facie evidence that Jenkins was equally concerned with Oppert, though the latter was the leader. One fact was very noticeable, and it seemed to be an instance of those cases where very shrewd people are at times a little too adroit. He made no interference, when to all reason he ought. It would certainly seem natural, when he saw the arms being distributed to the 130 coolies, that he would make some objection. Moreover, he was perhaps a little over-doing the matter with respect to the passage ticket. Mr. Oppert seemed to be the stalking horse. He came in and gave just sufficient evidence to screen the defendant and then shut his mouth. It could not really be supposed that the object of the expedition was innocent. Mr. Oppert spoke of concluding treaties, but this was not proved; as, although he said he had the draughts of them, it did not appear that he had applied to any mandarin. It was also impossible, as before observed, to imagine that Jenkins was quite ignorant of the object. Returning to the point raised for the defendant, namely, that he had nothing to do with the expedition, his making no objection was prima facie evidence of his complicity. The offense supposed was that of making preparations for exhuming the body of a sovereign of the Corea, or some person unknown. It had, however, only been proved that attempts had been made at exhuming, and did not appear from the evidence whose remains occupied the grave. If the court could believe that Mr. Jenkins had been imposed upon; that he lent Mr. Oppert the 5,000 taels and trusted him [Page 555] with the 10 cases of arms without security, and was not concerned and interested in the expedition, then it was their duty to acquit him; but if he had aided and abetted in the preparation of an expedition having for its object the carrying out of an act against good morals, the fact that the act was committed beyond the jurisdiction of the court had nothing to do with the question, the act itself being proven only to show the intent with which the preparations and preliminaries were entered into.
Mr. Eames had already replied on the point of the nationality of the steamer. This would apply if the accused were one of the crew, but not to a mere passenger. If this were held, crimes committed under such circumstances could only be cognizable by a court at home.
In conclusion, the learned counsel thought he had proven a case sufficiently strong to convince the court the defendant had been guilty of complicity in a gross outrage on decency, and on the feelings most sacred in the human heart; and that the deliberation and the extent of the operations aggravated the reprehensibleness of the offense which he had committed.
Mr. Hannen would be able to perform his duty of replying to the evidence in a very few words. His learned friend had complained that his evidence had disappointed him; and in fact, as his case seemed to have broken down, he was disinclined to go on; and perhaps it would have been better if he had not done so. What, in point of fact, was the case? His learned friend thought he could get proof of the offense laid in the indictment out of Mr. Oppert. It was very well to say that he ought to have been the defendant’s witness; but he had been called for the prosecution, and was not to be objected to because he did not show quite what Mr. Eames anticipated. His evidence seemed to be very straightforward, and— although of course not bound to criminate himself—he came and stated a series of facts which distinctly disproved any complicity on the part of the defendant. He stated also that the object of the expedition was to obtain the signature to treaties and the appointment of an ambassador. The court would carefully note that while there was no direct testimony of a conspiracy, there was direct testimony on oath that none existed. The latter, it was needless to point out, was the stronger presumption. The learned counsel for the prosecution had laid some stress upon the vast preparation that had been made; and what was it alleged this vast preparation was all for? Why, simply to obtain possession of one coffin. Was it likely that all this would be done for such a purpose? On the other hand, could anyone think that any man in his senses would go with merely four spades to break open a sarcophagus? Certainly, if such were the case, it did not indicate much premeditation. But what actually occurred? Mr. Oppert, it seems, is led by the French priest to infer that he could conclude a treaty with the Coreans. He goes to the Corea, and proceeds up country with some coolies, and commences digging at a place said to be a grave until he is stopped by some stone. From this the prosecution wish to infer a deliberate purpose to exhume; but there was no proof that a body was there at all, and there was also no proof that the digging was for this purpose.
From these inferences a slender chain of circumstantial evidence was educed; but the court would observe that the strength of all circumstantial evidence was not greater than its weakest part. The defendant denied that he knew the exhuming to be the purpose of the expedition; and evidence distinctly disproved that he had any notion of it; and it also showed that it was only after leaving Nagasaki that he was informed in any way of this object of the visit to the Corea.
His learned friend had made a great point of the fact that the defendant did not interfere, and asked why he did not remonstrate. Why should he? He was told that the object in view was only the conclusion of treaties and the obtaining the appointment of an ambassador; and the fact that Mr. Oppert told him he was going away for the purpose of digging at some spot was surely not a thing to make his hair stand on end, and to cause him to set about making a remonstrance; moreover, he was powerless to prevent it had he attempted. The. fact, therefore, that he did not interfere, or, as his learned friend had put it, that he had no disputes, did not prove very much.
The court had taken a great deal of trouble to ascertain the exact facts connected with obtaining the sanpans. With respect, the learned gentleman would submit that all that was shown was that the priest did not come to exact terms with regard to them, and it would be hard if this alone were taken as constituting proof of their being obtained illegally.
Mr. Eames had stated that Mr. Oppert’s evidence was given with a bias in favor of Mr. Jenkins. Of this there was really no proof. And in regard to the payment of the money, Mr. Heinssen had said that he was not sure whether Mr. Jenkins was present when the check was paid. As to Mr. Heinssen having trusted Mr. Jenkins, because it was not probable he would give the credit to Mr. Oppert, this was a conclusion which did not follow, as he had stated that he understood the French missionaries were in the back ground; and in respect to the passage ticket, this was evidently given merely in the ordinary course, in order to allow Mr. Jenkins to go on board at any time he liked.
Reverting to the legal bearing of the question, the learned counsel summed up the objections which he had raised. They amounted in substance to this: The charge was [Page 556] that of conspiring in Shanghai to exhume a body in the Corea; and the objections were, that the act was not alleged or proved to be against the laws of the Corea, the evidence having nowhere shown this to be the case; and the fact that a priest thought the steps taken likely to do good, going far to show that those connected with carrying them out were justified in considering that the act was not very serious. If the act was not proved to be against the law of the Corea, defendant could not be convicted; and if a decision were under such circumstances given against him, he hoped he would be allowed the privilege of appealing.
The learned gentlemen then proceeded to make a few remarks upon the full case as it stood before the court. From the whole evidence it appeared clear that the intention was to go to the Corea for the purpose of obtaining the treaties which had been draughted by Mr. Oppert. Whatever may have been intended beside, it was distinctly proved defendant did not know, till he had left Nagasaki, and he did nothing which would show him to be implicated in a conspiracy here. The action taken was stigmatized by the learned counsel for the prosecution as disgraceful, it being to make money by exhuming a body; but as he had said, Mr. Jenkins was a shrewd man of business, and was it likely, if this was the object, he would have embarked upon such a wild goose chase, and would have made such miserable preparation for removing a sarcophagus as merely taking a few shovels? The hypothesis was certainly highly improbable. If such had been the object, better preparations would have been made.
With these remarks the learned counsel would leave the case with confidence in the hands of the court. As regarded its legal bearings, he would beg them to remember that they should not be influenced by their feelings or disgust at the acts alleged; but that they had simply, according to the act of Congress which provided that the court should administer the law, to consider whether they were legal or illegal. In conclusion, he would allude to an argument upon which his learned friend had laid some stress, namely, that such acts as that under consideration would tend to prevent the establishment of friendly relations. Was not such an argument appealing to the court and associates’ feelings by their interests, instead of asking them, as they were bound, to decide distinctly what was the law, and to act according to that?
The court was then cleared, and after a short time the following verdict was returned: “I acquit the accused.”
Assented to:
A. A. Hayeks, Jr.,
L. H. Stoddard,
M. L. Smith,
R. F. Eastlack,
Associates.
[Untitled]
The case of the “United States vs. Jenkins” was one which undeniably attracted considerable interest, and which, when we come to look at it, is entitled to very little. The evidence before the court disclosed hardly anything of the real motives of the chief actors in the enterprise, and the public are still at a loss to account for an outlay which was considerable, and a risk which was certainly great. Numerous rumors have got afloat as to what the expedition was intended to effect, the favorite theory being that a considerable quantity of treasure was concealed in the tomb of some sovereign of the Corea, which enterprising capitalists were anxious to get at with a view to turning it to some more useful account than lying buried alongside the skeleton of a defunct king. Another idea was that the Coreans nourished a superstitious belief that so long as the body of this particular potentate remained imbedded in Corean soil, there was no fear that the kingdom would ever come to grief or be liable to the attacks of foreign powers, and that with the view of rendering them more amenable to reason, and the blessings of commercial intercourse, it was extremely advisable to borrow this body, and then trade upon the anxiety of the people to get it back again. Others said, however, that Corean ambassadors were anxious to visit foreign countries, and that the China was sent to fetch them and to do any trade that offered. The evidence leaves it open to us to single out any one of these hypotheses, or to reject them all. It is not very probable that we shall know what were the real facts of the case, and in truth it does not seem very important, as the signal failure of the expedition, with whatever motive it was set afoot, is quite sufficient, we should think, to deter any one from venturing again upon such a wild and unproductive goose chase. In the mean time, it is enough for us to rest satisfied with the verdict, and the moral effect which the investigation has itself produced. As a matter of law, no other decision could have been arrived at. First, whatever was said by witnesses, suggested by counsel, or thought of by the court, there was nothing that would have justified a tribunal in finding the accused guilty of [Page 557] the particular charge as laid. The indictment we think was had in law; indeed, about as had as it could well be; and if even it could or ought to have been amended, it is extremely doubtful whether the offense as charged could have been brought home to the prisoner. Of what was he accused? Of having conspired in China to exhume a body in the Corea. Now per se no one will he rash enough to assert that this is a criminal offense. It may be one. But in order to make it one it must appear on the face of the indictment that exhuming a body is an offense against the laws of the Corea. Of course it is wrong, if even it he not an indictable offense, because it is calculated to hurt the feelings and prejudices of the people of the Corea, and to bring about a conflict in which a great deal of innocent blood might be shed and numerous lives taken. Moreover, no European, or indeed any one, except the Coreans themselves, can have any business to interfere with the tombs of their kings, still less to steal and carry away their bodies; and if it is true that the leaders of the expedition intended and did attempt to interfere with the graves, no one would have regretted their getting handsomely thrashed for their pains. But because it is wrong to do such an act as that alleged to have been contemplated, and because it was also wrong, to use a legal term, to conspire together for such a purpose, it is no reason that a tribunal is to strain the law beyond its true intent and meaning. The chances also of an indictment being framed next time better calculated to hold water will, we think, prevent any one from being insane enough to try the experiment again. The landing of armed men from a ship has been held to be evidence of a piratical act, although the landing was in a country occupied by people with whom Christian nations had no treaties; and in one case, if our memory serves us right, a foreigner was hanged for forming part of an expedition to an island, which, planned with a view to a simple robbery, resulted in the death of some innocent natives.
As we have already said, we see no reason to quarrel with the verdict of acquittal pronounced by the consul general of the United States in the particular case before him; but we are especially anxious to impress upon the minds of enterprising pioneers in that line of country that it by no means follows, because on one indictment a verdict of not guilty is found, on another indictment, a little more artistically drawn, and on evidence a little more carefully sifted, a very different conclusion may possibly be come to. At any rate, fillibustering expeditions of all kinds, whether to annex territory, to force trade, or to inquire into the contents of tombs, are prima facie contrary, if not in all cases to the letter of the law, to the spirit of modern legislature both in the United States and in all European countries; and being undeniably wrong and immoral in themselves, few people, we think, will care to risk their personal liberty and probably their lives on the chance of an indictment being drawn with sufficient precision and particularity to hit off the particular offense that may be laid to their charge. Murder, piracy, and robbery are capable too often of very easy proof, and the act is too frequently held by juries to be evidence of intent, to make it worth any one’s while to put his neck in a noose from which there is but one escape. The ingenuity of lawyers is great, and in many cases it may be shown on both sides of a case in a way calculated to render the particular object of the game very nervous as to the result; and when the offense charged is one against which the reason and feeling of mankind revolt, judges and juries are apt to look more broadly at facts than it is in the peculiar interests of the accused they should do. If any further expeditions to Corea or elsewhere are planned, we trust that those who engage in them will so act as not to leave any room for doubt as to the propriety of the object in view, and for their own sakes will take care not to jeopardize their necks on the idea that no lawyer can be found to frame an indictment which may possibly meet their case.