Mr. McMurtrie replied by reasserting his positions.  It was a grave question for the court to consider what evidence was required.  He thought that this decision might be the turning case to show whether the act of Congress would be carried out or whether we were to return in fact to the state of affairs under the old laws.

Judge Kane said, in reference to the remarks at the close of Mr. McMurtrie’s speech:  So long as I retain my seat on this bench, I shall endeavor to enforce this law without reference to my own sympathies, or the sympathies and opinions of others.  I do not think, in the cases under this act of Congress, or a treaty, or constitutional, or legal provision for the extradition of fugitives from justice, that it is possible to imagine that conclusive proof of identity could be established by depositions.  From the nature of the case and the facts to be proved, proof cannot be made in anticipation of the identity of the party.  That being established, it is the office of the judge, to determine whether a prima facie case indicates the identity of the party charged, with the party before him.

* * * * *

On the other hand, the evidence of the claimant has been met, and regarding the bearing of the witnesses for the respondent, met by witnesses who testified, with apparent candor and great intelligence.  If they are believed, then the witnesses for the claimant are mistaken.  The question is, whether two witnesses for the claimant, who have not seen the respondent for twenty-three, one for twenty-four years, are to be believed in preference to four witnesses on the other side, three of whom have seen her frequently since 1826, and known her as Euphemia Williams, and the fourth, who has not seen her for a quarter of a century, but testifies that when they were children, they used to jest each other about scars, which they still bear upon their persons; I am bound to say that the proof by the four witnesses has not been overthrown by the contrary evidence of the two who only recognized her when they called on her with the marshall.  One says he called her Mahala Purnell as soon as he saw her.  He might be mistaken.  He inferred he would find her at the place to which he went.  There were three persons in the room, one was Mahala Richardson, whom he knew, a young girl, and the prisoner.  If she had been alone, his recognition would have been of no avail.  The fact is obvious to this court, that the respondent has no peculiar physiognomy or gait.  It has been shown she has no peculiarity of voice; I cannot but feel that the fact alleged by the claimant is very doubtful, when the witnesses, without mark or peculiarity, testify that they can readily recognize the girl of fifteen in the woman of forty.  The prisoner is therefore discharged.