John Catron

“ The treaty of 1842 settled the dividing line of jurisdiction between the United States and the British possessions in America, from the Atlantic ocean to the Rocky Mountains. On either side of the line, in great part, there is an extensive population; escapes of criminals from the jurisdiction where the crime was committed, to the other, must often occur; and if criminals are taken at all, they must be arrested in hot pursuit, when fleeing from justice. To do so, a magistrate must be at hand to issue the warrant, cause the arrest, and adjudge the criminality. ”

“ If Congress had delared that the President should first be applied to through the British Minister, and then issue his mandate to the judges to proceed in each case, the treaty would become nugatory in most instances; and in the entire range of country west of the Rocky Mountains, and for more than five hundred miles on this side of it, throughout the great western plains, no arrests could be made, nor would they be attempted.
What Great Britain has done by its legislation, cannot control our decision; we must abide by our own laws. ”

“ He, too, has every benefit of the writ of habeas corpus; and furthermore can only be arrested by the authority of his own government; whereas, our citizens can be arrested at the instance of any person making the proper affidavit that the crime had been committed within our jurisdiction.
This country is open to all men who wish to come to it. No question, or demand of a passport meets them at the border. He who flees from crimes committed in other countries, like all others, is admitted; nor can the common thief be reclaimed by any foreign power. To this effect we have no treaty. ”

“ The judicial magistrate is bound to decide on the sufficiency of the affidavits on which the warrant of arrest is founded, and compelled to determine on the right to further prosecute, in every step of the proceeding; and why he should not have power to decide on the prosecutor's authority to institute the proceeding, it is difficult to perceive.
The people of this country could hardly be brought to allow an interference of the President with the Judges in any degree. ”

“ And the person charged shall be committed to jail, and there remain under the warrant of the Judge or Commissioner until the surrender shall be made.
That an Executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that this executive act must be performed through the Secretary of State by order of our Chief Magistrate representing this nation. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender. ”

“ The Commissioner held, that it was not necessary to produce the commission under which the Irish magistrate held office, and acted, nor to prove its contents, proof that he publicly discharged the duties being prim a facie evidence of his official character; the presumption being, that if a man regularly acts in a public office, he has been rightfully appointed. Meagher proves that the Irish magistrate thus acted, and his proof is fortified by the original warrant produced by him. ”

“ That these should be extruded, on the demands of a foreign government where the crime was committed, and there punished, is due to humanity. Such wicked and dangerous men ought not to remain here. The case before us furnishes a striking instance of our dangerous condition in this respect. The prisoner successfully resisted and evaded execution of process on him by the civil authority in England, to which he fled from Ireland, for nearly a year, and in various instances, as the official returns on the original warrant show. ”

“ But it is insisted that, as these acts, in cases of fugitives, must be done in conformity to a treaty of one nation with another, and as a nation can only act through the supreme Executive authority, representing the nation, the Judges and Commissioners have no power to take the first step without being authorized to do so by the President, who represents the nation ”

“ The warrant was produced before me, together with a copy of the information or affidavit upon which said warrant was issued, said copy being certified according to the act of Congress, by the justice of the peace, who issued the warrant, and attested by the oath of the witness to be a true copy. ”

“ The case presented to us shows that the facts here stated are correctly made. Nothing is found in the proceedings before us, from which it appears that our government took any step to aid the British authorities in arresting and committing Kaine. And the Attorney-General declined to appear, on the part of the United States in this court, in opposition to this motion; nor did counsel appear on behalf of the British government, the argument before us being on behalf of the fugitive only. ”

“ Foreseeing that we might thus hold, the counsel for the prisoner, Kaine, also moved this court, on petition, with the papers and proceedings presented to the Circuit Judge annexed thereto, for writs of habeas corpus and certiorari, to bring up the defendant, and the record from the Circuit Court, to the end of having the decision of that court examined here. ”

“ I stooped to take it up, and while stooping he fired one of the pistols at me; and on examining my person, I found the mark of a bullet and twenty-seven grains of shot in my side, just under my left arm. ”

“ Barclay made the necessary affidavit, and caused Kaine to be arrested and brought before Joseph Bridgham, Esquire, a commissioner appointed by the Circuit Court of the United States, for the Southern District of New York; who reports the principal facts presented to him, as having occurred in Ireland, as follows: 'The original warrant in this case was issued by James Featherstonhaugh, Esq., a justice of the peace of the county of Westmeath, Ireland, in which county the alleged crime was committed. ”