CO129-399 - Governor Sir May - 1913 [1-2] — Page 243

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241

"But the conclusive answer to this objection is tast the

proceedings upon this writ in the federal courts are not governed by the laws and regulations of the states on the subject, but by the common law of England, as it stood at the adoption of the Constitution subject to such alterations as Congress may see fit to prescribe".

Ex parte Kaine, U. S. Circuit Court S. Dist. N.Y., 14 Fed.

Cases, p. 80.

There is no federal statutory provision similar to the prohibition against a second arrest in the fifth section of the Act of 31 Charles

II but the same purpose and result are obtained by applying the rule of res adjudicate. The same is true generally as to the law of the several

states on the subject. Some of them have statutes based on the statute

of Charles II, and the attitude of the state courts towards the section

prohibiting a second arrest will be seen from the Linnesota and South

Carolina cases hereinafter cited.

TEXT WRITERS.

The volume of "Moore on Extradition" which contains the discussion

of this subject has already been submitted and further reference to it is unnecessary. The leading text book in the United States on Habeas Corpus is that of "Church" which is very higaly respected. On this

point he says:

*Section 386a

But where he is discharged on habeas corpus for defect of proof, such discharge does not protect him from a subsequent prosecution for

the same.

or any other offense, when proofs of his quilt are ready to be produced.

(1)

(State v. Fley, 2 Brev. 338: 4 Am. Dec. 583, 688: In re

Brandau, 7 So. Rep. (Fla.) 528: State v. Holm, 37 Linn.

(2) 405.)

DISCHARGE, EFFECT OF.- In the Supreme Court of the United

(1) See page 9 hereof.

(2) See page 7 et seq. hereof.