Horace Gray

“ We do not know, therefore, whether the commonwealth of Pennsylvania intends to prosecute the defendants for the alleged offense, or whether the grand jury will find a bill, without which the prosecution cannot be said to be 'commenced in the state court.' The act contemplates the removal of a prosecution 'pending,' that a 'trial' may be had in the circuit court. If the attorney of the United States were required to send a bill of indictment before a grand jury of the United States court for a breach of the peace of the state, it would present a truly anomalous proceeding. ”

“ Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offense which the magistrate has no jurisdiction himself to try, before the court in which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution than is an arrest by an officer without a warrant, for a felony committed in his presence. ”

“ The records of the district court and of the circuit court, copies of which are annexed to the petition for a mandamus, present a curious and complicated condition of things, in which some of the confusion may be owing to the facts that not only is the district judge a judge of either court, but that in the western district of Virginia both courts are held at the same times and places, and have the same clerk. ”