Mitchell v. Dix

42 How. Pr. 475

• Court: The Superior Court of New York City
• Decided: November 15, 1871
• Status: Published

Opinion

McCunn, J.

It appears by the papers before me, that the plaintift, a citizen of the state of New York, was arrested in this city, on the 14th of June, 1865, by order of the defendant; was transported to Fortress Monroe in the state of Virginia, and was there imprisoned for four months and sixteen days. This arrest, transportation and imprisonment constitute the gravamen of the action.

Into the merits of the action, I am not permitted to inquire, nor on this motion, am I prepared to" pronounce upon the constitutionality of the acts in controversy. The motion may be decided on another and entirely satisfactory ground.

Both the act of March 3d, 1863, and the amendment of May. 11th, 1866, provide for the removal into the federal courts of actions founded upon facts which occurred during the rebellion. The plaintiff was arrested on the 14th da,y of June, 1865. In my judgment, the rebellion was then at an end.

The Confederate government was then annihilated its authority everywhere overthrown; its armies dispersed or surrendered; its resources and its territory all in the possession of the federal forces; the power and dominion of the Union re-asserted ■ and established; insomuch, that not a solitary soldier was in array against the United States, nor an inch of territory exempt from its supremacy. At this time and in this circumstance, when the authority of the Union was everywhere and by every one acknowledged, it would be an abuse of terms and a contradiction of a flagrant fact, to say that the rebellion was in existence. It may be that martial law was still prevalent, but the rebellion was no more. The rebellion was a fact, neither to be created, nor destroyed by a proclamation. .And when it ceased de facto to exist, a proclamation could not continue its existence. Does the rebellion now exist ? And, yet on the 14th June, 1865, every species of resistance to the Union was as effectually at an end, as at this present moment.

The acts then, of the defendant, on which this suit is founded, not having occurred during the rebellion, the action is not within the provisions of the laws of 1863 and 1866, and the motion to remove it into the federal courts, must be denied.