Petition of Edmund Kinney
5/2/1879
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Edmund and Mary Kinney (also known as Mary S. Hall) each petitioned the court for a writ of habeas corpus because they believed they were unjustly arrested for marrying as an interracial couple in Reconstruction-era Virginia. (A petition is a formal request to the court to take action.)
The county court had convicted them of "feloniously leaving the State of Virginia for the purpose of marrying and for having married in the District of Columbia...and for having returned to the State and cohabited." They were sentenced to five years of hard labor in the state penitentiary.
In their petitions, the Kinneys argued that marriage is a contract and that their freedom of contract, guaranteed in the Fourteenth Amendment, was violated. Their writs of habeas corpus were denied by the district court judge and the Kinneys served their five-year sentences.
The county court had convicted them of "feloniously leaving the State of Virginia for the purpose of marrying and for having married in the District of Columbia...and for having returned to the State and cohabited." They were sentenced to five years of hard labor in the state penitentiary.
In their petitions, the Kinneys argued that marriage is a contract and that their freedom of contract, guaranteed in the Fourteenth Amendment, was violated. Their writs of habeas corpus were denied by the district court judge and the Kinneys served their five-year sentences.
Transcript
In the Circuit Court of the United StatesFor the Eastern District of Virginia
To the Honorable Judges of the said Court.
—
The petition of Edmund Kinney humbly sheweth that he is a citizen of the United States, and has resided for five years in the County of Hanover, in the State of Virginia; that your petitioner is a man of color, of the negro race, and that he is now unlawfully restrained of his liberty, within the jurisdiction of this Court, and in violation of the Constitution and laws of the United States; and that the following are the facts concerning the said unlawful detention.
That your petitioner is so restrained of his liberty by being kept, unlawfully, in the public jail and penitentiary house of the State of Virginia, at the City of Richmond, in the custody of Samuel A. Swann, the superintendent of said penitentiary, by virtue of a pretended sentence of the County Court of said County of Hanover, in the State aforesaid, pronounced on the 19th day of March A. D. 1879; That said pretended sentence was pronounced in a certain criminal prosecution, then pending in the said County Court, on the part of the Commonwealth of Virginia against your petitioner and one Mary S. Hall; and that the facts and circumstances attend–
ing said prosecution are as follows:
In the month of October last past, your petitioner and the said Mary S. Hall, the latter being, also, a citizen of the United States, and a white woman, visited the City of Washington in the District of Columbia, and were there, on the 8th day of the said month duly and in accordance with the laws of the United States prevailing in the said District, united in the bonds of matrimony. That soon thereafter your petitioner and the said Mary S. Hall returned to the State of Virginia and to the said County of Hanover and there lived together as man and wife until the institution of said prosecution, soon after which they were arrested and tried in the said County Court on a charge of feloniously leaving the State of Virginia for the purpose of marrying, and for having married in the District of Columbia as aforesaid and for having returned to the State and cohabited as aforesaid. a verdict of guilty was rendered upon which your petitioner and the said Mary S. Hall were sentenced to serve a term of five years at hard labor in the said penitentiary, where they are now confined as aforesaid.
A certified copy of the record in the said criminal prosecution is herewith filed, marked "A" & prayed to be taken as a part of this petition. —
Your petitioner avers that there was no lawful impediment whatever to the marriage of your petitioner with the said Mary S. Hall; that both your petitioner and the said Mary S. Hall were, at the time of their marriage of lawful age, and in every way qualified under the laws of the United States, in force in the District of Columbia, to intermarry as they did; and that they were tried and convicted as aforesaid, and are now confined in the penitentiary as aforesaid, for no other reason than that your petitioner, being a negro man, and the said Mary S. Hall being a white woman, left the State of Virginia, and were married as aforesaid, and returned to the State and lived together as man & wife as aforesaid. —
Your petitioner insists that his conviction and detention as aforesaid is illegal, and that she is unlawfully restrained of his liberty, in consequence, in violation of the Constitution and laws of the United States. He insists that the Statutes of the State of Virginia prohibiting the intermarriage of Whites and negroes, and prescribing penalties for such persons leaving the state to marry and returning to the state after having gone out of it and married, are unconstitutional and void and especially so
because they impose restriction upon the constitutional right of citizens of the United States to freely contract among themselves irrespective of race or color, and are otherwise oppressive, unequal, and in violation of the Constitution of the United Sates.
Your petitioner further insists that his detention as aforesaid is illegal, and in violation of his rights under the Constitution and laws of the United States, because he says – that he and the said Mary S. Hall having been lawfully married in the District of Columbia, according to the forms prescribed by, and under the sanction of, the laws of the United States, in force in the said District, the said marriage was valid there, at the place where celebrated, and must, therefore be held to be valid throughout the territory of the United States; that it was a privilege which belonged to your petitioner and the said Mary S. Hall, as citizens of the United States, to leave the state of Virginia and go into the District of Columbia as aforesaid, that it was equally their privilege as such citizens while there to enter into the marriage contract as they did, that it was equally their privilege as such citizens to return to the State of Virginia as they did, and that therefore their conviction and detention as aforesaid is an abridgment of their privileges as citi –
zens of the United States by the State of Virginia which is forbidden by the Constitution of the United States.
Wherefore your petitioner prays that this Honorable Court will be pleased to award the writ of Habeas Corpus, directed to the said Samuel A. Swann, superintendent of the said penitentiary, requiring him to bring before this Honorable Court the body of your petitioner, with the cause of her detention, so that the same may be enquired into and such relief afforded as shall be agreeable to law and justice.
And your petitioner will ever pray
Edmund Kinney
X his mark
Witness
Thos. S. Atkins
Subscribed and sworn to before me this 2nd day of May 1879.
Thos. S. Atkins
U.S. Commr E. Dist. of Va.
This primary source comes from the Records of District Courts of the United States.
Full Citation: Petition of Edmund Kinney; 5/2/1879; Habeas Corpus Case Files, 1867 - 1938; Records of District Courts of the United States, Record Group 21; National Archives at Philadelphia, Philadelphia, PA. [Online Version, https://www.docsteach.org/documents/document/petition-edmund-kinney, June 23, 2025]Rights: Public Domain, Free of Known Copyright Restrictions. Learn more on our privacy and legal page.
