Petition of Mary S. Kinney
5/16/1879
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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
United States of AmericaEastern District of Virginia.
Pleas before the United States District Court for the Eastern District of Virginia at the Custom House thereof, at the City of Richmond in said District, on the 16" day of May 1879.
Be it remembered that on the day and year above written came the petitioner by her counsel and filed her application for a writ of Habeas Corpus, which petition is in the words & figures to wit:
Petition [in left margin]
The petition of Mary S. Kinney also sometimes called Mary S. Hall humbly sheweth that she 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 white woman, and that she is now unlawfully restrained of her 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 her 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 19" day of March 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 & one Edmund Kinney, and that the facts and circumstances attending said prosecution are as follows.
In the month of October last past, your petitioner and the said Edmund Kinney, the latter being also a citizen of the United States, and a negro man, 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 Edmund Kinney 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 Edmund Kinney were sentenced to serve a term of five years at hard labor in the said penitentiary, there 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 Edmund Kinney, that both your petitioner and the said Edmund Kinney were at the time of their marriage of lawful age and in very 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 white woman and the said Edmund Kinney being a negro man, left the State of Virginia & were married as aforesaid, and returned to the State and lived together as man & wife as aforesaid. —
Your petitioner insists that her conviction and detention as aforesaid is illegal, and that she is unlawfully restrained of her liberty in consequence, in violation of the Constitution and laws of the United States. She 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 her detention as aforesaid is illegal and violation of her rights under the Constitution and laws of the Unites States, because she says – that she and the said Edmund Kinney 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 Edmund Kinney 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 citizens 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, Mary S. Kinney also called
Mary S. Hall
X her mark
Subscribed and sworn to before me this 16th day of May 1879.
Thos. S. Atkins
U.S. Commissioner
E Dist of Virginia
L. L. Lewis
Attorney for petitioner.
The record referred to in the foregoing petition from the County court of Hanover County is in the words & figures to wit:
Virginia
Pleas before the County Court of Hanover County at the Court house on Wednesday the 19" day of March A.D. 1879.
[in left margin] Copy of Record & Indictment
Be it remembered that at a County Court held for said county at the Court house on Wednesday the 18" day of December A.D. 1878.
H. W. Wingfield, Foreman, W. A. Pollard, C. A. Day, Ellet Lipscomb, Thaddeus Foster, and Franklin Vunck, six of special Grand Jurors drawn summoned and in attendance upon this in the manner prescribed by law, and C. T. Travillian a person summoned from bystanders and adjudged duly qualified were sworn a special Grand Jury of inquest in and for the body of this County, and having received their charge withdrew to consider of their Indictments, and after some time returned into Court having found the following Indictment made
The following presentment to wit:
An Indictment against Mary S. Hall and Edmund Kinney For a felony.
"A True bill"
Which Indictment is in the words and figures following to wit:
Indictment
Virginia
Hanover County to wit;
In the County Court of said County at the December term A.D. 1878. The Grand Jurors of the Commonwealth of Virginia, in and for the body of the County of Hanover, upon their oaths present, That Mary S. Hall a white woman and Edmund Kinney a negro man, did on the 8" day of October 1878, both of them then resident in the said County of Hanover and State of Virginia, feloniously go out of said State of Virginia for the purpose of being married to each other and with the intention of returning to said State, and were feloniously married to each other out of said State, & did afterwards on the - day of - 1878. feloniously return to said County of Hanover and State of Virginia and did feloniously
This primary source comes from the Records of District Courts of the United States.
Full Citation: Petition of Mary S. Kinney; 5/16/1879; 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-mary-kinney, April 23, 2024]Rights: Public Domain, Free of Known Copyright Restrictions. Learn more on our privacy and legal page.