Ex parte Kearney

CourtUnited States Supreme Court
Writing for the CourtSTORY
Citation5 L.Ed. 391,7 Wheat. 38,20 U.S. 38
PartiesEx parte KEARNEY
Decision Date25 February 1822

20 U.S. 38
5 L.Ed. 391
7 Wheat. 38
Ex parte KEARNEY.
February 25, 1822

Feb. 9th.

Page 39

Mr. Jones moved for a habeas corpus to bring up the body of John T. Kearney, now in jail, in the custody of the marshal, under a commitment of the Circuit Court for the District of Columbia, for an alleged contempt. The petition stated, that on the trial of an indictment in that Court, the petitioner was examined as a witness, and refused to answer a certain question which was put to him, because he conceived it tended materially to implicate him, and to criminate him as a particeps criminis. The objection was overruled by the Court, and he having persisted in refusing to answer the question, was committed to jail for the supposed contempt; and for no other cause.

Mr. Jones, for the petitioner, now argued, 1. That this Court has power to issue the writ of habeas corpus in every case where the personal liberty of the citizen is restrained under the judicial authority of the union. The jurisdiction is settled by a uniform series of decisions. It had been exercised in a case of treason;a in a case where the warrant of commitment was defective, in not showing a good cause

a The United States v. Hamilton, 3 Dall. 17.

Page 40

certain, on oath or affirmation;b and, at last the case of Bollman & Swartwoutc settled the power of the Court to be universal, and co-extensive with the general judicial power of the Union. 2. He insisted that a fit case was made out to justify the exercise of the jurisdiction upon the present application. The jurisdiction of this Court cannot depend upon the nature of the commitment by the other Court. The writ of habeas corpus is a writ of right, and the nature and grounds of the commitment are to be looked into on the return. This Court must have power to issue the writ where an inferior Court commit even for a contempt; because if the process of contempt be a branch of criminal judicature, considered as a punishment for an offence, this Court has authority to control all inferior Courts and magistrates. In England, the Court of Common Pleas, although a tribunal of original and civil jurisdiction only, has, from the earliest times, exercised the authority of issuing the writ of habeas corpus to inquire into the cause of commitments by other jurisdictions.d

Mr. Swann, (District-Attorney,) contra, admitted that this Court had a general power of issuing the writ of habeas corpus ad subjiciendum to all the other

b Ex parte Burford, 3 Cranch, 448.

c 4 Cranch, 75.

d Wood's Case, 3 Wils. 173. Scroggs v. Coleshill, Dyer, 175. 4 Inst. 290. Bushell's Case, Sir T. Jones' Rep. 12. 2 W. Bl. 745. 2 Hale's P. C. 144. Moor, 838. 1 Hale P. C. 399. 406. 446.

Page 41

courts and officers of the United States, but insisted that this was not a case in which the Court could exercise the authority. Because the Circuit Court for the District of Columbia was an inferior tribunal, it did not, therefore, follow, that an appeal lies to this Court from its judgment in criminal cases. This Court has no appellate jurisdiction in criminal cases. It can only revise the decisions of the Circuit Court, in such cases, where there is a certificate of a division of opinion of the judges below. Here there was no doubt the Court had jurisdiction of the case in which the party was committed for refusing to answer a question put to him, and which the Court had determined he was bound to answer. This Court cannot revise the principal case by an appellate process, neither can it revise that which has incidentally arisen out of it. Every Court of justice must have a discretionary power of punishing contempts; and if an appeal were allowed upon every interlocutory judgment of this sort, there would be the greatest possible embarrassment and confusion.

Feb. 25th.

Mr. Justice STORY delivered the opinion of the Court, and after stating the case, proceeded as follows:

Upon the argument of this motion, two questions have been made: first, whether this...

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148 practice notes
  • State v. Thayer
    • United States
    • United States State Supreme Court of Missouri
    • June 19, 1900
    ...Suth. St. Const. pp. 326, 328; Maguire v. Association, 62 Mo. 346; 1 Bish. Cr. Proc. § 1254; Floyd v. State, 7 Tex. 215; Ex parte Kearney, 7 Wheat. 38, 5 L. Ed. 391; Hunter v. State, 6 Ind. 423; U. S. v. Goodwin, 7 Cranch, 108, 3 L. Ed. 284; Rex v. Hanson, 4 Barn. & Ald. 521; Ward v. People......
  • Taberer v. Armstrong World Industries, Inc., No. 91-5265
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 23, 1992
    ...a remedy may be applied by the legislature, and is not to be devised by courts of justice. Ex parte Kearny, 20 U.S. (7 Wheaton) 38, 45, 5 L.Ed. 391 Abuses did occur, culminating in the case of Luke Lawless, an attorney from Missouri who was summarily imprisoned and disbarred by United State......
  • United States v. Wilson 8212 1162, No. 73
    • United States
    • United States Supreme Court
    • May 19, 1975
    ...339, 63 L.Ed. 656 (1919); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), and cases cited therein, cf. Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391 (1822); In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150 (1889). III The Court of Appeals considered itself bound by langua......
  • Lindh v. Murphy, No. 95-3608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 12, 1996
    ...did not include the ability to reexamine judgments rendered by courts possessing jurisdiction. Ex parte Kearney, 20 U.S. (7 Wheat.) 38, 5 L.Ed. 391 (1822); see also Dallin H. Oaks, Habeas Corpus in the States--1776-1865, 32 U. Chi. L.Rev. 243, 244-45 (1965). Under the original practice, "a ......
  • Request a trial to view additional results
147 cases
  • State v. Thayer
    • United States
    • United States State Supreme Court of Missouri
    • June 19, 1900
    ...Suth. St. Const. pp. 326, 328; Maguire v. Association, 62 Mo. 346; 1 Bish. Cr. Proc. § 1254; Floyd v. State, 7 Tex. 215; Ex parte Kearney, 7 Wheat. 38, 5 L. Ed. 391; Hunter v. State, 6 Ind. 423; U. S. v. Goodwin, 7 Cranch, 108, 3 L. Ed. 284; Rex v. Hanson, 4 Barn. & Ald. 521; Ward v. People......
  • Taberer v. Armstrong World Industries, Inc., No. 91-5265
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 23, 1992
    ...a remedy may be applied by the legislature, and is not to be devised by courts of justice. Ex parte Kearny, 20 U.S. (7 Wheaton) 38, 45, 5 L.Ed. 391 Abuses did occur, culminating in the case of Luke Lawless, an attorney from Missouri who was summarily imprisoned and disbarred by United State......
  • United States v. Wilson 8212 1162, No. 73
    • United States
    • United States Supreme Court
    • May 19, 1975
    ...339, 63 L.Ed. 656 (1919); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), and cases cited therein, cf. Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391 (1822); In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150 (1889). III The Court of Appeals considered itself bound by langua......
  • Lindh v. Murphy, No. 95-3608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 12, 1996
    ...did not include the ability to reexamine judgments rendered by courts possessing jurisdiction. Ex parte Kearney, 20 U.S. (7 Wheat.) 38, 5 L.Ed. 391 (1822); see also Dallin H. Oaks, Habeas Corpus in the States--1776-1865, 32 U. Chi. L.Rev. 243, 244-45 (1965). Under the original practice, "a ......
  • Request a trial to view additional results
1 books & journal articles
  • Who Has the Body? The Paths to Habeas Corpus Reform
    • United States
    • Prison Journal, The Nbr. 84-3, September 2004
    • September 1, 2004
    ...(1991). Reneging on history? Playing the court/Congress/president civil rights game. California Law Review, 79, 613-864. Ex parte Kearney, 20 U.S. 38 Ex parte Royall, 117 U.S. 241 (1886). Ex parte Watkins, 28 U.S. 193 (1830). Faust, R., Rubenstein, T., & Yackle, L. (1990/1991). The great wr......

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