Ex parte Kearney

Decision Date25 February 1822
Citation5 L.Ed. 391,7 Wheat. 38,20 U.S. 38
PartiesEx parte KEARNEY
CourtU.S. Supreme Court

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.

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 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 Court has authority to issue a habeas corpus, where a person is in jail, under the warrant or order of any other Court of the United States; secondly, if it have, whether, upon the facts stated, a fit case is made out to justify the exercise of such an authority.

As to the first question, it is unnecessary to say more, than that the point has already passed in rem judicatam in this Court. In the case of Bollman and Swartwout, (4 Cranch 75.) it was expressly decided, upon full argument, that this Court possessed such an authority, and the question has ever since been considered at rest.

The second point is of much more importance. It is to be considered, that this Court has no appellate jurisdiction confided to it in criminal cases, by the laws of the United States. It cannot entertain a writ of error, to revise the judgment of the Circuit Court, in any case where a party has been convicted of a public offence. And undoubtedly the denial of this authority proceeded upon great principles of public policy and convenience. If every party had a right to bring before this Court every case, in which judgment had passed against him, for a crime or misdemeanor or felony, the course of justice might be materially delayed and obstructed, and, in some cases, totally frustrated. If, then, this Court cannot directly revise a judgment of the Circuit Court in a criminal case, what reason is there to suppose, that it was intended to vest it with the authority to do it indirectly?

It is also to be observed, that there is no question here, but that this commitment was made by a Court of competent jurisdiction, and in the exercise of an unquestionable authority. The only objection is, not that the Court acted beyond its jurisdiction, but that it erred in its judgment of the law applicable to the...

To continue reading

Request your trial
160 cases
  • State v. Thayer
    • United States
    • Missouri Supreme Court
    • June 19, 1900
    ... ... W. 629; 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; ... ...
  • Miranda v. Garland
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 12, 2022
    ... ... 79, 67 L.Ed. 226 (1922). And where Congress precludes judicial review we must respect that, even for Constitutional questions. See Ex parte Kearney , 20 U.S. 38, 42, 7 Wheat. 38, 5 L.Ed. 391 (1822) (refusing to correct an alleged Fifth Amendment violation because Congress had not ... ...
  • Merchants' Stock & Grain Co. v. Board of Trade of City of Chicago
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 24, 1912
    ... ... or enforce. Thompson v. Railroad Co., 48 N.J.Eq ... 105, 558, 21 A. 182, Hendryx v. Fitzpatrick (C.C.) ... 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v ... Edwards, 9 Barn. & C. 652; ... [201 F. 24] ... People v. Court of Oyer & Terminer, 101 N.Y. 245, ... appeal, writ of error, or habeas corpus in criminal contempt ... cases because of their criminal character. Ex parte Kearney, ... 7 Wheat. 38, 5 L.Ed. 391; New Orleans v. Steamship ... Co., 20 Wall. 387, 22 L.Ed. 354; Hayes v ... Fischer, 102 U.S. 121, 26 L.Ed. 95; ... ...
  • United States v. United Mine Workers of America Same v. Lewis, John United Mine Workers of America v. United States Lewis, John v. Same United Mine Workers of America v. Same
    • United States
    • U.S. Supreme Court
    • March 6, 1947
    ... ... In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402; Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117; Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861. But even if the Circuit Court had no jurisdiction to ... 26 It has been held that habeas corpus will not lie where the disobedience was to a lawful, but erroneous, order of a court. Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391. See also Locke v. United States, 5 Cir., 75 F.2d 157, 159: 'Error must be corrected by appeal, and cannot be tested by ... ...
  • Request a trial to view additional results
2 books & journal articles
  • CHAPTER 9 PROCEDURAL DEFAULT
    • United States
    • Carolina Academic Press Federal Habeas Corpus: Cases and Materials (CAP)
    • Invalid date
    ...and it is not a nullity if the Court has general jurisdiction of the subject, although it should be erroneous. See Ex parte Kearney, [20 U.S. 38] (1822). In 1867, Congress expanded the statutory language so as to make the writ available to one held in state as well as federal custody. For m......
  • Who Has the Body? The Paths to Habeas Corpus Reform
    • United States
    • Prison Journal, The No. 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......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT