Ex parte Merryman, 17 Fed. Cas. 9487 (1861)

Ex parte Merryman, 17 Fed. Cas. 9487 (1861)

Facts—A military officer acting on the authority of his commanding officer arrested the petitioner, a citizen of Baltimore. He was accused of treason against the United States. The chief justice of the United States, while on Circuit Court duty, issued a writ of habeas corpus directing the commanding officer to deliver the prisoner. The officer refused on the grounds that the president had authorized him to suspend the writ.

Question—Can the president suspend the writ of habeas corpus?


ReasonsC.J. Taney, while on circuit duty. The Court held that the petitioner was entitled to be set free on the grounds that (1) the president, under the Constitution, cannot suspend the privilege of the writ of habeas corpus. Only Congress can exercise this power since the provision appears in the article of the Constitution dealing with Congress, and in a list of limitations on Congress. (2) A military officer cannot arrest a person not subject to the rules and articles of war, except in the aid of civil authority when the indi- vidual has committed an offense against the United States. In such a case the military officer must deliver the prisoner immediately to civil authority to be dealt with according to law.

Note—Congress subsequently passed an act allowing the president to lift the writ whenever, in his judgment, the public safety may require it, although it is unclear that he was “authorized” by the act or by the Constitution itself. In three instances Congress did suspend the writ: in 1871 in South Carolina involving the Ku Klux Klan; in 1905 in an injunction in the Philippines; and in World War II in Hawaii.

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