Ex parte Merryman

17 F. Cas. 144, 1861 U.S. App. LEXIS 380, 9 Am. Law Reg. 524, 1 Taney 246, 24 Law Rep. 78, 3 W.L. Monthly 461



The Constitution does not allow for the president to have the authority to suspend or authorize the suspension of the writ of habeas corpus.


The petitioner was at his own house and at 2 o’clock in the morning, an armed force entered his house saying that they were acting under military orders, and took him into custody at Fort McHenry, where he was imprisoned by the commanding officers without warrant from any lawful authority. The commander does not deny the facts and says he was arrested by order of General Keim of Pennsylvania.


May a president suspend or authorize the suspension of the writ of habeas corpus?




The Constitution only allows for Congress to suspend the writ of habeas corpus, as delegated in Article 1. If it was intended for the president to have this power, it would have been laid out in Article 2. Even if the privilege of the writ of habeas corpus were suspended, a citizen still would not have been able to be taken from his home and detained in prison or brought to trial before a military tribunal because the Sixth Amendment states that “the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense."

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