Ex parte Merryman

17 F. Cas. 144 (1861)

 

RULE:

The Constitution does not give the president the authority to suspend, or authorize the suspension of, the writ of habeas corpus. The writ of habeas corpus may only be suspended by Congress.

FACTS:

The petitioner Merryman resided in Maryland. He was taken into custody, and conveyed to Fort McHenry, where he was imprisoned, without warrant from any lawful authority. When Merryman was arrested, his lawyer filed for a writ of habeas corpus. President Lincoln authorized his military Commanding General to suspend the writ of habeas corpus. When a habeas corpus was served on a commanding officer, it required him to produce the prisoner before a justice of the supreme court, to examine the legality of the imprisonment. The officer answered that he was authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspended it in this case. Therefore, petitioner’s filing was ignored, and Merryman argued that the president had acted outside of his constitutional authority.

ISSUE:

Can a president can suspend the writ of habeas corpus or delegate the authority to do so?

ANSWER:

No.

CONCLUSION:

The Constitution does not give the president the authority to suspend, or authorize the suspension of, the writ of habeas corpus. The writ of habeas corpus may only be suspended by Congress. The constitutional clause allowing such suspension is found in Article I, which details legislative powers. If the authority to suspend the writ of habeas corpus were meant to be given to the executive, it would be found in the second article. The president may not take it upon himself to exercise a power reserved to Congress, even in times of emergency, tumult, or danger. 

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