Ex parte Merryman

Only congress may suspend habeas corpus, and only in case of rebellion or invasion

Ex parte Merryman, 17 Fed. Cas. No. 9487 (1861)

The petitioner, a citizen of Baltimore, was arrested by a military officer acting on the authority of his commanding officer. The petitioner was accused of treason against the United States. The Chief Justice of the Supreme Court, while on Circuit Court duty, issued a writ of habeas corpus directing the commanding officer to deliver the prisoner, and this was refused on the grounds that the officer was authorized by the President to suspend the writ.

Opinion by Mr. Chief Justice Taney while on Circuit Court duty

Question---Can the President suspend the writ of habeas corpus?


Reason---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. This can be done under the Constitution only by Congress, 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 individual 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.
Paul C. Bartholomew, Summaries of Leading Cases on the Constitution, eighth edition, Littlefield, Adams & Co., Totowa New Jersey, 1973.