The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-01-03

the plea, and held that although in an emergency
the President was authorized to employ the mill
tary and naval forces of the country, he had no
right to use civil officers in such manner. Itwas
never intended, continued Gen. H., that the Presi-
dent should take the law into his own hands, ex-
cept in cases where military or naval force is re-
quired. He positively denied the power of the
President to nominate assistant counsel, and cited
the opinion of U. S. Acknowledgement Writ, in de-
fence of his position He went into an elaborate argu.
ment to show The unconstitutionaty and Illegally
Of any interference with the judiciary on the part
of the President, and cited % Cranch, l7S, the
opinion of Chief Justice Marshall, and Sd Story's
Constitution, sec. IS, 95. He would ask if the
Constitution was to be disregarded because the
President did not have sufficient confidence in
courts and juries. He deemed the proceedings in
the trial of Aaron Burr Of the darkest stains
the escutcheon of country, as in that case Elk
ecutve power was used to fearful extent i'll drag
ging men from their homes, and the judiciary was
set at naught. In the case of Burr, continued the
Speaker, Attorney. General Writ, did not pretend
that he could legally appear on behalf of the United
States, except as an 0micus cure. He did not pre-
tend that he could be legally commissioned by the
President to appear as Prosecuting Attorney. He
acknowledged in Court that he was not legally pre-.
sent Gen. Henderson then cited the laws regard
ing the appointment of Attorneys General and Dis
trict Attorneys.
He also read from the first volume of the land
laws the act of May, 1925 authorizing the Presi-
dent to employ additional counsel in certain land
| suits. II, continued Gen. H., it was lawful for
| the Executive to employ assistant COUNSEL why
was special act passed to authorize him to do it
in tain he tterxp under
stood by Congress, and they acted accordingly.
Gen. H. then cited 9th Wheaton, s66, in regard to
the constitutional discretionary powers of courts.
| The Court had no discretionary power general
| thing. 1t might be in the man. but not in the
| Judge; and the Court had no discretionary power
to allow assistant counsel to appear in the case.
| Gen H. then cited authorities to show that it was
the.d duty of the District Attorney to prosecute in
all cases, and that it did not depend the wish or
request of the Executive Department whether there
| should be an assistant or not There must be a
special law to authorize it. He did not know why,
but it appeared to him that he was singled out
| mark for vengeance by Executive feeling. He
would mention names, but merely the Depart
ment. In conclusion, he hoped the Court would
| override the motion to allow Mr.. Benjamin to
| act and
| Mr. Hunton rose to reply. He was surprised
| that the gentleman had endeavored to overturn a
practice which had existed for the last fifty years
and when in the morning he heard that authorities
were to be brought to aid in the endeavor, he did
not think that they would be those containing only
the elementary principles of law. He sur.
| prised that the gentleman should assume so plain
case that of the President thruating himselfintc
the halls of justice and then make it apply to the
| present case.
The President had done no such thing. John
| Henderson had not been selected victim for Elk.
eoutive vengeance. No attempt had been made tc
influence the judgment of the Court, and there was
no authority TO show any such thing. He con
tended that the District Attorney, as well as the
| Marshal, was an executive, and not q Judiciary
| officer, and he could see no analogy between the
| appointment of an assistant judge and of an assist
| ant attorney. To the best of his knowledge ant
belief, at the time Mr. Benjamin. was appointed il
| was not known that Gen. Henderson would be in
| dicted The prosecution ola large number of per
| sons was contemplated, and he desired to have
some assistance. The government did not selec
| Mr.. Benjamin, but he mir. H. had requested i
| himself He had never heard of but one cast
| where an assistant attorney was objected to, ant
| that was in the case of the Commonwealth Us
| Knapp, in Massachusetts. In the case Of Burr
| which had been alluded TO, the accused was de
| Tended by the ablest counsel the Union afforded
| besides being able man himself, and every poiu
| that could be raised in the proceedings was saize
| upon. If a violation of law had occurred the abb
Chief Justice who presided at that trial would nc
| have allowed it. lie could call TO mind case
! almost innumerable, where the usage had pre-
| vailed, but the Court was now called on by tn
| gentleman TO say that the law had been continual
violated since the days of Chief Justice Marshall
/ Proceedings in trials were governed in a grea
| measure by usage, as the statutes were very i'm
| perfect in this particular Mr.. Hunton suppose,
the rase of long jury trial, during which the Dis
trct Attorney might fall sick, and asked if the ad
ministTation of justice would not be accelerated b
| leaving the prosecution with an attorney who has
| been familiar with it from the commencement, ant
understood all its points. Mr.. Fl. reiterated tina
| no one had been singled out for vengeance an,
that if nothing was proved he should not ask for
| conviction.
Gen. Henderson rajained, asserting that no cast
had been referred 70 which A-4 any sf'I'IdfIty L
.he Jne under consideration, and he appealed TO tn
memory of the Court to call to mind any case wher
| the Executive had employed special counsel /
prosecute He would ask if the Executive of Lot
| sihia Ida ever lhlefleEtl Ill prosecution. In
fact that assistance had been called in, in som
States, where no objection was made, did not max
the practice a law. He cited further authorities
sustain his position, and took up the Massrchuset
case referred to by Mr.. Hunton. He referred agai
to the case of Burr, and said that it was perfect
understood that Mr.. Writ did not appear on II
part of the prosecution only as amicus cure. NJ
Benjamin had said he would not appear in tn
way, and therefore he objected 10 him.
After some further remarks, the Judge stated tn,
he would give his opinion this morning, and ii
Court then adjourned.