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


CASE Ot GEN HENDERSON,.
Gen. John Henderson, indicted as one of the
getters-up of the late Cuban expedition, appeared
in Court for trial yesterday ma,-:-s' On the open
ing of the Cour., afr. Benjamin, who has been as
sooiared with District Attorney Hunton thus far in
the case, rose to make a motion, when Gen. Hen
dersou objected to his appearing on the part of the
United States. In brief speech, he commended
that the Executive had no right to appoint an as
sistan attorney in this prosecution, and he asked
leave to go home to his library for the purpose of
procuring authorities on the subject. Leave was
granted, and Gen II. soon returned with an arm
full of law books. He then stated that his obec-
ton was from personal feeling against Mr.. Ben
RICH. to appoint assistant attorney in the case,
and that it was encroachment on the rights of
the judiciary. He had seen with pain the many
nterferences of the Executive with the Judiciary in
England, and he could see no liberty where such a
state of things was allowed to exist. 1t struck at
the basis of freedom There was no liberty where
the Executive allowed to single out individuals
and pursue them for vengeance. Should the Exec
ative department be allowed employ this or tina,
one to prosecute him. and, perhaps, not prosecute
others at all In such case, it became at once
prosecution of the Executive and not of the Govern.
ment.
If Mr.. Benjamin was legally commissioned o,
empowered to act prosecuting attorney, then
there was no need of argument, but if such was
not the case, he sure that the court would no,
allow him to act. No pretence that the duty of the
Executive required him to see the laws faithfully
executed would answer for his interference with
| the judiciary. The Executive could not command
the court in any case and it could say that it would
never try another case. The Executive could onl,
lay the matter before Congress, powerless himsel
TO take any other action in the matter There was
no necessity for the Executive to come into court tc
see the laws faithfully executed ii only had to in
terlere in such matters as at the time did not come
under the judiciary.
49, Gem. H. coutended that the President had nc
prerogative at all. He was bound as much to the
laws as the humblest citizen, and he could not
under any pretext, enter into the judicial admins
tration of the laws He had just much right tc
appoint an additional judge to assist in trying a
special case, appoint assistant attorney. He
could only appoint where there was vacancy
Gen. III. then read from 18th Peters, GLIB, in the
case of the Unlted States Us. Amos Kendall, Post
master General. writ of mandamus issued tC
the latter, ordering him to pay over certain money
lie refused on the ground that the President had
not instructed him 10 do so, and under the cloak of
Executive favor, he took his stand. The case was
ably argued for the defence, but the Court decided
that the position was n dangerous one, and could
not be sustained. To give such power to the Pre-.
sldent, continued Gen, H.. wouid throw the entire
Legislation of the country under his control, and
particularly the administration Of justice. He did
not contend That the case was analogous but the
same princi pie was involved.
lie then cited the case of ellison rs. Hoyt, in 81
Wheaton 33l-2 The defendant was Collector lor
the port of New York, and under The instruction OF
the President he seized a vessel aud had her sold
for an allsdged violation of the neutrality laws. He
pleaded the express directions OF the Executive
when the case came to trial. but the Court overrued