Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1874-03-07

beihMhEGh AEAAhhhhA LAW
AN UNPUBLISHED CHAPER IN THE HANK
ROBBERY CAsB--now A DELAWARE
IJrDes oUTwITTED THE PRovERBIALLY-
SHARP PHILADELPHIA LAwYER-AniNT
z TO LAWYERS TOR THE DEFENCE.
THE Philadelphia Press Of last Sunday
Now that the daring Cor purchased y
escape Of "Blg Frank" aud his gang
from New Castle gaol has brought into
prominence the circumstances Of the bold
attempt to rob bank IN the heart of the
city Of Wilmington, within a stone's
throw OF the police headquarters, and
Just after twilight II may be interesting
to readers Of TIE Pres 10 see an unpub
lished chapter In the history OF the case
chapter which came very near being
one OF the most notable In American
criminal jurisprudence, Involving 90 It
did grave constitutional question, and
also the wiplDg away Of dark stalH
upon American criminal Justice,
The burglars had secured probably the
ablest counsel In the State TO conduct
their defence Anthony Higgins, E.q.,
the young and brilliant United States
District ATTORNEY at Wilmington, and
John O'Byme, Esq, whose fame as an
Irish orator and skillful criminal pleader
In Philadelphia needs no comment. II is,
therefore. rot TO he wondered at that the
defence Of these men WIS holly pressed
against Delaware's two remarkably able
Attorney Generals.
Aside from the delicate question Of
Identity which arose, one Of the incest
points OF law became the pivot of the
case, and was grapplei with and discussed
with remarkable ability, considering that
1t lay in one Of those sub'leties which
the Law" the Ieri, ctlon Of wisdom -
sometimes INDUCES In. This point, which
ev ~ lawyer will understand, arose out
Of the testimony that the robbers gained
admittance to the bank by the artl6ce OF
rapping gently and Inducing the inmates
~ open the door for them to enter with
out an actual breaking. This was de-
cided 10 be a constructive breaking, sun
cent 10 AL the conditions of the common
law crime Of burglary laid In the bill Of
indictment,
But, besides these two defences which
the shrewd counsel relied on, they had n
third (snd herein lies the force of this
article,) which they kept studlOusly
seci ct, intending that Il should be- the
last resort TO save these high-toned bur.
glars after conviction from the shame
and the pain OF Delaware's most dreaded
mode of viHdicating her outraged law
tho shipping pUst and the p'llnry u
was admitted on all hands that these
men cared no more for bolts and bars Of
triple steel than did sameou for the green
, wlIhes of the Philistines, for they had
; broken out OF all the strongest goals in
the land, and would doubtless do 80 In
Delaware, as the sequel has proved be-
fore three months went over their heads.
2 But only save them from the cat-O'-uine-
/ tails and the gaping crowds of persons
under the pillOiy, aid they would Laugh
At the law and It's stronrholts.
, Here Mr.. O'Byrne's Irish quicfness
I served him a good turn. lie had read
4 all the bitter Alta ks on the "barharous'
customs Of the Blue Hens Chicken from
the newspaper correspondents and ed
j. tors In other States, who did not know
S how effective those customs were ia keep
A ing Delaware far more free OF crime Il
!, proportion 10 her population than any o
" her horTified sister States. But be hR,
!. found no word amongst all these TRACE
e, Of abuse which would lead to a remedy
10 prevention Of the enforcement of Della
wares Effective law.
> Just about the time the trial of hi
N clients was about 10 begin the newsp ,pe
le men flashed over the wires that Ken
lucky had abolished the whipping-pos
4 and pillory, and the editors cOmmen
III showed that Little Delaware now stCo
70 alone
The secretary stood alone
Modern degeneracy had not reached him, &,
Quick as fash the lawyers mind wer
NJ through the various stages Of reasoning
d" Delaware's law is peculiar; only Stat
u In the Union cruel and unusual" unit
d, the charter Of the peoples liberties, III
he Constitution Of the United States, can
Va before his minds eye, AID the "lucubri
lions Of twenty years" enabled him I
20 read the clause IN the Bill Of Right
no q No crBsl or unusual punishment shall
10 inflicted" sc.
"a Here, then, was the remedy. II
~ criminal law allowed no subftanti
ia appeal from the verdict OF the Jury
ey Delaware, and therefore the lash and Il
Ell exposure we're certain after "Guilty
- was pronounced, unless some Violate
~ Of United States law could be shown.
d" The rect Of the reasoning was cas-
rly With such a principle as this nolhii
ia would be easier than to 20 to Washlngtl
and obtain writ OF error, or a writ
ers the nature Of an Injunction or supeisedea
up which would take tue rObbrrs out
or. savage, but learned old Chief Justi
a., Gilpin's bands and set them down
Washington before the august Suprei
lad Court, I'LL the question should be decid
ose whether whipping apd pillorylng did u
In come fairly within the purview of {
an, forbidding clause above referred to.
Bat the practical details Of gOl
thvOugh the red-tape necess Try to Obta
this mandatory writ staying senten,
was what troubled the lawyers. The Il
en- required that the record should be sigt
en-. by the presiding justice and the pro
.va cutting officer. TINS could not be dc
A' without exciting suspicion, for this wol
z OF be most unusual proceeding, aud ST.
int. sharp man Bs Charles b. Lore, a
lem such quick-witied cd Judge RS Clip
= Chief Justice, would be sure TO want
know and End out what II all meant.
Is Is they did, then short shrift VI uld be ri,
ght the robbers, for Judge Gilpin would he
mad said, as did one Of his predecessors
-, the woolsack, "Turn 'em out, d-n e
and whip 'em any hOv."
'out And something similar to this did
this tually happen. big Frank, - he see
10 be the most blupdering FOOL of
party" Big Frank" as the keeper v
taking him 10 the cell after the verd
csll remarked boasifully and haunting
Never mind, they haven't whipped
the yet O'Byrne's got something that
ting halk you fellows finally" This in c
hem tlous remark was az once reported u
-. States Attorney, and be fatty as
% W O'Byrne what be wanted the record sig
ave for. The candid answer being given
the the supposltion that he had plt nty of II
the to get the writ befOie Saturday, the
hs,s Of whipping, Attorney General Lore
once reported il to Judge g lpin. Cd
lave 'em, wen whip 'em anyhow. Sic
ONE bring those men into court NJ ono
ming This was Tuesday, and the Chief |
ceeoed to sentence, "Ten ycars-pill
an hour-forty lashes-to-morrOw moo
al. Here. then, was the unexpected and
ltie superahle obstacle of being sentences
tiele be whipped on Wednesday, when f
We " time whereof the memory of {
that runuetb net to the contrary" the da
a. wrath bad been on Saturday. The
Ni' Is soon told now. Big Frank was ri
ast a bis lashes, tine writer of this, who wa
an the secret, lost his bet that they We
aug. never be whipped, and the Supreme c,
never had this momentous quest N
nent whether Delaware's whipping post
our pillory are Illegal to decide. Poss
lore, the point may be again raised II
the Frank should be Tried sgain for breal
i - gaol.
The maximum OF cheapnsss In
erature has been reached bV a Lon