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L. H. J.
Liber No. 54
Oct. 25
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formed Opinions. Doubts, at least have been entertained in England,
whether the positive Ordinances of the Penal System be suitable
to the Circumstances of the Nation; whether, in many Instances
not too undistinguishing, and sanguinary; but the Judges have no
Authority to reject the Rule enjoined by the Legislature: Such
Authority would elevate the judicial Power above it's proper Rank;
an Authority the Legislative will hardly ever be so incautious as to
confer by Provisions, that such Penal Statutes, and such only shall
be carried into Execution, as the Discretion of Judges may adopt;
but this seems to be the Result of the Position, or Doctrine, that such
Penal Statutes, and such only as suit our Circumstances extend
hither. The following among other Instances may sufficiently evince
that the Rule of Adoption has not been uniform in respect of the
Penal Statutes enacted before the Settlement of this Province.
Notwithstanding the Statutes of Edward sixth, the Act of 1744
was thought to be expedient, one of these Statutes comprehends other
Offences, concerning which our local Acts are silent, tho' more
alarming, and atrocious, than the stealing or burning a Shallop or
Boat of seventeen ffeet Keel
Notwithstanding the Statutes of Elizabeth, the Acts of 1692 &
1715 were enacted, the Statute of James the First has been intro-
duced, by the Act of 1706, it might be very improper to be more
explicit, if it be a just Observation "that Crimes are more effectually
prevented by the Certainty than by the Severity of Punishment,"
the Uncertainty in Respect of the Extent and fforce of the Penal
Statutes must be extremely inconvenient.
The Feelings of Humanity cannot but be affected, tho' the
positive Law be clear, where the Example of extreme Punishment
becomes necessary; but when Crimes, however malignant, have been
committed against social Rights, and the very Existence of positive
Law for their Punishment is doubtful, my Situation must be too
obvious to require Explication. Persons convicted on some English
Statutes having been discharged with Impunity, because the Extent
of those Laws was doubted, I am persuaded that the Principle of
the apparent Lenity not being as generally understood, as the Im-
punity has been observed, the Circumstance has produced a Degree
of nattering Reliance that equal Tenderness would be shewn to
Offenders convicted on Laws indubitably existent, and operative,
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p. 321
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and thus the Uncertainty I have taken Notice of, by lessening the
Dread of Punishment has proved an insnaring Encouragement to
the Commission of Crimes. Having thus briefly suggested on what
Motives I recommended to your Attention the State of our Criminal
Law, you will be pleased maturely to consider, whether it would not
be more safe, prudent, and expedient, after a due Examination of
their Propriety and Fitness, to ascertain by Act of Assembly what
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