Discretion

In Practice. The equitable decision of what is just and proper under the circumstances. The power of a judge, in certain matters, to decide in accordance with his own judgment of the equities of the cases, unhampered by inflexible rules of law. The latitude allowed to judges as to the action to be taken on certain facts.

See 34 Barb. (N. Y.) 291.

The discretion of a judge is said to be the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis; optimus judex qui minimum sibi.

Bac. Aph.; 1 Cas. (Pa.) 80, note; 1 Powell, Mortg. 247a; 2 Belt, Supp. to Ves. 391; Toullier, Dr. Civ. liv. 3, note 338; 1 Lilly, Abr. 447.

There is a species of discretion which is authorized by express law, and without which justice cannot be administered; for example, if an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself, they are both liable to be punished for the offense. The law, foreseeing such a case, has provided that the punishment should be proportioned so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that, without such discretion, justice could not be administered; for one of these parties assuredly deserves a much more severe punishment than the other. And many matters relating to the trial, such as the order of giving evidence, granting of new trials, etc., are properly left mainly or entirely to the discretion of the judge. As applied to executive officers, it means a power to decide on the propriety of certain actions, without any review by others. In Criminal Law. The ability to know and distinguish between good and evil, — between what is lawful and what is unlawful.