discretion

if the word 'discretion' means anything in a statutory or administrative grant of power, it means that the recipient must exercise his authority according to his own understanding and conscience

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.

That part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court. "Discretion when applied to a court of justice means sound discretion guided by law." 4 Burr. 529. Judicial discretion is a mere legal discretion — a discretion in discerning the course presented by law; and what that has discerned it is the duty of, the court to follow. Osborn v. Bank, 9 Wheat. 738, 6 L. Ed. 204. "The discretion is not wilful or arbitrary, but legal [to set aside a judicial sale], and though its exercise be not purely a matter of law, yet it involves a matter of law or legal inference." Lovinier v. Pearce, 70 N. C. 167. "A legal discretion is one that is regulated by well known and established principles of law." Detroit Tug & Wrecking Co. v. Circuit Judge, 75 Mich. 360, 42 N. W. 968. Bishop on Mar. & Div. § 830, defines it as "denoting a sort of individual liberty, a sort of liberty in the collective judges and an course of justice bending to the circumstances of the case instead of requiring the to bend to it." "But if the word discretion in this connection [injunction] is used In Its secondary sense, and by it is meant that the chancellor lias the liberty and power of acting, In finally settling property rights, at his discretion, without the restraint of the Legal and equitable rules governing those rights, then I deny Buch power;" Eennessy v. Carmony, 50 N. J. Eq. 616, -i:> Atl. 374. It would tend to clearness and exactness if discretion were used only with reference to those matters where the action of the trial judge is final; Jenkins v. Brown, 21 Wend. (X. Y.) 454. Whether or nut a particular question is one of discretion is in almost every case a matter of set! led law, and the individual court or judge has no power to place it within or without tha I category. II is only when a question arises which, according to piece dent, is treated as such that the Judicial discretion is invoked and its exert ise cannot be reviewed. The discretion of a judge is said by Lord Camden 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 qua: ininimum relinquit arbitrio judicis: optimus judex qui minimum sibi. Bacon, Aph.; - Bell, Suppl. to Yes. 391; Toullier, liv. 3, n. 338; 1 Lilly, Abr. 447. But the prevailing opinion is that discretion must not he arbitrary, fanciful, and capricious; it must be; legal and regular, governed by rule, not by humor; 4 Burr. 25; Judges of Oneida Common Pleas v. People, 18 Wend. (N. Y.) 99. Many matters relating to the trial such as the order of giving evidence, etc., are properly left mainly or entirely to the discretion of the judge; Utsey v. R. Co., 38 S. C. 399; 17 S. E. 141; Winklemeir v. Dalber, '•'- Mich. 621, 52 N. W. 1036; Coffin v. Hydraulic Co., 136 N. Y. (jr..-,, 32 X. E. 1076; Northern Pac. R. Co. v. Charless, 51 Fed..~>(;2, 2 C. C. A. 3S0; Estis v. Jackson, 111 N. 0. 145, 16 S. E. 7, 32 Am. St. Rep. 784. Decisions upon matters within the absolute discretion of a court are not reviewable in courts of appeal; Harrington v. By. Co., 157 Mass. 579, 32 N. E. 955; Perry v. Shedd, 159 Mass. 200, 34 X. E. 174; Pittsburgh, O. & St. L. R. Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58; but the discretion in granting or refusing a writ of mandamus musl lie exorcised under legal rules, and is reviewable in an appellate court; People v. Common Council of Syracuse, 78 N. Y. 5G. Sucb a writ will v. Van Ness, 15 Fla.:;17: Ex parte Harris, 52 Ala. sT. 23 Am. Be]. 559. A testator may leave it to bla executor to construe tiie pi.,f his will, and to decide doubtful qu ruing his intentions: American Board of i: and the donor of a power may tion to the discretion ol I ». J. vS: S. 61 !. In Criminal Law. The ability to know and distinguish between good and evil, — 1»: what is lawful and what is unlawful. In most modern criminal statutes the amount of punishment is usually left I lion of the court. See Indeterminate

A liberty or privilege allowed to a judge, within the confines of right and justice, but independent of narrow and unbending rules of positive law, to decide and act in accordance with what is fair, equitable, and wholesome, as determined upon the peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles, and analogies of the law. Osborn v. United States Bank, 9 Wheat 866, 6 L. Ed. 204; Ex parte Chase, 48 Ala. 310; Lent v. Tillson, 140 U. S. 316, 11 Sup. Ch 825, 35 L. Ed. 419; State v. Cummings, 36 Mo. 278; Murray v. Buell, 74 Wis. 14, 41 N. W. 1010; Perry v. Sait Lake City Council, 7 Utah, 143, 25 Pan. 998, 11 L. RA. 446. When applied to public functionaries, discretion means a power or right conferred upon them by law or acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. This discretion undoubtedly is to some extent regulated by usage, or, if the term is preferred, by fixed principles. But by this is to be understood nothing more than that the same court cannot, consistently with its own dignity, and with its character and duty of administering impartial justice, decide in different ways two cases in every respect exactly alike. The question of fact whether the two cases are alike in every color, circumstance, and feature is of necessity to be submitted to the judgment of some tribunal. Judges v. People, 18 Wend. (N. Y.) 79, 99. Lord Coke defines judicial discretion to be "discernere per legem quid ait justum," to see what would be just according to the laws in the premises. It does not mean a wild self-willfulness, which may prompt to any and every act; but this judicial discretion is guided by the law, (see what the law declares upon a certain statement of facts, and then decide in a©-cordance with the lawj so as to do substantial equity and justice. Faber v. Bruner, 13 Me, True, it is a matter of discretion ; but then the discretion is not willful or arbitrary, but legal. And, although its exercise be not purely a matter of law, yet it "involves a matter of law or legal inference," in the language of the Code, and an appeal will lie. Lovinier v. Pearce, 70 N. C. 17L In criminal law and the law of torts, It means the capacity to distinguish between what is right and wrong, lawful or unlawful, wise or foolish, sufficiently to render one amenable and responsible for hla acta. Towle v. State, 3 Fla. 214.

— Judicial discretion, legal discretion. These terms are applied to the discretionary action of a judge or court, and mean discretion as above defined, that is, discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained.

Liberty to act according to one's own ideas of right; the liberty of adapting one's conduct to circumstances; the exercise of judgment v. Arbitrium.

crim. law, is the ability to know and distinguish between good and evil; between what is lawful and what is unlawful.. The age at which children are said to have discretion, is not very accurately ascertained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence, which is raised by an age sotender. 1 Hale, P. C. 27,8; 4 Bl. Com. 23. Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design, but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention, for a tenderness of years will not excuse a maturity in crime, the maxim in these cases being malitia supplet etatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, P. C. 25.