Discretion

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Discretion means both the ability to make wise choices or decisions, and the freedom to make one's own judgments. The term is frequently applied to the ability of a person to be discrete, that is, to have the wisdom to avoid speaking of private matters. In legal parlance in particular, it refers to the power of a judge to make certain decisions about the conduct of legal proceedings.

Sourced[edit]

  • In excited states of the public mind they have scarcely a discretion at all; the tendency of the public perturbation determines what shall and what shall not be dealt with. But, upon the other hand, in quiet times statesmen have great power; when there is no fire lighted, they can settle what fire shall be lit. And as the new suffrage is happily to be tried in a quiet time, the responsibility of our statesmen is great because their power is great too.
  • La discrétion est le plus habile des calculs.
  • It shew'd discretion, the best part of valor.
  • The policeman on the beat or in the patrol car makes more decisions and exercises broader discretion affecting the daily likes of people every day and to a greater extent, in many respects, than a judge will ordinarily exercise in a week.
    • Warren E. Burger, address to local and state police administrators up on their graduation from the FBI, reported in Frank J. Remington, Standards Relating to the Urban Police Function, American Bar Association: Advisory Committee on the Police Function, (1972), p. 2.
  • Eine der wichtigsten Tugenden im gesellschaftlichen Leben, die täglich seltener wird, ist die Verschwiegenheit.
    • One of the most important virtues in social life, a virtue that is becoming less common by the day, is discretion.
    • Adolf Freiherr Knigge, Über den Umgang mit Menschen.
  • At times discretion should be thrown aside, and with the foolish we should play the fool.
    • Menander, Those Offered for Sale, fragment 421.
  • I leave it to your discretion to strike or not, but the American colors must not be pulled down over my head today.
  • As a jewel of gold in a swine's snout, so is a fair woman which is without discretion.
    • Proverbs, XI, 22.
  • By Silence, the discretion of a man is known : and a fool, keeping Silence, seemeth to be wise.
    • Pythagoras, as translated in The Sayings of the Wise : Or, Food for Thought : A Book of Moral Wisdom, Gathered from the Ancient Philosophers (1555) by William Baldwin [1908 edition], p. 103.
  • I cannot and do not live in the world of discretion, not as a writer, anyway. I would prefer to, I assure you—it would make life easier. But discretion is, unfortunately, not for novelists.
  • Let your own discretion be your tutor: suit the action to the word, the word to the action.
  • The better part of valour is discretion; in the which better part I have saved my life.
  • Covering discretion with a coat of folly.
  • For 'tis not good that children should know any wickedness: old folks, you know, have discretion, as they say, and know the world.
  • Let's teach ourselves that honourable stop,
    Not to outsport discretion.

The Dictionary of Legal Quotations (1904)[edit]

Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 73-76.
  • "Discretion" means, when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion2; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office, ought to confine himself.
    • Lord Halsbury, L.C., Sharp v. Wakefield (1891), 64 L. T. Rep. 180 [1891], Ap. Ca. 173.
  • Discretion, when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful, but legal and regular.
  • Le impress de authority done par le Roy doit silencer inquiry al discretion dun Judge *; le Roy sole est le proper Judge del ability de ses Ministers et les Chef Justices sont deins le Statute de Scand (The stamp of authority given by the King ought to silence any inquiry into the discretion of a Judge; the King alone is the proper Judge of the ability of his ministers, and the Chief Justices are within the Statute of Scandal).
    • Vaughan, J., Bushel's Case (1670), Jones's (Sir Thos.) Rep. 15.
  • The discretion of a Judge is the law of tyrants: it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion to which human nature is liable.—Lord Camden, L.C.J., Case of Hindson and Kersey (1680), 8 How. St. Tr. 57.
  • The discretion of the Judges ought to be thus described: Discretio est discernere per legem quid sit Justum; this is prov'd by the Common Law, in the case of a special verdict, et sup' totain materiam petunt discretionem Justiciariorum; i.e. they desire that the Judges would discern by law what is just, and so give judgment accordingly.
    • 4 Inst. 4, 12 K. 2, cap. 13; Fortescue, Rep. 393.
  • The exercise of a discretion has been characterised as odious; but where the necessity exists for its exercise, a Judge is not bound to shrink from the responsibility devolving on him.
    • Grampton, J., Conway and another v. The Queen (1845), 1 Cox, C. C. 217.
  • I must not forget that the discretion given to me must be exercised judicially, not fancifully or arbitrarily.
    • Butt, J., Stoker v. Stoker (1889), L. R. 14 Pro. D. 61.
  • A Judge must determine, not by the crooked cord of discretion,1 but by the golden mete-wand of the law! I admit that corruption is not to be imputed or supposed in any Judge, but fallibility must be admitted—humanum est errare; neither would I subject the opinion of a Judge upon matters of fact to be canvassed before, or submitted to the consideration of juries.
    • Perrin, J., Conway and another v. The Queen (1845), 1 Cox, C. C. 216.
  • Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their (men's) wills, and private affections; for, as one saith, talis discretio diseretionem conundit?
  • It is true, as Mr. Folkard put to us, as the Judges of old felt, there are instances in which discretionary power might be grievously abused, and was abused in times such as I trust this country will never see again. At the same time, men are open to the infirmities which unfortunately attach to human nature. There may be dishonest and corrupt Judges among us, though I trust to God that will never happen. I agree you are to frame your rules so as to keep the administration of justice as far as you can beyond the possibility of corruption. On the other hand, if a rule is essential for the convenient administration of justice, you must trust to the honesty of those to whom you commit that most important department of the State. You must trust to the means you have of punishing corruption and dishonesty if you find it operating on the minds of those judicial officers.
    • Cockburn, C.J., Reg. v. Charlotte Winsor (1866), 10 Cox. C. C. 313.
  • The word "discretion" has been frequently used. . . . What does it mean? In honest, plain language it means "do as you like." A direction which is to be actively exercised must be exercised honestly and intelligently, but the discretion which a man chooses to exercise by remaining supine is a duty, if it is a duty, of imperfect obligation. If no shadow of suspicion can be brought against him, if no culpable negligence can be alleged against him, what liability does a man in whom the discretion is vested incur by doing nothing? Attention should be paid to the meaning of the word, and the effect of it in the various cases in which its operation is called in question.
    • Bacon, V.-C, In re Norrington; Brindley v. Partridge (1879), L. R. 13 CD. 659.
  • We are to exercise a just discretion and not to promote vexation.
  • It appears to me wrong in principle for any Court or Judge to impose fetters on the exercise by themselves or others of powers which are left by law to their discretion in each case as it arises.
    • Lindley, L.J., Saunders v. Saunders (1897), L. R. Prob. D. [1897], p. 95.
  • It is not the practice of this Court to interfere with the exercise of a judicial discretion.
    • Sir W. M. James, L.J., Bush v. Trowbridge Waterworks Co. (1875), L. R. 10 Ch. Ap. Ca. 463.
  • A Judge must have discretion, because without it the business could not go on, the criminal justice of the country could not be administered.
    • Mellor, J., Reg. v. Charlotte Winsor (1866), 10 Cox, C. C. 321.
  • I was brought up under a system in which discretion when given was practically absolute. It was the unbroken tradition of Westminster Hall. I believe that system worked justice and saved expense. I hope I may be forgiven if, with what energy remains to me, I strive after many years' experience and drawing near the close of my judicial career, to preserve this unfettered discretion which in my opinion, was given me by Parliament, and which I have never, at least intentionally abused.
    • John Duke Coleridge, C.J., Huxley v. West London Extension Railway Co. (1886), L. R. 17 Q. B. D. 383.
  • However much men may honestly endeavour to limit the exercise of their discretion by definite rule, there must always be room for idiosyncracy; and idiosyncracy, as the word expresses, varies with the man. But there is, besides this, that of which every student of legal history must be aware, the leaning of the Courts for a certain time in a particular direction, balanced at least, if not reversed, by the leaning of the Courts for a certain time in a direction opposite. The current of legal decision runs often to a point which is felt to be beyond the bounds of sound and sane control, and there is danger sometimes that the retrocession of the current should become itself extreme.

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