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, 43 Ala. 310; Lent v. Tillson,140 U. S. 316, 11 Sup. Ct. 825, 35 L Ed. 419; State v. Cummings, 36 Mo. 278; Murray v. Buell, 74 Wis. 14, 41 N. W. 1010; Perry v. Salt Lake City Council, 7 Utah, 143, 25 Pac. 998, 11 L. R. A. 446.When applied to public functionaries, discretion means a power or right conferred upon them by law of 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 sit 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 accordance with the law,) so as to do substantial equity and justice. Faber v. Bruner, 13 Mo. 543.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 amatter of law or legal inference,” in the language of the Code, and an appeal will lie.Lovinier v. Pea no, 70 N. C. 171.In criminal law and thelaw of torts, It means the capacity to distinguish betweenwhat is right and wrong, lawful or unlawful, wise or foolish, sufficiently to render oueamenable and responsible for his acts. Towle v. State, 3 Fla. 214
What is DISCRETION?
Featuring Black’s Law Dictionary
Nothing implied or stated on this page should be construed to be legal, tax, or professional advice. The Law Dictionary is not a law firm and this page should not be interpreted as creating an attorney-client or legal adviser relationship. For questions regarding your specific situation, please consult a qualified attorney.
- What is Racketeering?
- How To Get an EIN Number
- What is a Credit Freeze?
- The 14th Amendment Explained
- What is the Security Exchange Commission?
- Restitution Law – What it is, How to Avoid it, and Tips on Asking for It
- Should I Freeze My Credit?
- Living Will – The Pros & Cons You Need to Know
- What does it mean to be acquitted?
- Forming an LLC in Missouri
- What Is A Police Welfare Check?
- Best Way to Find Someone in Jail for Free
- How to Transfer a Car Title When The Owner Is Deceased
- How To Find A Name & Address Using A License Plate Number
- Best Way to Write a Professional Letter to a Judge
- What Can You Do At 18 Legally?
- How To Find An Inmate’s Release Date
- Signing a Letter on Someone Else’s Behalf
- Why Do Policemen Touch Your Tail Light When They Pull You Over?
- How Do You Look up License Plate Numbers?