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Bouvier's Law Dictionary, Revised 6th Edition (1856)

DISCRETION, crim. law. The ability to know and distinguish between good and
evil; between what is lawful and what is unlawful.
2. 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 so tender. 1 Hale, P. C. 27, 8; 4
Bl. Coin. 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 tenderness of years will not
excuse a maturity in crime, the maxim in these cases being, malitia supplet
aetatem. At fourteen, children are said to have acquired legal discretion. 1
Hale, P. C. 25.


DISCRETION, practice. When it is said that something is left to the
discretion of a judge, it signifies that he ought to decide according to the
rules of equity, and the nature of circumstances. Louis. Code, art. 3522,
No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.
2. 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 Day's Cas.. 80, ii.; 1 Pow.
Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab.
447.
3. There is a species of discretion which is authorized by express law,
and, without which, justice cannot be administered; for example, 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 offence. 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.

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