“I wish to uphold counsel in the exercise of their discretion.”

— Arthur Kekewich

In re Somerset; Somerset v. Earl Poulett (1893), L. R. [1894], 1 Ch. 249.

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Arthur Kekewich 19

British judge 1832–1907

John Ford (dramatist) (1586–1639) dramatist

Act III, sc. iii.
The Lover's Melancholy (1628)

“Though this motion for a new trial is an application to the discretion of the Court, it must be remembered that the discretion to be exercised on such an occasion is not a wild but a sound discretion, and to be confined within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself. And that discretion will be best exercised by not deviating from the rules laid down by our predecessors; for the practice of the Court forms the law of the Court.”

Lloyd Kenyon, 1st Baron Kenyon (1732–1802) British Baron

Wilson v. Rastall (1792), 4 T. R. 757.

“Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exericised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.”

John Marshall (1755–1835) fourth Chief Justice of the United States

Osborn v. Bank of the United States, 22 U.S. (9 Wheaton) 738, 866 (1824)

“I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Thomas Jefferson (1743–1826) 3rd President of the United States of America

Letter to William Charles Jarvis (28 September 1820)
1820s

“The policeman on the beat or in the patrol car makes more decisions and exercises broader discretion affecting the daily lives of people every day and to a greater extent, in many respects, than a judge will ordinarily exercise in a week.”

Warren E. Burger (1907–1995) Chief Justice of the United States from 1969 to 1986

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.

“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.”

Nathaniel Lindley, Baron Lindley (1828–1921) English judge

Saunders v. Saunders (1897), L. R. Prob. D. [1897], p. 95.

“All government rests upon consent, and consent is not to be had without taking counsel with the most eminent or influential or representative of the governed, and seeking their advice: the act of taking counsel cannot be separated from the act of exercising authority. All government rests also upon upon habit, upon being exercised in the same way or a similar way to that in which the governed remember or believe that it was exercised before. Brute force can break with habit; but as soon as brute force begins to turn into government, it does so by starting to observe habitual modes of behaviour. Habitual forms or institutions for counsel and consent are thus of the essence of government.”

Enoch Powell (1912–1998) British politician

Introduction to his book The House of Lords in the Middle Ages (Weidenfeld & Nicolson, 1968), p. xi
1960s

“"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.”

Hardinge Giffard, 1st Earl of Halsbury (1823–1921) British politician

Sharp v. Wakefield (1891), 64 L. T. Rep. 180 [1891], Ap. Ca. 173.

“The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the atmosphere.”

Thomas Jefferson (1743–1826) 3rd President of the United States of America

Letter to Abigail Smith Adams http://memory.loc.gov/master/mss/mtj/mtj1/006/1200/1251.jpg from Paris while a Minister to France (22 February 1787), referring to Shay's Rebellion. "Jefferson's Service to the New Nation," Library of Congress http://www.loc.gov/teachers/classroommaterials/connections/thomas-jefferson/history4.html
1780s

“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.”

Philip Roth book Deception

Deception: A Novel (1990)

“I wish to uphold counsel in the exercise of their discretion.”

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Arthur Kekewich 19

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