“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.”

Reg. v. Labouchere (1884), 15 Cox, C. C. 425.

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John Coleridge, 1st Baron Coleridge24

British lawyer, judge and Liberal politician 1820–1894

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“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)

“"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.

“When the Court see reason to suspect that justice has not been done to any particular defendant, they will in their discretion direct a further enquiry into the merits of the cause.”

William Henry Ashurst (judge) (1725–1807) English judge

The King v. Holt (1793), 5 T. R. 444.

“It is the more fit for the Supreme Court to give some certain rule in it that may regulate and guide the judgment of inferior Courts.”

Robert Atkyns (judge) (1621–1710) Lord Chief Baron of the Exchequer and Speaker of the House of Lords

11 How. St. Tr. 1213.
Trial of Sir Edward Hales (1686)

“It was said by a very learned Judge, Lord Macclesfield, towards the beginning of this century that the most effectual way of removing land marks would be by innovating on the rules of evidence; and so I say. I have been in this profession more than forty years, and have practised both in Courts of law and equity; and if it had fallen to my lot to form a system of jurisprudence, whether or not I should have thought it advisable to establish two different Courts with different jurisdictions, and governed by different rules, it is not necessary to say. But, influenced as I am by certain prejudices that have become inveterate with those who comply with the systems they found established, I find that in these Courts proceeding by different rules a certain combined system of jurisprudence has been framed most beneficial to the people of this country, and which I hope I may be indulged in supposing has never yet been equalled in any other country on earth. Our Courts of law only consider legal rights: our Courts of equity have other rules, by which they sometimes supersede those legal rules, and in so doing they act most beneficially for the subject. We all know that, if the Courts of law were to take into their consideration all the jurisdiction belonging to Courts of equity, many bad consequences would ensue. To mention only the single instance of legacies being left to women who may have married inadvertently: if a Court of law could entertain an action for a legacy, the husband would recover it, and the wife might be left destitute: but if it be necessary in such a case to go into equity, that Court will not suffer the husband alone to reap the fruits of the legacy given to the wife; for one of its rules is that he who asks equity must do equity, and in such a case they will compel the husband to make a provision for the wife before they will suffer him to get the money. I exemplify the propriety of keeping the jurisdictions and rules of the different Courts distinct by one out of a multitude of cases that might be adduced.... One of the rules of a Court of equity is that they cannot decree against the oath of the party himself on the evidence of one witness alone without other circumstances: but when the point is doubtful, they send it to be tried at law, directing that the answer of the party shall be read on the trial; so they may order that a party shall not set up a legal term on the trial, or that the plaintiff himself shall be examined; and when the issue comes from a Court of equity with any of these directions the Courts of law comply with the terms on which it is so directed to be tried. By these means the ends of justice are attained, without making any of the stubborn rules of law stoop to what is supposed to be the substantial justice of each particular case; and it is wiser so to act than to leave it to the Judges of the law to relax from those certain and established rules by which they are sworn to decide.”

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

Bauerman v. Eadenius (1798), 7 T. R. 667.

“Action to be effective must be directed to clearly conceived ends. Life is not all logic, and those ends will have to be varied from time to time to fit in with it, but some end must always be clearly envisaged.”

Jawaharlal Nehru (1889–1964) Indian lawyer, statesman, and writer, first Prime Minister of India

Autobiography (1936; 1949; 1958)

“It is obvious that "obscenity" is not a term capable of exact legal definition; in the practice of the Courts, it means "anything that shocks the magistrate."”

Bertrand Russell (1872–1970) logician, one of the first analytic philosophers and political activist

Source: 1920s, Sceptical Essays (1928), Ch. 10: Recrudescence of Puritanism

“Born and bred, so to say, in Chancery, I have a strong leaning towards the rule of the Court of Chancery, of requiring full discovery.”

Arthur Kekewich (1832–1907) British judge

Ashworth v. Roberts (1890), L. J. Rep. (N. S.) 60 C. D. 28.

“Court proceeding,except for certain limited situations,are open to the public.This is for the protection of the accused,to be certain to ascertain that there is a fair trial.”

Walter Cronkite (1916–2009) American broadcast journalist

Free the Airwaves! (2002)

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John Coleridge, 1st Baron Coleridge24

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