DISCRETION. In Practice. The equi table decision of what is just and proper under the circumstances.
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 con stitution, 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 gum minimum relinquit arbitrio judicie : optimue judex qui minimum MU. Bacon, Ap h. ; 1 Cas. 80, n.; 1 Powell, Mortg. 247 a; 2 Belt, 8uppl. to yes. 391; Tonllier, liv. 3, a. 338; 1 Lilly, Abr. 447.
2. There is a speoies of discretion which is au thorizbd by express law and without which justice cannot be administered: for example, if an old of fender, a man of much intelligence and cunning, whose talents render him dangerous to the com munity, 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 ease, has provided that the punishment should be proportioned so as to do jns ties, and it has left such apportionment to the dis cretion 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.
3. And many matters relating to the trial, such as the order of giving evidence, granting of new trials, etc., are properly left mainly or entirely to the discretion of the judge.
In Criminal Law. The ability to know and distinguish between good and evil,—be tween what is lawful and what is unlawful.
4. The age at which children are said to have discretion is not very accurately ascer tained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presump-* tion of innocence which is raised by an age so tender. 1 Hale, Pl. Cr. 27, 28; 4 Blackstone, Comm. 23. Between the ages of seven and fourteen the infant is, primd facie, destitute of criminal design ; but this presumption di minishes 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 maldia supplet cetatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, Pl. Cr. 25. •