Discretion is Science for Discerning Law
Coke as systematizer in defiance of rulers and crooked private opinion
Sir Edward Coke [1552–1634] judged:
And notwithstanding the said words of the said Commission give authority to the Commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and Law. For discretion is a science or understanding to discern between falsity and truth, between right and wrong, and between shadows and substance, between equity and colourable glosses and pretences, and not to doe according to their wills and private affections; for as one saith, Talis discretio discretionem confundit [Such a discretion confounds discretion] …
… Then the King said, that he thought the Law was founded upon reason, and that he and others had reason, as well as the Judges: To which it was answered by me, that true it was, that God had endowed his Majesty with excellent Science, and great endowments of nature; but his Majesty was not learned in the Lawes of his Realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by naturall reason but by the artificiall reason and judgment of Law, which Law is an act which requires long study and experience, before that a man can attain to the cognizance of it; And that the Law was the Golden metwand and measure to try the Causes of the Subjects; and which protected his Majesty in safety and peace: With which the King was greatly offended, and said, that then he should be under the Law, which was Treason to affirm, as he said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo et Lege. [The king ought not to be under any man, but under God and the Law] …
… No man can be a compleat Lawyer by universalitie of knowledge without experience in particular cases, nor by bare experience without universalitie of knowledge; he must be both speculative & active, for the science of the laws, I assure you, must joyne hands with experience …
… Undoubtedly it is a great contentment and satisfaction to an honest minde and a good conscience, especially in cases that concerne the life and liberty of a man, to follow the president of grave and reverend men: how beit for as much as all good Lawes are instituted, and made for the repelling of those evils that most commonly happen: For ad ea quae frequentius accidunt jura ad prantur [laws are adapted to those things which occur frequently] and principally doe respect the generall peace and profit of the people: and therefore we use to say, that a mischiefe is rather to be suffered then an inconvenience: That is to say, that a private person should be punished or damnified by the rigour of the Law, then a general rule of the Law should be broken to the generall trouble and prejudice of many. It is therefore very necessary, that the Law and discretion should bee Concomitant, and the one to be an accident inseparable to the other, so as neither Law without discretion, least it should incline to rigour, nor discretion without Law, least confusion should follow, should bee put in use: my meaning hereby, is not to allow of every mans discretion that sitteth on the seate of Justice: (for that would bring forth a monstrous confusion). But I meane that discretion, that ariseth upon the right discerning, and due consideration of the true and necessary circumstances of the matter: and as wee commonly use to say, that Common Law is nothing else but common reason; and yet we meane thereby nothing lesse, then that common reason where-with a man is naturally endued, but that perfection of reason which is gotten by long and continuall study: so in associating discretion so neare to Law, it is not meant to preferre it to that society: each mans discretion, which commonly rather deserveth the name of affection and selfe-will, then of discretion indeed: but that discretion onely we allow of in this place, that either grave and reverend men have used in such cases before, or rise of the circumstances of the matter …
… The Discretion Of The Justices. That is to say, They, having declared the speciall matter pray the discretion of the Justices, which is as much to say, as, That they would discerne what the Law adjudgeth thereupon, whether for the Demandant or for the Tenant: for as by the authority of Littleton, Discretio est discernere per legem, quid sit justum [Discretion is to know through law what is just], that is, to discerne by the right line of law, and not by the crooked cord of private opinion, which the vulgar call Discretion: Si jure discedas, vagus eris, & erunt omnia omnibus incerta [If you depart from the law, you will go astray, and all things will be uncertain to everybody] and therefore Commissions that authorise any to proceed, secundum sanas discretiones vestras [according to your sane discretions] is as much to say, as, Secundum Legem & consuetudinem Angliae [According to the law and custom of England].
The Source:
Sir Edward Coke, The selected writings and speeches of Sir Edward Coke, Volumes 1 and 2, 1606, edited by Steve Sheppard, Liberty Fund 2003 [v1 143, 481; v2 38, 40, 145]
Social Science Files Category/Series:
Early modern society governing with systemization of law