Page:Harvard Law Review Volume 9.djvu/328

300 300 HARVARD LAW REVIEW. posed, and none, it is believed, where there is no discretion at all. Certain remedies and forms of relief, in matters of civil jurisdiction, are said to be discretionary as contrasted with those which parties can demand as their right. Still, a judicial discretion, however wide, is to be exercised without favor, and according to the best judgment which the person intrusted with the discretion can form on the merits of each case. In various cases where the risk of discretion being perverted by outside influence or pressure has seemed greater than that of spontaneous partiality, the holders of discretionary power or authority are deliberately exempted from being called on to give an account of their reasons. In such cases the discretion is said to be not judicial but absolute. Examples are the protector of a settlement, and the governing bodies of schools under the Public Schools Act. Differences of personal character and local circumstances are often quite proper elements in the formation of such a judgment, but any introduction of mere per- sonal favor is an abuse. We still aim at assigning equal results to equal conditions. Judicial discretion is not an exception to the principle of equality, but comes in aid of it where an inflexible rule, omitting to take account of conditions that cannot be defined beforehand, would really work inequality. This implies that only such conditions are counted as are material for the purposes of the rule to be applied. Of course no two persons or events can be fully alike. What rules of law have to do is to select those conditions which are to have consequences of certain kinds; which being done, it is the business of the courts to attend to all those conditions, and, saving judicial discretion where it ex- ists, not to any others. A plaintiff who argues his case in person may be tedious and offensive, but the judge must nevertheless do him justice as fully as if his argument were excellent. This may seem too obvious for statement in England, but there are parts of the British Empire where it is not, or within recent times was not so. Suppose, on the other hand, it were a rule of law that no man who wore a white hat before May-day could take a legacy within the year. It would not be competent to any court to say that, as between A. and B., rival claimants for the same legacy, the legacy should be paid to A., notwithstanding that he had worn a white hat in April, because he was a poor man and more in want of money than B. The law cannot make all men equal, but they are equal before the law in the sense that their rights are equally the subject of protection and their duties of enforcement.