that which is left to the choice or arbitration of men, or not fixed by any positive law or injunction.

ARBITRARY Punishment, in Law, denotes, such punishments as are by statute left to the discretion of the judge. It is a general rule in arbitrary punishments, that the judge cannot inflict death. Hence all punishments that are not capital have acquired the name of arbitrary. ARB

arbitrary punishments, even although they be expressly pointed out by statute.