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