Cyclopædia of Political Science, Political Economy, and the Political History of the United States
ARBITRARY POWER. In the common acceptation of the term arbitrary power is an act of the will not guided nor restricted by any law. It is characteristic of all absolute governments to become arbitrary, but in theory we can well conceive of a power without external limits, which would impose limits to itself and respect the limits thus self-imposed. Should such a government exist, we can readily comprehend that it would have warm adherents. Nevertheless, we believe, that in an enlightened nation, public sentiment will never be favorable to arbitrary power.
—Such power destroys morality, security, and patriotism itself; and this the more, the further it is carried. But it would be an error to look for arbitrary power only in despotic states. Frequent examples of its exercise are found under constitutional governments and even in republics, in countries governed by law and ranged by the Germans under the denomination of Rechtsstaat. These cases of arbitrary power should be charged to the account of the discretionary power which the laws are obliged to leave to a considerable number of officials, or rather to the account of citizens who submit to the abuse of power without making use of the legal defense at their command. If the functionary knew that every act of his, not justifiable by the necessities of the case, would be brought before the higher authority of the courts, or merely before the tribunal of public opinion, by way of the press, he would think twice before assuming the responsibility of it. If no one would consent to endure arbitrary power, no one would be arbitrary.
—The word arbitrary has in addition a philosophic meaning, which must not be confounded with its vulgar sense. We shall endeavor to define this in a few words and indicate the application it finds in governmental affairs.
—The actions of men are sometimes determined by natural laws, physical or moral. Sometimes again they are not affected by any insurmountable restriction. A man can not remain suspended in the air without support; here is a physical impossibility. A man can not be grateful for evil done him; this is a moral impossibility. But he is free to grant a month's delay and, if he wishes, two or three months' to a debtor; in a word, he can accept or grant a thousand different conditions in every one of the thousand circumstances of life. This is arbitrariness, for in strictness everything not materially or morally necessary, forced, or inevitable, is arbitrary. One arbitrates, chooses, among several solutions or methods of action, that which seems preferable for some reason. Now in a large number of cases the law should have settled the question. To cite but a single example: how long an interval should be allowed a criminal between judgment and appeal? A limit is necessary; it is not established by the nature of things; it is therefore necessary to fix it by legislation. The time adopted is chosen arbitrarily, though by no means capriciously or without reflection, but it would have been possible either to lengthen or shorten it. Once a law is enacted the tribunal which enforces it exercises no arbitrary power. We have laid stress on this acceptation of the word only with the intent of bringing home to the legislator the fact that when he is obliged to fix arbitrary limits he ought before making decision, to examine everything, to hear and weigh what may be said pro and con. Laws of this category cause most harm when they have not been made with that maturity of deliberation which should never be absent in an act so important. (See
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