Arbitrary power

“ And it is not too much to say of the whole of these proceedings that if they shall be approved and sustained by an intelligent people, then will that great contest with arbitrary power which had established in statutes, in bills of rights, in sacred charters, and in constitutions of government the right of every citizen to a notice before trial, to a hearing before conviction, and to an impartial tribunal for deciding on the charge have been waged in vain. ”

“ This arbitrary power is not to be had by conquest. Nor can any sovereign have it by succession; for no man can succeed to fraud, rapine, and violence. Those who give and those who receive arbitrary power are alike criminal; and there is no man but is bound to resist it to the best of his power, wherever it shall show its face to the world.
Law and arbitrary power are in eternal enmity. ”

“ If there be one, then I shall deplore that the Constitution and laws of this Republic are so defective in their most essential aims as to sanction an exercise of arbitrary power which in no free country on the face of the globe would be admitted a single moment. ”

“ Arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must of necessity perish whenever they are brought into conflict. ”

“ Under our institutions arbitrary power over another's lawful pursuits is not vested in any man nor in any tribunal. It is odious wherever exhibited, and nowhere does it appear more so than when exercised by a judicial officer toward a member of the bar practising before him. ”

“ It has been wisely and aptly said that this is a government of laws, and not of men; that there is no arbitrary power located in any individual or body of individuals; but that all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them. ”

“ The statute puts the constituents of each of those separate classes on the same plane of equality. It is not arbitrary legislation, except in the sense that all legislation is arbitrary. If it be within the power of the legislature to enact the statute, then arbitrariness cannot be predicated of it in a court of law. And it cannot be held to be beyond legislative power simply because of its classification of occupations. ”

“ The power of discretionary disqualification by one law of Parliament, and the necessity of paying every debt of the Civil List by another law of Parliament, if suffered to pass unnoticed, must establish such a fund of rewards and terrors as will make Parliament the best appendage and support of arbitrary power that ever was invented by the wit of man. This is felt. The quarrel is begun between the Representatives and the People. The Court faction have at length committed them.
In such a strait the wisest may well be perplexed, and the boldest staggered. ”

“ First, due process of law requires the States to protect individuals against the arbitrary exercise of state power by assuring that the fundamental policy choices underlying any exercise of state power are explicitly articulated by some responsible organ of state government. Second, due process of law is denied by state procedural mechanisms that allow for the exercise of arbitrary power without providing any means whereby arbitrary action may be reviewed or corrected. ”

“ Doctrines are sometimes advanced upholding the most arbitrary power in the courts, utterly inconsistent with any manly independence of the bar. The books, unfortunately, contain numerous instances where, for slight offences, parties have been subjected to oppressive fines, or deprived of their offices, and, consequently, of their means of livelihood, in the most arbitrary and tyrannical manner. ”

“ ECS Wade) . He said (at p.202 of that edition) that the rule of law “means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.” ”

“ It is of the essence of judicial power that judges in deciding cases shall be bound by principles, rules and precedents, that they shall not be permitted to exercise arbitrary discretion, and that they shall be required to give reasons for their decisions. A court bound by no rules or principles at all would not be exercising judicial power as we understand that term. ”

“ It is to thrust upon the courts a burden that they have no precedents to enable them to carry, and to give them a power approaching the arbitrary, the abuse of which might involve our whole judicial system in disaster. ”

“ or we may find, by our own unhappy experience, that there is a natural and necessary progression from the extreme of anarchy to the extreme of tyranny, and that arbitrary power is most easily established on the ruins of liberty abused to licentiousness. ”

“ The Legislative cannot Justly assume to itself a power to rule by extempore arbitrary decrees; but it is bound to see that Justice is dispensed, and that the rights of the subjects be decided, by promulgated, standing and known laws, and authorized independent Judges ”

“ Though the obligations of contracts must yield to a proper exercise of the police power, [6] and vested rights cannot inhibit the proper exertion of the power, [7] it must be exercised for an end which is in fact public and the means adopted must be reasonably adapted to the accomplishment of that end and must not be arbitrary or oppressive. ”

“ If the means employed have no substantial relation to public objects which the government may legally accomplish, if they are arbitrary and unreasonable beyond the necessities of the case, the judiciary will disregard mere forms and interfere for the protection of rights injuriously affected by such illegal action. ”

“ I would have been glad to add the additional requirement that no power should be admitted which would not make arbitration reciprocal—that is, no power which, while aiding to arbitrate for others, would not accept arbitration between itself and another power. ”

“ It is a matter for the exercise of legislative discretion, and the equal protection of the law is not denied where the classification is not so unreasonable and extravagant as to be a mere arbitrary mandate. ”

“ If you want to ascertain whether your system will stand in all weathers, you must test it when the rule of law and order have replaced that of arbitrary will—when men present themselves, not as the scared recipients of bounty, but as the assertors of admitted rights. ”

“ It would be arbitrary, in the proper sense of the term, for an official to act in the teeth of a statute or stubbornly to refuse to act at all where a statute commands action, but where he essays to exercise the jurisdiction conferred upon him, though his errors may be subject to subsequent correction, they cannot be enjoined as an arbitrary exercise of his authority. ”

“ If they attempt to act arbitrarily, without investigation, or without the exercise of judgment and discretion, or if they fix rates so palpably unreasonable and unjust as to amount to arbitrary action, they violate their duty, and go beyond the powers conferred upon them. ”

“ It would therefore be necessary, in order to legitimise an arbitrary government, that in every generation the people should be in a position to accept or reject it; but, were this so, the government would be no longer arbitrary. ”

“ Why, then, borrow trouble where experience has shown that there is no danger of mischief? The most trustworthy compelling power will always be the sense of honor of the parties concerned and their respect for the enlightened judgment of civilized mankind which will watch the proceedings.
We may therefore confidently expect that a permanent system of arbitration will prove as feasible as it is desirable. Nor is there any reason to doubt that its general purpose is intelligently and warmly favored by the best public sentiment both in England and in the United States. ”

“ Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, by that abuse of power, they violate the law. ”

“ As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms 'due process of law' a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as are forbidden. ”

“ In this century not less than eighty controversies between civilized Powers have been composed by arbitration. And more than that. Every international dispute settled by arbitration has stayed settled, while during the same period some of the results of great wars have not stayed settled, and others are unceasingly drawn in question, being subject to the shifting preponderance of power. And such wars have cost rivers of blood, countless treasure and immeasurable misery, while arbitration has cost comparatively nothing. ”

“ It reduces to actual practice and in the form of a legislative enactment, sanctioned by judicial approval, the illustration that is generally made for the purpose of showing that there are some things so contrary to justice as to admit of no doubt of their utter illegality; such as the arbitrary taking, under the form of a legislative enactment, of the property of one man and bestowing it upon another. ”

“ A law that punishes a citizen for an innocent action, or in other words, which, when done, was in violation of no existing law; a law that destroys or impairs lawful private contracts; a law that makes a man a judge in his own case; or a law that takes property from A. and gives it to B.: it is against all reason and justice, for a people to intrust a legislature with such power ”

“ It very clearly appears, from this exposition of the powers of the general government and of the States, that there may be an exercise of concurrent jurisdiction in the case of a granted power; that the mere grant works no exclusion of State sovereignty, even where its concurrent exercise may lead to occasional interference in the policy of either government, and that nothing short of absolute and total repugnancy and contradiction will suffice. ”

“ As the liberty of contract guaranteed by the Constitution is freedom from arbitrary restraint,-not immunity from reasonable regulation to safeguard the public interest,-the question is whether the restrictions of the statute have reasonable relation to a proper purpose. ”

“ If one party resolves to demand what the other resolves to refuse, the dispute can be determined only by arbitration; and between powers who have no common superiour, there is no other arbitrator than the sword. ”

“ And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. ”

“ How is it when a tribunal of arbitration has studied the case and announced a decision? Though the workmen may be as free to strike as ever, such an action would put them at a fatal disadvantage. The arbitration has given to the public a basis for a judgment as to the equities of the dispute. If the tribunal is one which commands respect, a refusal to abide by its decision puts the men prima facie in the wrong. If they strike now, they reject a rate which is authoritatively pronounced just. ”

“ Some may say that the very thing by which an amicable settlement of differences becomes possible, is the power of legal compulsion known to be in reserve; as people submit to an arbitration because there is a court of law in the background, which they know that they can be forced to obey. ”

“ That state is a non-entity, as a sovereign power, the decisions of whose courts are subjected to such a revision. It is an anomaly in the science of government, that the courts of one independent government, are to control and reverse the judgments of the courts of another. The barriers and boundaries between the powers of two sovereign and independent governments, are so high and so strong, as to defy the jurisdiction, justly claimed by a superior court, over the judgments of such as are inferior. ”

“ Innumerable disputes arise between persons, without mala fides on either side, through misconception of their legal rights, or from not being agreed about the facts, on the proof of which those rights are legally dependent. Is it not for the general interest that the State should appoint persons to clear up these uncertainties and terminate these disputes? It cannot be said to be a case of absolute necessity. People might appoint an arbitrator, and engage to submit to his decision ”

“ That wherever there exists at law a complete and adequate power, either for the prosecution of a right or the redressing of a wrong, courts of equity, with the exception of a few cases of concurrent authority, have no jurisdiction or power to act. ”

“ How can a legal power exist which it is unlawful to use, or a legal right which cannot be exercised? Physical powers may exist, the action of which is prohibited: but legal powers exist only in action. They are contemplated only with a view to their exercise. ”

“ And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the "who should decide arbitrability" point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. ”