In the business of adjudication, as the application of the law to the individual case, two sides are distinguished: first, the cognition of the character of the case according to its immediate singularity — whether a contract, and so on, exists, whether an injurious act has been committed, and who is its perpetrator — and, in penal law, the reflection that determines the act according to its substantial, criminal character (§ 119, Remark); second, the subsumption of the case under the law of the restoration of right, under which, in penal matters, punishment is comprised. The decisions concerning these two different sides are different functions.

In the Roman judicial constitution, the distinction between these functions occurred in this way: that the praetor gave his decision in the case that the matter stood thus or so, and that he appointed a special iudex to investigate how the matter actually stood. — The characterization of an act according to its determinate criminal quality (whether, for example, it is murder or manslaughter) is, in English legal procedure, left to the discretion or the arbitrary judgment of the prosecutor, and the court can adopt no other determination, even if it finds that one to be incorrect.