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138 assignment of the reward, or penalty, due to its observance or violation.

To some extent these two forms of law must be associated, and, with every ordinance, the penalty of disobedience to it be also determined. But since the degrees and guilt of disobedience vary, the determination of due reward and punishment must be modified by discernment of special fact, which is peculiarly the office of the judge, as distinguished from that of the lawgiver and law-sustainer, or king; not but that the two offices are always theoretically, and in early stages, or limited numbers, of society, are often practically, united in the same person or persons.

112. Also, it is necessary to keep clearly in view the distinction between these two kinds of law, because the possible range of law is wider in proportion to their separation. There are many points of conduct respecting which the nation may wisely express its will by a written precept or resolve, yet not enforce it by penalty: and the expedient degree of