LEGISLATION. Under this bead of legislation, maybe considered, 1st. The meaning of the word ; 2nd. The distinction between the legislative and executive powers ; and 3rd. The difference between jurisprudential and legislative science.
1. Etymology of the icord.—A magistrate who proposed a law in Rome for the adoption of the assembly of citizens was said legem ferre (as we say, to bring a bill into parliament) ; and tho law, if carried, was said to be perlata, or simply late. Hence the term legum later, or legislator, was used, as synonymous with the Greek roaoeirns, in the sense of a lawgiver. From legislator have been formed legislation, legislative, and legislature (the latter word signifying a person or body of persons exercising legislative power).
Legislation means, therefore, the making of positive law. Positive law [Law] is made by the person or persons exercising the sovereign power in a community. The end of positive law is the temporal happiness of the community.
2. Distinction between legislative and executive powers.—A general command, or law, issued by a sovereign power would be nugatory, if it were not applied in practice to the cases falling within its scope, and if the pains denounced for the violation of it were not inflicted on transgressors. The execution of such general commands or laws is therefore an essential part of the business of a government.
An executive command, or act, of a government, or other authority, is a special command Issued, or act done, in the execution of a law previously established by the legislative power. These executive com mands or acts are of two sorts, namely, admi n ;strati re and judicial ; and the distinction between them may (in conformity with modern phraseology) be thus stated. A judicial proceeding is a declaration, by a competent authority, that a person has (or has not) brought himself within the terms of a certain penal provision, or that he has (or has not) a certain legal right or obligation which another disputes with him. An administrative proceeding is for the sake of carrying a rule of law into effect, where there is no question about the legal culpability, or dispute about a legal right or obligation of a person. In an adminis
trative proceeding the government functionary acts, or may act, spon taneously; in a judicial proceeding he does not act until he is acted upon by others. A judge cannot act until his court is (to use the French phrase) seized, or seisi, with the question ; or (to use the language of our ecclesiastical courts) it is necessary " to promote (or set in motion) the office of judge." (D6g6rando, ' Institutes du Droit admieistratif Francaie,' Paris, 1829.) The distinction between the making of laws and their execution is too obvious to have been overlooked by the ancient writers on govern ment. The latter subject was treated by them under the head of magistrates. (For example, Aristot., ' Pol.,' vi. 8.) The distinction has, however, attracted peculiar attention from both speculative and prac tical politicians since the beginning of the last century, in consequence of the great importance attributed by 3lontesquicu to the separation of the legislative, administrative, and judicial powers of government ; that is, the exercise of the administrative and judicial functions by officers distinct from the supreme legislative body, and from each other. (' Esprit des Lois,' xi., 6.) The legislative iunetisns of a government can be distinguished, logically, from its executive functions ; but these functions cannot, in every case, be severally vested in different persons. In every free government (or government of more than one) the legislative bodies exercise some executive functions : thus, in England, the House of Lords is an appellate court in civil cases, and the House of Commons decides in cases of contested elections of its own members. In every form of government the public functionaries, whose primary business is the execution of the laws, exercise a considerable portion of (dele gated) legislative power. It is scarcely possible to conceive a body of law so complete as not to require subsidiary laws for carrying the principal laws into execution, and a power of making these subsidiary laws must, to a greater or less extent, be vested in the executive functionaries.