LEGISLATION. 



LEGISLATION. 



1EB 





opposition from the legislative body, who, however, gave their sanc- 

 tion on the 19th of May. It waa to be a recompense for military and 

 civil services. The order consisted of five divisions : chevaliers, of 

 whom the number was unlimited, officers, commanders, grand officers, 

 and r/rand crosses. 



The Legion of Honour, though it undoubtedly seemed a forerunner 

 to that new nobility which Napoleon, in after years, collected around 

 his imperial throne, soon became an institution in the highest degree 

 important to his interests, and popular among the nation ; and has 

 outlived the fortunes of its founder. Its benefits were appreciated by 

 the Bourbons, who soon discovered that it was the most powerful 

 means they could employ of increasing their popularity, and giving 

 stability to their precarious position. The ordonnance of July IS), 

 1814, however, made some material changes. The right of members 

 of the Legion to vote in the electoral colleges was abolished ; the 

 ins were continued to the titularies already in receipt of them, 

 but only in proportion to the actual income of the body ; and future 

 appointments were to convey no such right. On the return of Bona- 

 parte in 1815, he ordered the paymentof the arrears, and the restoration 

 of the political privileges of the members. On his downfall the Legion of 

 Honour again felt the resentment of the restored monarch. In Dec., 

 1810, the pensions of the legionaries were provisionally reduced one- 

 half ; but this measure was repealed by the legislative bodies in 1820. 

 Under the two dynasties of Bourbons, the decoration was worn on 

 the breast of an Arago, a Guizot, and a Thiers, with equal honour, and 

 as much applause, as it had been on those of a Ney, a Masse'na, and a 

 Lannes. It is to the credit of the French nation that, while no other 

 people are perhaps so much under the influence of military renown, it 

 would be difficult to mention the name of any other country where 

 men of science and literature are more generally esteemed and rewarded. 

 The revolution of 1848, and the elevation of Napoleon III. to the 

 empire, have changed nothing in the institution of the Legion of Honour, 

 except by substituting the tri-color flag instead of those ornamented 

 by fleurs-de-lis. 



LEGISLATION. Under this head of legislation, may be 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. Eiymitlmjti nf the word. A magistrate who proposed a law in 

 Borne for the adoption of the assembly of citizens was said legem fa-re 

 (as we say, to iri'n.v a bill into parliament) ; and the law, if carried, 

 was said to be perlata, or simply lata. Hence the tenu li-gum lator, 

 or tfyalator, was used, as synonymous with the Greek yo/wOcTqr, in the 

 sense of a lawgiver. From legMttor have been formed legislation, 

 legislative, and leyinlature (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. /' '. tween leyitlative and txecutirc 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 



'reason. The execution of such general commands or laws ia 

 therefore an essential part of the business of a government. 



An ereculiee 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 sort*, namely, administrative 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 saiai, with the question ; or (to use the 

 language of our ecclesiastical courts) it is necessary " to promote (or 

 Bet in motion) the office of judge." (Dcgdrando, ' Institutes du Droit 

 dministratif Krancais,' Paris, 18 4 2'.i.) 



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 tmder the head of 

 maffittralf*. (For example, Aristot., ' Pol., vi. 8.) The distinction has, 

 however, attracted peculiar attention from both speculative ami prac- 

 tical politicians since the beginning of the last century, in COIIS<|M>-IM-<< 

 of the great importance attributed by Montesquieu to the separation 

 Of the legislative, administrative, and judicial powers of government ; 

 that in, the exercise of the administrative and judicial functions by 

 officers distinct from the supremo legislative body, and from each 

 other. (' Ksprit des Loin,' xi., 6.) 



The legislative functions 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. 



3. Difference uetitccn jurisprudential and legislative science. Positive 

 law may be viewed in the two following aspects. First, it may be 

 considered as an organic system, consisting of coherent rules, expressed 

 in a technical vocabulary. Secondly, its rules may be considered singly, 

 with reference to their tendency to promote the happiness of the com- 

 munity; in other words, their expediency or xitility. Law viewed 

 in the former aspect is properly the subject of the science of juris- 

 prudence. [JURISPRUDENCE.] Law viewed in the latter aspect is 

 the subject of a department of political science which is generally 

 termed legislative science. (Legislation, in strictness, is concerned 

 about the technical form, as well as the utility, of a law ; but the term 

 legislative science, as just defined, is sufficiently accurate for our 

 present purpose.) 



It is important to bear in mind the distinction, just pointed out, 

 between the scientific or technical excellency of a system of law, and 

 the expediency or utility of the rules of which it is composed. The 

 distinction, however manifest, has been frequently overlooked, even by 

 lawyers. Thus Sir AV. Blackstone, in describing the struggle made by 

 the clergy to substitute the Roman law for the common law of England, 

 gives the preference to the latter system on the ground of the imperial 

 government of Rome being despotic. The excellence of a system of 

 law, considered in a scientific point of view, has no connection with the 

 form of the government by which the laws were established. Law 

 may be, and lias been, cultivated as a science with admirable success 

 under very bad governments. The scientific cultivation of law in 

 Rome scarcely began until the Empire ; and the great legal writers of 

 France lived in times of political anarchy or despotism. A system of 

 law of which the practical tendency may be most pernicious, may have 

 the highest scientific or technical excellence. A code of laws establish- 

 ing slavery, and defining the respective rights and duties of master and 

 slave, might be constructed with the utmost juristical skill ; but might, 

 on that very account, be the more mischievous as a work of legis- 

 lation. On the other hand, a system of law may be composed of rules 

 having a generally beneficial tendency, but may want the coherency 

 and precision which constitute technical excellence. The English 

 system of law affords an example of the latter case. Owing to the 

 jHipular character of the legislature by which its rules were enacted or 

 sanctioned, it has a generally beneficial tendency ; but considered in a 

 scientific point of view it deserves little commendation. The writings 

 of Mr. Buutham, in like manner, are far more valuable contributions to 

 legislative than to jurisprudential science. The remains of the writings 

 of the Roman lawyers, on the other hand, are of little assistance tu the 

 modern legislator, but they abound with instruction to the jurist. 



The distinction between the technical excellence of a law and its 

 expediency, or (in other words) between its form and its substance, is 

 also important with reference to the question of codification, that is, 

 the making of a code of laws. 



The making of a code of laws may involve any one of the three 

 following processes : 1. The formation of a new system or body of 

 laws. 2. The digesting of written laws, issued at various times, and 

 without regard to system. 3. The digesting of unwritten law, con- 

 tamed in judicial decisions and authoritative legal treatises. The 

 ancient codes of law were, for the most part, works of new legislation ; 

 such were, for example, the codes of Solon and Draco, the Twelve 

 Tables, the code of Diodes of Syracuse, and others. The codices of 

 Theodosius and Justinian afford examples of the digesting of written 

 laws. The Digest or Pandect of Justinian affords an example of the 

 digesting of unwritten law. The French codes were not digests of 

 the existing law of France, either written or unwritten ; but they 

 were in great measure founded on the existing law. The same may be 

 said of the Prussian Laudrecht. The statutes for consolidating various 

 branches of the criminal law of England, the bankruptcy laws, the 

 customs laws, &c., are instances of the digesting of the written law of 

 England. The specimens hitherto furnished by different commissions 

 of a digest of the English common (or unwritten) law have only been 

 such as to prevent their being thrown into the shape of written law. 

 The digesting of existing law, whether written or unwritten, requires 

 merely juristical ability ; the making of new laws requires in addition 

 to the knowledge and skill of the jurist, that ability which we have 

 termed legislative. In other words, the making of new laws requires 

 both attention to their utility or expediency, and technical skill in the 

 composition or drawing of them. Popular forms of government secure 

 a tolerably careful examination of laws, with reference to their 

 expediency ; but they do not secure attention to the technical or 

 scientific department of legislation. Indeed nearly all the principal 

 codes of laws have emanated from despotic governments, namely 



