The US House of Representatives on 18 December 2019 during the vote to impeach President Donald Trump of abuse of power and obstruction of Congress
7 December 2022
[A longer version of this post, containing information about how the definition of legislature is relevant to an important case before the US Supreme Court in December 2022 is available through my Substack.]
As we use the term today, legislature refers to a deliberative body, usually elected, that is empowered to make, change, or repeal laws, that is, a parliament or congress. The legislature of a state is distinct from the executive or judicial branches of a government. But that is not the original meaning of the word.
Legislature, along with related words like legislative and legislator, was formed in English based on the Latin root legis, the singular genitive of lex, meaning law and latus, the perfect and future form of fero, meaning to carry or to make, so legislature is literally the making of laws. Cognate words appear in European languages at about the same time and undoubtedly influenced one another.
The original sense of legislature was that of power to make laws and was not related to any particular governing entity. We see this sense appear in a 19 December 1659 letter by John Jones, a royalist officer, to Hardress Waller, who opposed the restoration of the monarchy after Cromwell’s death and had instigated a rebellion in Limerick against the English:
The sense I have of [the] ruine and desolation w[hich] the English Interest and people will inevitably be brought unto, by that Rash Action lately comitted [sic] By those how yo[u] have comissioned [sic] for [that] end, Which tends to the Engaging of [the] English fforces in Ireland, one against another, The casting off the English Governm[ent] & Parliamentary Authority in this nation, and by yo[ur] assuming a Power of Legislature to Command the fforces as Major Gen[erall] of [the] Army.
And we see it again in Gilbert Burnet’s Bishop Burnet’s History of His Own Time, written sometime before the Scottish cleric’s death in 1715. Burnet uses legislature to refer to the power to make canon law:
He told all those who loved Presbytery, or that did not much favour the Bishops, that it was necessary to keep them under, by making them depend absolutely on the King: This was indeed a transferring the whole legislature, as to the matters of the Church, from the Parliament, and vesting it singly in the King.
In the eighteenth century, dictionaries started to include the word, and we start to see the sense of the entity that makes laws appear. Benjamin Defoe’s 1735 New English Dictionary defines legislature as follows:
LEGISLATURE, the making of Laws, or Power which makes them.
Samuel Johnson’s 1755 dictionary has a very similar definition:
The power that makes laws.
And another, less well known, 1755 dictionary gives a similar definition, but also makes a specific reference to how that power is executed in England. In his revision of Nathan Bailey’s New Universal Etymological English Dictionary, Joseph Nicol Scott refers to three parts of the legislature but does not specify what those parts are. Presumably he expected his readers to know:
LEGISLA´TURE (of latura legis, Lat.) the authority of making laws, the power that makes laws. Consent of all three parts of the legislature. Hale.
But Scott was not the first to refer to the three parts of the English legislature. In his History of the Common Law of England, Matthew Hale makes a point of saying that they are the two houses of parliament and the crown. The book was written sometime before Hale’s death in 1676, but wasn’t published until 1713:
Those laws therefore that I call Leges Scripæ, or written Laws, are such as are usually called Statute Laws, or Acts of Parliament, which are originally reduced into Writing before they are enacted, or receive any binding Power, every such Law being in the first Instance formally drawn up in Writing, and made, as it were, a Tripartite Indenture, between the King, the Lords and the Commons; for without the concurrent Consent of all those Three Parts of the Legislature, no such Law is, or can be made: But the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have the Power to make New Laws, or to alter, repeal, or enforce the Old. And this has been done in all Succession of Ages.
But legislature could also refer to just parliament. In a 6 February 1716 political essay, Joseph Addison gives a cynical description of the Tory party’s view of the legitimacy of the opposing Whig part, saying the Tories believe:
That the Legislature, when there is a majority of Whigs in it, has not power to make laws.
Finally, bringing it to the other side of the Atlantic, Noah Webster’s 1828 dictionary defines legislature broadly, including the executive, be it monarch, president, or governor within the bounds of the term:
LEĠ´ISLATE, v. i. (L. lex, legis, law, and fero, latum, to give, pass or enact.)
To make or enact a law or laws. It is a question whether it is expedient to legislate at present on the subject. Let us not legislate, when we have no power to enforce our laws.
LEĠISLA´TION, n. (Fr.) The act of passing a law or laws; the enacting of laws.
Pythagoras joined legislation to his philosophy. Littleton.
LEĠ´ISLATIVE, a. (Fr. legislatif.) Giving or enacting laws; as a legislative body.
2. Capable of enacting laws; as a legislative power.
3. Pertaining to the enacting of laws; suitable to laws; as the legislative style.
4. Done by enacting; as a legislative act.
(Note. In this word, and in legislator, legislatrix, legislature, the accent is nearly equal on the first and third syllables, and a, in the third, as its first or long sound.)
LEĠISLA´TOR, n. (L.) A lawgiver; one who makes laws for a state or community. This word is limited in its use to a supreme lawgiver, the lawgiver of a sovereign state or kingdom, and is not applied to men that make the by-laws of a subordinate corporation.
LEĠISLA´TORSHIP, n. The office of a legislator. (Not in use.) Halifax.
LEĠISLA´TRESS / LEĠISLA´TRIX, n. A female who makes laws. Tooke.
LEĠISLA´TURE, n. [Sp. legislatura.] The body of men in a state or kingdom, invested with power to make and repeal laws; the supreme power of a state. The legislature of Great Britain consists of the house of lords and the house of commons with the king, whose sanction is necessary to every bill before it becomes a law. The legislatures of most of the states in America, consist of two houses or branches, but the sanction of the governor is required to give their acts the force of law, or a concurrence of two thirds of the two houses, after he has declined and assigned his objections.
We can clearly see that while in the late eighteenth century one might have used legislature to refer to the congress or parliament alone, it was more usually understood to include all who had a part in making laws, including the executive functions of government. The original sense of the power or function of making laws would not survive the eighteenth century, and the narrowing of the meaning of legislature to include only congress or parliament would happen in the nineteenth century.
Sources:
Addison, Joseph. “No. 14, The Political Creed of a Tory Malecontent.” The Freeholder, 6 February 1716, 85. HathiTrust Digital Library. https://www.hathitrust.org/
“Brief for Petitioners.” Moore v. Harper, Supreme Court of the United States, no. 21-1271, 29 August 2022.
Burnet, Gilbert. Bishop Burnet’s History of His Own Time, vol. 1 (before 1715). The Hague?: 1724, 330–31. Eighteenth Century Collections Online (ECCO).
Constitution of the United States: A Transcription. US National Archives, 16 August 2022.
Defoe, Benjamin Norton. A New English Dictionary. Westminster: John Brindley, et al. 1735, s.v. legislature. Eighteenth Century Collections Online (ECCO).
Hale, Matthew. The History of the Common Law of England (before 1676). London: J. Nutt, 1713, 2. Eighteenth Century Collections Online (ECCO).
Johnson, Samuel. A Dictionary of the English Language, vol. 2 of 2. London: W. Strahan, 1755, s.v. legislature. Johnson’s Dictionary Online.
Jones, John. Letter to Hardress Waller, 19 December 1659. In Joseph Mayer. “Inedited Letters of Cromwell, Colonel Jones, Bradshaw, and other Regicides.” Transactions of the Historic Society of Lancashire and Cheshire, New Series, vol. 1. Liverpool: Adam Holden, 1861, 292–93. HathiTrust Digital Library. https://www.hathitrust.org/
Lancashire, Ian, ed. Lexicons of Early Modern English, 2021.
Millhiser, Ian. “The Deranged Supreme Court Case that Threatens US Democracy, Explained.” Vox.com, 4 December 2022.
Oxford English Dictionary, third edition, March 2016, s.v. legislature, n.
Scott, Joseph Nicol and Nathan Bailey. A New Universal Etymological English Dictionary. London: T. Osborne, et al., 1755. s.v. legislature. Eighteenth Century Collections Online (ECCO).
Webster, Noah. An American Dictionary of the English Language, vol. 2 of 2. New York: S. Converse, 1828. Internet Archive.
Image credit: Clerk of the US House of Representatives, 2019. Wikimedia Commons. Public domain image.