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Page:Harvard Law Review Volume 2.djvu/91

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munity, its sovereign will 'that his rules shall obtain as law' is clearly evinced by its conduct, though not by its express declaration.

    • Like other significations of desire, a command is express

or tacit. If the desire be signified by words (written or spoken), the command is express. If the desire be signified by conduct (or by any signs of desire which are not words), the command is tacit"

" Now, when customs are turned into legal rules by decisions of subject judges, the legal rules which emerge from the customs are tacit commands of the sovereign legislature. The State which is able to abolish, permits its ministers to enforce them : and it, there- fore, signifies its pleasure, by that its voluntary acquiescence, * that they shall serve as a law to the governed.' "

The reasoning here presented rests, it will be noticed, entirely on the statement that the sovereign legislature has power to abolish the customary law ; but this assertion, while very nearly accurate in the present state of political development, is by no means univer- sally true. In most of the civilized countries of the world, perhaps in all of them, there exists to-day a legislative body which possesses such a power ; but this has not always been the case, for it is well known to students of early forms of law that the legislative function develops much later than the administrative or the judicial, and that law attains a considerable degree of perfection before a distinct idea of legislation makes its appearance. The practice, indeed, of creating law shows itself at first modestly and timidly, and attempt- ing to conceal its real nature, assumes the form of declaring exist- ing rules or regulating the methods of procedure and not that of deliberate innovation. For a long time custom is far moi'e potent as a source of law than legislation, and it is only by very slow degrees that the latter acquires the predominance. A certain class of laws, moreover, those which relate to the fundamental institutions of government, were not drawn completely within the sphere of legislation until very recent times. Louis XIV., for example, was the sole possessor of political power, and, therefore, absolute sover- eign in France ; but an attempt on his part to make Madame de Maintenon his successor on the throne would undoubtedly not have been considered by the bulk of his subjects as impairing his heir's right to the crown ; and although in some countries the royal succession was deliberately altered, yet the power of changing the