5910) HASTINGS—POLICE POWER OF THE STATE. [June 19, 
grown almost to its full size no one remarked it as anything pecu- 
liar. Then the process of identifying it with something quite 
ancient, with which it was only remotely connected, began. 
The suggestion of Marshall’s was put forward to serve a need to 
enable the slave states to minister to their ‘‘ peculiar institutions,’’ 
while the national authority was nevertheless enforced. It was 
done almost involuntarily by judges who used it because it lay at 
hand and was available. Then it was used in the states to resist 
extravagant claims of property and corporate rights and to extend 
restraints over the liquor traffic. After the civil war it was needed 
again for the same purpose to enable the states to maintain their 
autonomy against the reconstruction legislation of Congress and the 
new amendments ; and, again, it was involuntarily seized upon and 
crowded into the gap. 
In such use it so wrought upon legislation that it finally triumphed 
cver the bills of rights almost completely, but the fourteenth con- 
stitutional amendment, almost wholly balked by our legal habits of 
its intended effect as to the negro race, was turned by those habits 
to the accomplishment of purposes in relation to property and legis- 
lation that the framers of it did not even remotely conceive. 
We have here, then, an edifice which no one planned, which de- 
veloped under the hands of learned and thoughtful men without 
their perception of it, took finally a form quite different from the 
thing that was meant, and all in regard to matters put forth in care- 
fully devised constitutions, the result of the utmost deliberation. 
Is there in the history of jurisprudence a stronger exhibition of the 
overwhelming force of habit and circumstances in shaping law, as 
compared with will and intention? Does not this show, indeed, 
that law derives its contents from the needs of the community for 
which it serves? 
Law, as Austin and Bentham thought, is established by the will 
of a lawgiver. ‘That much may be granted, but the Supreme Law- 
giver has ordained that it shall be maintained by habit. It be- 
comes law in effect only by reason of its ability to transform the 
compliance with it from a voluntary and intentional act into an in- 
voluntary and effortless habit. The wisest lawgiver is unable to 
foresee how far he can do that, for two reasons. He is not thor- 
oroughly acquainted with his subject’s habits, already formed, nor 
with their degree of persistence. He does not know what new 
forces may come to interfere with him. So it happened that Solon 
