1900.] HASTINGS—POLICE POWER OF THE STATE. 555)" 
found the brief years of his Asiatic journey sufficient to set aside 
nearly all those laws which his countrymen had sworn to observe 
forever. 
It requires but a moment’s reflection to recognize the over- 
whelming importance of habit in law. It is true that men do their 
actions in Schiller’s ‘‘ arrowy swift present.’’ That action is con- 
trolled by the future or by the past, or rather by the resultant of 
the two. If the present event merely touches the springs of habit 
and starts an action like similar ones in the past, then that past 
controls. If the habit is firmly enough fixed and the action 
has been often enough performed, and no disturbing consequences 
are in sight, its recurrence is merely reflex and unconscious ; less 
firmly fixed, it will be conscious and more or less adjusted to con- 
sequences. In those consequences and their perception lies the 
other force. The future works through them, and if they be clear 
and inevitable they speedily produce adjustments which themselves 
become habitual and may become unconscious. Witness those 
habits which enable man to employ fire, and the extent to which 
they are unconscious. 
The theory of the common law, that the courts did not make but 
found it, has this basis of habit—a set of habits controlling alike 
judge, officer and parties. The judge’s conception that his deter- 
mination has been made for him beforehand, if he can only adjust 
the case so as to bring the former determinations to bear upon it, 
is much nearer truth than the fiction that Bentham thought it. 
Mankind are not all endowed with Beutham’s passion for ‘‘utility.’’ 
If they were, they would, like him, contract habits in its pursuit. 
In dealing with the limitations of the powers of government in 
the states it is clear that we are dealing with habits. The real 
question attempted in this essay is, What are the habitual limits 
actually observed by the courts and adhered to in passing upon the 
rights of these parties who are contending on the one side that the 
legislature has gone beyond its powers, and on the other that its 
action is valid and has effected the intended alteration in the 
rights of the parties ? 
We perceive at once that precedents are much more than maxims , 
that actions speak louder than words. Legal habits on the one 
side and recognitions of utility on the other frequently leave very 
little of a high-sounding constitutional declaration, and as fre- 
PROC. AMBER. PHILOS. SOC. XXXIX. 163. JJ. PRINTED oOcT. 26, 1900. 
