552 HASTINGS—-POLICE POWER OF THE STATE. [June 19, 
quently stretch an obscure implication into an absolute requirement 
of free trade between the states, which can yield to no police 
necessity for the suppression of the liquor traffic. 
The actual contents of the law, the actual extent and power of 
government, is determined by the adjustment to each other of two 
sets of habits: the habits of those in authority in regard to its ex- 
ercise and the habits of those in subjection as to obeying or resist- 
ing. Constitutional principles that have grown up out of the 
practice of a state and crystallized into an expression of habit are 
important so far as they indicate such habit. Provisions set up for 
their supposed utility are important only in so far as they create 
new habits, as we have so distinctly seen in the case of the four- 
teenth amendment. 
What is here said is no deprecation of intelligence or of con- 
siderations of utility in legislation or government. Habits of legal 
action, like all others, are subject to modification, and the modify- 
ing influences are intelligence and perception of consequences, 
unless, indeed, with? Mr. Bagehot, we place imitation first. But 
stronger than the tendency to imitate anyone else is the ten- 
dency to imitate one’s self. It is an invincible fact that when any- 
thing is to be proceeded with, it will be as far as possible along 
familiar lines, where the attention will not be so fatigued. 
Mimicry will furnish a competing suggestion and introduce ques- 
tions of consequences and utility, but the experiencing and pre- 
figuring of consequences is the force that finally alters habit. 
“Tt is the principle of utility accurately apprehended and steadily 
applied that affords the only clue to guide a man through these straits. 
It is for that, if any, and for that alone, to furnish a decision which 
neither party shall dare in theory to disavow.’’? 
This principle may be accepted as the * ‘‘ only one possible to fol- 
low in legislation.”’ 
But this ‘‘ utility ’’ will come in collision with established habits 
which now are such merely, and not only serve no generally useful 
purpose, but interfere with the attainment of some social end. It 
is for the lawgiver to remember that every habit can only be over- 
come by a substituted one. Every habit in its origin commences 
1 Physics and Politics, chap. 3, ‘¢ Nation Making.’”’ See, also, Tarde’s Loz de 
? Imitation, which we would rather call “ suggestion.”’ 
? Bentham, Fragment on Government, chap, 4, sec. 15. 
3 Maine’s Popular Government, 166. 
