1900.] HASTINGS—POLICE POWER OF THE STATE. 553 
with a real or supposed utility. However totally reflex and invol- 
untary the act may have now become, in the beginning some sort of 
desire gave the impulse. To overcome the habit that impulse must 
be steadily turned in some other direction. The perception of 
utility that is to be the guide must be clear and persistent enough 
to generate a habit before its object will be attained in establishing 
a law. 
All this is not of necessity belittling to written constitutions. By 
crystallizing valuable habits they may help to fix the latter in the 
polity, and to preserve them against a change for supposed utilities 
that are not really such, and that is what Sir Henry Maine credits 
our constitution with doing. By putting the results of a habit into 
a general principle its utility may be more manifest and its safety 
against competing tendencies to change be thus better secured. 
Generally, constitutional principles that represent real habits of 
action might be expected to prove ramparts of conservatism. Con- 
stitutional provisions that represent no settled habits will probably 
accentuate tendencies to change, and the result of the struggle may 
be something very far from that originally intended. Does our 
experience with the constitutional amendments since the civil war 
not clearly illustrate this? To quote 'Bagehot once more, it is in 
the undiscussed parts of much-discussed subjects that their obscu- 
rities lie. In the discussion of laws, their nature, advisability and 
effect, it has usually been the conscious, the intended, the utilita- 
rian part that has absorbed the attention—that is, the new has 
attracted all minds. That the old had left its marks and was go- 
ing to continue producing its effects, no matter how carefully it was 
sought to obliterate it, has usually been more or less forgotten. 
This is true even where the infusion of new adaptations into old 
matter is a very small part of the whole. 
But the new frequently proves in the end a strong leaven. So it 
comes that the immediate effects of political changes are disap- 
pointing, while ultimate consequences so far outrun expectations. 
Jefferson, in his disappointment at the working of the federal sys- 
tem in some respects, called the supreme judges a ’ ‘‘ subtle corps 
of sappers and miners constantly working underground ’’ to convert 
the constitution 
“from a coérdination of a general and special government to a general 
and supreme one alone.” 
1 English Constitution, chap. 6. 2 Works, vol. 7, p. 192. 
