in mines,' a ten-hour day for females in laundries, but not a ten-hour day for both males and females in bakeries, 3 or a truck act applying to all employers.*

The point which I wish to make is that if the highest state court declares a state law invalid as in violation of the state constitution such a decision is final. If, however, legislation upon the matter in question is introduced into the state constitution, the state court, if it again holds the enactment invalid, must declare it to be so because of its repugnance to the federal constitution, and in the latter case the state court is bound by the decisions of the Supreme Court of the United States interpreting the federal constitution with reference to the matter under consideration. For example, if an act establishing an eight-hour day in mines were held invalid as violating a state constitution, such legislation might then be introduced by amendment into the state constitution itself. The state court cannot then declare the eight-hour law for mines invalid as a violation of the federal constitution, because the Supreme Court of the United States has already held such a law not to be unconstitutional.

The state courts will thus continue to possess what is practically an absolute veto on state statutory legislation, and on state constitutional provisions which have not already been approved in substance by the Supreme Court of the United States. By introducing legislation into their state constitutions the states will, however, be entirely free to act within the fields in which legislation has already been upheld by the Supreme Court of the United States. Only legislation which has been passed

1 Holden v. Hardy, 169 U. S. 366.

'Muller v. Oregon, 208 U. S. 412. Under the Illinois case of Ritchie v. People, 155 Ill. 98, and under the New York case of People v. Williams, 189 N. Y. 131, it would seem that constitutional enactments will be necessary in these states to permit even such state legislation regarding the labor of women as was upheld by the United States Supreme Court in Muller v. Oregon.

3 Lochner v. New York, 198 U. S. 45.

* Knoxville Iron Company v. Harbison, 183 U. S. 13. Under Missouri Pacific Railway Company v. Mackey, 127 U. S. 205, and Railroad Company v. Pontius, 157 U. S. 209, it would seem that the states may also safely abrogate the fellowservant rule with reference to hazardous employments.

upon by the highest federal court may be safely introduced into state constitutions for the purpose of overcoming state judicial decisions. When introducing legislation into its constitution which has not been so tested, a state will naturally prefer to have the validity of such legislation contested in the federal rather than in its own courts, for it would thus avoid possible annulment of the enactment by the state court and would have the opportunity to obtain a final adjudication by the Supreme Court of the United States.

It may be objected that this simply results in transferring the judicial veto of legislation from one body to another, or rather from several bodies to one, leaving the Supreme Court of the United States to determine finally upon the expediency of all legislation, both federal and state; that it simply results in augmenting still further the powers of the federal government at the expense of the states.' This is true, but such a result, while not satisfactory, is better than the present condition, under which a court may block legislation in its own state while all other state courts and the Supreme Court of the United States may permit such legislation as not in conflict with constitutional provisions similar to those of the state in which such legislation is held invalid. One uniform rule, though unwise, is probably better than different rules for each of the forty-six

states.

Yet it is hardly proper in this connection to speak of the judicial decisions as establishing rules or principles. When the courts invade the field of public policy and pass upon the expediency or inexpediency of legislation, their decisions necessarily depend not upon any fixed rules of law but upon the individual opinions of the persons composing the court; and though in course of time precedents will be established upon a large number of questions, they will probably not obtain force as announcing or illustrating general principles, but simply as

1 The Supreme Court of the United States has already in recent years enlarged its jurisdiction with reference to state laws by refusing to follow judgments of state courts interpreting laws of their states and by itself determining whether the state courts have given proper effect to their state laws. See Henry Schofield in Illinois Law Review, vol. iii, p. 195, and Ernst Freund in Green Bag, vol. xvii, p. 412.

determining the precise questions upon which the court has passed, on the basis of the facts presented in each case. Anyone attempting to harmonize the cases of Holden v. Hardy, Lochner v. New York and Muller v. Oregon will find it difficult to discover in them any common principle. The tendency of the Supreme Court of the United States to limit itself to the facts of the particular case in matters of this character is especially apparent in Muller v. Oregon. In this case a statute was under consideration limiting the labor of women to ten hours a day "in any mechanical establishment, or factory or laundry." The case before the court involved the violation of this law with respect to a laundry, but would seem to have brought the validity of the whole statute into consideration. The court held that the act was not in conflict with the federal constitution "so far as it respects the work of a female in a laundry," thus leaving open for future decision the question of the constitutionality of the Oregon statute in so far as it affects a "mechanical establishment or factory."

It would be better if the courts were to leave the determination of legislative policy to the legislative bodies and were to construe constitutional provisions broadly and liberally. The courts might properly narrow to more nearly their true meaning the broad guaranties of the federal and state constitutions. They might, for example, logically and consistently refuse to declare laws unconstitutional as depriving individuals of the "equal protection of the laws," unless those objecting to the law could show that its operation was clearly unequal and that it imposed a burden out of proportion to the benefit obtained. However, there is little reason to expect that the federal and state courts will in the near future adopt a more liberal attitude toward legislation.

JOHNS HOPKINS UNIVERSITY.

W. F. DODD.

I Learned Hand in Harvard Law Review, vol. xxi, p. 501.

SECTIONALISM IN PENNSYLVANIA DURING THE REVOLUTION

HE colonization of America may in a sense be regarded

TH

as a practical manifestation of that discontentment with economic, political and religious conditions which prevailed among so large a number of thinking people in Europe during the seventeenth and eighteenth centuries. Those who were the most discontented were the first to emigrate. Before the close of the seventeenth century a fringe of English settlements was established along the Atlantic seaboard, from Massachusetts to South Carolina, by people whose interests and ideals were already antagonistic to those held by the ruling classes in the mother country. A struggle began at the very outset, therefore, which lasted throughout the colonial period and culminated in the Revolution. During the course of this conflict the stream of immigration was uninterrupted. In some of the colonies, especially in New England, where the newcomers were mostly of English blood, there was rapid assimilation. In others the newer elements pushed back into the interior and came to constitute separate groups of people, who often differed in race and religion from the original founders along the coast. The relations between these new groups and the coast people were very similar to those which existed between the latter and the mother country. The frontier was either governed entirely in the interest of the low country or was denied any adequate government at all. The result was a bitter sectional controversy, which now and then manifested itself in such spectacular episodes as the Regulator uprising in North Carolina, and the raid of the Paxton boys in Pennsylvania.'

The conflict was especially bitter in Pennsylvania because the

1 See F. J. Turner, in Annual Report of the American Historical Association, 1893, pp. 197-227; J. S. Bassett, ibid., 1894, pp. 141-212; W. A. Schaper, ibid., 1900, vol. i, pp. 237-463, especially pp. 245-252; C. H. Lincoln, The Revolutionary Movement in Pennsylvania, 1760–1776, passim.

points of view of the East and West were so radically different. At the beginning of the Revolution, English and Welsh Quakers controlled the city of Philadelphia and the three original southeastern counties of Philadelphia, Chester and Bucks. In adhering to their ideals of self-government, religious toleration and opposition to war they had already come into conflict with the proprietary interests in England and with the western settlers in the province itself. The first considerable non-Quaker element to arrive was the Germans. Their earliest settlement was made at Germantown in 1683, but later they advanced up the valleys of the Schuylkill and the Lehigh and westward to the Susquehanna, leaving an extensive neutral area about the city of Philadelphia. They outnumbered the Quakers as early as 1750, and by 1776 their influence was predominant in the present counties of Northampton, Lehigh, Berks, Schuylkill, Lebanon and Lancaster. Differing from the original settlers in race, language and religion, they ought, according to the ordinarily accepted rules of political science, to have constituted a serious element of danger. That they did not was partly because they had had no experience in practical politics in their own country and partly because the policy of the Quakers was on the whole popular. They were not loath to escape military service and they were glad of the opportunity to worship God in their own peculiar way. Some of their sects, the Mennonites, Schwenkfelders and Tunkers, for example, were as conscientiously opposed to war as the Quakers themselves. The attack upon the proprietors met their approval, not so much because of the fundamental principles of government involved as because it promised a means of avoiding the payment of quit rents. For these reasons they developed no politicians of their own but followed blindly the leadership of the Quakers. As President Sharpless says: "There could be

1A few Irish Quakers had also settled in this region, but they had been gradually assimilated by the English and the Welsh. See A. C. Myers, Immigration of the Irish Quakers into Pennsylvania, 1682–1750.

"The Germantown settlers are usually called Quakers, and in fact they very soon became associated with that society although it is generally believed that, at the time of their arrival, they were Mennonites.