Dissenting Opinion: Field, J. These Justices were distinguished for their ability and learning, and it was the occasion of great pride to them that they had contributed by their labors to establish that freedom of interstate commerce from state interference which made the different States, commercially, one country. As said by Mr. Justice Bradley in Robbins v. Shelby Taxing District, 120 U. S. 489, 494: "In the matter of interstate commerce the United States are but one country, and are, and must be, subject to one system of regulations, and not to a multitude of systems." They recognized, with their associates, the right of the State to exercise its police power to the fullest extent, which the health, safety and good order of its people might require, over all property brought from another State within its limits when once mingled with its general property. But they did not admit that the police power of a State was superior to an express power of Congress, and a majority of the court then agreed with them. They respected the declaration of the Constitution that not only that instrument but that all laws of the United States passed in pursuance thereof were the supreme law of the land, and that the judges of every State were bound thereby, anything in the constitution or laws of any State to the contrary. (See Constitution, Art. VI.) They regarded the police power as complete upon all subjects to which it was applicable, but held that it could not be exercised so as to take property, which was an article of commerce, from the regulation of Congress. And on the subject of the relation to each other of the two powers, the police power of the State and the power of Congress over commerce, they often referred to the observations of Mr. Justice Catron, in The License Cases, 5 How. 504, 600, that that which from its nature or its condition, from putrescence or other cause, does not belong to commerce is within the jurisdiction of the police power; and that which does belong to commerce is within the jurisdiction of the United States, and that it is not within the power of the State, by its declaration, to determine what is and what is not an article of lawful commerce and thus determine what is and what is not exclusively under its control. Referring to the assumption of such power, that Dissenting Opinion: Field, J. learned Justice said: "Upon this theory, the power to regulate commerce, instead of being paramount over the subject, would become subordinate to the state police power; for it is obvious that the power to determine the articles which may be the subjects of commerce, and thus to circumscribe its scope and operation, is, in effect, the controlling one. The police power would not only be a formidable rival, but, in a struggle, must necessarily triumph over the commercial power, as the power to regulate is dependent upon the power to fix and determine upon the subjects to be regulated." These three Justices are no longer members of this court, but since they ceased to be members there has been no adjudication by it until the decision in this case, which, in any respect, changes its previous decisions upon the exclusive power of Congress over interstate commerce. In Chapman v. Goodnow, 123 U. S. 541, 548, this court, in considering section 709 of the Revised Statutes, providing for a review of the final judgment or decree in a suit in the highest court of a State, and speaking of the right or immunity which might be claimed under the Constitution, or a treaty, or statute of the United States, and the decision against them, which would authorize the reëxamination of the judgment or decree, said: "We are aware that a right or immunity set up or claimed under the Constitution or laws of the United States may be denied as well by evading a direct decision thereon as by positive action. If a Federal question is fairly presented by the record, and its decision is actually necessary to the determination of the case, a judgment which rejects the claim, but avoids all reference to it, is as much against the right, within the meaning of § 709 of the Revised Statutes, as if it had been specifically referred to and the right directly refused." Here the claim was rejected, though all reference to it was not avoided. Jurisdiction therefore attached. Having jurisdiction to review the judgment for the denial by the state court of the exclusive power vested in Congress to regulate commerce among the States, there ought not to be any hesitation in declaring that the judgment of the state court should for that reason be reversed. If not reversed of what avail Dissenting Opinion: Field, J. will it be to say that the power of Congress to regulate interstate commerce is exclusive of all state interference, and that parties dealing in such commerce are protected thereby, when the State can, at any moment, nullify such power by declaring that the delivery of the articles of commerce to parties within the respective States, in completion of a sale made to them in other States, shall constitute a penal offence, and no redress is left to the parties prosecuted? I can never assent to the assumption by the State of any such power as is here asserted. And I go further than the consideration of the question of interstate commerce involved. Having jurisdiction of the case on the ground stated, I think we may look into the whole record. And if it appears from the proceedings taken and the rulings made in the court below, on questions brought to its notice, that the rights of the accused, affecting his liberty or his life, have been invaded, this court may exercise its jurisdiction for the correction of the errors committed. The Fourteenth Amendment declares that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no State shall deprive any person of life, liberty or property without due process of law. I agree, as held in In re Rahrer, 140 U. S. 545, that those inhibitions do not invest Congress with any power to legislate upon subjects which are within the domain of state legislation. They only operate as restraints upon state action, like the prohibitions upon legislation by the States impairing the obligation of contracts, or to pass a bill of attainder or an ex post facto law. But in all cases touching life or liberty I deem it the duty of this court, when once it has jurisdiction of a case, to enforce these restraints for the protection of the citizen where they have been disregarded in the court below, though called to its attention. I do not pretend that this court should take up questions not arising upon the record, but I do contend that it is competent for the court when once it has acquired jurisdiction of a case to see that the life or liberty of the citizen is not wantonly sacrificed because of some imperfect statement of the party's rights. We have now jurisdiction to hear writs of error in certain criminal cases. Dissenting Opinion: Field, J. If such a case were brought before us upon objections to the admission of testimony and we should come to the conclusion that the objections were not tenable, but, at the same time, should perceive that the law, under which the accused was convicted, had been repealed or amended in the punishment imposed, we should not perform our whole duty if we allowed the party to be punished under the law repealed or with greater severity than the amended law authorized, simply because the precise objection was not taken in direct terms in the assignments of error. We should allow additional assignments to be filed, or take notice of the error of our own motion under Rule 21 stated below, that injustice and wrong may not be perpetuated. Section 997 of the Revised Statutes requires that there shall be annexed to and returned with a writ of error for the removal of a cause an assignment of errors, and Rule 21 of this court declares that when there is no assignment of errors, as required by that section, counsel will not be heard, except at the request of the court, and that errors not specified according to the rule will be disregarded. It adds, however, that the court at its option may notice a plain error not assigned or specified. This rule seems to provide for a case like the present; and I do not think we should be astute to avoid jurisdiction in a case affecting the liberty of the citizen. In opening the record in this case, we not only see that the exclusive power of Congress to regulate commerce was invaded, but we see that a cruel as well as an unusual punishment was inflicted upon the accused, and that the objection was taken in the court below, and immunity therefrom was specially claimed. The Eighth Amendment of the Constitution of the United States, relating to punishments of this kind, was formerly held to be directed only against the authorities of the United States, and as not applicable to the States. Barron v. Baltimore, 7 Pet. 243. Such was undoubtedly the case previous to the Fourteenth Amendment, and such must be its limitation now, unless exemption from such punishment is one of the privileges or immunities of citizens of the United States, which can be enforced under the clause, declaring that Dissenting Opinion: Field, J. "no State shall make or enforce any law which shall abridge" those privileges or immunities. In Slaughter-House Cases, 16 Wall., 36, it was held that the inhibition of that Amendment was against abridging the privileges or immunities of citizens of the United States as distinguished from privileges and immunities of citizens of the States. Assuming such to be the case, the question arises: What are the privileges and immunities of citizens of the United States which are thus protected? These terms are not idle words to be treated as meaningless, and the inhibition of their abridgment as ineffectual for any purpose, as some would seem to think. They are of momentous import, and the inhibition is a great guaranty to the citizens of the United States of those privileges and immunities against any possible state invasion. It may be difficult to define the terms so as to cover all the privileges and immunities of citizens of the United States, but after much reflection I think the definition given at one time before this court by a distinguished advocate Mr. John Randolph Tucker, of Virginia-is correct, that the privileges and immunities of citizens of the United States are such as have their recognition in or guaranty from the Constitution of the United States. Spies v. Illinois, 123 U. S. 131, 150. This definition is supported by reference to the history of the first ten Amendments to the Constitution, and of the Amendments which followed the late Civil War. The adoption of the Constitution, as is well known, encountered great hostility from a large class, who dreaded a central government as one which would embarrass the States in the administration of their local affairs. They contended that the powers granted to the proposed government were not sufficiently guarded, and might be used to encroach upon the liberties of the people. In the conventions of some of the States which ratified the Constitution a desire was expressed for Amendments declaratory of the rights of the people and restrictive of the powers of the new government, in order, as stated at the time, to prevent misconception or abuse of its powers. The desire thus expressed subsequently led to the adoption of the first ten Amendments. Some of these contain specific restrictions upon Congress; as |