Opinion of the Court.

We may remark in conclusion that the magnitude of the operation of the objection to these statutes does not affect the principles by which the result is reached. This is not the case of a system of laws attacked upon the ground of their invalidity as the product of revolution.

By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, National and State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities.

In Luther v. Borden, 7 How. 1, it was held that the question which of the two opposing governments of Rhode Island, namely, the charter government, or the government established by a voluntary convention, was the legitimate one, was a question for the determination of the political department, and when that department had decided, the courts were bound to take notice of the decision and follow it; and also that, as the Supreme Court of Rhode Island, holding constitutional authority not in dispute, had decided the point, the well-settled rule applied that the courts of the United States adopt and follow the decisions of the state courts on questions which concern merely the constitution and laws of the State. Mr. Webster's argument in that case took a wider sweep, and contained a masterly statement of the American system of government, as recognizing that the people are the source of all political power, but that as the exercise of governmental powers immediately by the people themselves is impracticable, they must be exercised by representatives of the people; that the basis of representation is suffrage; that the right of suffrage must be protected and its exercise prescribed by previous law, and the results ascertained by some certain rule; that through its regulated exercise each man's power tells in the constitution

Syllabus.

of the government and in the enactment of laws; that the people limit themselves in regard to the qualifications of electors and the qualifications of the elected, and to certain forms for the conduct of elections; that our liberty is the liberty secured by the regular action of popular power, taking place and ascertained in accordance with legal and authentic modes; and that the Constitution and laws do not proceed on the ground of revolution or any right of revolution, but on the idea of results achieved by orderly action under the authority of existing governments, proceedings outside of which are not contemplated by our institutions. Webster's Works, vol. 6, p. 217.

Discursive as are the views of petitioner's counsel, no violation of these fundamental principles in this instance is or could be suggested.

The State of Texas is in full possession of its faculties as a member of the Union, and its legislative, executive and judicial departments are peacefully operating by the orderly and settled methods prescribed by its fundamental law. Whether certain statutes have or have not binding force, it is for the State to determine, and that determination in itself involves no infraction of the Constitution of the United States, and raises no Federal question giving the courts of the United States jurisdiction.

We cannot perceive that petitioner is being otherwise dealt with than according to the law of the land. The judgment of the Circuit Court is

Affirmed.

LEEPER v. TEXAS.

ERROR TO THE COURT OF APPEALS OF THE STATE OF TEXAS.

No. 1239. Argued December 17, 18, 1890.- Decided March 30, 1891.

It must be regarded as settled that a petition for a writ of error forms no part of the record upon which action here is taken.

To give this court jurisdiction to review the judgment of a state court

Statement of the Case.

under section 709 of the Revised Statutes, because of the denial by the state court of any right, title, privilege or immunity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege or immunity was specially set up or claimed at the proper time and in the proper way. Whether statutes of a legislature of a State have been duly enacted in accordance with the requirements of the constitution of such State, is not a Federal question, and the decision of state courts as to what are the laws of the State is binding upon the courts of the United States. By the Fourteenth Amendment the powers of States in dealing with crime within their borders are not limited, except that no State can deprive particular persons, or classes of persons, of equal and impartial justice under the law; that law in its regular course of administration through courts of justice is due process, and when secured by the law of the State the constitutional requirement is satisfied; and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.

PLAINTIFFS in error were arraigned in the District Court of Coryell County, Texas, upon an indictment reading as follows: "In the name and by the authority of the State of Texas, the grand jurors for the county of Coryell, State aforesaid, duly organized as such at the January term, A.D. 1890, of the District Court for said county, upon their oaths in said court present that Jim Leeper and Ed. Powell, on or about the 17th day of December, A.D. one thousand eight hundred and eighty-nine, in the county of Coryell and State of Texas, did then and there, with malice aforethought, kill and murder J. T. Mathis, by then and there shooting him, the said J. T. Mathis, with a pistol, contrary to law and against the peace and dignity of the State;" and severally pleaded not guilty.

The cause being called for trial, the defendants made an application for a continuance, which was overruled, whereupon trial was had before a jury duly empanelled, which found each of the defendants guilty of murder and assessed his punishment at death, and judgment was entered accordingly. No motion to quash the indictment was made, nor objection raised thereto in the progress of the trial. But exceptions were taken to the action of the District Court in overruling the application of defendants for a continuance;

Statement of the Case.

in refusing to quash a special venire issued in the case; in the admission of testimony of other distinct offences committed near the scene of the murder and immediately afterwards; in the admission of testimony that upon an inspection of the body of one of the defendants after he had been arrested, his shirt having been taken off by the jailer, marks or bruises were found thereon, indicating that he had been struck one or more blows, which tended to corroborate the testimony of one of the witnesses; and to the failure of the court to charge in relation to murder in the second degree. Defendants moved for a new trial on the ground of error in these rulings, and also because one of the jurors was not qualified as such under the laws of Texas, in that he was not a freeholder in the State of Texas, although he had assumed to be such on his voir dire, and the fact was not discovered until after the trial, wherefore it was claimed defendants had not had a trial in accordance with law; and because the verdict was contrary to the law and the evidence. The motion for a new trial having been overruled, the cause was taken by appeal to the Court of Appeals of the State of Texas, and errors therein assigned, raising the same points as on the motion for new trial, and error in the action of the court in overruling that motion. The cause was submitted to the Court of Appeals on oral arguments and briefs and the judgment affirmed, the opinion being delivered by Judge Willson. A rehearing was afterwards applied for and the application heard on oral arguments and briefs, and overruled. An opinion was delivered on this motion by Judge Willson, and a dissenting opinion by Judge Hurt, who concurred in the views of the majority, except upon the question of the disqualification of the juror. These opinions are transmitted as part of the record.

The court decided that the evidence tending to show assaults upon other parties by the defendants, almost simultaneously with the assault made by them upon the deceased and at the same place, in pursuance of a general design to rob the parties assaulted, was admissible, such assaults being part of the res gesta; that it did not appear that one of the defendants was compelled to expose his body, or that his shirt was removed

Statement of the Case.

without his consent, nor was it shown what injury or prejudice might have been caused by the admission of the testimony as to the marks or bruises upon his body, and that in the manner in which the ruling of the court in relation to this matter was presented, it did not appear that any material error, if any at all, had been committed; that there was no evidence in the record that the defendants were drunk at the time of the homicide, and that the District Court was not called upon to instruct as to the law where a homicide is committed by a person who at the time is in a state of intoxication; that it was apparent, in view of the evidence adduced on the trial, that the testimony set forth in the application for a continuance was not probably true, and the refusal of the application did not afford good ground for a new trial; that under the statute a new trial could not be granted because of the disqualification of a trial juror; and that it did not appear that injury had resulted to the defendants by reason of such juror serving. Some other matters were also considered, and the court held that there was 66 no error apparent of record for which the conviction should be disturbed."

The objection to the special venire was that the sheriff, "although present in court, was not sworn and instructed, cautioned and directed, by the court as to the manner in which said venire should be by him selected, as required by law," but the bill of exceptions showed that the sheriff was ill and that the talesmen were summoned by two of his deputies, who were duly sworn, cautioned and instructed, and the opinion of the Court of Appeals makes no reference to the

matter.

The first ground assigned for the motion for rehearing was in these words:

"Because the court erred in holding as sufficient in substance and sustaining the bill of indictment in this case, the said bill of indictment, as is apparent on its face, not alleging all of the material elements of the crime of murder in the first degree or of any other crime, and for that reason being illegal and in contravention of the constitution of the State of Texas and of the United States, of which these appellants are now and

VOL. CXXXIX-30