of the legislature.

Opinion of the Court.

Paschall, § 4872; Laws Texas, 1876, p. 36. It was the duty of the Secretary of State to keep, publish and distribute the laws. Paschall's Dig. §§ 5091, 5092, 4872 et seq.; Laws Texas, 1876, pp. 35, 313; Rev. Stats. 1879, pp. 394, 577, § 2722 et seq.

The Revised Statutes of Texas containing the codes in question were officially published in 1879, with the certificate of the Secretary of State as to the date when the law enacting them went into effect, and that the volume was a true and correct copy of the original bills on file in his department. For eleven years prior to the conviction of Duncan, these codes had been recognized and observed by the people of Texas; had been amended by the legislature, and republished under its authority; and their provisions had been repeatedly construed and enforced by the courts as the law of the land.

In Usener v. The State, 8 Texas, App. 177, the validity of the Penal Code in respect of its adoption by the legislature was passed upon and the law upheld; and that case was quoted with approval in Ex parte Tipton, 28 Texas, App. 438, a decision rendered as late as February, 1890. This decision ruled that an authenticated statute should be regarded as the best evidence that the required formalities were observed in its passage, and that the courts would not exercise the power of going behind it and inquiring into the manner of its enactment; and Blessing v. Galveston, 42 Texas, 641; Central Railway Co. v. Hearn, 32 Texas, 546; and Day Co. v. The State, 68 Texas, 526, were cited in support of the proposition. In one of these cases it was decided that the judicial department should not disregard and treat as a nullity an act of the legislature, because the journals of one or both houses failed to show the passage of the bill in strict conformity with all the directions contained in the constitution; and in another, that it would be conclusively presumed that a bill had been referred to a committee and reported on before its passage, as required by the constitution.

The language of the court in State v. Swift, 10 Nevada, 176, was quoted approvingly in Usener v. The State, and repeated in Ee parte Tipton: "Where an act has been passed by the

Opinion of the Court.

legislature, signed by the proper officers of each house, approved by the governor, and filed in the office of the secretary of state, it constitutes a record which is conclusive evidence of the passage of the act as enrolled. Neither the journals kept by the legislature, nor the bill as originally introduced, nor the amendments attached to it, nor parol evidence, can be received in order to show that an act of the legislature, properly enrolled, authenticated, and deposited with the secretary of state, did not become a law. This court, for the purpose of informing itself of the existence or terms of a law, cannot look beyond the enrolled act, certified to by those officers who are charged by the constitution with the duty of certifying and with the duty of deciding what laws have been enacted.”

In Usener's case, the court declared that, although not feeling in duty bound to do so, yet it had nevertheless examined the journals of the two houses, with regard to the bill entitled "An act to adopt and establish a Penal Code and a Code of Criminal Procedure for the State of Texas," and arrived at the conclusion that the act had received the legislative sanction in strict conformity with the constitution, so that if driven to such examination, the court was unhesitatingly of opinion that there would be no difficulty in the way of establishing that fact by them in every essential particular.

It is insisted that the extent of the disregard of constitutional requirements was not fully developed in that case, and that its authority was overthrown by Ilunt v. The State, 22 Texas, App. 396. But we are not called on to conclude how this may be or to anticipate the ultimate judgment of the courts of Texas, if they consider the controversy still an open one.

If the question of the invalidity of the codes was presented to the District Court of Maverick County, it must be assumed that it adjudged in favor of their validity, and as the case has been carried to the Court of Appeals, that it will there be adjudicated in accordance with the law of the State, and when so determined it is entirely clear that that adjudication could not be reviewed by the Circuit Court, or by us, on habeas corpus. And the result must be the same if the question has not been raised by the petitioner in the state courts.

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-settied 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 detendants 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;