It is very difficult to give any concise definition of what is meant by due process of law, but it has been well said that by the use of these words in constitutional guaranties the intent is "to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice" (per Johnson, Bank of Columbia v. Okely). To determine what are the established principles of private right and distributive justice recognized in the United States we must have reference to the common law as it was in force at the time the colonies became independent of Great Britain.

By due process of law is not meant in all cases judicial proceedings, for private property is frequently taken from its owner according to well-recognized methods and for legitimate purposes without the judgment of a court. Thus for non-payment of public taxes property may be sold under state authority, and the owner thereby deprived of it. In such cases due process of law consists of the regular proceedings provided for the assessment and collection of taxes. (See above, § 74.) Likewise, property may be taken for public use without the consent of the owner on compensation being made, and no procedure in a court is essential to determine the propriety of the taking or the amount of the compensation. (See above, § 63.) Again in the exercise of its police power the state may under some emergencies and for the public welfare destroy private property without the consent of the owner, although the necessity for such destruction has not been determined in any judicial proceeding. (See above, § 48.) In each of these cases the courts may be called upon ultimately to decide whether the taking or destruction of the property was in accordance with due process of law, but it is evident that the essential procedure constituting due process does not necessarily involve any action on the part of a judicial tribunal.

Although in the clause from Magna Charta above quoted and in the provisions relating to due process of law found in state constitutions, jury trial is referred to in the same connection, it is not to be inferred that even when due process of law involves a judicial trial it is essential that such trial be by jury. Other forms of trial are recognized by the common law and, except when jury trial is guaranteed, the form of trial may be determined by the law. Thus notwithstanding the general guaranty of jury trial where personal liberty is in question, courts may in some cases deprive a person of his liberty otherwise than by a jury trial, without violating the guaranty of due process. Courts, and for that matter legislative bodies also, may punish persons for contempt without a jury trial (Eilenbecker v. Plymonth County and In re Debs). Likewise by special proceedings and for proper cause an attorney may be disbarred and the right to earn his living by the practice of his profession cut off without a jury trial (Ex parte Wall). Again in military tribunals trial by jury is not provided for according to the forms of the common law, although such tribunals may punish violations of the military law by death or imprisonment.

Due process of law does not necessarily require indictment by grand jury (see above, § 229), nor trial by jury in civil suits at law. (See above, § 253.) Other methods of judicial trial may be substituted, except, of course, in so far as jury trial is required by constitutional provision.

In fact, the phrase "judgment of his peers" which is used in Magna Charta in connection with the words "law of the land," and which is usually interpreted as meaning jury trial, did not have that meaning when it was first used (Hurtado v. California), for a jury trial as we now know it was not then in existence. But a discussion of the guaranty in Magna Charta would not be profitable. The essential of due process of law in judicial proceedings is that there be some regular, orderly method provided for the determination of the case presented to the court for decision. "Due process of law," says Judge Cooley in his Constitutional Limitations, "in each particular case means such an exertion of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs."