In large measure, the specific contents of the phrase "due process of law" are to be ascertained by "an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." 11

7 Dartmouth Coll. v. Woodward, 4 Wh. 518; 4 L. ed. 629. 8 Pennoyer v. Neff, 95 U. S. 714; 24 L. ed. 565.

9 148 U. S. 657; 13 Sup. Ct. Rep. 721; 37 L. ed. 599. 10 115 U. S. 512; 6 Sup. Ct. Rep. 110; 29 L. ed. 463.

But this historical method of determining the meaning of the phrase is not to be exclusively resorted to, or when restorted to, the court concluded thereby. That is to say, the fact that a given procedure is not to be found accepted in English and prior American practice is not to be held as conclusively determining it not to be due process of law. If the procedure under examination can be shown to preserve the fundamental characteristics and to provide the necessary protection to the individual, which the Constitution was intended to secure, its novelty will not vitiate it. Thus in Hurtado v. California,12 in which substitution by the State of prosecution by information in lieu of indictment was recognized as valid, the court declare that a true philosophy of American personal liberty and individual right permits "a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give from time to time new expression and greater effect to modern ideas of self-government;" and that "this flexibility or capacity for growth and adaptation is the peculiar boast and excellence of the common law." "It follows," the argument concludes, "that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." And in Twining v. New Jersey13 the court declare that to adopt the principle that a procedure established in English law at the time of the emigration and brought to this country and practised here by our ancestors is necessarily an element in due process of law would be to fasten the procedure of the first half of the seventeenth century upon American jurisprudence like a straight jacket which could only be unloosened by constitutional amendment. It would be, as declared by Justice Matthews in Hurtado v. California, "to deny every quality of the law but its age, and to render it incapable of progress or improvement." 14

11 Twining v. New Jersey, 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97. 12 110 U. S. 516; 4 Sup. Ct. Rep. III; 28 L. ed. 232. 13 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97.