Next to the conception of a visible church, no abstraction has had such an effect upon the minds of men as the idea of the State as an organization. The Roman Imperium has been a regnant principle in Europe for twenty centuries, against which the church in the Middle Ages made head with its doctrine of “The Two Swords”—church and empire. To the French mind “L'Etat” is something different from the body of Frenchmen or the French nation; and the old fashioned English idea of “God and the King” expressed a conception of an abstract sovereign power. It is strange that the people who have done most to alter the world's acceptance as to what government ought to be, have furnished no political creative mind, formulated no accepted philosophical basis for their government, and justify Bryce's dictum that the Americans have had no theory of the State, and have felt no need for one. “Even the dignity of the State has vanished. It seems actually less than the individuals who live under it—the nation is nothing but so many individuals. The government is nothing but certain representatives and officials.” Or as Tocqueville puts it: “As they perceive that they succeed in resolving without assistance all the little difficulties which their practical life presents, they readily conclude that everything in the world may be explained, and that nothing in it transcends the limits of the understanding.” It is true that the Americans are people who would speak disrespectfully of the equator if they knew of its existence; yet no people is more profoundly influenced by a body of political doctrine, only their point of view is that they practice freedom, equality and self-government, and therefore suppose that there must be definite principles behind those usages. While the French with their national acuteness in analysis and generalization deduce the principles of liberty from the nature of man and then strive to work them out in practice, the American theory of government is to be sought, not in treatises on political ethics or the disquisitions of American statesmen, but in the acts of assemblies, votes of conventions, proclamations of presidents and governors, and the thousand instances of exercise of an accepted authority.

The problem of devising forms of government for the insular dependencies that came to the United States as a sequel to our war with Spain presented, among others, this very special aspect; that the governments to be created should at one and the same time provide for a maximum of efficiency and carry with them the largest possible grant to the people governed of powers to manage their own affairs. The securing of either one of these considerations alone would have been a simple matter. Had the United States acquired Porto Rico and the Philippines under no moral obligation to extend to them the principles of self-government, the maximum of efficiency could easily have been attained by simply vesting all governmental powers, legislative, executive and judicial, in a few appointed officials, and holding them to a rigid accountability for the manner in which they might perform their duties. Or, the grant of self-government could have been attained by providing for a liberal form of government under which the islands would be left free to work out their own destinies with all of the dangers of misrule and inefficiency that the experience of other Latin-American countries has demonstrated to be present. To accomplish both, meant that means had to be devised for harmonizing these two considerations, which in their nature were more or less antagonistic, and that, in consequence, the problem to be solved was vastly more complicated and delicate than it otherwise would have been.

The Federal Constitution provides that no person shall be deprived of life, liberty or property without due process of law, and vests in the Federal Supreme Court the ultimate power to determine what is due process. The legality of any interference with person or property may always be questioned in judicial proceedings, and therefore depends, in the last analysis, upon its conformity to a rule of law laid down by the courts.

The most usual method of disturbing the individual in the enjoyment of his personal and property rights is by judicial proceedings, and no person without authority of some branch of the government can constitutionally imprison him or permanently appropriate his property by any other means. Conceivably, the doctrine might have obtained that the government and its agents acting in official capacities must also have recourse to the courts in any undertaking affecting private rights. But “due process” has been interpreted as meaning process in conformity with certain fundamental principles, rather than any specific and required mode of procedure. The courts have held that, in certain instances, the government may interfere with private rights through the action of its administrative agents, and that such agents may be vested with the power of final and conclusive determination of the facts on which their action is based.