lution possible; it was because of the centralizing of power and the taking away from the people their rights that has made all revolutions possible. As you study the philosophy of history and study the growth of government, you can reach no other conclusion than that the safety of our institutions rests in the fact that a man when he is brought into a tribunal of justice must be most sacredly guarded in all the rights given him by the Creator and the government under which he lives. It is not incumbent upon the defendant to furnish proof against himself; it is not incumbent upon the defendant to inform the prosecutors that they have not demanded of him the statement as to whether he was guilty or not. The defendant is to be fairly, honestly, and fearlessly defended and protected in his rights.

Take the great Plunket case-a man taken from his native home, the home of the ancestors of Judge Wade and myself, and tried in England by a jury of his peers. In view of the whole record they trampled at that time upon the rights of the people. Yet, it is said, he had a fair trial, and he answered with his life. Don't tell me, who has studied the history of England and her dependencies, and the growth of her government and laws, that you are doing your duty when you are listening to the cry of the mob. It is the cry of justice, the Goddess of Truth, that should guide us, and not a clamoring mob outside. We ought to be too big in our comprehension of human rights to say that the people are demanding a change in the individual rights of the citizen; we, as lawyers are too big in our comprehension of human rights to say that they should be frittered away by the cry of the mob. At this time the Nominating Committee made its report as follows:

REPORT OF THE NOMINATING COMMITTEE

For President, C. G. Saunders, Council Bluffs.
Vice President, H. E. Deemer, Red Oak.

Secretary, H. C. Horack, Iowa City.
Treasurer, Frank T. Nash, Oskaloosa.

Librarian, A. J. Small, Des Moines.

Upon motion duly made the Secretary was instructed to cast

the ballot of the Association for the respective nominees, which was accordingly done.

THE PRESIDENT: We will proceed with the discussion of the first recommendation of the Committee on Law Reform.

JUSTICE EMLIN MCCLAIN: I was in no hurry to get into this discussion, for the reason that I haven't any very strong predisposition one way or the other on this recommendation. I do not know that I shall vote for it or against it. That is not, as it seems to me, the important thing just now. It occurs to me, the important thing just now is, if we reach a conclusion, which I hope we may reach after so long a pendency of this proposition, that we shall reach it as a result of a rather independent conception of what is involved in the proposed reform.

Let me suggest to begin with, that I am not at all agitated or excited about the necessity for reform. I think it is well to reform, if there is any reform needed; I have no anxiety about going through the motions of reform, if there isn't any needed, even if the reform is from some point of view desirable. Nevertheless, if on the whole it is of doubtful utility, my bent of mind is to let it alone. Experiments are often dangerous. I think in our whole public system we are more in danger of losing what has been achieved by long and careful building up, than we are in danger of losing some blessing we did not quite estimate, but think it is just beyond our reach.

rather the things that One is, that it changes

The difficulties that occur to me, or ought to be considered, are perhaps two. the relation of the court and jury to the trial of a case. I am no great stickler for jury trials; we may be just as well off without a jury, but I know this Association does not intend to abolish jury trials. It may be that we would be better off if the judge exercised a larger function in determining the result of a case. That I do not care to discuss now. But that has not been the spirit of our judicial system in this State. I do not understand it is intended now to give knowingly to the judge or the appellate court a larger function in determining the results of a case than it now has.

So that we come down to this proposition: that the relation of

the court and the jury to the case is to be essentially modified by this change. It will not do to say, as some have said here: "Oh, well, it just gives the Supreme Court an opportunity to ignore errors that were evidently not prejudicial." It doesn't mean that; that is the law now. Don't misunderstand me. I know perfectly well, we can stand up here on two sides of that question, or rather you can; I am not standing on either side of it. On each side of the question you can cite illustrations by the hour; of cases not only where technicality has defeated justice, but on the other hand, where the court has over-ridden the functions of the jury and attempted to decide the case. We have got to be a little broader than that, because you cannot catalog illustrations, nor prove anything one way or the other by the results in particular

cases.

Let me say a word here about the criminal law. Most of the objections made by the current literature of the country, and by the men who are condemning the laxity of the courts in the administration of the criminal law, do not apply to this State. The other day I heard a discussion about reforms in law. The gentlemen were talking about things absolutely foreign to us. They were talking about difficulties they were settling by the Code of 1881, and I object to having our judicial system put down as an illustration by what may have been done in Illinois, New York, or Missouri. I do not think those illustrations are fair. I do not think that is the situation with respect to the administration of the criminal law in Iowa.

I think we ought not in this discussion to concern ourselves too much about personal damage suits or personal injury cases. I think we are apt to overemphasize any particular line of cases, as though our adoption or rejection of this radical provision was to be determined by how it would affect some particular class of cases. No one class of cases is large enough to dictate the whole policy of our system. So let us leave out these illustrations and take the classes of cases out of consideration. If we want to make reforms in the criminal law, let us make them, and the one Judge Wade suggested here is so manifestly a just one, from my point of view, that I cannot see why our Bar Association has not adopted it years ago.

The first proposition I want to suggest, is that the relations of the jury and the court must inevitably be changed by this proposed measure. Let us confine ourselves to the trial judge, as this is applicable to the trial of cases, as well as cases on appeal. Suppose the trial judge has erroneously admitted evidence and he becomes convinced of that. Now, it would take a long time to convince me that he can do anything in that case, to preserve to the defendant the right of trial by jury, except to grant a new trial. I can imagine that it is possible he might say, that the evidence was so very immaterial anyway, and the objection to it so very technical, that it couldn't add anything to the result of the case. But this is not confined to that kind of a case; it applies to all cases. It puts on the trial judge the burden of making up his mind as a substitute for the jury, whether the jury would have reached the same conclusion if that evidence had not been admitted; and vice versa, if he rejects the evidence, he has determined what the effect to the jury would have been of that evidence if it had been admitted. As to the instructions, he would have to be advised whether the jury would have taken the same view of the evidence, had the error not been committed, a thing which I fear is difficult to do.

Now, to apply it to the appellate court, I see no constitutional difficulty, but I do see a practical difficulty. Of course, the right of appeal can be entirely denied or limited, and no party in the case can complain on constitutional grounds. But when you come to apply it in the appellate court, you reach another difficulty which is still more serious, to my mind, unless you entirely want to change the functions of the appellate court and change the nature of its procedure, and that is this: the practice now is sanctioned by statute-perhaps by statute in fact, and sanctioned by long usage-that the man who complains of an error, presents only so much in the record as is necessary to enable him to determine whether there was error or not, and so much of the evidence to show that the instruction was erroneous, as applicable to the error; so much of the record to show that the evidence rejected was material to some issue in the case, either of law or fact. So you have a practice well established in accordance with the judicial basis, as it has been administered in

this State for a long time, by which the appellant does not and ought not to put into his record any more of the case than is necessary to enable the court to pass upon questions of law presented by the appellant. He stops there, and it is extremely convenient that he should stop there in the administration of the business of the trial and presentation of cases.

Now, I cannot help but think this change proposed here changes the whole rule, because the appellant comes up with his record and says, here was error, and presents the evidence showing it was error, and the court finds it to be so; and then according to this proposition, the court proceeds to say whether under the whole record in the case-and now by the whole record is meant something else, is meant the whole trial of that case, the whole case as it went to the jury, and as it was before the trial judge, now then, by this proposition the Supreme Court is required to determine whether under the whole record, as it was tried by the jury in the lower court, that error was prejudicial. JAMES O. CROSBY: Could not that be done under the statute as it is-Section 3601?

JUSTICE MCCLAIN: I think not. Section 3601 evidently does not contemplate a review of the whole procedure of the lower court. What I am contending for here is that this proposition radically changes the method of practice. I do not care whether the practice might have been this way or not.

MR. CROSBY: Then isn't that to save the Supreme Court the difficulty of reversing?

JUSTICE MCCLAIN: I won't deny that will be so. I will simply say that has not been the practice of the attorneys or courts, to attempt to review the whole procedure of the trial court for the purpose of determining whether the error is prejudicial or not.

Now, the result is, that every appellant coming into the Supreme Court with a contention of error, will be absolutely obliged to present to the Supreme Court every consideration which could have justified the jury and the judge in the lower court in reaching the same conclusion, had no such error been committed. That is a radical change in the method of practice in this State. It is one which I think is fraught with serious