This appeal by a state prisoner attacks on federal constitutional grounds Article XV, section 5 of the Constitution of Maryland which leaves to the jury the final determination of the law as well as the facts in a criminal trial. The provision reads as follows:

In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

On November 19, 1953 a jury in the Criminal Court of Baltimore found Rodger Wyley guilty of first degree murder, without capital punishment, and he was thereupon sentenced to prison for life. Wyley's petition for a writ of federal habeas corpus attacked his conviction on a number of grounds, but the only one which concerns us on this appeal is whether the trial judge's instruction to the jury, given in accordance with Article XV, section 5, denied defendant due process and equal protection of the laws in violation of the Fourteenth Amendment.1 While acknowledging 'the force of many of the arguments made by counsel for the petitioner,' the District Court dismissed the petition on the basis of Giles v. Maryland, 372 U.S. 767, 83 S. Ct. 1102, 10 L. Ed. 2d 137 (1963). In that case, the constitutionality of section 5 had been brought into question, but the Supreme Court dismissed the appeal 'for want of a substantial federal question.'

Appellant objects that charging that 'in a criminal case the jury are the judges of the law as well as of the facts' permits them to apply any concept of law they see fit to his case, and that this amounts to a deprivation of due process of law. He further argues that the instruction permits the jury to reach a different legal conclusion in his case from that which they might reach in another case presenting identical facts, and so denies him the equal protection of the law.

Every time the issue has been raised in the Court of Appeals of Mayland it has affirmed the constitutionality of section 5 without qualification. In 1949, this provision was attacked on due process grounds in Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949). After a comprehensive and thorough analysis, tracing the historical development of the rule, the court concluded that although section 5 was 'anachronistic,' it was not unconstitutional. More recently, in Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), the Maryland court again had occasion to consider this provision. Reviewing its decision in Slansky, the court found no reason for overturning it, on either due process or equal protection grounds.

The Maryland court has pointed out that juries in criminal cases are in reality not as unrestricted as the appellant suggests. The powers of the jury are hedged in a number of ways. Certain restraining powers lodged in the hands of the judges serve as a counterpoise. See Giles v. State, 229 Md. 370, 383-385, 183 A.2d 359, 365-366 (1962). And it is doubtful whether in actuality juries vary in their application of legal principles more widely than judges vary among themselves. Traditionally, this constitutional provision has been understood as permitting the trial judge to determine the admissibility of evidence and the competency of witnesses, Rasin v. State, 153 Md. 431, 138 A. 338 (1927); Jules v. State, 85 Md. 305, 36 A. 1027 (1897), and in 1950 an amendment to section 5 of Article XV explicitly empowered the court to pass on the legal sufficiency of the evidence. Yanch v. State, 201 Md. 296, 93 A.2d 749 (1953).2 If the jury's view of the law has led them to a verdict of guilty and the court is of the opinion that the verdict is against the law, the trial judge may set the verdict aside and grant a new trial. An even more significant limitation is the acknowledged power of the court to take a case from the jury and direct a verdict of acquittal. In Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953), decided the same year that our defendant was tried, the State argued that if there is any evidence of murder, there can be no determination by the trial court, as a matter of law, that the evidence was insufficient to prove first degree murder. The Court of Appeals, however, rejected this argument. It declared that the 1950 amendment to section 5, providing that 'the Court may pass upon the sufficiency of the evidence to sustain a conviction,' not only gives the trial judge the power to direct an acquittal on the charge of murder, when there is no evidence of murder, but also empowers him to direct a verdict for the defendant even where there is some evidece of murder, but in the judge's understanding of the law the evidence is insufficient to go to the jury on the question of first degree murder.

Although a trial judge was always permitted to give advisory instructions,3 prior to 1950, he could not be required to give them, and a refusal to do so upon request of counsel was held not erroneous. Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949); Esterline v. State, 105 Md. 629, 66 A. 269 (1907); Bloomer v. State, 48 Md. 521 (1878); Broll v. State, 45 Md. 356 (1876); Wheeler v. State, 42 Md. 563 (1875). But Rule 756, section b, of the Maryland Rules of Procedure, originally promulgated in 1950, now provides that the court must give advisory instructions if requested to do so by counsel.4 See Giles v. State, 229 Md. 370, 183 A.2d 359 (1962); Hardison v. State, 226 Md. 53, 172 A.2d 407 (1961).

Oddly, it has always been held that while juries are the judges of the law, a jury may not pass on the constitutionality of a statute. Bell v. State,57 Md. 108 (1881); Franklin v. State, 12 Md. 236 (1858).

Not only has the validity of Article XV, section 5 been repeatedly upheld 215 (1963), in connection with a collateral of the United States has had occasion to consider it, and failed to intimate any doubt of its constitutionality. In Giles v. Maryland, 372 U.S. 767, 83 S. Ct. 1102, 10 L. Ed. 2d 137 (1963), the Court dismissed an appeal, which raised this issue along with others, for want of a substantial federal question. In Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d (1963), in connection with a collateral matter, the Supreme Court again dealt with section 5. Without questioning its constitutionality, the Court commented that in making juries in criminal cases 'the Judges of Law,' the provision 'does not mean precisely what it seems to say,' 373 U.S. at 89, 83 S.Ct. at 1198, noting the limitations on this provision added by state statute or judicial construction. Of course, the action in Giles and Brady would not preclude the Court on more thorough consideration in a direct attack from reaching the opposite conclusion, but we cannot disregard the strong implications flowing from the fact that in its past decisions the Supreme Court perceived no invasion of a defendant's rights by the procedure established in section 5.

Potent and persuasive arguments have been leveled against the wisdom of the Maryland practice. A number of Maryland jurists have advocated repeal or modification of Article XV, section 5. Chief Judge Stedman Prescott, in his presidential address to the Maryland State Bar Association, called this provision 'an anomalous situation' which 'should not be permitted to remain as a blight upon the administration of justice in Maryland,' and declared it to be 'archaic, outmoded and atrocious.' Prescott, Juries as Judges of the Law: Should the Practice be Continued?, 60 Md. S.B.A. 246, 257 (1955). Chief Judge William L. Henderson referred to it as 'our unique and indefensible procedure.' Henderson, The Jury as Judges of Law and Fact in Maryland, 52 Md. S.B.A. 184, 199 (1947). Chief Judge Samuel K. Dennis, of the Supreme Bench of Baltimore City, described the provision as the 'Constitutional thorn' in 'the flesh of Maryland's body of Criminal Law.' Dennis, Maryland's Antique Constitutional Thorn, 92 U.Pa.L.Rev. 34 (1943). Judge Charles Markell, later Chief Judge of the Court of Appeals, characterized the practice under the provision as 'this incongruous state of criminal appeals in Maryland.' Markell, Trial by Jury-- a Two-Horse Team or One-Horse Teams?, 42 Md. S.B.A. 72, 81 (1937).5

It is significant that while vigorously condemning the practice developed under Article XV, section 5 as unsound, none of its major critics has expressed the view that it violates the federal constitution. Certainly there has been no such intimation concerning section 5 as amended in 1950.

The origin of the doctrine embodied in section 5 is not known with certainty. The principal theories propounded are the colonists' fear of tyrannical and arbitrary Crown judges, the large number of judges without legal training, and the capacity of a highly democratic tribunal, such as a jury, to decide matters, legal as well as factual, in small agricultural communities.6 Whatever it was that generated the rule, opponents maintain that the reasons for it no longer exist, and the rule has now been abandoned in all but two jurisdictions, although fifty years ago a similar system of adjudication still prevailed in at least ten states.7 Among the fifty states, Maryland and Indiana today stand alone in their adherence to it. Even Indiana has substantially attenuated its provision by judicial modification, holding as early as 1889 that a trial court in a criminal case 'is not required to neutralize the effect of its instructions by telling the jury that they are at liberty to disregard them, and to decide the law for themselves.' Bridgewater v. State, 153 Ind. 560, 566, 55 N.E. 737, 739 (1889). See also Beavers v. State, 236 Ind. 549, 141 N.E.2d 118 (1957); MacDonald v. State, 224 Ind. 74, 64 N.E.2d 794 (1946). Contra, Dick v. State, 107 Md. 11, 68 A. 286, 576 (1907); Bell v. State, 57 Md. 108 (1881); Dennis, Maryland's Antique Constitutional Thorn, 92 U.Pa.L.Rev. 34, 41 (1943).

It is noteworthy that Maryland's Constitutional Convention Commission, which is currently drafting proposals for submission to a Constitutional Convention to be held next year, has under consideration a recommendation to delete section 5 from the Maryland Constitution.8 Indeed, a subcommittee of that Commission, following the lead of the Maryland State Bar Association, has already recommended this step. There is thus less reason for a court, particularly a federal court, to anticipate the people of the State in effecting a change in their constitutional policy. Of course, if the invalidity of the provision were plain, we would have no alternative but so to declare, even if this would overturn an ancient practice. Cf. Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). But constitutionality and wisdom are not interchangeable terms; a practice may be deemed unwise, yet not be unconstitutional, just as not every constitutionally permissible procedure is necessarily desirable. Moreover, our reluctance to intervene on the present record is heightened by the absence of any suggestion that this particular defendant was prejudiced by the court's advising the jury of its right to determine the law for itself. There is nothing to indicate that the jury did not faithfully follow the view of the law expressed in the trial judge's instructions, which are concededly unexceptionable; nor is there an intimation that a different verdict would have resulted if the judge could have given binding rather than advisory instructions. The jury extended the defendant the consideration of recommending against capital punishment. However desirable a change in the constitutional policy may be, the question is one that appropriately should be addressed to others than the judiciary. The federal court's inquiry is the narrow one of whether Article XV, section 5 violates the defendant's constitutional rights. Neither on abstract principle nor in light of the operation of the provision in the instant case does this court find justification for disturbing the District Court's order of dismissal.

Affirmed.