Digges, J.,
delivered the opinion of the Court. Eldridge, Cole and Davidson, JJ., dissent, Eldridge, J., filed a dissenting opinion at page 189 infra, in which Cole, J., concurs in Part III, and in which Davidson, J., concurs.
We granted certiorari in this criminal cause "limited solely to the question whether the trial court denied [the accused] the right to due process guaranteed by the XIV Amendment [to the United States Constitution] when it gave advisory rather than binding [jury] instructions.” In other words, our review here is confined to whether Article 23 of the Declaration of Rights to the Maryland Constitution, which provides that the jury in a criminal case "shall be the Judges of Law, as well as of fact,” is unconstitutional because the provision, as construed by this Court, facially deprives a defendant of the federally secured right to due process of law. Recognizing the purely legal nature of this query, a brief summary of the facts will suffice.
Petitioner Dorothy Lou Stevenson was convicted by a jury in the Circuit Court for Kent County (Clark, J.) of the first degree murder of her husband and of setting a fire while perpetrating a crime. She was subsequently sentenced to concurrent terms of life imprisonment and three years, respectively. On appeal, the Court of Special Appeals, in an unreported opinion, affirmed these convictions.
The record shows that Mr. Stevenson’s death occurred on July 18, 1977, as a result of second and third degree burns which he suffered from a fire in his home bedroom nineteen days earlier. At the trial, the central question was how the fire started, and extensive testimony was taken to resolve that issue. From this evidence, the following facts may be distilled: On the morning of the fire, petitioner discovered [170] her husband in bed on his boat with another woman. Following a brief argument, petitioner left the boat and returned to the family home where she awaited her husband. Upon his arrival five hours later, a second argument erupted between the Stevensons concerning the husband’s infidelity. According to a statement given by Mr. Stevenson shortly before his death, this heated discussion had ended with his wife leaving the house; he then went to bed, but was later awakened when the petitioner poured gasoline on him and ignited it with a match. Mrs. Stevenson’s version of the events of that morning differed dramatically: According to her statement given to police on the day of the fire, which was introduced at trial without objection (she did not testify), the wife and husband were arguing in their bedroom when Mr. Stevenson advanced towards her in a threatening manner and Mrs. Stevenson, in self-defense, threw a pitcher of gasoline at her husband to impede his approach. Asked how the pitcher happened to be nearby, the petitioner responded by saying that "I brought it in the house yesterday, because I was going to clean up the yard for a swimming pool and I didn’t take it out again.” Moreover, the wife disavowed any complicity in starting the fire — "I didn’t light no matches or nothing. [The gasoline] just exploded when I threw it.” The jury, however, was not convinced and convicted Mrs. Stevenson both of the first degree murder of her husband and of setting the fire while perpetrating a crime.
The gravamen of petitioner’s claim of error is that she was denied due process when the trial judge refused to give her following requested pre and post-evidence instructions to the jury:
Pre-evidence.
The law as given by this court in its instructions to you constitutes the only law for your guidance, and it is your duty to accept and follow it. It is your duty to follow the law as I give it even though you may disagree with the law.
[171]
Post-evidence.
It is your duty as jurors to follow the law as stated in the instructions of the court, and to apply the rules of law so given to the facts as you find them from the evidence in the case. Counsel may refer to some of the governing rules of law in their arguments. If, however, any difference appears to you between the law as stated by counsel and that stated by the court in these instructions, you of course are to be governed by the instructions.
Instead of these requested directives, which the court ruled were contrary to the law of this State, Judge Clark proceeded to give the jury, both in oral and written form, an extensive set of "preliminary instructions” 1 which included a brief explanation of the jury’s unique constitutional role in the trial of criminal cases in this State. The jury was informed that "[u]nder the Constitution of Maryland, [you are] the judge of the law as well as of the facts. Therefore, anything which I may say about the law, including any instructions which I may give you, is merely advisory and you are not in any way bound by it.” At the close of the evidence, however, when the court actually "instructed” the jury as to the applicable substantive law, Md. Rule 757 d, the judge did not again mention that his statements concerning the law were for its guidance and not binding; rather he couched all of his remarks in mandatory language. No question has been raised concerning the propriety of the individual instructions given here, other than the failure to inform the jury that all instructions on the law were binding on it.2 [172] Consequently, we only address, as requested by the petitioner, whether Article 23 which, as interpreted by this Court, requires that jury instructions on the law be advisory [173] only, is itself violative of the United States Constitution. This Maryland constitutionally declared right provides in pertinent part:
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.
(i)
Background
Article 23, although not in this identical form, was first incorporated into the constitution of this State by the adoption of Article X, section 5 of the Maryland Constitution of 1851.3 The debates of the 1851 Constitutional Convention, while shedding little light on the meaning of that article, do reveal that the motivation for its adoption was a concern by the delegates regarding the lack of uniformity in Maryland in the practice of instructing juries. See II Debates and Proceedings of the Maryland Reform Convention to Revise the State Constitution 768 (May 7, 1851). As Judge Niles explains in his work on Maryland constitutional law:
In the convention of 1851, there were opposing views as to the power of a jury in a criminal case, which prevailed in different parts of the state, and [174] to guard in the future against such conflicts, the provision . .. was inserted in the Constitution. [A. Niles, Maryland Constitutional Law 340 (1915).]
Accord, Jacobsohn, The Right to Disagree: Judges, Juries, and The Administration of Criminal Justice in Maryland, 1976 Wash. U.L.Q. 571, 574. See generally Beard v. State, 71 Md. 275, 279, 17 A. 1044, 1045 (1889); Prescott, Juries as Judges of the Law: Should the Practice be Continued?, 60 Md. St. Bar Ass’n 246, 247 (1955). Article 23, however, reflects deeper currents of concern relative to administering criminal justice in this State, as Judge Delaplaine noted in his opinion for this Court in Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949):
In England the question whether the jury should have the right to decide the law in criminal cases was for centuries the subject of controversy. But at the time of American independence the prevailing rule of the common law in England was that the court should judge the law, and the jury should apply the law to the facts. This doctrine was condemned by some of the Colonial statesmen, notably John Adams, who believed that the juries should be entitled to disregard the arbitrary and unjust rulings of the judges holding office by authority of the Crown. ... In some of the New England Colonies it was fully understood that the judges held office not for the purpose of deciding causes, for the jury decided all questions of both law and fact, but merely to preserve order and see that the parties were treated fairly before the jury. This procedure received patriotic justification as increasingly oppressive measures were taken by royal officials....
The restrictions upon the province of the judges in this State were thus due less to the English practice than to the habits to which they themselves had become accustomed in administering the law of the Colonies. ... "The colonists had had experience of [175] the close connection of criminal law with politics. ... [T]heir constant fear of political oppression through the criminal law led them and the generation following ... to give excessive power to juries and to limit or even cut off the power of the trial judge to control the trial and hold the jury to its province.” [Id. at 101-02, 63 A.2d at 601-02 (quoting R. Pound, The Spirit of the Common Law 122-23).]
Accord, Jacobsohn, supra, 1976 Wash. U.L.Q. at 573-75. Because Article 23 was designed to curb the power of the judiciary, this Court has long held that if a trial judge should consider it necessary to instruct the jury as to the applicable criminal law, which since 1950 he may be required to do, Giles v. State, 229 Md. 370, 383-84, 183 A.2d 359, 365 (1962), appeal dismissed, 372 U.S. 767 (1963), he should be careful not to intrude on the jury’s prerogative, and thus must couch his instructions on the law in advisory form in order that jurors may "subject them to the test of their own independent judgment.” Dick v. State, 107 Md. 11, 20, 68 A. 286, 290 (1907); accord, e.g., Schanker v. State, 208 Md. 15, 21-22, 116 A.2d 363, 367 (1955); Beard v. State, supra, 71 Md. at 279, 17 A. at 1045; Wheeler v. State, 42 Md. 563, 570 (1875). This practice is now enshrined in Maryland Rule 757. With this brief background, we will now turn to the specific constitutional challenge presented by this appeal.
Since its adoption by the people of Maryland in the Constitution of 1851, this Court has twice considered, and rejected, the contention that Article 23 is in conflict with the fourteenth amendment to the United States Constitution as depriving an accused of his liberty without due process of law. Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), appeal dismissed, 372 U.S. 767 (1963); Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949). See also Hopkins v. State, 193 Md. 489, 69 A.2d 456 (1950) (reaffirming Slansky without analysis). The Fourth Circuit Court of Appeals has likewise rejected such a challenge, Wyley v. Warden, Maryland Penitentiary, 372 F.2d 742 (4th Cir. 1967), cert. denied, 389 U.S. 863 (1967), as has the United States District Court, [176] Wilkins v. State of Maryland, 402 F. Supp. 76 (D. Md. 1975). We are nonetheless asked again to review our previous decisions concerning this issue because, in the words of the petitioner, the "[subsequently] evolving standards of due process and a revised view of federalism have changed the nature of the standards against which state trials and state procedures are [now] measured.” While we agree that the United States Supreme Court’s interpretation of the due process clause has changed dramatically since we last examined this question in Giles, this Court, however, still "cannot accept the contention... [that this] anachronistic procedure, which has been followed throughout the State for [over] a century and in many sections of the State for possibly two centuries” deprives a criminal defendant of due process of law. Slansky v. State, supra, 192 Md. at 106-07, 63 A.2d at 604.
(ii)
Scope of Article 23
Before analyzing petitioner’s specific contentions, we must first determine what "law” it is that a jury is entitled to "judge” under Article 23, because only after we have established the sweep of the article’s mandate can its federal constitutionality be tested. See, e.g., Stone v. Wainwright, 414 U.S. 21, 22-23, 94 S. Ct. 190, 38 L. Ed. 2d 179 (1973) (per curiam) (constitutionality of state law depends on construction of state’s highest court); Mahoney v. Beyers, 187 Md. 81, 87, 48 A.2d 600, 604 (1946); State v. Petrushansky, 183 Md. 67, 73, 36 A.2d 533, 536 (1944). Despite Article 23’s facial breadth, it is a postulate well recognized in the prior decisions of this Court, and one which the United States Supreme Court correctly observed in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that Article 23 "does not mean precisely what it seems to say.” Id. at 89. See, e.g., Giles v. State, supra, 229 Md. at 382-83, 183 A.2d at 365; Hitchcock v. State, 213 Md. 273, 283, 131 A.2d 714, 718 (1957). From its inception, the [177] right of juries in this State to decide the law has not been construed by this Court as all-inclusive, but to encompass a much more limited scope. E.g., Giles v. State, supra, 229 Md. at 383, 183 A.2d at 365. The outer boundaries of what is now Article 23 were first set forth in an opinion by Chief Judge LeGrand (speaking for himself, but with the expressed approval in this regard of all the other members of this Court) in the case of Franklin v. State, 12 Md. 236 (1858), decided just seven years after the adoption of this article’s predecessor into the organic law of Maryland. Faced with the specific question of whether the constitutionality of statutes was within the province of the jury under this new constitutional practice, the Chief Judge wrote:
It was argued, that the true interpretation of these words authorized the jury to judge of the constitutionality of the Act of Assembly. In this opinion I do not concur. The debates which took place in the Convention that framed the Constitution, show what were the reasons that induced the adoption of the section .... It was well known that some members, both of the judiciary and the profession, held, that juries in criminal cases were the judges of law as well as fact, whilst others held a directly contrary opinion. It is not now important to inquire on which side there was a preponderance of authority and reason. When the meaning of the terms are fixed, there is an end to controversy in regard to the relative powers of court and jury.
So far as I know, there is no instance in which a court admitted that the words, "judges of law as well as fact,” authorized the jury to decide on the constitutionality of a law. With those who insisted upon the enlarged power conferred by the words in our Constitution, there was no pretense that it authorized a judgment by a jury of the constitutionality of an Act of Congress or of the State Legislature. All they contended for was, that in a criminal case the jury were not bound to abide [178] by the interpretation of the court of the meaning of a law, but were free to construe and apply it according to their own judgments. They never pretended the jury had the right to decide on the constitutionality of an Act defining murder, arson or any other crime, but that they had the right to affix their own meaning on the particular law, and to determine for themselves, whether the facts proven brought the traverser within that meaning. The words in the Constitution have no greater significance since their incorporation into the organic law than they had previously,[4J and I think I have given to them the broadest latitude ever sanctioned or seriously countenanced by any respectable authority. [Id. at 245-46 (Emphasis added).]
As this lengthy attribution indicates, and our later decisions confirm, the jury was not granted, by Article 23, the power to decide all matters that may be correctly included under the generic label — "law.” Rather, its authority is limited to deciding "the law of the crime,” Wheeler v. The State, 42 Md. 563, 570 (1875), or "the definition of the crime,” as well as "the legal effect of the evidence before [the jury].” Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045 (1889). And this Court has consistently interpreted this constitutional provision as restraining the jury’s law deciding power to this limited, albeit important, area. Thus, we have held that it is not within the province of the jury to decide whether a statute has been repealed, Nolan v. State, 157 Md. 332, 340, 146 A. 268, 271 (1929), whether it has operative effect, Slymer v. State, 62 Md. 237, 241 (1884), or if it is unconstitutional, Hitchcock v. State, supra, 213 Md. at 283-84, 131 A.2d at 718-19; Franklin v. State, supra. Moreover, we have, decided that juries are not permitted to hear or act upon preliminary questions such as the court’s jurisdiction. Kelly v. State, 151 Md. 87, 98-99, 133 [179] A. 899, 903 (1926). See also Hitchcock v. State, supra; Dennis, Maryland’s Antique Constitutional Thorn, 92 U. Pa. L. Rev. 34, 39 (1943). In addition to these restrictions, it has been long recognized that questions of admissibility of evidence and competency of witnesses are for the court alone to determine and were not transferred to the jury for decision by Article 23. E.g., Lewis v. State, 285 Md. 705, 724, 404 A.2d 1073, 1083 (1979); Giles v. State, supra, 229 Md. at 383, 183 A.2d at 365; Vogel v. State, 163 Md. 267, 272, 162 A. 705, 708 (1932); Bell, alias Kimball v. State, 57 Md. 108, 120 (1881); Wheeler v. State, supra, 42 Md. at 570. See Brady v. Maryland, supra, 373 U.S. at 89-90. In fact, viewed affirmatively, the past decisions of this Court make it quite evident that the jury’s role in judging the law under Article 23 is confined "to resolv[ing] conñicting interpretations of the law [of the crime] and to decidling] whether th[at] law should be applied in dubious factual situations,” and nothing more. Dillon v. State, 277 Md. 571, 581, 357 A.2d 360, 367 (1976) (emphasis in original); see Hamilton v. State, 265 Md. 256, 288 A.2d 885, cert. denied, 409 U.S. 1006 (1972); Schanker v. State, 208 Md. 15, 21, 116 A.2d 363, 367 (1955). Even this area of the jury’s exclusive domain, however, has limitations. For example, in Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918 (1977), we pointed out that Article 23 "does not confer upon [itl ... untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.” Id. at 479, 365 A.2d at 553. Moreover, since "it is the duty of a jury to decide a case according to the established rules of law, ... if it should misapply the law to the prejudice of the accused, and the trial court has the power to set aside the verdict and grant a new trial.” Giles v. State, supra, 229 Md. at 384, 183 A.2d at 365; accord, Beard v. State, supra.
Implicit in the decisions of this Court limiting the jury’s judicial role to the "law of the crime” is a recognition that all other legal issues are for the judge alone to decide. Because of this division of the law-judging function between judge [180] and jury, it is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive "law of the crime,” as well as the "legal effect of the evidence,” and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury’s pale, and that the judge’s comments on these matters are binding upon that body. In other words, the jury should not be informed that all of the court’s instructions are merely advisory; rather only that portion of the charge addressed to the former areas of "law” may be regarded as non-binding by it, and it is only these aspects of the "law” which counsel may dispute in their respective arguments to the jury.5 On the other hand, the jury should be informed that the judge’s charge with regard to any other legal matter is binding and may not be disregarded by it. An explicit example of this may be seen from an examination of this Court’s recent opinion in Lewis v. State, supra, where we held that, although both a judge and the jury may be called upon to determine the voluntariness of a confession, instructions to the jury with respect to the type of consideration to be given by that body to such a confession are binding on it since admissiblity of evidence is not "law” which the jury may decide.
Furthermore, and aside from the supremacy clause contained in Article VI of the United States Constitution, jurors, no less than the judges of this Court, or any other [181] citizen of the State, owe paramount allegiance to, and are bound by, the Constitution of the United States through the independent dictates of Article 2 of the Maryland Declaration of Rights, by which "ail the People of this State are ... bound Lby the federal Constitution]; anything in the Constitution ... of this State to the contrary notwithstanding.” 6 (Emphasis added). It is, of course, a well-established maxim of constitutional interpretation that, as far as possible, each provision of the constitution should be construed to harmonize with all of its other provisions. E.g., Kadan v. Bd. of Sup. of Elections, 273 Md. 406, 415, 329 A.2d 702, 707 (1974); Reed v. McKeldin, 207 Md. 553, 561, 115 A.2d 281, 285 (1955). Thus, we believe that even if federal constitutional law were otherwise a part of the "law” which a jury is to decide by virtue of Article 23, Article 2 indicates that it was not so intended to be, because to so construe Article 23 would place these two constitutional provisions in conflict with each other. Consequently, harmonizing Articles 2 and 23 of the Declaration of Rights so that they do not conflict, see Price v. State, 160 Md. 670, 672-73, 154 A. 556, 557 (1931), supports our previously indicated conclusions that the word "law” as it is used in Article 23 is not as all encompassing as it otherwise may be when used in some other context.
(iii)
Contention that Article 23 Violates Strictures of United States Constitution
Having examined the reach of Article 23, we now determine whether that section, as interpreted by our prior decisions, can pass muster under the guaranties accorded to state criminal defendants by the due process clause of the [182] federal constitution. "Due process of law,” as that phrase is generally understood in the field of criminal law, "is, in essence, the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). At the time of our decisions in Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949) and Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), the test of whether due process had been violated by a particular criminal procedure was to determine how the right or practice in question was viewed during the time when the meaning of due process was in a formative state and before it was incorporated into our national organic law. Consonant with the prevailing view at the time of Slansky and Giles, if the challenged practice existed at the time of the fourteenth amendment’s adoption, then due process of law was provided. See Twining v. New Jersey, 211 U.S. 78, 100-01, 29 S. Ct. 14, 53 L. Ed. 97 (1908), overruled in Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Slansky v. State, supra, 192 Md. at 100-01, 63 A.2d at 601. This approach to questions of due process is, however, no longer viable, as the following passage makes evident:
No longer are questions regarding the constitutionality of particular criminal procedures resolved by focusing alone on the element in question and ascertaining whether a system of criminal justice might be imagined in which a fair trial could be afforded in the absence of that particular element. Rather, the focus is, as it should be, on the fundamentality of that element viewed in the context of the basic Anglo-American jurisprudential system common to the States. [Johnson [183] v. Louisiana, 406 U.S. 356, 372 n. 9, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972) (Powell, J. concurring).]
Accord, Duncan v. Louisiana, 391 U.S. 145, 149 n. 14, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). As a consequence, the Supreme Court "has looked increasingly to the Bill of Rights for guidance, [with the result that] many of the rights guaranteed [defendants] by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment.” Id. at 148. See, e.g., In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (right to be convicted only on proof beyond a reasonable doubt); Duncan v. Louisiana, supra (sixth amendment right to a jury trial); Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (fifth amendment right to be free from compelled self-incrimination; no comment on defendant’s failure to testify); Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964) (fifth amendment right to be free from compelled self-incrimination); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (sixth amendment right to counsel); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (fourth amendment right to be free from unreasonable searches and seizures and to have excluded from criminal trial any evidence illegally seized).7 Thus, whether Article 23 violates due process depends primarily on whether it undermines any of the specific safeguards which are now applicable to criminal trials in this State by virtue of the fourteenth amendment to the United States Constitution.
[184] In this regard, petitioner first contends that to allow the jury considering her case generally to determine the law, with only advisory instructions to guide it, interferes with her sixth amendment right to trial by jury, guaranteed to state criminal defendants through the fourteenth amendment as interpreted in Duncan v. Louisiana, supra. A fundamental element of this right, in the petitioner’s view, is to be tried by a jury which only decides questions of fact and then determines guilt or innocence by applying to these findings binding instructions with regard to the law as explained by the judge. In support of her assertion, petitioner primarily relies on the decision of the Supreme Court in Sparf v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), where it was held that, in a federal criminal trial, the jury was to decide only questions of fact, leaving legal issues for the judge’s consideration. While we agree with petitioner that the Court in Sparf did limit the role of juries in federal criminal trials, we do not believe that it did so because it was a constitutionally required aspect of the jury trial right. In Sparf, the defendants challenged the trial court’s refusal to tell the jury that it was not bound by the court’s instructions as to the law, id. at 59; thus, the question posed for consideration by the Court was whether the refusal to give the requested charge "was an interference with [the jury’s] legitimate functions, and, therefore, with the constitutional right of the accused to be tried by a jury.” 8 Id. at 99; accord, id. at 169 (Gray, J., dissenting) (the question is, "what are the rights ... of persons accused of crime, and of juries summoned and empaneled to try them, under the Constitution of the United States”). After an extensive historical review of the relationship of the judge and jury in the trial process, the Supreme Court determined that, since the function of the jury at common law was solely that of a factfinder, the right to a trial by jury contained in the federal constitution did not entail the right to have the jury decide questions of law. Thus, the Court in Sparf did not prohibit [185] juries from deciding legal issues because of a conflict with the constitution, but merely held that the jury right of a defendant did not include the additional privilege of permitting juries to determine legal matters.
Even if the Supreme Court’s decision in Sparf could be read as prohibiting a jury from deciding questions of law because of a conflict with the constitutional right to a jury, that Court has yet to extend the holding of Sparfto state jury trials despite a number of opportunities to do so. See, e.g., Wyley v. Warden, Maryland Penitentiary, 372 F.2d 742 (4th Cir.), cert. denied, 389 U.S. 863 (1967); Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), appeal dismissed, 372 U.S. 767 (1963) (lack of substantial federal question); Bremer v. State, 18 Md. App. 291, 307 A.2d 503 (1973), cert. denied, 415 U.S. 930 (1974); cf. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (discusses Maryland constitutional provision making juries judges of law). Moreover, we believe that recent Supreme Court decisions with regard to the jury trial right cast considerable doubt on whether this element of trial by jury established in Sparf would still be a viable component of that right in federal trials, or if it is, whether it now extends as a matter of due process to state trials. See Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972); Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). See generally Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979); Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978). Prior to its decision in Williams v. Florida, supra, in which the Supreme Court held that juries composed of less than twelve persons were constitutionally permissible, the process of determining the content of the sixth amendment’s jury trial provision was based on "the easy assumption .. . that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the United States Constitution.” Id. at 92; accord, Apodaca v. Oregon, supra, 406 U.S. at 408-09; id. at 370 n. 6 (Powell, J., concurring); State v. McKay, 280 Md. 558, 563, 375 A.2d 228, 231 (1977). [186] In Williams, however, the Supreme Court rejected this historical approach to the sixth amendment, and instead began to examine the scope of that amendment’s jury trial clause from the standpoint of its purpose in our scheme of criminal justice; thus, if a particular feature of the common law jury is essential to the function and purpose of a jury trial, then it is required by the sixth amendment. Williams v. Florida, supra, 399 U.S. at 99-100; see Burch v. Louisiana, supra, 441 U.S. at 134; Apodaca v. Oregon, supra, 406 U.S. at 410. Because the purpose of trial by jury, as noted in Duncan, is to prevent governmental oppression by providing "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge,” Duncan v. Louisiana, supra, 391 U.S. at 156, the Court has determined that "the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common sense judgment of a group of laymen ....” Williams v. Florida, supra, 399 U.S. at 100. Accordingly, the Supreme Court held that juries of less than the traditional twelve do not conflict with the constitution, id., and that unanimity is not an indispensable element of state jury trials, see Apodaca v. Oregon, supra, 406 U.S. at 410-11 (plurality opinion), although unanimity remains a requirement in federal prosecutions. Id. at 369-71 (Powell, J., concurring); accord, Andres v. United States, 333 U.S. 740, 748-49, 68 S. Ct. 880, 92 L. Ed. 1055 (1948); Patton v. United States, 281 U.S. 276, 288-90, 50 S. Ct. 253, 74 L. Ed. 854 (1930); Maxwell v. Dow, 176 U.S. 581, 586, 20 S. Ct. 448, 44 L. Ed. 597 (1900).
What these decisions demonstrate is that all aspects of the common law jury trial no longer may be presumed to be required by the sixth amendment. Of the essential elements of such a trial identified by Supreme Court decisions prior to Williams and Apodaca — the 12-person jury, the presence and superintendence of a judge having the power to instruct the jury on the law and to advise them upon the facts, and the unanimous verdict, Patton v. United States, supra, 281 U.S. at 288; accord, State v. McKay, supra, 280 Md. at 563, 375 A.2d at 231 — two of them (the 12-person jury and [187] unanimous verdict) have been held to be no longer mandatory, particularly in state criminal trials. While this Court recognizes that the Supreme Court has yet to decide whether the remaining element of trial by jury identified in Sparf— juries as triers of fact only and not as judges of law — is still a necessary component of the sixth amendment (if it ever was), it seems to us quite unlikely, in light of the standard adopted in Williams and Apodaca, i.e., is the feature essential to the function and purpose of a jury, that the Court would still continue its fact-law distinction.9 Furthermore, there is reason to question whether the Sparf requirement will be imposed on state criminal proceedings as a matter of due process in light of the fact that opinions of the Supreme Court have suggested that the states be permitted to experiment with the actual operation of juries so long as the fundamental purpose of the right — safeguarding the accused against official oppression — remains intact. See Burch v. Louisiana, supra, 441 U.S. at 136-39; Johnson v. Louisiana, supra, 406 U.S. at 359-60; Apodaca v. Oregon, supra, 406 U.S. at 372-75 (Powell, J., concurring); cf., Bloom v. Illinois, 391 U.S. 194, 213, 88 S. Ct. 1444, 20 L. Ed. 2d 522 (1968) (Fortas, J., concurring) (federal requirements of jury trials may not be essential to due process and thus not obligatory on the states); Alexander v. Louisiana, 405 U.S. 625, 637 n. 4, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972) (Douglas, J., concurring) (same). The Supreme Court has, on more than one occasion, expressly stated that "ft]he states' are free to allocate functions between judge and jury as they see fit.” Stein v. New York, 346 U.S. 156, 179, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953); accord, e.g., Spencer v. Texas, 385 U.S. 554, 560, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967) (states have wide leeway in dividing judge-jury responsibilities); Jackson v. Denno, 378 U.S. 368, 391 n. 19, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (specifically reaffirming this aspect of Stein v. New York while otherwise overruling the decision); [188] Chicago, R.I. & P.R. Co. v. Cole, 251 U.S. 54, 56, 40 S. Ct. 68, 64 L. Ed. 133 (1919). See also Johnson v. Louisiana, supra, 406 U.S. at 359-60; 2 F. Busch, Law and Tactics in Jury Trials § 194, at 332 (1959). Consequently, since Maryland’s constitutional provision, making juries judges of the law, enhances the purpose of a trial by jury by interposing a neutral interpreter of the law between the accused and the accusing government, e.g., Slansky v. State, supra, 192 Md. at 101-02, 63 A.2d at 602; Apodaca v. Oregon, supra, 406 U.S. at 374 n. 11 (Powell, J., concurring), we hold that this provision of our organic law does not violate the sixth amendment right to trial by jury as it applies to criminal trials in this State under the due process clause of the fourteenth amendment.
In addition to the alleged violation of her right to trial by jury, Stevenson also contends that the following constitutional rights are infringed by the Maryland practice under Article 23: (i) the privilege against compelled self-incrimination, including the prohibition against drawing unfavorable inferences from the defendant’s failure to testify, Malloy v. Hogan, supra; Griffin v. California, supra; (ii) the presumption of innocence, Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978); but see Kentucky v. Whorton, 441 U.S. 786, 99 S. Ct. 2088, 60 L. Ed. 2d 640 (1979); and (iii) the requirement of proof beyond a reasonable doubt, In re Winship, supra; Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). While she does recognize that the trial judge here did properly instruct the jury with respect to these matters, petitioner nonetheless asserts that, as sole judges of law, the jury is not only free to disregard the presumption of innocence and the prohibition on inferring anything from her silence, but it may also lessen the State’s burden of proof from beyond a reasonable doubt to some much reduced level. As we previously stated in this opinion, however, matters such as these are not within the jury’s Article 23 law-judging function, but are the subject of binding instructions by the judge; thus, this contention may be rejected without further comment.
[189] (iv)
Conclusion
For the reasons explained, we reaffirm our holdings in Giles and Slansky that permitting juries, in criminal cases, to be "Judges of Law” does not violate the due process clause of the fourteenth amendment. In reaching this result, we are, as were our predecessors well over a centruy ago in a similar context, comforted by the realization that:
The ultimate object of this appeal is to annul the organic law of the State, the act of a sovereign Convention .... Our province is not to make or unmake Constitutions, but to interpret them; not by the light of reason and common sense alone, or that higher law which has been invoked, but which has no oracle, but by the text of the Constitution of the United States, as construed by its authorized expounders.
If we err in our conclusions, we congratulate ourselves there is a Supreme Court erected expressly for the final adjudication of such questions, where our judgment may be reviewed and corrected, and the rights of the citizen vindicated. To this we cheerfully defer confidant that none will more cordially concur in the result. [Anderson v. Baker, 23 Md. 531, 629 (1865).]
Judgment of the Court of Special Appeals affirmed.
Costs to be paid by petitioner.