Section 5 of article 2 of the constitution provides that "the right of trial by jury as heretofore enjoyed, shall remain inviolate." The word "heretofore" evidently relates to the past, and to determine the true meaning of the words "the right of trial by jury as heretofore enjoyed," it is necessary to have recourse to the common law of England. (George v. People,167 Ill. 447; Sinopoli v. Chicago Railways Co. 316 id. 609;Liska v. Chicago Railways Co. 318 id. 570; People v.Bruner, 343 id. 146, 149). Trial by jury at common law included as an essential attribute the right of the judge to comment on the evidence and to express his opinion on the facts, provided he made it clear to the jury that they were not bound by the expression of his opinion but that all questions of fact were to be freely decided by them. Hale's History of the Common Law of England, (4th ed. 1792,) p. 291; 3 Blackstone's Com. on the Laws of England, (Wendell's ed. 1847,) p. 374; 3 Chitty's Practice, (1st Am. ed. 1836,) p. 913; Petty v. Anderson, 3 Bing. 170, 171, 173; Solarte v. Melville, 14 E. C. L. 196, 198;Belcher v. Prittie, 4 Moore Scott, 295, 302, 303; Davidson v.Stanley, 3 Scott's New Reps. 49, 51, 52; Darby v. Ouseley, 1 H. N. I, 3, 13; *Page 24 Taylor v. Ashton, 11 M. W. 401, 417; Sutton v. Sadler, 91 E. C. L. 86, 99, 104; Lowenburg Harris Co. v. Woolley, 25 Can. S.C. 51, 55; Nudd v. Burrows, 91 U.S. 426,439; Vicksburg and Meridian Railroad Co. v. Putnam, 118 id. 545, 553; St. Louis, Iron Mountain and Southern Railway Co. v.Vickers, 122 id. 360; United States v. Philadelphia and ReadingRailroad Co. 123 id. 113, 116; Lincoln v. Power, 151 id. 436, 442; Capital Traction Co. v. Hof, 174 id. 1, 13, 14; Patton v. United States, 281 id. 276, 288, 290; Herron v.Southern Pacific Co. 283 id. 91; New York Firemen's Ins. Co. v.Walden, 12 Johns. (N.Y.) 513, 519; State v. Hummer, 73 N.J.L. 714,719; State v. Means, 95 Me. 364, 368, 369;Allard v. LaPlain, 125 Me. 44, 45; Hamilton v. People, 29 Mich. 173,192; Jessner v. State, 202 Wis. 184, 191.
Inherent in a trial by jury at the common law is the power of the judge to comment on the evidence and to express his opinion on the facts, provided he assures the jury, notwithstanding the expression of his opinion, of their entire independence and suprema cy in the decision of all questions of fact. (Capital Traction Co. v. Hof, 174 L. S. 1, 13, 14; Patton v.United States, 281 id. 276, 288). In Sinopoli v. ChicagoRailways Co. 316 Ill. 609, 618, this court relied upon CapitalTraction Co. v. Hof, supra, and quoted therefrom as follows: "Trial by jury in the primary and usual sense of the term at common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and, except on acquittal of a criminal charge, to set aside their verdict if in his opinion it is against the law or the evidence. This *Page 25 proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion."
A jury trial in which the judge is deprived of the right to comment on the evidence and to express his opinion on the facts, subject to the limitation stated, is not the jury trial which we inherited. James Bradley Thayer, in his Preliminary Treatise on Evidence at the Common Law, page 188, note, observed: "It is not too much to say of any period, in all English history, that it is impossible to conceive of trial by jury as existing there in a form which would withhold from the jury the assistance of the court in dealing with the facts. Trial by jury, in such a form as that, is not trial by jury in any historic sense of the words. It is not the venerated institution which attracted the praise of Blackstone and of our ancestors, but something novel, modern, and much less to be respected." Likewise Austin W. Scott, in his article entitled "Trial by Jury and the Reform of Civil Procedure," 31 Harvard L. R. 669, 680, 681, said: "At common law it was clearly proper for the judge not merely to state the law and to sum up the evidence, but also to express an opinion on the questions of fact in issue as long as he leaves to the jury the ultimate determination of the issue, and makes it clear that it is not bound to adopt his opinion as its own. Since the judge had this power at common law, he is not deprived of it merely because the right to trial by jury is guaranteed by the constitution. But in many of the States this power has been expressly taken away by constitutional or statutory provisions. It may well be questioned how far the legislature can constitutionally curtail in this way the power of the judge. Trial by jury, in such a form as that, is not trial by jury in any historic sense of the words."
To sustain rule 27 of this court the opinion of the majority has recourse to the common law as interpreted in the State of Virginia at the time of the adoption of our *Page 26 first State constitution. Early in the history of this State, the General Assembly enacted that the common law of England, so far as it is applicable and of a general nature, and, with three exceptions not material to the present purpose, all acts of the British Parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. It is admitted that no legislative enactment of this State affects the question under consideration. No statute could eliminate an essential attribute of a jury trial consitutionally guaranteed. Recourse to the common law as declared in Virginia is therefore unavailing.
The right or power of the judge to aid the jury by commenting on the evidence and expressing his opinion on the facts, "when in his judgment the due administration of justice requires it," imposes a duty of such gravity, that, as the Supreme Court of the United States said in Nudd v. Burrows, 91 U.S. 426, at page 439, "There is none more important resting upon those who preside at jury trials." Manifestly, to deny the judge's right or power to assist the jury in the determination of issues of fact is to deprive him of one of his most important common law functions and inevitably effects a fundamental change in a trial by jury.
Rule 27 of this court completely silences the trial judge with respect to the evidence in a criminal case. It is a deprivation of an essential attribute of a jury trial as known to the common law and, in my opinion, violates section 5 of article 2 of the constitution. Accordingly, I respectfully dissent from the opinion and judgment of the court. *Page 27