DISSENTING OPINION OP
PERRY, J.This is an action of -assumpsit for principal and interest on a promissory note for $1000 executed by the defendant in favor of the plaintiff. The defendant in her answer admits the execution and delivery of the note and pleads its-payment in full save as to the sum of $62 principal and $63.47 interest and adds a counter-claim for $1068.96 for moneys advanced, presenting a net claim in favor of the defendant of $943.48. Trial was had before a jury on the issue of the payments and advances. The verdict was for the plaintiff in the sum of $1365.68.
One of the exceptions is to the court’s refusal to give defendant’s requested instruction that “in this as in all civil cases, it devolves upon the plaintiff to prove by a fair preponderance of the evidence the allegations of her complaint and in judging what constitutes a fair preponderance of the evidence you should take in consideration all of the testimony, that adduced by the plaintiff and by the- defendant, and the interest of any witness or witnesses regarding the matter testified to, their bias or prejudice if any, and the probability or improbability of their story.” Upon the point involved the instruction of the court was in effect that the plaintiff’s duty to prove her case by a preponderance of the evidence was *235sufficiently performed by the defendant’s admission of the execution and' delivery of the note and that “the affirmative defense of the defendant, that is to say, the counter-claim, would in my opinion'have to be proved by a preponderance of the evidence. In other words, the burden of proof would be upon the defendant to show the affirmative defense, in other words, the amount of the payments alleged to have been made.” The instruction as given was correct. Payment and counter-claim are affirmative defenses and the burden is upon the party pleading them to prove them by a preponderance of the evidence. 22 Ency. 587; 30 Cyc. 1264; Simonton v. Winter, 5 Pet. 141; Grant v. Roberts, 38 S. W. (Tex.) 650; Meyer v. Hafemeister, 119 Wis. 539; Smith v. Woodworth, 43 Vt. 39; Ford v. Lawrence, 51 S. W. (Tenn.) 1023; Railroad v. Adams, 54 Pa. St. 94; Harmon v. Taylor, 98 N. C. 341; Wessel v. Bishop, 107 N. W. (Neb.) 220; Ferguson v. Dalton, 158 Mo. 323; National Bank v. Hellyer, 53 Kans. 695; Walker v. Russell, 73 Ia. 340; Liesemer v. Burg, 106 Mich. 124; Willis v. Holmes, 28 Or. 265.
The defendant’s main reliance is upon the exceptions presenting the question of whether the presiding judge in his charge to the jury commented upon the weight of the evidence contrary to the provisions of P. L., section 1198. That section provides that “the jury shall in all cases be the exclusive judges of the facts in suits tried before them, and the judge presiding at any jury trial * * 'x‘ shall in no case comment upon the character, quality, strength, weakness or credibility of any evidence submitted, or upon the Character, attitude, appearance, -motive or reliability of any witness sworn in a cause; provided, however, that nothing herein shall be construed to prohibit the court from charging whether there is or is not evidence (indicating the evidence), tending to establish or to rebut any specific fact involved in the cause.”
The plaintiff’s case in the main was that in May, 1903, she sold to the defendant all her interest in certain real estate for *236the agreed sum of $5000; that the defendant paid $2500 cash on account, assumed payment of a mortgage upon other property of the plaintiff in favor of one Wiggins for the sum of $600 and gave two promissory notes, one for $900, admittedly outlawed by the statute of limitations at the time of the institution of the present suit, and the note which is the subject of this action. The defendant’s contention, on the other hand, was, admitting the sale and purchase, that the agreed price was $2500 and that payment was made by the assumption of the Wiggins’ mortgage for $600 and the giving of the two notes, one for $900 and one for $1000; that subsequent to this transaction various sums were paid from time to time by the defendant to the plaintiff, at first in payment of the $1000 note and subsequently by way of loans to the plaintiff, the latter class of items being the subject of the counter-claim pleaded in the answer. In reply the plaintiff’s claim was that such payments as were made by the defendant to the plaintiff, aside from the first item of $2500, were applied to the $900 note, that the $1000 note remained unpaid and that advances purely as such were made.
After giving a brief outline of the case the court instructed the jury as follows:
“While you are the sole judges of the facts as presented to you by the testimony of the witnesses, it is within the province of the court to tell you what evidence there is tending to prove certain facts. Taken from the plaintiff’s standpoint there is evidence tending to prove that the consideration paid by Mrs. Lucas, or agreed to be paid by Mrs. Lucas to her, was five thousand dollars. There is evidence tending to prove that that payment was made by the giving of twenty-five hundred dollars in cash, a note for one thousand dollars, which is not the subject of this suit and is not to be considered by you so far as judgment is concerned and only so far as the question of application of payments, with another balance of six hundred dollars, said to have been for the purpose of applying upon the Wiggins mortgage. It becomes important for you in,the first instance, it appears to me, under the issue framed in this case, to determine first of all what was the purchase *237price agreed to be paid by Mrs. Lucas to Mrs. Bannister, and around that principal fact revolve the other incidents that you must consider in order to arrive at your verdict.
“The consideration named in a deed is not conclusive; it only remains in the deed as prima facie evidence of the consideration until disproved. There is testimony tending to prove that the consideration named in the deed from Mrs. Bannister to Mrs. Lucas was not the correct consideration, and you may take into consideration the testimony that has been given upon that point in arriving at your conclusion.
“The payments admitted by the plaintiff I have made a memorandum of, and, while my memorandum is not binding in any way upon you as to what your finding should be, my view of the case is that there is evidence tending to prove that there have been items paid by Mrs. Lucas, through her husband Mr. Charles Lucas, of $2500 at the outset of the transaction between these parties and other items amounting to $1350.45, which, according to my figures, would make a total payment admitted by the plaintiff of $3850.45, which, subtracted from the $5000 alleged to have been the consideration money, would leave the sum of one thousand one hundred and forty-nine dollars and fifty-five cents due at the date on which the note became due. I wish to reiterate, gentlemen, that this is not a finding for you to follow; that is simply my idea of what the evidence tends to prove ; you may set that aside entirely in your finding, for I have no right to comment upon the testimony nor to make any finding of facts but I simply have the right to say what in my opinion the testimony tends to prove.
“So much for the plaintiff’s side of the case as I view it. The testimony of the defendant tends to prove that the original consideration agreed upon between the plaintiff and the defendant was $2500, the items of which have been testified to by the defendant as having been paid on the original note and. on the counter-claim, amount to $1896.47. The $100 item, being the first item, Exhibit ‘A’, has been abandoned. The first item in the counter-claim of $10 has likewise been abandoned. There are several other items upon which it •seems to me the evidence does not warrant my fixing any suggestion as- to it tending to prove or disprove any fact; those matters are still entirely in your hands and you may take them *238up as being conclusively or satisfactorily proved or not as you believe the testimony, so that if you disbelieve or are not satisfied with the testimony of tbe plaintiff, as I see it, there is evidence tending to prove that the defendant is entitled to a judgment for $894.47.”
Whatever might be said of the remainder of the instructions just quoted, if they had stood alone, those portions relating to the court’s memorandum and payments admitted to have been received by the plaintiff and to the “other items” which did “not warrant * * * fixing any suggestion” as to their tending to prove or disprove any fact, were clearly within the prohibition of section 1798. An examination of the transcript of the evidence adduced at the trial shows that there was evidence from which the jury could have found a total of $1375 (or, if the plaintiff referred to one item only of $15 instead of two such items, then a total of $1360), and not $1350.45, admitted to have been received by the plaintiff from the defendant in addition to the main payment of $2500 referred to in the instructions. In addition there was evidence of items of $10, $48 and $5, respectively, testified to on behalf of the defendant as having been paid by her to the plaintiff and concerning which the plaintiff in her testimony simply said that she did not remember whether those payments had been made to her. The presiding judge’s remarks on the subject could reasonably have led the jury to believe that the evidence relating to any payments, aside from the item of $2500 and the total of $1350.45, was deemed by him unworthy' of credence or at least of not as much weight as the evidence specifically referred to by him. The statement concerning the other items not warranting the judge in “fixing any suggestion” concerning them could reasonably have strengthened and emphasized this understanding on the part of the jury as well as reasonably have led them to believe that in his remarks the judge had referred, both on the subject of the plaintiff’s evidence and on the subject of the defendant’s *239evidence, to all of the items and phases of the case regarded by him as worthy of serious consideration by the jury. Nor was the error in making these comments cured by. the-statements to the jury that he, the judge, had “no right to comment upon the testimony nor to make any findings of fact” and that the jury were the exclusive judges of the facts and of the credibility of the witnesses. The information had, nevertheless, been conveyed to the jury as to the weight accorded by the judge to the evidence referred to in the comments in question as against other evidence not specifically mentioned by him.
The instructions violate the provisions of the statute and it becomes necessary, therefore, to consider the further contention advanced by the plaintiff that the statute is unconstitutional and void on the ground that it is contrary to the provisions of the Seventh Amendment to the Constitution, — unless it is true that, as suggested by the defendant, even though the statute is unconstitutional, the charge as given was objectionable under the rules of the common law.
Assuming, for the moment, that the statute is unconstitutional and that under the constitutional guarantee the parties are entitled to a trial at which the judge shall have the power of commenting on the weight of the evidence, but also that, as suggested by defendant, the comments, if any, must be fair, the charge given in the case at bar cannot be held objectionable. While the language used disclosed the opinion of the trial judge concerning the relative merits of the claims, or some of them, of the parties upon the issues of fact, it was not unfair. The judge did indeed give to the jury a memorandum of the payments admitted by the plaintiff to have been made by the defendant -and as pointed out above that memorandum was in some respects incomplete. The jury were, however, carefully instructed that “my memorandum is not binding in any way ,upon you as to what your finding should be. * * * I wish to reiterate, gentlemen, that this is *240not a finding for you to follow but that it is simply my idea of what the evidence tends to prove; you may set that aside •entirely in your finding for I have no right to comment upon the testimony or to make any finding of facts but I simply have the right to say what in my opinion the testimony tends to prove.” And again: “There are several items upon which it seems to me the evidence does not warrant my fixing any suggestion as to it tending to prove or disprove any fact; those matters are still entirely in your hands and you may take them up as being conclusively or satisfactorily proved or not as you believe the testimony. *** If you believe from the testimony that certain advances were made by the defendant to the plaintiff then these advances are to be credited to the defendant and against the plaintiff as you consider those amounts to have been proved by a preponderance of the evidence.” The fact that items had been testified to other than those contained in the judge’s memorandum of payments or otherwise referred to in the charge was sufficiently called to the attention of the jury by the judge and so also they were clearly instructed that it was within their province and a part, of their duty to consider all of the matters testified to whether specifically referred to in the memorandum or charge or not.
Is the statute constitutional ? Upon this point I am unable to concur in the views of the majority. A consideration of the following questions is involved: (1) Does' article Y of the amendments to the Constitution apply to the Territory of Hawaii? (2) What did the “trial by jury” consist of, the right to which was preserved by that amendment? (3) At such a “trial by jury” did the presiding judge have the power to comment on the weight of the evidence and to express his opinion on the facts? (4) If he did, was the power one of the essentials of the trial ?
Article Y of the amendments to the Constitution provides that “in suits at common law, where the value in controversy •shall exceed twenty dollars, the right of trial by jury shall bq *241preserved.” There is no room for doubt at this day that this amendment applies to the Territory of Hawaii.' The Organic Act specifically declares in section 5 that “the Constitution, and, except as otherwise provided, all the laws of the United States * * * which are not locally inapplicable, shall have the same force and effect within the said Territory” of Hawaii “as elsewhere in the United States.” This language is unambiguous and of itself sufficient to show that the Seventh Amendment is in force here. In a number of cases decided since June, 1900, when the Organic Act went into effect, this court has recognized that other articles of the amendments, including the fifth and the sixth, the first relating to indictments for infamous crimes and to the requirement of due process of law and the second securing to the accused in all criminal prosecutions the right to a trial by an impartial jury, are in full force in Hawaii. See, for example, Robertson v. Pratt, 13 Haw. 590, in which the court said, “the Fifth Amendment, however, which provides that ho person shall be * * * deprived of life, liberty or property without due process of law,’ undoubtedly applies to the Territories”; and Pringle v. Hilo Mercantile Co., Id. 705; In re Wong Lung, 17 Haw. 168; Ex parte Higashi, Id. 428; In re Ewa Plantation Co., 18 Haw. 530; Territory v. Pottie, 19 Haw. 99; Territory v. Martin, Id. 201; Trust Co. v. Treasurer, Id. 262; In re Atcherley, Id. 346 and 535; Territory v. Toyota, Id. 651; Territory v. Soga, 20 Haw. 71, and Bicknell v. Herbert, Id. 132. In Territory v. Schilling, 17 Haw. 249, 264, 265, the court said, with reference to the very statute now under consideration, “if the statute requires, as we do not think that it does, a reversal of judgment for any comments whatsoever made by the court upon the evidence, then it would be requisite to consider whether the statute is. constitutional in limiting the right to a common law trial by jury”; but found it unnecessary to pass upon the question of constitutionality since it construed the statute as not requiring a reversal for comments *242such as those which had been made by the trial judge in that case.
The. Supreme Court, of the United States likewise has expressed itself clearly upon the subject. “In Reynolds v. United States, 98 U. S. 145, 154, it was taken for granted that the Sixth Amendment of the Constitution secured to the people of the Territories the right of trial by jury in criminal prosecutions; and it had been previously held in Webster v. Reid, 11 How. 437, 460, that the Seventh Amendment secured to them a like right in civil actions at common law.” Callan v. Wilson, 127 U. S. 540, 550. “The Seventh Article of Amendment of the Constitution declares that ‘in suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.’ This Article of the Constitution is in full force in Montana as in all other organized Territories of the United States.” Kennon v. Gilmer, 131 U. S. 22, 28. “That the provisions of the Constitution of the United States relating to the right of trial by jury in suits at common law apply to the Territories of the United States is no longer an open question.” Thompson v. Utah, 170 U. S. 343, 346. See also American Publishing Co. v. Fisher, 166 U. S. 464; Salt Lake City v. Tucker, Id. 707; Capital Traction Co. v. Hof, 174 U. S. 1, 5.
It - is equally clear that the right secured by the Seventh Amendment is to a trial by jury as it existed at the common law at the time of the adoption of the Constitution and that a judge empowered to advise on the facts as well as to direct on the law was as indispensable a part of that trial as was the jury authorized to determine the facts. “ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely ai trial by a jury of twelve men before -an officer vested with authority *243to cause them to be summoned and empaneled, to administer oaths to them and to the constable in ehax*ge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence axxd under the superintendence of a judge exnpowex'ed 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 proposition has been so genex*ally admitted, and so seldom contested, that thex’e has been little occasioxx for its distinct assertion. Yet there are unequivocal statements of it to be found in the books. Lox-d Hale, in his History of the Common Law, c. 12, ‘touching trial by jury,’ says: ‘Another excellency of this trial is this, that, the judge is always px’esent at the time of the evidence given in it. Herein he is able in matters of law, emerging upon the evidence, to dix’ect them; axxd also-, in matters of fact, to give them great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matter of fact, which is a great advantage and light to laymen. And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating and enlightening the matter of fact, whereof the jury are the judges.’ And again, in summing up the advantages of trial by jury, he says: ‘It has the advantage of the judge’s observation, attention and assistance, in point of law by way of decision, and in point of fact by way of direction to the jury.’ 2 Hale Hist. Com. Law, (5th ed.) 147, 156. See also 1 Hale P. C. 33.’ ‘The Constitution secures a trial by juiy, without defining what that trial is. We are left to the common law1 to learn what it is that is seeux’ed. Now the trial by jxxry was, when the Constitution was adopted, and for generations before that time had been, here and in England, a txial of an issue of fact by twelve men, under the direction and superintendence of *244the court. This direction <md superintendence was an essential part of the triad/ ‘At the time of the adoption of the Constitution, it was a part of the system of trial by jury in civil cases that the court might, in its discretion set aside a verdict.’ ‘Each party, the losing as well as the winning, has a right to the legitimate trial by jury, with all its safeguards, as understood when the Constitution was adopted.' United States v. Bags of Merchandise, (1863) 2 Sprague, 85-88. This court has expressed the same idea, saying: ‘In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, a,t his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts.’ Vicksburg &c. Railroad v. Putnam, (1886) 118 U. S. 545, 553.” Capital Traction Co. v. Hof, supra. The language of the court and of the authorities quoted by it in support and elaboration of its definition of “trial by jury” renders it clear to my mind that the power mentioned “to advise on the facts” includes the power to communicate to the jury the judge’s view concerning the weight of the evidence and his opinion as to the facts, — subject always to the qualification that the determination of the issues of fact must be distinctly left to the jury — and is an essential part of the trial. “Trial by jury in the courts of the United States is a trial presided over by a judge, with authority, not only to rule upon objections to evidence, and to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon questions of fact, provided only he submits those questions to their determination.” United States v. Railroad, 123 U. S. 113, 114. “In what does the right of trial by jury consist? The Constitution furnishes no answer. It is spoken of as something already suf*245ficiently understood, and referred to a matter already familiar to the public mind. It was unnecessary to define this right. It then stood as a representative of an idea as certain and definite as any other in the whole range of legal learning. It is the right recognized in the Magna Charter and is the same that was brought to this Continent by the first settlers from England.” Barlow v. Daniels, 25 W. Va. 512, 517. See also Railroad v. Putnam, supra; Lovejoy v. United States, 128 U. S. 171, 173; Simmons v. United States, 142 U. S. 148, 155; West v. Gammon, 98 Eed. 426, 427; Cooley’s Constitutional Limitations (6th ed.), 389.
In Nudd v. Burrows, 91 U. S. 426, 439, the following was said: “Care must be taken that the jury is not misled, into the belief that they are alike bound by the views expressed upon the evidence and the instructions given as to the law. They must distinctly understand that what is said as to the facts is only advisory and in no wise intended to fetter the exercise finally of their independent judgment. Within these limitations it is the right and duty of the court to aid them by recalling the testimony to their recollection, by collating its details, by suggesting grounds of preference where there is contradiction, by directing their attention to the most important facts, by eliminating the true points of inquiry, by resolving the evidence, however complicated, into its ’simplest elements, and by showing the bearing of its several parts and whether of a binding effect, stripped of every consideration which might otherwise mislead or confuse them. How this duty shall be performed depends in every case upon the discretion of the judge. There is none more important resting upon those who preside at jury trials. Constituted as juries are it is frequently impossible for them to discharge their function wisely and well without this aid. In such cases chance, mistake or caprice may determine the result.”
“In the courts of the United States,, as in those of England from which our practice was derived, the judge in submitting *246a case to the jury may at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; but the expression of such an opinion, when no rule of law is incorrectly stated and all matters of fact are ultimately submitted to the determination of the jury cannot be reviewed on writ of error.” Railroad v. Putnam, supra. With the charge of the court to the jury upon mere matters of fact and with its commentaries upon the weight of evidence this court has nothing to do. Observations of that nature are understood to be addressed to the jury merely for their consideration as the ultimate judges of matters of fact; and are entitled to no more weight or importance than a jury in the exercise of their own judgment choose to give them.” Carver v. Astor, 4 Pet. 1, 79, 80. See also Lovejoy v. United States, supra; Simmons v. United States, supra; Ganes v. Dunn, 14 Pet. 322, 326; Magniac v. Thomson, 7 Pet. 348, 389; Mitchell v. Harmony, 13 How. 115, 131; Railroad v. Vickers, 122 U. S. 361, 363; United States v. Railroad, 123 U. S. 113, 114; and Kerr v. Modern Woodmen of America, 117 Fed. 593, 596.
The fact that the statute under consideration has been in force in Hawaii since 1892 cannot avail in this instance as against the decisions of the Supreme Court of the United States. It is established by these decisions that it is the common law of England at the date of the adoption of the Constitution, and, necessarily, not the common law or the statutes of Hawaii, that is to be resorted to in order to ascertain the essentials of the “trial by jury” whose continuance was' preserved by the Constitution. Argument would seem to be unnecessary to support the conclusion that the framers of that instrument could not have had in mind the laws or the practice of Hawaii. And when Hawaii became a part of the United States it accepted the guaranties of the Seventh Amend*247ment with such changes in practice, if any, as might be thereby involved.
From States having constitutional provisions to the same effect as that of the Seventh Amendment cases are cited in which it has been held that the presiding judge has not the power to comment upon the weight of the evidence or to> express an opinion on the facts. In a few of those cases the decisions were influenced, in part at least, by statutes, like ours, expressly prohibiting such comments. In the others the rulings would seem to have been made in the absence of any such statute. In none of them was the question of the validity of such statutes or practice considered or raised. There is, indeed, room for the argument, from the failure of those courts to declare such statutes unconstitutional, that the power of the judge to comment on the evidence was not by those courts deemed an essential part of trial by jury, but on the other hand the consideration is at least equally forcible that courts do not. decide or consider issues of unconstitutionality unnecessarily. In any event this negative showing from state courts should not prevail against the expressed views of the ¡Supreme Court of the United States in the Hof case.
Kef erring to some of the other cases cited: In Hopt v. Utah, 110 U. S. 574, a conviction of murder in the first degree was set aside on the ground that the trial judge commented on the weight of the evidence in violation of the provisions of a statute of the Territory of Utah that the judge “must not charge the jury in respect of matters of fact”; but the question of the constitutionality of the statute was not raised or considered. In Hicks v. United States, 150 U. S. 442, also a case of murder, comments adverse to the credibility of the defendant resulted in the award of a new trial. The ruling, however, was in substance that the comments or instructions included an erroneous exposition of thei law applicable to the point under consideration and were themselves unfair. It is evident that none of the earlier decisions of the Supreme *248Court were regarded by the court as iu conflict with tbe law laid down in tbe Hof case. On the contrary the observation was made that “the proposition has been so- generally admitted and so seldom contested that there has been little occasion for its distinct assertion.”
The case of Peirson v. Boston Elevated Railway, 191 Mass. 223, is not an authority in support of the appellant. It was there held that a statute providing that “a verdict shall not be set aside except upon a motion in writing by a party to the cause, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of court” was not in conflict with the provision of the constitution of Massachusetts which secured the right of trial by jury. The conclusion reached was based upon the view that it is competent for a losing party to waive any one or all of the possible grounds for a new trial. This was not the equivalent of holding that a statute forbidding trial judges to grant a new trial in any case would no-t violate the constitutional provision. .In effect the decision was that the constitutional guarantee of a trial presided over by a judge empowered to set aside the verdict if in his opinion it is against the law or the evidence was not infringed upon by a statute permitting unsuccessful litigants to waive the benefit of a new trial or of any of the possible grounds for securing one and requiring presiding judges not to force new trials upon parties not desiring them, — a view in keeping with the familiar principle that courts do not act in awarding judgments or in otherwise granting relief except upon application of the parties. The distinction here sought to be presented was recognized by the court. It said, inter alia: “The statute now in question does not absolutely deprive the parties of the right to have a new trial, if it seems to the presiding judge that one ought to be ordered. If that were the case, a very different question wo-uld be raised from the one which is now before us. It simply provides * * * that they shall be deemed to waive their right to *249ask for one unless they shall have seasonably exercised it in the manner required by the statute and the rule of court made in pursuance thereof, and that the court shall not in such an event force upon them a new trial which has not been asked for and presumably is not desired by either of them.”
While in the IIof case it was not expressly held that statutes like ours are unconstitutional in the Territories, the views expressed concerning the definition of the words “trial by jury” in the Seventh Amendment and the essential .requirements of a trial by jury at the common law of England irresistibly lead to the conclusion, as it seems to me, that a statute which deprives the judge of one of those essential powers violates the amendment. The position that our statute in effect permits the presiding judge to “advise the jury on the facts”, within the meaning of that expression as used by the court in the Hof case, seems to me to be untenable. All that it does permit is that the judge charge the jury whether there is or is not evidence (indicating the evidence) tending to establish or rebut any specific fact involved in the cause. That is not a grant of authority to give to the jury advice upon the facts. A judge who fully exercises the powers conceded to him by the statute and yet conscientiously heeds its injunctions will inform the jury what evidence there is which tends to support or to rebut the various claims of fact advanced by the parties and even may, let it be assumed, give a fair summary of all the evidence adduced by each party, but will at the same time so frame his charge on these matters as to be certain not to' disclose to the jury his opinion concerning the weight of any of the evidence or the credibility of any of the witnesses. The statute, in prescribing that “the judge presiding at any jury trial * * * shall in no ease comment upon the character, quality, strength, weakness or credibility of any evidence submitted, or upon the character, attitude, appearance, motive or reliability of any witness sworn in a cause,” attempts to' rer strain the judge from doing that which at common law he was *250authorized to do. Fettered by these prohibitions he cannot “in matters of fact * * * give them” (the jurors) “light and assistance, by his verifying the evidence before them and observing where the question and knot of the business lies” or “by showing them his opinion even in matter of fact, which is a great advantage and light to laymen,” or assist them “in investigating and enlightening the matter of fact, whereof the jury are the judges.” To the extent stated the statute is inconsistent with the Seventh Amendment and is therefore invalid. The Organic Act continued in force only those laws of Hawaii “not inconsistent with the Constitution or laws of the United States or the provisions” of that act and granted to the Territory legislative power extending “to- all rightful subjects of legislation not inconsistent.with the Constitution and Laws of the United State locally applicable.” Sections 6 and 55.
It is true, as contended by counsel for the defendant, that section 1798 has often been enforced by this court as well as by trial judges but the question of its constitutionality has not been raised in any previous case in this court. The presumption always is that an act passed by the legislature is constitutional and valid and courts do not consider questions of possible unconstitutionality unless compelled to do so by the state of the record. Cooley’s Constitutional Limitations (6th ed.), p. 216 et seq. In the case at bar determination of the question becomes for the first time unavoidable.
In my opinion the trial judge in making the comments objected to did not exceed the powers possessed by a presiding judge in a common law trial by jury and the exceptions should therefore be overruled.