dissenting:
The majority has construed Article 23 of the Maryland Declaration of Rights to make juries in criminal cases the judges of the law only in certain circumstances, finding this permissible under the Fourteenth Amendment to the United States Constitution. The Court then upholds a murder conviction which is based upon an instruction empowering *190the jury to reject any or all of the trial judge’s other instructions, whether relating to the well-established elements of a particular crime, who has the burden of proof, the standard of proof, the defendant’s rights, etc. For several reasons, I believe that a conviction grounded upon such instruction cannot be squared with the Fourteenth Amendment.
First, Article 23 of the Declaration of Rights, by authorizing a jury to disregard the trial judge’s instructions embodying the law, is inconsistent with the due process requirement that one is entitled to be tried in accordance with the applicable law of the jurisdiction. It is true that, under the majority’s construction of Article 23, the jury’s authorization to disregard the law is confined to situations involving "conflicting interpretations of the law of the crime.” Nevertheless, the violation of a due process right does not become justifiable by limiting the circumstances under which the violation will be upheld.
Second, Article 23, even given the limited scope delineated by the majority, violates the jury trial clause of the Sixth Amendment, deemed applicable to state court proceedings by the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), and Sparf v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895).
Third, the instruction given in this case empowered the jury to disregard a panoply of specific rights guaranteed by the Fourteenth Amendment, such as the right not to testify, the presumption of innocence, the right to the "reasonable doubt” standard of proof, etc. The majority, while apparently not upholding the constitutionality of the instruction, or of Maryland Rule 757 which mandates an instruction like the one given in this case, asserts that the validity of the instruction actually given was neither properly raised at trial, nor ruled upon by the trial court, nor presented to this Court. In my view, the defendant’s counsel consistently objected to the trial court’s giving advisory rather than binding instructions on the law; the trial court and the intermediate appellate court clearly understood and rejected *191this position, and this was the very issue presented by the petition for a writ of certiorari, briefs and oral argument in this Court.
I.
An essential principle of "due process of law” is the right to have a case tried and decided in accordance with the law of the jurisdiction. As Justice Black has stated for the Court (Giaccio v. Pennsylvania, 382 U.S. 399, 403, 86 S. Ct. 518, 521, 15 L. Ed. 2d 447, 450 (1966)):
"Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land.”
Throughout the United States the trial judge, because of his position, learning and experience in the law, is relied upon to insure that the jury is correctly instructed in the law.1 By this means, and the necessary presumption that jurors follow the judge’s instructions, the American legal system insures as best it can that a criminal defendant is tried in accordance with the applicable law of the jurisdiction. Where an appeal is provided by law, as in most cases, the correctness of the trial judge’s instructions with respect to any unresolved "conflicting interpretations of the law of the crime” can be tested by an exception and an appeal, ultimately to the highest court of the jurisdiction. If, upon resolution by the highest court, it turns out that the trial judge incorrectly resolved a "conflicting interpretation of the law of the crime,” the defendant will receive a new trial with proper instructions binding the jury.
*192This system of insuring that a criminal defendant is tried in accordance with the law is present in virtually all American jurisdictions except Maryland. In Maryland alone, as to those matters where the lay jury is the "judge of the law” rather than the trial judge, there is much less assurance that the defendant will be tried in accordance with law. While the trial judge may give the jurors advisory instructions correctly stating the applicable standard concerning "conflicting interpretations of the law of the crime,” he emphasizes in the same breath that the jurors may disregard his instructions and that it is their province, not his, to determine the existing law. For example, the trial judge in the present case instructed the jury that "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.” He went on: "You may feel free to reject my advice on the law and to arrive at your own independent conclusions. You are to make the sole determination as to ... what the law is in this case.” Such explicit authorization for the jury to ignore the law as set forth in the court’s instructions cannot be reconciled with the right to be tried "in accordance with the valid laws of the land.” 382 U.S. at 403.
Furthermore, affording the right of appeal does not rectify this deprivation of due process. Although the trial judge’s "advisory” instructions may be reviewed, there is no way for an appellate court to review the jury’s determination of the applicable law. What the jury finds the existing law to be, pursuant to the authority granted by Article 23 and the trial court’s implementing instruction, seldom if ever will appear on the record. Moreover, reviewing courts have no way of knowing whether two different juries, at the same time, have come to opposite conclusions concerning the existing law applicable to identical fact situations. Conflicting views of different trial judges as to the law can be resolved on appeal; conflicting views of different juries cannot.
Article 23, by granting a criminal jury the license to disregard legally correct instructions on the law, and find *193the law to be otherwise than it is, violates a defendant’s right to be tried in accordance with the law of the jurisdiction and, therefore, violates the Due Process Clause of the Fourteenth Amendment.
II.
I also believe that Article 23 is inconsistent with the jury trial clause of the Sixth Amendment, deemed applicable to state court proceedings by the Fourteenth Amendment. In Sparf v. United States, supra, 156 U.S. 51, the Supreme Court settled the matter for federal proceedings, holding that the proper role of a jury at common law and under the Constitution was to be the judge only of the facts and not the law. Although the precise basis for the Sparf decision at the time may be a source of some controversy,2 it signalled the end of dispute, except for this State, over the legitimate role of the jury. Several state courts, relying upon Sparf, have held that under jury trial clauses of state constitutions comparable to the Sixth Amendment, the proper role of the jury is limited to finding the facts. State v. Gannon, 75 Conn. 576, 52 A. 727 (1902); People v. Bruner, 343 Ill. 146, 175 N.E. 400 (1931); Roesel v. State, 62 N.J.L. 368, 41 A. 408 (1898). Furthermore, regardless of the original basis for Sparf, the decision in that case is viewed today as delineating the role of the jury under the Sixth Amendment. See Johnson v. Louisiana, 406 U.S. 356, 370-371 n. 6, 92 S. Ct. 1635, 1637-1638, 32 L. Ed. 2d 152 (1972) (Powell, J., concurring).
Consequently, I believe that the Sixth Amendment provision for trial by jury in criminal cases contemplates a *194jury which is the judge of the facts, receiving binding instructions on the law from the court. Because Duncan v. Louisiana, supra, 391 U.S. 145, held that the Sixth Amendment jury trial clause is applicable to state court proceedings, the provision of Article 23 of the Maryland Declaration of Rights, making criminal juries the judges of the law, is also invalid on this ground.
III.
For the reasons set forth in Parts I and II above, I believe that Article 23, whether given its literal meaning or as construed by the Court today, facially deprives a criminal defendant of his Fourteenth Amendment right to due process of law. However, assuming arguendo that Article 23 as now construed is facially constitutional, the instruction actually given in this case empowered the jury to disregard several specific federal constitutional rights protected by the Fourteenth Amendment. Furthermore, the instruction was objected to; the defendant’s position was rejected by the trial court; and the question concerning the validity of the instruction was fully presented to this Court. For this reason also the defendant’s conviction should be reversed on federal constitutional grounds.
(a)
In the course of his preliminary and final instructions in this case, the trial judge instructed the jury on numerous occasions that the State had the burden of proof, both generally as well as regarding various specific matters. Thus, e.g,, the judge told the jury that the State had the burden to prove that the killing was not- legally justifiable, that it was not done in self-defense, that there was an absence of mitigating circumstances which would reduce the crime to manslaughter. These "burden of proof’ instructions embodied the due process requirements set forth by the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Similarly, both in general *195and with respect to many particular matters, the trial judge told the jury that the standard of proof was "proof beyond a reasonable doubt.” This is the standard mandated by the Fourteenth Amendment’s Due Process Clause under the holding of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). In addition, the trial judge instructed the jury that the defendant’s guilt or innocence must be established only "through evidence introduced at trial,” thereby reflecting the due process principle set forth in Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), and other cases. The trial judge additionally instructed the jury that the defendant was presumed to be innocent, a due process standard under Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978). The trial judge also admonished the jury that it could not "attach any significance or draw any inference of guilt from the defendant’s failure to testify” and that it "must not presume any inference of guilt because she chose not to take the stand.” This instruction was in accord with the Supreme Court’s holding in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
At the same time that he gave the above-mentioned instructions expressing federal due process principles, the trial judge further instructed the jury that anything he might say about the law, including any of his other instructions, was merely advisory, that the jury was not "in any way” bound by his instructions, that the jury was 'Tree to reject” his instructions on the law, that it could arrive at its own independent conclusions as to the law, and that the jury was to make the sole determination as to "what the law is in this case.” While such an instruction may not empower the jury to apply what it believes the law ought to be, clearly such an instruction authorizes the jury to find that the existing law is different than that set forth in the judge’s instructions. And as the trial judge’s instructions on such matters as burden of proof, standard of proof, presumption of innocence, right not to testify, etc., reflect the holdings of the United States Supreme Court, the challenged instruction authorizes the jury to find that the existing law on these *196federal due process requirements is different than that set forth by the Supreme Court. This result would appear to be inconsistent with one hundred and sixty years of American constitutional history, dating at least from Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257 (1821).
Under the majority’s construction of Article 23 of the Declaration of Rights, the jury in a criminal case is the judge of the law only with respect to "conflicting interpretations of the law of the crime.” That Article 23, as so construed, might not violate the Fourteenth Amendment, is no answer to the due process issue presented by the instruction in the instant case. Because a narrow instruction, that the jury may resolve conflicting interpretations of the law of the crime, might have been unobjectionable on due process grounds, does not mean that the broad instruction given in this case comports with due process.
(b)
The majority purports to justify its refusal to review the broad "advisory” instruction given in this case by asserting that no issue has been raised in this Court concerning the propriety of the instruction given, that at trial the defendant did not object to the specific instruction given, and that "[i]f ... the basis of the petitioner’s objection was the specific instruction given, . .. that basis was neither properly presented to nor ruled upon by the trial court.” The majority treats the case as if it were a declaratory judgment action challenging Article 23 on its face, rather than a criminal trial involving a complaint over jury instructions. A review of the record demonstrates that there was an objection to the. advisory instruction given, and that the issúe has continuously been preserved for appellate review.
After the trial court gave preliminary instructions to the jury, including the instruction that the jurors were the judges of the law, that everything the court said was merely advisory, that the jurors were free to reject the court’s advice and arrive at their own independent conclusions ás to the *197law, etc., the following colloquy occurred between the court and defense counsel (transcript pp. 127-128):
"Judge Clark: Mr. Falcon, do you have any exceptions to the preliminary instructions?
"Mr. Falcon IDefense Attorney]: Yes, Your Honor. The Defense takes exception to the Court’s failure to give Instruction requested in #5 as to the binding nature of the Court’s instructions, rather than advisory instructions.
"Judge Clark: Very well, you are overruled.”
Later, at the conclusion of the court’s final jury instructions, the transcript reads as follows (pp. 2350-2351, emphasis supplied):
"[The Court:] In conclusion, you are not to allow sympathy, passion or prejudice to in any way influence you in reaching unanimous verdicts based solely upon the evidence that has been adduced in this case and the law as you determine it to be and applied by you to the facts that you have found to be true facts of this case.
"Now, Mr. Campen [State’s Attorney], do you have any exceptions to the Court’s Instructions? If there are going to be exceptions I’ll excuse the jury.
"State: May we have a moment to consult?
"Court: Yes. Will you have exceptions?
"Mr. Falcon: Yes, Your Honor.
"Court: Mr. Falcon, I’ll hear you.
"Mr. Falcon: First of all, Your Honor, the defense wishes to except to the Court’s failure to give the instruction requested by the defense in paragraph two of the Request for Final Instructions, that is, *198that the instructions of the Court are binding on the jury and not merely advisory.
"Court: You’re overruled there. You well know the law of Maryland.
"Mr. Falcon: Well, let me note an exception to that.
"Court: Right.”
Following the State’s argument to the jury, defense counsel at a bench conference stated that he had certain exceptions to the State’s argument. Before he could say more, the trial court made it clear that it was "only interested in misstatements of fact” and that counsel could "argue the law any way ... [they] want to.” (Transcript p. 2421.)
Finally, at the argument on the defendant’s motion for a new trial, counsel argued "that to give instructions as advisory rather than binding violates fundamental constitutional due process.” (Transcript, Vol. 6, p. 12.) Defense counsel went on to assert that advisory instructions are violative of the Due Process Clause of the Fourteenth Amendment. (Id. at p. 13.) The trial court rejected the argument on the ground that the appellate courts of Maryland had upheld the giving of advisory instructions. (Id. at pp. 12-13.) The defendant’s attorney’s reply to the trial court was as follows (id. at 13, emphasis supplied):
"The Maryland pattern instructions have never been passed on by a court as far as counsel is aware of in the last ten years or so. That is, during that period when the Federal Constitution began to play a large part.”
The court nevertheless rejected this argument on the ground that the appellate courts "had every opportunity to declare it unconstitutional if they so desired.” (Ibid.)
In light of this record, I have great difficulty understanding the majority’s conclusion that the defendant’s attorney was not objecting to the specific "advisory” instructions given in this case but was raising only the question, as stated by the majority, of "whether *199Article 23 of the Declaration of Rights ... is unconstitutional because the provision, as construed by this Court, facially deprives a defendant of the federally secured right to due process of law.” At no time did defense counsel or the trial judge mention "facial” constitutionality, Article 23 or this Court’s construction of that Declaration of Rights provision. The dispute related to the instructions, both those actually given and the proffered one which was refused. Twice the trial court asked defense counsel whether there were exceptions to the instructions given, and twice counsel answered "Yes.” The defendant’s attorney explained that the proffered binding instruction should have been given, as "the instructions of the Court are binding on the jury and not merely advisory.” The advisory instructions actually given, and the binding instruction requested, were mutually exclusive. Clearly counsel was objecting to the giving of advisory instructions in lieu of the requested binding instruction.
The argument on the motion for a new trial, upon which the majority opinion (footnote 2) places such great weight, confirms the nature of the defendant’s objection and the trial court’s ruling. Again there was no mention of Article 23 or "facial” constitutionality. Instead, the defendant referred to the validity of the Maryland pattern instruction not having been ruled upon during the last ten years, and the trial court rejected the argument because the appellate courts had every opportunity to consider it. It is clear that the defendant was complaining about an instruction actually given in criminal cases and not the facial validity of a constitutional provision. Presumably, by "pattern,” the defendant meant the standard type of advisory instruction given in this case, as that is the type of instruction required by Maryland Rule 757 b. Rule 757 b mandates that in every case involving jury instructions, the court shall instruct the jurors that they are the judges of the law. There are no exceptions in the rule excluding federal constitutional requirements or anything else.3
*200Moreover, by pointing out to the trial court that it has been over the "past ten years or so” that federal constitutional requirements "began to play a large part,” one prong of defense counsel’s due process argument became obvious. It was that the standard type of Maryland advisory jury instruction, authorizing the jury to disregard all of the trial judge’s other instructions on the law, was inconsistent with federal constitutional requirements that in recent years have been held applicable to state criminal proceedings.
In the Court of Special Appeals, the first argument in the defendant’s brief (p. 19) was that the advisory instruction given by the trial court denied him due process of law. In the defendant’s petition for a writ of certiorari, the complaint was over the instructions actually given in this case. The first question presented was: "Did the trial court deny Petitioner the right to due process guaranteed by the XIV Amendment when it gave advisory rather than binding instructions.” The principal argument set forth in the petition was that, in recent years, since this Court considered the matter in Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), and Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949), the Supreme Court has held that several federal constitutional requirements are applicable to state court criminal proceedings, and that the instruction telling the jury that it is not "in any way bound” by the other instructions on the law, permits the jury to ignore federal constitutional standards.4 This issue presented in the peti*201tion was the reason for the certiorari grant in this case. It was certainly an issue properly before this Court under Rule 813. Now the Court declines to decide the question on the theory that the defendant has never challenged the specific advisory instructions given in this case.
There is no logical reason for treating the defendant’s objection to the advisory instructions in this case as an attack only upon the facial constitutionality of Article 23. Even if Article 23 does not make the jury the judge of the law with respect to federal constitutional matters, and thus is not facially invalid on this ground, the broad advisory instructions given in this case were facially unconstitutional because they authorized the jury to disregard other instructions embodying federal due process requirements. The defendant clearly objected to the advisory instructions in this case on federal due process grounds; the objection was overruled by the trial court, and the defendant has continuously preserved the same position throughout the appellate process.
If the basis for the majority’s narrow view of the issue is the defendant’s request at trial for a totally binding instruction, rather than a partially binding and partially advisory instruction reflecting this Court’s present construction of Article 23, the majority’s reasoning would still be fallacious. There were in this case no "conflicting interpretations of the law of the crime” which would fall within the jury’s province under the majority’s construction of Article 23. Therefore, even under the majority’s opinion, the defendant was entitled to the requested instruction that the trial judge’s instructions are binding and not merely advisory. The instructions to be given are to reflect the evidence and issues, and not abstract principles not applicable to the case. See Blackwell v. State, 278 Md. 466, *202477-478, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918, 97 S. Ct. 2183, 53 L. Ed. 2d 229 (1977), and cases there cited.
Furthermore, if there had been in this case arguable "conflicting interpretations of the law of the crime,” I would not expéct an attorney to have tailored his objection to this Court’s present construction of Article 23 and requested a partially binding and partially advisory instruction reflecting that construction. This Court’s position on the matter is anything but consistent. After the decisions in the prior cases relied on by the majority for its narrow construction of Article 23, this Court, effective July 1, 1977, promulgated the present version of Maryland Rule 757 b which requires, without qualification, that in every case the jury is to be told that the court’s instructions on the law are only advisory.5 Therefore, when sitting in its rule-making capacity, providing "precise rubrics” for lawyers and trial judges to follow,6 the Court accords Article 23 its literal meaning. On the other hand, in its adjudicatory capacity, the Court today construes Article 23 quite differently.
(c)
The question of the facial constitutionality of Article 23 as construed in the majority opinion is largely a theoretical matter, having little relationship to the trial of criminal cases in Maryland. In the seven years I have been a judge of this Court, reviewing hundreds of criminal cases,7 I have never come across a jury instruction comporting with this Court’s present view of Article 23. Experienced Maryland criminal trial lawyers have never encountered such an instruction. Instead, the typical instruction given in criminal cases is like the challenged instruction in the case *203at bar. Although jurors may be told, as they were in the instant case, that they should not arbitrarily interpret the law to make it conform to what they believe it ought to be or that they should not "arbitrarily make new law,” nevertheless they are invariably told that it is entirely their province to determine the existing law, that all of the court’s instructions are merely advisory, and that the jurors "are not in any way bound” by any of the court’s instructions.
Article 23 of the Maryland Declaration of Rights flatly states, in unambiguous language, that in "all criminal cases the Jury shall be the Judges of the Law . . . .” The only limitation is that the court is empowered to pass upon the sufficiency of the evidence. The United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 89, 83 S. Ct. 1194, 1198, 10 L. Ed. 2d 215 (1963), observed that Article 23 "does not mean precisely what it seems to say.” The observation is an accurate characterization of the theory set forth in some of this Court’s opinions, including the majority opinion in the case at bar. However, it is not an accurate characterization of Maryland practice. The instruction given in this case, the instruction required by this Court’s Rule 757, and the standard instruction given in virtually all Maryland criminal jury trials, is based upon the language of Article 23 as if that provision meant precisely what it says.
The majority opinion fends off a federal constitutional challenge to jury instructions reflecting the literal language of Article 23 and Rule 757 by misreading the record, viewing the issue as if it were an attack upon the facial constitutionality of Article 23 as construed by this Court, and giving a narrow construction to Article 23 which is not supported by the language of Article 23 and which has no relationship to the jury instructions actually given in this case. The majority then upholds Article 23 as so construed and affirms the conviction on this basis. I believe Article 23 to be invalid on its face, even as construed by the majority, for the reasons set forth in Parts I and II of this dissenting opinion. However, assuming for the purposes of argument that Article 23, as now construed, is facially constitutional, the defendant’s conviction should nevertheless be reversed. *204The advisory instructions given, to which objection was made, authorized the jury to disregard the court’s instructions regarding several federal constitutional requirements. Because the challenged instruction actually given by the trial court was inconsistent with the Due Process Clause of the Fourteenth Amendment, the defendant should be awarded a new trial.
Judge Cole has authorized me to state that he concurs with the views expressed in Part III of this dissenting opinion, that he would reverse on this ground, and that he would not reach the issues dealt with in Parts I and II.
Judge Davidson has authorized me to state that she concurs with the views expressed in this dissenting opinion.
. In Maryland today, a defendant in a criminal case is entitled, upon request, to such instructions as correctly state the applicable law. This includes instructions in those areas of law which, under the majority opinion, fall within the jury’s province as the judge of the law. See Maryland Rule 757.
. The Supreme Court’s lengthy opinion in the Sparf ease, including material quoted with approval from other cases, makes several references to the Constitution, suggesting that the holding was required under federal constitutional provisions then applicable to federal court proceedings. 156 U.S. at 64, 74, 75, 78, 83, 86. At the same time, the Court seemed to indicate that statutes or constitutional provisions (presumably in the several states) could authorize the jury to be the judge of the law. 156 U.S. at 102. Compare G. Simon, Jury Nullification in the American System: A Skeptical View, 54 Tex. L. Rev. 488, 489-490 (1976), with Johnson v. Louisiana, 406 U.S. 356, 370-371 n. 6, 92 S. Ct. 1635, 1637-1638, 32 L. Ed. 2d 152 (1972) (Powell, J., concurring).
. Sections b and g of Maryland Rule 757 provide (emphasis added): "b. How Given.
The court may, and at the request of any party shall, give those *200advisory instructions to the jury as correctly state the applicable law. The court may give its instructions orally or, with the consent of the parties, in writing. The court need not grant any requested instruction if the matter is fairly covered by the instructions actually given. In every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and that the court’s instructions are advisory only.”
"g. Argument.
Nothing in this Rule precludes any party from arguing that the law applicable to the case is different from the law described in the advisory instructions of the court.”
. The defendant’s argument went on (Petition for a Writ of Certiorari, p. 5):
"Hence, the jury is free to ignore the constitutional requirement of proof beyond a reasonable doubt, Winship, the defendant’s right to *201remain silent, Malloy, Chapman, the standard of proof of every element, Mullaney. Obviously to leave a constitutional standard, such as the presumption of innocence to the whims of a jury violates due process. At a minimum, a defendant is entitled to an instruction which requires, rather than advises a jury that there exists a presumption of innocence and that the State has the burden of proof in every element of a crime.”
. Former Rule 756 b, in effect prior to July 1, 1977, contained the same requirement.
. See, e.g., King v. State Roads Comm’n, 284 Md. 368, 372, 396 A.2d 267 (1979) (per Digges, J.), pointing to "the established principle that the Maryland Rules are precise rubrics that are to be strictly followed.”
. In addition to the cases we decide after full briefing and argument, this Court receives, and each member reviews, about 500 petitions for writs of certiorari each year. Approximately fifty per cent of them are in criminal cases.