682 THE CHANCELLOR'S CASE.

read in the statute book, and in the Declaration of Rights of the State,
that a salary of twelve hundred and seventy-five pounds per annum was

allow the revising court to reverse the original judgment on any other ground of
merit, than that which had been specially taken in the court below, would be, in
effect, to allow the appellate court to assume original jurisdiction by bringing before
it a controversy which in truth, never existed; or a new point of controversy which,
if it had been presented to the court below, might have been shewn to have had no
just foundation whatever.

The sending of a case back, for amendment and further proceedings thereon, almost
always involves a virtual admission, that an appeal had been taken which ought never to
have been allowed; either because the objection should have been made and removed
in the court below; or if not there made, should have been treated above as having
no just foundation; or because the error was of such a technical nature as not in any
way materially to affect the merits. But the greatest evils of an ill defined power in
the appellate court to remand a case in equity are those which must inevitably arise
from having the judgment of that court sent, without rule or guide, on a rambling ex-
cursion through the case in search of those loose conjectures, ambiguous inferences, or
latent evidences in relation to some supposed merits, for the purpose of letting in which
the case should be sent back for alteration, (Kemp v. Pryor, 7 Ves. 245, ) by which means
a controversy, all the facts of which were from the outset fully known to all concerned,
may be varied and vexatiously continued to no purpose; or a false colouring may be
given to it by a party who has thus ascertained at what point his proofs were weak
or insufficient.

It is universally admitted that the consent of parties cannot give to a court juris-
diction of a case of which it has no cognizance; and yet it seems to have become
quite common of late to agree to the passing of a decree pro forma merely for the
purpose of appealing, and thus in effect transferring the original jurisdiction to the
court of appeals and sinking the court of first resort into a mere ministerial agent.

It is obvious then, that proper appellate judicial duty must be much less compli-
cated and laborious than that which is original; because after all the circumstances
of the controversy have been brought before the first court and the points in dispute
have been there specially designated, discussed and decided upon, the case must have
been considerably reduced in its compass, and the question to be determined in the
ultimate tribunal must have been so fully developed that there can be then no very
heavy obstacles to remove, nor any great difficulty to encounter in coming to a cor-
rect, conclusion. Considering these matters, in this point of view, it is perfectly
clear, that the judges of the court of last resort with less, or certainly with a no
greater requisite degree of skill, have nothing like the same amount of judicial duty
to perform as the judges of the courts of original jurisdiction.

It is evident, that a court of ultimate resort constituted, like that of England or of
New York, of a great number of members, the majority of whom may not be law-
yers by profession, would find it utterly impracticable to deal with, or to endure
any thing like the distracting complexity of original jurisdiction, or to exercise any
thing more than a simple and proper appellate authority. But it has been found,
that an appellate tribunal constituted even of a few members, each of great legal
ability, may be crushed, or totally obstructed in its course either by allowing every
suitor, at his own pleasure, to crowd into it with his appeal, or by casting into it
complicated controversies to be there first dealt with as by a court of original juris-
diction. — ( Tucker's Letter, 2 Mun. Rep. intro. 17; Debates Virg. Con. 1829, page 760. )

It must have been owing to this comparative view of the nature and amount of the
skill and labour which bad be in feet, or could only with propriety be required of
or assigned to the judges of mate court, that the judicial salaries in Maryland