In cases of appeal, or of error,
(which is in the nature of an appeal,) the court of appeal is obliged to
judge, not by _its own_ rules, acting in another capacity, or by those
which it shall choose _pro re nata_ to make, but by the rules of the
inferior court from whence the appeal comes. For the fault or the
mistake of the inferior judge is, that he has not proceeded, as he ought
to do, according to the law which he was to administer; and the
correction, if such shall take place, is to compel the court from
whence the appeal comes to act as originally it ought to have acted,
according to law, as the law ought to have been understood and practised
in that tribunal. The Lords, in such cases of necessity, judge on the
grounds of the law and practice of the courts below; and this they can
very rarely learn with precision, but from the body of the Judges. Of
course much deference is and ought to be had to their opinions. But by
this means a confusion may arise (if not well guarded against) between
what they do in their _appellate_ jurisdiction, which is frequent, and
what they ought to do in their _original_ jurisdiction, which is rare;
and by this the whole original jurisdiction of the Peers, and the whole
law and usage of Parliament, at least in their virtue and spirit, may be
considerably impaired.
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