Their only
bearing is on the question, what ought to have been done or
omitted under the circumstances of the case, not on what was
done. Their function is to suggest a rule of conduct.
Sometimes courts are induced to lay down rules by facts of a more
specific nature; as that the legislature passed a certain
statute, and that the case at bar is within [151] the fair
meaning of its words; or that the practice of a specially
interested class, or of the public at large, has generated a rule
of conduct outside the law which it is desirable that the courts
should recognize and enforce. These are matters of fact, and have
sometimes been pleaded as such. But as their only importance is,
that, if believed, they will induce the judges to lay down a rule
of conduct, or in other words a rule of law, suggested by them,
their tendency in most instances is to disappear as fast as the
rules suggested by them become settled. /1/ While the facts are
uncertain, as they are still only motives for decision upon the
law,--grounds for legislation, so to speak,--the judges may
ascertain them in any way which satisfies their conscience. Thus,
courts recognize the statutes of the jurisdiction judicially,
although the laws of other jurisdictions, with doubtful wisdom,
are left to the jury.
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