AUTHORITIES. Enactments and opi nions relied upon as establishing or declaring the rule of law which is to be applied in any case.
The opinion of a court, or of counsel, or of a text-writer upon any question, is usually fortified by a citation of authorities. In respect to their general relative weight, authorities are entitled to precedence in the order in which they are here treated.
2. The authority of the constitution and of the statutes and municipal ordinances are paramount; and if there is any conflict among these the constitution controls, and courts de clare a statute or ordinance which conflicts with the former to be so far forth of no author ity. See CONSTITUTIONAL LAW ; STATUTES.
The decisions of courts of justice upon similar cases are the authorities to which most frequent resort is to be had ; and although in theory these are subordinate to the first class, in practice they do continually explain, enlarge, or limit the provisions of enact ments, and thus in effect largely modify them. The word authorities is frequently used in a restricted sense to designate citations of this class.
3. An authority may be of any degree of weight, from that of absolute conclusiveness down to the faintest presumption. As to the considerations which affect the weight of an adjudged case as an authority, see PRECE DENT ; OPINION.
The opinions of legal writers. Of the vast number of treatises and commentaries which we bave, comparatively few are esteemed as authorities. A very large number are in reality but little more than digests of the adjudged cases arranged in treatise form, and find their chief utility as manuals of reference. Hence it has been remarked that when we find an opinion in a text-writer upon any particular point, we must consider it not merely as the opinion of the author, but as the supposed result of the authorities to which he refers ; and if on examination of those authorities they are found not to establish it, his opinion is disregarded. 3
Bos. & P. 301. Where, however, the writer declares his own opinion as founded upon principle, the learning and ability of the writer, together with the extent to which the reason he assigns commend themselves to the reader, determine the weight of his opinion. A distinction has been made between writers who have and who have not held judicial station. Ram, Judgments, 93. But this, though it may be borne in mind in estimating the learning and ability of an author, is not a just test of his authority. See 3 Term, 64, 241.
4. The opinions of writers on moral science, and the codes and laws of ancient and foreign nations, are resorted to in the absence of more immediate authority, by way of ascertaining those principles which have commended themselves to legislators and philosophers in all ages. See CODE. Lord Coke's saying that common opinion is good authority in law, Coke, Litt. 186 a, is not understood as referring to a mere specu lative opinion in the community as to what the law upon a particular subject is ; but to an opinion which has been frequently acted upon, and for a great length of time, by those whose duty it is to administer the law, and upon which course of action important individual rights have been acquired or de pend. 3 Barb. Ch. N. Y. 528, 577. As to the mode of citing authorities, see ABBREVIA TIONS; CITATION OF AUTHORITIES.