AUTHORITIES. Enactments and opin ions 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 prece dence in the order in which they are here treated.
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 declare a statute or ordinance which conflicts with the former to be so far forth of no authority. See CONSTITUTIONAL LAW.
The decisions of courts of justice upon similar cases are the authorities to which most frequent resort is to be had; and al though in theory these are subordinate to the first class, in practice they do continual ly explain, enlarge, or limit the provisions of enactments, and thus in effect largely modi fy them. The word authorities is frequently used in a restricted sense to designate cita tions of this class. See 23 A. & E. Encyc. of Law 19; Chamberlain, Stare Decisis. See PRECEDENTS.
As to American decisions as authorities in English courts, see PRECEDENTS.
The opinions of legal writers. Of the vast number of treatises and comm which we have, 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 up on 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 es tablish it, his opinion is disregarded ; 3 B. & P. 301. Where, however, the writer de clares his own opinion as founded upon prin ciple, the learning and ability of the writer, together with the extent to which the rea sons 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 estimat ing the learning and ability of an author, is not a just test of his authority. See 3 Term 64, 241. Early text-books have a footing of their own and are considered authorities. Pollock, First Book 236. "In England and America, not only is there no line between the careers of judges and advocates, but there is no line between the judges and ad vocates and the jurists. Indeed, a large pro portion of those text-writers who could be properly cited as authority have either filled high judicial positions, or have been actively engaged in some branch of practice. Omit ting the names of living writers, we have, in England, Bracton, Littleton, Coke, Hare, Doderidge, Gilbert, Foster, Blackstone, Fearne, Hargrave, Butler, Preston, Wigram, Abbott, Sugden, Stephen, Byles, Williams, Blackburn, Benjamin ; and in the United States, Kent, Story, Redfield, Washburn, Rawle [Covenants for Title]." John C. Gray
(Nature and Sources of Law 255). Foster's Crown Law (1762) is said to be the *latest book to which authority in the exact sense can be ascribed. Pollock, First Book of Jurispr. 246. Five books are said to stand out pre-eminently in the history of English law—Glanvil, Bracton, Coke and Blackstone. 2 Holdsw. Hist. E. L. 484.
"It is to my mind much to be regretted, and it is a regret which I believe every judge on the bench shares, that text-books are more and more quoted in court—I mean, of course, text-books by living authors—and some judges have gone so far as to say that they shall not be quoted." Kekewich, J., in [1887] L. R. 37 C. D. 54.
In complicated questions of real estate law, in the absence of cases, weight is given to text-books of recognized authority; 18 C. B. N. S. 90, 107 (Erle, C. J.); and to the settled practice of conveyancers; 2 Brod. & Bing. 473, 600, per Eldon, L. C., in the House of Lords ; Turn. & R. 81, 87, when the same judge puts his decision on that ground, say ing, that "after the abuse which I have heard at the bar of the House of Lords and elsewhere upon that subject, I am not sorry to have this opportunity of stating my opin ion that great weight should be given to that practice." The practice of conveyancers was considered by Jessel, M. C., worthy of con sideration though not decisive ; 16 Ch. D. 211, 223.
As to the value and effect of the opinions of the Attorney-Generals of the United States, see In re District Attorney of Unit ed States, 2 Cadwalader's Cases 138, Fed. Cas. No. 3,924, 7 Am. L. Reg. (N. S.) 801, per Cadwalader, J. Devens, Atty.-Gen., in 16 Op. 522, referred to this opinion as being that of a subordinate judge, and therefore less weighty than those of the Attorney-Generals. See ExzeUrivE POWER.
The opinions of writers on moral science, and the codes and laws of ancient and for eign nations, are resorted to in the absence of more immediate authority, by way of as certaining those principles which have com mended themselves to legislators and phil osophers in all ages. See CODE. Lord Coke's saying that common opinion is good author ity in law, Co. Litt. 186 a, is not understood as referring to a mere speculative 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 depend ; Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 577, 49 Am. Dec. 189.
As to the mode of citing authorities, see