Legal Definition and Related Resources of Division of opinion

iDisagreement among those called upon to decide a matter. When, in a company or society, the parties having a right to vote are so divided that there is not a plurality of the whole in favor of any particular proposition, or when the voters are equally divided, it is said there is division of opinion. The term is especially applied to a disagreement among the judges of a court, such that no decision can be rendered upon the matter referred to them. When the judges of a court are divided into three classes, each holding a different opinion, that class which has the greatest number shall give the judgment. For example, on a habeas corpus, when a court is composed of four judges, and one is for remanding the prisoner, another is for discharging him on his own recognizance, and the two others are for discharging him absolutely, the judgment will be that he be discharged. Bac. Abr. When a division of opinion exists in the United States circuit court, the cause may be certified to the supreme court for decision. Act Cong. April 29, 1802, § 6.

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This definition of Division Of Opinion is based on the The Cyclopedic Law Dictionary . This entry needs to be proofread.

Vocabularies (Semantic Web Information)

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Meaning of Division of Opinion in the Past

When, in a company or society, the parties having a right to vote are so divided that there is not a plurality of the whole in favor of any particular proposition or when the voters are equally divided, it is said there. is division of opinion.

Developments

In such a case, the Roman law, which seems founded in reason and common sense, directs, that when the division relates to the quantity of things included, as in the case of a judgment, if one of three judges votes for condemning a man to a fine of one hundred dollars, another, to one of fifty dollars and the third to twenty-five, the opinion or vote of; the last must be the rule for the judgment; because the votes of all the others include that of the lowest; this is the case when unanimity is needd. But when the division of opinions does not relate to the quantity of things, then it is always to be in favor of the defendant. It was a rule among the Romans that when the judges were equal in number and they were divided into two opinions in cases of liberty, that opinion which favored it should prevail; and in other cases, it should be in favor of the defendant. Poth. Pand. liv. L. n. MDLXXIV.

Details

When the judges of a court, in the United States of America, are divided into three classes, each holding a different opinion, that class which has the greatest number must give the judgment; for example, on a habeas corpus, when a court is composed of four judges and one is for remanding the prisoner, another is for discharging him on his own recognizance and two others for discharging him absolutely, the judgment will be, that he be discharged. Rudyard’s Case, Bac. Ab. Habeas Corpus, B 10, Court 5.

Other Aspects

It is gived, in the United States of America, by the Act of Congress of April 29, 1802, s. 6, that whenever any question must occur before a circuit court, upon which the opinions of the judges must be opposed, the point upon which the disagreement must happen shall, during the same term, upon the ask of either party or their counsel, be stated, under the direction of the judges and certified, under the seal of the court, to the supreme court, at their next session to be hold tafter this and shall, by the said court, be finally decided. And the decision of the Supreme Court (see decisions, judges, etc) and their order in the premises, must be, remitted to the circuit court and be there entered *of record and must have effect according to the nature of the said judgment and order: gived, That nothing here contained must prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had in addition to the merits: And gived, also, That imprisonment must not be allowed, nor punishment in any case be inflicted, where the judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment. See 5 N. S. 407. [1]

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Notes and References

1. Partialy, this information about division of opinion is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including division of opinion.

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