DIVISION OF OPINION. 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.
2. 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 shall 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 required. 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.
3. 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 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.
4. It is provided, by the Act of Congress of April 29, 1802, s. 6, that
whenever any question shall occur before a circuit court, upon which the
opinions of the judges shall be opposed, the point upon which the
disagreement shall happen shall, during the same term, upon the request 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 thereafter, and shall, by the said court, be
finally decided. And the decision of the supreme court, and their order in
the premises, shall be, remitted to the circuit court, and be there entered
*of record and shall have effect according to the nature of the said
judgment and order: Provided, That nothing herein contained shall prevent
the cause from proceeding, if, in the opinion of the court, further
proceedings can be had without prejudice to the merits: And Provided, also,
That imprisonment shall 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.