A certificate of division was a source of appellate jurisdiction from the circuit courts to the Supreme Court of the United States from 1802 to 1911. Created by the Judiciary Act of 1802, the certification procedure was available only where the circuit court sat with a full panel of two: both the resident district judge and the circuit-riding Supreme Court justice. As Chief Justice John Marshall wrote, he did not have "the privilege of dividing the court when alone."Letter from John Marshall to Joseph Story (July 13, 1819), in 8 The Papers of John Marshall 352, 352 (Charles F. Hobson ed., 1995).
The certificate of division procedure had unique features. Unlike writ of error and certiorari jurisdiction, the certificate of division procedure did not require a federal question. In criminal cases, the certificate of division was the only source of appellate jurisdiction from the circuit courts (save original habeas) until 1889.Nielson, 2010, at 485. In civil cases, although ordinary writs of error were authorized, the certificate of division remained important because it permitted appeals without regard to the amount in controversy and interlocutory appeals. Inasmuch as the certificate of division permitted the Supreme Court some measure of control over its docket, it is a precursor to modern certiorari jurisdiction.
With regard to criminal cases, the Supreme Court held (in 1896) that Judiciary Act of 1891 operated as an implied repeal of the authorization to hear cases on certificates of division. But, the Court retained its authority to hear civil cases via certificates of division until the abolition of the circuit courts by the Judicial Code of 1911. A different, and rarely used, certified question procedure was adopted in 1925 and is currently codified at 28 U.S.C. § 1254(2).
Background
Circuit courts Under the Judiciary Act of 1789, the circuit courts were composed of a stationary district court judge and any two Supreme Court justices riding circuit.Judiciary Act of 1789, § 4 ,1 Stat. 73, 74–75. The practice of circuit riding was briefly abolished by the soon-repealed Midnight Judges Act of 1801, and then restored by the Judiciary Act of 1802. Under the 1802 Act, the circuit courts were composed of a stationary district judge and one Supreme Court justice assigned to the circuit.Judiciary Act of 1802, § 4, 2 Stat. 156, 157–58.
Section 4 of the Judiciary Act of 1789 had provided that two judges or justices would constitute a quorum. The practice of sending a single circuit rider was explicitly authorized by the Judiciary Act of 1793,Judiciary Act of 1793, § 1, 1 Stat. 333, 333–34. but was already common before 1793.Erwin C. Surrency, A History of Federal Courts, 28 214, 219 (1963). Under the Judicial Act of 1802, a single judge (either the district judge or the circuit rider) could preside alone.Judiciary Act of 1802, § 4 proviso, 2 Stat. 156, 158.
Early tie-breaking methods In United States v. Daniel (1821), Chief Justice John Marshall recounted the history of tie-breaking methods on the circuit courts. If one judge or justice disagreed with the other two, the majority prevailed. If only one Supreme Court justice could attend, and a division arose between the district judge and the Supreme Court justice, the practice—as required by the Judiciary Act of 1793—was to hold the case over until the next term.United States v. Daniel, 19 U.S. (6 Wheat.) 542, 547 (1821). If a one-to-one division persisted with a different circuit riding justice, the opinion of the previous circuit rider broke the tie.Judiciary Act of 1793, § 2, 1 Stat. 333, 334. See Daniel, 19 U.S. at 547. After 1802, in cases where both judges sat, though, one-to-one divisions were less likely to be resolved by continuing the case until the next term because the circuit-riding justice would be the same (barring a change in membership on the Court).Daniel, 19 U.S. at 548.
Prior to 1802, there was no way to call upon the Supreme Court to resolve one-to-one ties on the circuit courts. Alexander Dallas, the Supreme Court reporter (and also the reporter of an eclectic assortment of cases from state and federal courts in Pennsylvania), noted in United States v. Worrall (C.C.D. Pa. 1798): The Court being divided in opinion, it became a doubt, whether sentence could be pronounced upon the defendant; and a wish was expressed by the Judges and the Attorney of the District, that the case might be put into such a form, as would admit of obtaining the ultimate decision of the Supreme Court, upon the important principle of the discussion: But the counsel for the prisoner [Dallas himself] did not think themselves authorized to enter into a compromise of that nature.United States v. Worrall, 28 F. Cas. 774 (C.C.D. Pa. 1798).
Worrall involved a criminal prosecution of Robert Worrall for bribing Tench Coxe, the Commissioner of Revenue within the Department of the Treasury. After Worrall's conviction by jury, Dallas had moved for a judgment of acquittal on the ground that the Judiciary Act of 1789 did not empower the circuit court to try common law crimes (in 1798, there was no federal statute criminalizing the bribery of the relevant federal official). Despite the divided opinion in the circuit court, Worrall was sentenced to three months imprisonment and fined $200. The "short consultation" referred to in the official report, prior to the pronouncement of the reduced sentence, may have been with other members of the Supreme Court, which was then resident in Philadelphia.David Rossman, "Were There No Review": The History of Review in American Criminal Courts, 81 518, 564 (1990).
Statutory basis The Judiciary Act of 1802 permitted circuit courts to certify questions of law to the Supreme Court if the judges were divided on that question.White, 1984, at 1, 10–11, 20–30. Specifically, § 6 provided: Whenever any question should 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 held thereafter; and shall, by 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, farther 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 said imprisonment or punishment.Judiciary Act of 1802, § 6, 2 Stat. 156, 159–61.
An 1872 statute modified the certificate of division procedure to require waiting for a final decision in the circuit court case first. In the interim, the opinion of the presiding judge was to prevail.Act of June 1, 1872, § 1, 17 Stat. 196 (codified at Rev. Stat. 650, 651, 652, 693, and 697). An 1874 statute repealed the 1872 modification as to criminal cases,Rev. Stat. §§ 651, 697. but left it in place as to civil cases.Rev. Stat. §§ 650, 652, 693.
While the statute provided only for the certification of "the point upon which the disagreement shall happen,"Judiciary Act of 1802, § 6, 2 Stat. 156, 159. the justices sometimes took the liberty of enlarging the question. For example, in United States v. Hudson (1812), the question certified was "whether the Circuit Court of the United States had a common law jurisdiction in cases of libel?" but the question answered was "whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases?"Rowe, 1992, at 930. And, in United States v. Bevans (1818), the Court noted that "[i]t may be deemed within the scope of the question certified to this court" to inquire whether the murder was cognizable under § 3 of the Crimes Act of 1790, even though the defendant had only been indicted under § 8.United States v. Bevans, 16 U.S. (3 Wheat.) 336, 389 (1818).
History of use Certificates of division began to fall into disuse as it became increasingly common for the circuit courts to sit with a single judge. 31–32, 79–80 (1928); Anthony G. Amsterdam, Search, Seizure, and Section 2255; A Comment, 112 378, 383 n.24 (1964); Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 1, 7 n.41 (2011). The Judiciary Act of 1869 (the "Circuit Judges Act") reduced the circuit-riding duties of the Supreme Court justices and therefore reduced the possibility for certificates of division.Judiciary Act of 1869 (Circuit Judges Act), 16 Stat. 44. As Chief Justice Marshall wrote, he did not have "the privilege of dividing the court when alone."
In criminal cases
In United States v. More (1805), the Court held that the ordinary means of appeal, the writ of error, could not be utilized in criminal cases from the circuit courts.United States v. More, 7 U.S. (3 Cranch) 159 (1805). This contributed to the importance of the certificate of division in criminal cases. The Marshall Court (1801–1835) heard thirty-one criminal cases arising from certificates of division; the Taney Court (1836–1864), fifteen; the Chase Court (1864–1873), seventeen; the Waite Court (1874–1888), thirty-eight; and the Fuller Court (1888–1910), fourteen.
The Judiciary Act of 1802 plainly contemplated that certificates of division would issue in criminal cases. Section 6 provided that "imprisonment shall not be allowed, nor punishment in any case be inflicted, where judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment."Judiciary Act of 1802, § 6, 2 Stat. 156, 161. Justice Story—in his opinions for the Court—cautioned against the too frequent use of certificates of division in criminal cases. In United States v. Gooding (1827), for the Court, Justice Story wrote: We take this opportunity of expressing our anxiety, least, by too great indulgence to the wishes of counsel, questions of this sort should be frequently brought before this Court, and thus, in effect, an appeal in criminal cases become an ordinary proceeding to the manifest obstruction of public justice, and against the plain intendment of the acts of Congress.United States v. Gooding, 25 U.S. (12 Wheat.) 460, 467–68 (1827).
Not every question or every criminal case was eligible for a certificate of division. In United States v. Daniel (1821), the Court held that a motion for a new trial—as authorized by the § 17 of the Judiciary Act of 1789Judiciary Act of 1789, § 17, 1 Stat. 73, 83.—could not be the subject of a certificate of division; rather, the division would operate a rejection of the motion.United States v. Daniel, 19 U.S. (6 Wheat.) 542 (1821). Similarly, in United States v. Bailey (1835), the Court held that the question of whether the evidence was legally sufficient to support the offense charged could not be certified.United States v. Bailey, 34 U.S. (9 Pet.) 267 (1835). In United States v. Briggs (Briggs I) (1847), the Court further limited its jurisdiction to hear criminal certificates of division by holding that the question of whether a demurrer to an indictment should be sustained was too general to be certified.United States v. Briggs (Briggs I), 46 U.S. (5 How.) 208 (1847).