writs of error under § 22 of the Judiciary Act of 1789. The following year, while Ex parte McCardle was pending before the Supreme Court, Congress repealed the portion of the act that authorized the Supreme Court to hear habeas appeals from the circuit courts. Third, the Judiciary Act of 1869, also known as the Circuit Judges Act, created full-time judges to sit on the circuit courts. While the act did not eliminate the obligation of Supreme Court justices to "ride circuit," or sit as circuit judges, it reduced the practice and accordingly reduced the availability of certificates of division in criminal cases. Fourth, the United States Department of Justice was created in 1870. Fifth, in 1872, Congress modified the procedure for adjudicating certificates of division. In civil suits, the amendment provided that the opinion of the presiding judge (the Supreme Court justice) would prevail in the interim and that the Supreme Court would not decide the certified question of law until the circuit court entered a final decision in the matter. But, in criminal case, the procedure remained essentially the same as it had been under the Judiciary Act of 1802. Sources of jurisdiction Writ of error Circuit courts The Marshall Court had held that it lacked the jurisdiction to consider writs of error to the circuit courts in criminal cases. The Taney Court had not heard any such cases. But, in Blyew v. United States (1871), the Court heard a writ of error from a criminal action removed to the circuit court under the criminal rights removal provision. The opinion in Blyew does not discuss the jurisdictional question, but the reporter does note that: "Some discussion not material to be reported, was also had at the bar by the counsel on both sides, as to whether the case was properly brought here by writ of error . . . ." Section 22 of the Judiciary Act of 1789 had explicitly authorized appeals in removed cases. Over the dissent of Justices Bradley and Swayne, the Court held that civil rights removal was improper on the grounds that the criminal defendant wished to call an African-American witness who were regarded as incompetent to testify under state law. State courts The Chase Court heard ten writs of error from criminal convictions in the state courts (as authorized by § 25 of the Judiciary Act of 1789 and its progeny). Three such