 The Judiciary Act of 1802 plainly did contemplate 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 . " And , while the statute provided only for the certification of " the point upon which the disagreement shall happen , " 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 ? " 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 . 
