Certificate of division

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."
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. 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 regards 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 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).

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.  The practice of circuit riding was briefly abolished by the soon-repealed Midnight Judges Act of 1801, and then restored by the Judiciary Act of 1802.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.
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, but was already common before 1793. Under the Judicial Act of 1802, a single judge (either the district judge or the circuit rider) could preside alone.

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. 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. As Chief Justice Marshall wrote, he did not have "the privilege of dividing the court when alone."

In habeas cases

In Ex parte Tom Tong (1883), the Court held that—under 1872 amendments to the certification procedure, which went into effect during the Chase Court era—because habeas corpus was a civil proceeding, questions arising in habeas cases could not be certified to the Supreme Court until a final judgment had been entered. In Ex parte Milligan (1866), after the repeal of those amendments, the Court held that habeas petitions in the circuit courts could be a source of certified questions to the Supreme Court.

Certificates not decided

In addition to the Dartmouth College case (supra), there are other reports of certificates of division that were issued but never decided by the Supreme Court. After the indictment of Jefferson Davis, the President of the Confederacy, for treason, William Wirt Henry reports that a certificate of division was issued on Davis's motion to dismiss the indictment on the grounds that he owed no allegiance to the United States after the secession of his state. Reportedly, Chief Justice Salmon P. Chase sided with Davis, while District Judge John Curtiss Underwood sided with the government. No response from the Supreme Court to that certificate is reported, but Davis's bail was eventually absolved, and he was released.

Civil cases

Following Rider and Hewecker, certificates of division continued to be issued in civil cases. Felsenheld v. United States (1902) was the last civil certificate of division case. The possibility of civil certificates of division was not completely abolished until the Judicial Code of 1911 abolished the circuit courts.

Analysis

Several scholars have argued that certificates of division were pro forma, and that the judge and justice would merely agree to disagree, often without writing opposing opinions. For example, with the circuit court decision leading up to United States v. Marchant (1827), the reporter records that "[t]he district judge concurred in this opinion; but as it was a matter of not infrequent occurrence, and important to the practice of the court, the judges afterwards divided in opinion for the purpose of obtaining a solemn decision of the superior court." Similarly, the United States v. Ortega (1826) circuit court opinion notes that the "point was taken to the supreme court upon a proforma certificate of a division of opinion in this court."
White writes that "the certificate of division procedure constituted the principal opportunity by which they could control their docket." It was common for Marshall Court justices, while riding circuit or on vacation, to exchange letters about cases in the circuit courts which might be appropriate for certificates of division.