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).

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. Following a brief intermezzo with the soon-repealed Midnight Judges Act of 1801 (which abolished circuit riding), under the Judiciary Act of 1802, the circuit courts were composed of a stationary district judge and one Supreme Court justice assigned to the circuit.

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