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Justice Joseph Story wrote than an appeal in criminal cases would result in "manifest obstruction of public justice."

A certificate of division was a source of appellate jurisdiction from the circuit courts for the Supreme Court of the United States from 1802 to 1911.

Background

Under the Judiciary Act of 1789, the United States circuit courts were composed of a stationary United States district court judge and any two Supreme Court justices riding circuit.[1] If one judge or justice disagreed with the other two, the majority prevailed.[2] If only one Supreme Court justice could attend (as was authorized by the Judiciary Act of 1793[3]),[n 1] and a division arose between the district judge and the Supreme Court justice, the practice was to hold the case over until the next term.[2] If a one-to-one division persisted with a different circuit riding justice, the opinion of the previous circuit rider broke the tie.[4] Following a brief intermezzo with the soon-repealed Midnight Judges Act of 1801 (which briefly abolished circuit riding), under the Judiciary Act of 1802, the circuit courts were composed of a stationary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.[5][n 2] But, a single judge (either the district judge or the circuit rider) could preside alone.[6] 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).[7]

Statutory basis

Section 6 of the Judiciary Act of 1802 provided that the circuit courts could certify questions of law to the Supreme Court if the judges were divided on that question.[8]

History

Marshall Court

During the Marshall Court era, Chief Justice Marshall and Justice Story in particular were known for making use of certificates of division while riding circuit. For example, Justice Marshall was one of the divided judges in United States v. Klintock (1820), United States v. Smith (1820), United States v. Amedy (1826), United States v. Turner (1833), and United States v. Mills (1833); and Justice Story played the role in United States v. Coolidge (1816),[9] United States v. Bevans (1818), United States v. Palmer (1818),[10] United States v. Holmes (1820), and Marchant.

While the statute provided only for the certification of "the point upon which the disagreement shall happen,"[8] 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?"[11] 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.[12]

Certificates of division began to fall into disuse as it became increasingly common for the circuit courts to sit with a single judge.[13] As Chief Justice Marshall wrote, he did not have "the privilege of dividing the court when alone."[14]

Use in criminal cases

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."[8] 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.[15]

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 1789[16]—could not be the subject of a certificate of division; rather, the division would operate a rejection of the motion.[17] 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.[18]

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.[19] 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."[20] 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."[21]

References

  1. ^ Judiciary Act of 1789, § 4 ,1 Stat. 73, 74–75.
  2. ^ a b United States v. Daniel, 19 U.S. (6 Wheat.) 542, 547 (1821).
  3. ^ Judiciary Act of 1793, § 1, 1 Stat. 333, 333–34.
  4. ^ Judiciary Act of 1793, § 2, 1 Stat. 333, 334. See Daniel, 19 U.S. at 547.
  5. ^ Judiciary Act of 1802, § 4, 2 Stat. 156, 157–58.
  6. ^ Judiciary Act of 1802, § 4 proviso, 2 Stat. 156, 158.
  7. ^ Daniel, 19 U.S. at 548.
  8. ^ a b c Judiciary Act of 1802, § 6, 2 Stat. 156, 159–61. See generally White, 1984, at 1, 10–11, 20–30.
  9. ^ Rowe, 1992, at 931–34.
  10. ^ John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int'l L. 351, 362 n.64 (2010); White, 1989, at 730–31.
  11. ^ Rowe, 1992, at 930.
  12. ^ United States v. Bevans, 16 U.S. (3 Wheat.) 336, 389 (1818).
  13. ^ Felix Frankfurter & James McCauley Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 31–32, 79–80 (1928); Anthony G. Amsterdam, Search, Seizure, and Section 2255; A Comment, 112 U. Pa. L. Rev. 378, 383 n.24 (1964); Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 Duke J. Comp. & Int'l L. 1, 7 n.41 (2011).
  14. ^ Letter from John Marshall to Joseph Story (July 13, 1819), in 8 The Papers of John Marshall 352, 352 (Charles F. Hobson ed., 1995).
  15. ^ United States v. Gooding, 25 U.S. (12 Wheat.) 460, 467–68 (1827).
  16. ^ Judiciary Act of 1789, § 17, 1 Stat. 73, 83.
  17. ^ United States v. Daniel, 19 U.S. (6 Wheat.) 542 (1821).
  18. ^ United States v. Bailey, 34 U.S. (9 Pet.) 267 (1835).
  19. ^ White, 1988, at 164–80; Alison L. LaCroix, Federalists, Federalism, and Federal Jurisdiction, 30 Law & Hist. Rev. 205, 238 n.113 (2012); White, 1989, at 730 n.14; White, 2009, at 321 n.4, 325 n.17.
  20. ^ United States v. White, 28 F. Cas. 580, 584 (C.C.D. Mass. 1826) (No. 16,682).
  21. ^ United States v. Ortega, 27 F. Cas. 359, 362 (C.C.E.D. Pa. 1825) (No. 15,971).


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