Cite as: 524 U. S. 666 (1998)
Opinion of the Court
Rep., at 158. Although this statement, like its counterpart in East India Co., is unqualified, neither case is authority for the proposition that fear of prosecution in foreign courts implicates the privilege. For in each of these cases, the judicial system to which the witness's fears related was subject to the same legislative sovereignty that had created the courts in which the privilege was claimed.9 In fact, when these cases were decided, and for years after adoption of the Fifth Amendment, English authority was silent on whether fear of prosecution by a foreign nation implicated the privilege, and the Vice-Chancellor so stated in 1851. See King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 331, 61 Eng. Rep. 116, 128 (Ch. 1851) (observing, in the course of an opinion that clearly involved a claim of privilege based on the fear of prosecution by another sovereign, that there is an "absence of all authority on the point").
Murphy, in fact, went on to discuss the case last cited, as well as a subsequent one. The Murphy majority began by acknowledging that King of the Two Sicilies was not authority for attacking this Court's prior view of English law. 378 U. S., at 60. In an opinion by Lord Cranworth, the Court of Chancery declined to allow defendants to assert the privilege
9 Further, the courts of both jurisdictions, at least in some cases, recognized the privilege against self-incrimination. East India Co. makes specific reference to the fact that the witness's testimony might be incriminating under the laws of Calcutta. 1 Ves. sen., at 247, 27 Eng. Rep., at 1011 ("[T]hat he is punishable appears from the case of Omichund v. Barker [1 Atk. 21, 26 Eng. Rep. 15 (1744)], as a jurisdiction is erected in Calcutta for criminal facts"). As of 1726, Calcutta was a "presidency town," which was subject to the civil jurisdiction of a "mayor's court." The mayor's court followed the English Rules of Evidence, which would have included the rule against self-incrimination. 1 Woodroffe & Ameer Ali's Law of Evidence in India 13 (P. Ramaswami & S. Rajagopalan eds., 11th ed. 1962). The ecclesiastical courts of England also recognized something akin to the privilege at this time in some cases. See Helmholz, Origins of the Privilege Against Self-Incrimination: The Role of the European Ius Commune, 65 N. Y. U. L. Rev. 962, 969-974 (1990) (citing cases heard in ecclesiastical courts in which the privilege was recognized).
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