708
Breyer, J., dissenting
Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749); Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157 (Ch. 1750). Those cases said nothing about whether or not the law of Calcutta, church law, and English law all emanate from a single sovereign. But Murdock had cited a famous later English case, King of Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116 (Ch. 1851), as standing for the "same sovereign" principle.
It is true that one of the English judges in that case, Lord Cranworth, said that the privilege involves only "matters [made] penal by [English] . . . law." Id., at 329, 61 Eng. Rep., at 128. But Lord Cranworth immediately qualified that conclusion by restating the conclusion in terms of its rationale, namely, that the privilege applies "to matters as to which, if disclosed, the Judge would be able to say, as matter of law, whether it could or could not entail penal consequences." Ibid. And, 16 years later, the English courts sustained a claim of privilege involving a threatened forfeiture in America. United States of America v. McRae, 3 L. R. Ch. 79 (1867). In doing so, the McRae court said both that Lord Cranworth's statement in King of the Two Sicilies "la[id] down . . . a proposition" that was "broad[er]" than necessary to "support the judgment," and that the true reason the privilege had not applied in the earlier case was because the judge did not "know . . . with certainty . . . the [foreign law, hence] whether the acts . . . had rendered [the defendants] amenable to punishment" and "it was doubtful whether the Defendants would ever be within the reach of a prosecution, and their being so depended on their voluntary return to [Sicily]." United States of America v. McRae, supra, at 85, 87.
Thus, the true English rule as of the time of Murdock, insofar as any of these cases reveal that rule, was not a "same sovereign" rule, but a rule that the privilege did not apply to prosecutions by another sovereign where
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