Cite as: 524 U. S. 666 (1998)
Breyer, J., dissenting
the danger of any such prosecution was speculative or insubstantial. Cf. Queen v. Boyes, 1 B. & S. 311, 330, 121 Eng. Rep. 730, 738 (Q. B. 1861) ("[T]he danger to be apprehended must be real and appreciable . . . not a danger of an imaginary and unsubstantial character").
Where is Murphy's error?
2. Murdock thought that earlier American cases required a "same sovereign" rule, but they did not. To the contrary: Chief Justice Marshall, in United States v. Saline Bank of Va., 1 Pet. 100 (1828), wrote that "a party is not bound to make any discovery which would expose him to penalties." Id., at 104. Justice Holmes later cited this case as authority for the proposition that the Fifth Amendment privilege "exonerated" a federal witness "from [making] disclosures which would have exposed him to the penalties of the state law." Ball-mann v. Fagin, 200 U. S. 186, 195 (1906). Lower federal courts, consistent with the English rule, had held that a witness could refuse to answer questions based on the danger of incrimination in another jurisdiction. See, e. g., In re Hess, 134 F. 109, 112 (ED Pa. 1905); In re Graham, 10 F. Cas. 913, 914 (No. 5,659) (SDNY 1876). True, the Court had written in dicta that "[w]e think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given it is enough." Jack v. Kansas, 199 U. S. 372, 382 (1905). But that unexplained dicta, which a later case linked to a (misunder-stood) English rule, see Hale v. Henkel, 201 U. S. 43, 68-69 (1906), provides an insufficient historical basis for Murdock's summary conclusion, particularly since the Court, immediately prior to Murdock, had indicated that the question remained open. See United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103 (1927) (reserving question; citing Saline Bank and Ball-mann v. Fagin).
709
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