710
Breyer, J., dissenting
Again, where is Murphy's error?
Stated in this minimal way, Murphy's historical analysis is difficult to attack. One can, of course, always point to special features of a case and thereby distinguish it. In respect to the mid-18th-century English cases, one can point out that Calcutta and the church may not have been completely separate "sovereigns." Ante, at 685. And Saline Bank might have involved application by the federal court of a state law that, without the help of the Fifth Amendment, protected a party from self-incrimination. But see Saline Bank, supra, at 103 (citing Virginia privilege statute which, by its terms, applied to suit by the state "Attorney General" in the state "Superior Court of Chancery for the district of Richmond" for recovery of a bank's capital stock "in behalf of the Commonwealth"). But this kind of criticism is beside the point. The English judges made no point of the former. See ante, at 685 (statements about the privilege in these cases were "unqualified"). It does not denigrate their learning to suggest that they did not articulate the precise sovereignty-related status of ecclesiastical courts or of Calcutta's criminal law in 1749. Nor did Justice Holmes make any point of the latter. See Ballmann v. Fagin, supra, at 195. As for the suggestion that it is illegitimate to consider the later English authorities in construing the privilege, see ante, at 687, one would think that, on this view, Murdock is at least as vulnerable as Murphy.
Most importantly, neither the majority today, nor the authorities it cites, see ante, at 688-689, n. 11, shows that the key historical points upon which Murphy relied are clearly wrong. At worst, Murphy represents one possible reading of a history that is itself unclear. Murphy's main criticisms of Murdock are reasonable ones. Its reading of earlier cases, insofar as they were relevant to its criticism of Mur-dock, was plausible then, see Grant, Federalism and Self-Incrimination, 4 UCLA L. Rev. 549, 562 (1957) (Murdock "illustrates the danger of copying one's precedents directly
Page: Index Previous 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 NextLast modified: October 4, 2007