Cite as: 530 U. S. 27 (2000)
Thomas, J., concurring
sion "to be a witness" and the Resurrection of Boyd, 74 N. Y. U. L. Rev. 1575, 1608-1609 (1999).2
Such a meaning of "witness" is consistent with, and may help explain, the history and framing of the Fifth Amendment. The 18th-century common-law privilege against self-incrimination protected against the compelled production of incriminating physical evidence such as papers and documents. See Morgan, The Privilege against Self-Incrimination, 34 Minn. L. Rev. 1, 34 (1949); Nagareda, supra, at 1618-1623. Several 18th-century cases explicitly recognized such a self-incrimination privilege. See Roe v. Harvey, 4 Burr. 2484, 2489, 98 Eng. Rep. 302, 305 (K. B. 1769); King v. Purnell, 1 Black. 37, 42, 96 Eng. Rep. 20, 23 (K. B. 1748); King v. Cornelius, 2 Str. 1210, 1211, 93 Eng. Rep. 1133, 1134 (K. B. 1744); Queen v. Mead, 2 LD. Raym. 927, 92 Eng. Rep. 119 (K. B. 1703); King v. Worsenham, 1 LD. Raym. 705, 91 Eng. Rep. 1370 (K. B. 1701). And this Court has noted that, for generations before the framing, "one cardinal rule of the court of chancery [wa]s never to decree a discovery which might tend to convict the party of a crime." Boyd v. United States, 116 U. S. 616, 631 (1886). See also Counselman v. Hitchcock, 142 U. S. 547, 563-564 (1892) ("It is an ancient principle of the law of evidence, that a witness shall not be compelled, in any proceeding, to make
2 Further, it appears that the phrases "gives evidence" and "furnishes evidence" were not simply descriptions of the act of providing testimony. For example, in King v. Purnell, 1 Black. 37, 96 Eng. Rep. 20 (K. B. 1748), the phrase "furnish evidence" is repeatedly used to refer to the compelled production of books, records, and archives in response to a government request. Id., at 40, 41, 42, 96 Eng. Rep., at 21, 22, 23. See also, e. g., King v. Cornelius, 2 Str. 1210, 1211, 93 Eng. Rep. 1133, 1134 (K. B. 1744) (compelling discovery of books "is in effect obliging a defendant . . . to furnish evidence against himself"); 1 T. Cunningham, New and Complete Law-Dictionary (2d ed. 1771) (evidence "signifies generally all proof, be it testimony of men, records or writings"); 1 G. Jacob, The Law-Dictionary (T. Tomlins ed. 1797) (defining "evidence" as "[p]roof by testimony of witnesses, on oath; or by writings or records").
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