II. THE EARLY ENGLISH AND AMERICAN CASES.

A. The English Cases Before the Adoption of the Constitution.

In 1749 the Court of Exchequer decided East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010. The defendant in that case refused to “discover” certain information in a proceeding in an English court on the ground that it might subject him to punishment in the courts of India. The court unanimously held that the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction. The court stated the rule to be:

“that this court shall not oblige one to discover that, which, if he answers in the affirmative, will subject him to the punishment of a crime … and that he is punishable appears from the case of Omichund v. Barker, [1 Atk. 21.] as a jurisdiction is erected in Calcutta for criminal facts: where he may be sent to government and tried, though not punishable here; like the case of one who was concerned in a rape in Ireland, and sent over there by the government  [*12]   to be tried, although the court of B. R. here refused to do it … for the government may send persons to answer for a crime wherever committed, that he may not involve his country; and to prevent reprisals.” 1 Ves. sen., at 247, 27 Eng. Rep., at 1011.

In the following year, this rule was applied in a case involving separate systems of courts and law located within the same geographic area. The defendant in Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157, refused to “discover, whether she was lawfully married” to a certain individual, on the ground that if she admitted to the marriage she would be confessing to an act which, although legal under the common law, would render her “liable to prosecution in ecclesiastical court.” The Lord Chancellor said:

“This appears a very plain case, in which defendant may protect herself from making a discovery of her marriage; and I am afraid, if the court should over-rule such a plea, it would be setting up the oath ex officio; which then the parliament in the time of Charles I. would in vain have taken away, if the party might come into this court  [*13]   for it. The general rule is, that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law of the land.” 2 Ves. sen., at 244-245, 28 Eng. Rep., at 158.

It was against this background of English case law that this Court in 1828 decided United States v. Saline Bank of Virginia, 1 Pet. 10. The Government, seeking to recover certain bank deposits, brought suit in the District Court against the bank and a number of its stockholders. The defendants resisted discovery of “any matters, whereby they may impeach or accuse themselves of any offence or crime, or be liable by the laws of the commonwealth of Virginia, to penalties and grievous fines … .” Id., at 102. The unanimous opinion of the Court, delivered by Chief Justice Marshall, reads as follows:

“This is a bill in equity for a discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statute of Virginia.

“The Court below decided in favour of the validity of the plea, and dismissed the bill.

“It is apparent  [*14]   that in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is, that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it.

“The decree of the Court below is therefore affirmed.” Id., at 104.

This case squarely holds that the privilege against self-incrimination protects a witness in a federal court from being compelled to give testimony which could be used against him in a state court.

C. Subsequent Development of the English Rule.

In 1851, the English Court of Chancery decided King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116, a case which this Court in United States v. Murdock, 284 U.S. 141, erroneously cited as representing the settled “English rule” that a witness is not protected “against disclosing offenses in violation of the laws of another country.” Id., at 149. Defendants in that case resisted discovery of information, which, they asserted, might subject them to prosecution under the laws of Sicily. In denying  [*15]   their claim, the Vice Chancellor said:

“The rule relied on by the Defendants, is one which exists merely by virtue of our own municipal law, and must, I think, have reference, exclusively, to matters penal by that law: 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.” 1 Sim. (N.S.), at 329, 61 Eng. Rep., at 128.

Two reasons were given in support of this statement: (1) “The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend … ,” id., at 331, 61 Eng. Rep., at 128; and (2) the fact that “in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated,” n7 ibid., 61 Eng. Rep., at 128.

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n7 In The Queen v. Boyes, 1 B. & S. 311, decided by the Queen’s Bench in 1861, a witness had declined to answer a question on the ground that it might tend to incriminate him, whereupon the “Solicitor General then produced a pardon of the witness.” Id., at 313. The witness nevertheless refused to answer the question on the ground that he could still be impeached by the Parliament. The court held:

“that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things — not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. …

Now, in the present case, no one seriously supposes that the witness runs the slightest risk of an impeachment … . No instance of such a proceeding in the unhappily too numerous cases of bribery which have engaged the attention of the House of Commons has ever occurred, or, so far as we are aware, has ever been thought of.” Id., at 330-331.

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Within a few years, the pertinent part of King of the Two Sicilies was specifically overruled by the Court of Chancery Appeal in United States of America v. McRae, L. R., 3 Ch. App. 79 (1867), a case not mentioned by this Court in United States v. Murdock, supra. In McRae, the United States sued in an English court for an accounting and payment of moneys allegedly received by the defendant as agent for the Confederate States during the Civil War. The defendant refused to answer questions on the ground that to do so would subject him to penalties under the laws of the United States. The United States argued that the “protection from answering applies only where a person might expose himself to the peril of a penal proceeding in this country [England], and not to the case where the liability to penalty or forfeiture is incurred by the breach of the laws of a foreign country [the United States].” L. R., 3 Ch. App., at 83-84. The United States relied on King of the Two Sicilies v. Willcox, supra. The Lord Chancellor sustained the claim of privilege and limited King of the Two Sicilies  [*17]  to its facts. He said:

“I quite agree in the general principles stated by Lord Cranworth, and in their application to the particular case before him… . [The defendants there] did not furnish the least information what the foreign law was upon the subject, though it was necessary for the Judge to know this with certainty before he could say whether the acts done by the persons who objected to answer had rendered them amenable to punishment by that law or not… . [Moreover,] 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].” L. R., 3 Ch. App., at 84-87.

In refusing to follow King of the Two Sicilies beyond its particular facts, the court said:

“But in giving judgment Lord Cranworth went beyond the particular case, and expressed his opinion that the rule upon which the Defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment  [*18]   which he pronounced . … What would have been Lord Cranworth’s opinion upon [the present] state of circumstances it is impossible for me to conjecture; but it is very different from that which was before his mind in that case, and I cannot feel that there is any judgment of his which ought to influence my decision upon the present occasion.” Id., at 85.

The court then concluded that under the circumstances it could not “distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law.” Id., at 87. This decision, not King of the Two Sicilies, represents the settled “English rule” regarding self-incrimination under foreign law. See Heriz v. Riera, 11 Sim. 318, 59 Eng. Rep. 896.

III. THE RECENT SUPREME COURT CASES.

In 1896, in Brown v. Walker, 161 U.S. 591, this Court, for the first time, sustained the constitutionality of a federal immunity statute. Appellant in that case argued, inter alia, that:

“while the witness is granted  [*19]   immunity from prosecution by the Federal government, he does not obtain such immunity against prosecution in the state courts.” Id., at 606.

The Court construed the applicable statute, however, to prevent prosecutions either in state or federal courts. n8

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n8 The Court in Brown v. Walker, 161 U.S. 591, signified approval of the English rule announced in The Queen v. Boyes, supra, as follows:

“But even granting that there were still a bare possibility that by his disclosure he might be subjected to the criminal laws of some other sovereignty, that, as Chief Justice Cockburn said in The Queen v. Boyes, 1 B. & S. 311, in reply to the argument that the witness was not protected by his pardon against an impeachment by the House of Commons, is not a real and probable danger, with reference to the ordinary operations of the law in the ordinary courts, but 'a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.' Such dangers it was never the object of the provision to obviate.” 161 U.S., at 608. See note 7, supra.

The lower federal courts were also following the English rule that a refusal to answer questions could legitimately be based on the danger of incrimination in another jurisdiction. In the case of In re Graham, 10 Fed. Cas. 913 (No. 5,659), for example, the witness refused to answer questions asked by a federal official on the ground that answers to such questions might expose “him to a criminal prosecution under the laws of the state of New York.” Id., at 914. Judge Blatchford held that the witness was “privileged from answering the questions.” Ibid. In the case of In re Hess, 134 F. 109, decided in 1905, where a bankrupt refused to answer certain questions on the ground that they might tend to incriminate him under state law, the court said:

“Section 860 of the Revised Statutes only prohibits the use of evidence that may be obtained from the bankrupt’s books in prosecutions in the federal courts. There is nothing in this section which extends that immunity to the use of such evidence in the state courts, and there is nothing to prevent the trustee from making use of the bankrupt’s books in a criminal prosecution against him instituted in the state courts. Obviously, therefore, if section 7, cl. 9, of the bankrupt act, does not protect him against the use of the evidence which he alleges is contained in his books, of an incriminating nature, in either the state or federal courts, and section 860 of the Revised Statutes extends the immunity only to federal courts, and not to state courts, it is plain that whatever incriminating evidence the books may contain could be used without restriction in the state courts for the purpose of convicting him of any crime for which he might be indicted there, and, in consequence of this danger to him, the plea of his constitutional privilege must prevail.” Id., at 112.

Also see, e. g., In re Koch, 14 Fed. Cas. 832 (No. 7,916); In re Feldstein, 103 F. 269; In re Henschel, 7 Am. Bankr. R. 207; In re Kanter, 117 F. 356; In re Hooks Smelting Co., 138 F. 954, 146 F. 336.

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Shortly thereafter, the Court decided Jack v. Kansas, 199 U.S. 372, in which the state court had held plaintiff in error in contempt for his refusal to answer certain questions on the ground that they would subject him to possible incrimination under federal law. In rejecting plaintiff’s claim, this Court said that the Fifth Amendment “has no application in a proceeding like this,” and hence “the sole question in the case” is whether “the denial of his claim of right to refuse to answer the questions was in violation of the Fourteenth Amendment to the Constitution … .” Id., at 380. The Court stated that it did “not believe that in such case there is any real danger of a Federal prosecution, or that such evidence would be availed of by the Government for such purpose.” Id., at 382. Then, without citing any authority, the Court added the following cryptic dictum: “We think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given it is enough.” Ibid.

That this dictum related solely to the “legal immunity” under the Due Process  [*21]   Clause of the Fourteenth Amendment is apparent from the fact that it was regarded, five weeks later in Ballmann v. Fagin, 200 U.S. 186, as wholly inapplicable to cases decided under the Self-Incrimination Clause of the Fifth Amendment. n9 Ballmann had been held in contempt of a federal court for refusing to answer certain questions before a federal grand jury. He claimed that his answers might expose him “to the criminal law of the State in which the grand jury was sitting.” Id., at 195. Justice Holmes, writing for a Court which included the author of Jack v. Kansas, supra, squarely held that “according to United States v. Saline Bank, 1 Peters, 10, he was exonerated from disclosures which would have exposed him to the penalties of the state law. See Jack v. Kansas, 199 U.S. 372, decided this term.” 200 U.S., at 195.

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n9 At this time, the privilege against self-incrimination had not yet been held applicable to the States through the Fourteenth Amendment.

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A few months after Ballmann, the Court decided Hale v. Henkel, 201 U.S. 43. Appellant had been held in contempt of a federal court for refusing to answer certain questions and produce certain documents. His refusal was based in part on the argument that the federal immunity statute did not protect him from state prosecution. The Government argued, on the authority of Brown v. Walker, supra, that the statute did protect him from state prosecution. The Government assumed that it was settled that a valid federal immunity statute would have to protect against state prosecution. It never suggested, therefore, that immunity from federal prosecution was all that was required. Appellant similarly assumed, without argument, that the Constitution required immunity from state conviction as a condition of requiring incriminating testimony in a federal court. Thus the critical constitutional issue — whether the Fifth Amendment protects a federal witness from incriminating himself under state law — was not briefed or argued in Hale v. Henkel. Nor was its resolution necessary to the decision of the case, for  [*23]   the Court could have decided the relevant point on the authority of Brown v. Walker, supra, which had held that a similar federal immunity statute protected against state prosecution. Nevertheless, the Court went on to say:

“The question has been fully considered in England, and the conclusion reached by the courts of that country that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 B. & S. 311; King of the Two Sicilies v. Willcox, 7 State Trials (N. S.), 1049, 1068; State v. March, 1 Jones (N. Car.), 526; State v. Thomas, 98 N. Car. 599.

“The case of United States v. Saline Bank, 1 Pet. 100, is not in conflict with this. That was a bill for discovery, filed by the United States against the cashier of the Saline Bank, in the District Court of the Virginia District, who pleaded that the emission of certain unlawful bills took place, within the State of Virginia, by the law whereof penalties were inflicted for such emissions. It was held that defendants were not bound to answer and  [*24]   subject themselves to those penalties. It is sufficient to say that the prosecution was under a state law which imposed the penalty, and that the Federal court was simply administering the state law, and no question arose as to a prosecution under another jurisdiction.” 201 U.S., at 69.

This dictum, subsequently relied on in United States v. Murdock, supra, was not well founded.

The settled English rule was exactly the opposite of that stated by the Court. The most recent authoritative announcement of the English rule had been that made in 1867 in United States of America v. McRae, supra, where the Court of Chancery Appeals held that where there is a real danger of prosecution in a foreign country, the case could not be distinguished “in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law.” Supra, at 63. The dictum from King of the Two Sicilies cited by the Court in Hale v. Henkel had been rejected in McRae. Moreover, the two factors relied on by the English court in King of the Two Sicilies  [*25]  were wholly inapplicable to federal-state problems in this country. The first — “The impossibility of knowing, as matter of law, to what cases the [danger of incrimination] may extend … ,” supra, at 60 — has no force in our country where the federal and state courts take judicial notice of each other’s law. The second — that “in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated,” supra, at 60-61 — is equally inapplicable in our country where the witness is generally within “the jurisdiction” of the State under whose law he claims danger of incrimination, and where, if he is not, the State may demand his extradition. The second case relied on in Hale v. Henkel, supra — The Queen v. Boyes, supra — was irrelevant to the issue there presented. The Queen v. Boyes did not involve different jurisdictions or systems of law. It merely held that the danger of prosecution “must be real and appreciable … not a danger of an imaginary and unsubstantial character … .”  [*26]   It in no way suggested that the danger of prosecution under foreign law could be ignored if it was “real and appreciable.” n10

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n10 See note 7, supra. Nor were the North Carolina cases relied on in Hale v. Henkel settled authority in favor of the proposition that the Fifth Amendment did not protect a federal witness from incriminating himself under state law. In State v. March, 1 Jones (N. C.) 526, the North Carolina Supreme Court in 1853 did say that the North Carolina “courts, in administering justice among their suitors, will not notice the criminal laws of another State or country, so far as to protect a witness from being asked whether he had not violated them.” That court, of course, was not applying either the Fifth Amendment or the Fourteenth Amendment (which was not yet enacted), and the North Carolina rule against self-incrimination apparently was narrower in scope than the federal rule. See State v. Thomas, 98 N. C. 599, 603, 4 S. E. 518, 520 (citing cases). In any event, the authority of the March case had been significantly diminished, if not discredited, by the second of the North Carolina cases relied upon in Hale v. Henkel. In State v. Thomas, supra, the North Carolina Supreme Court conceded that the March “case is not distinguishable in principle from that before us.” It continued: “We prefer, however, to put our decision upon other ground — more satisfactory to our own minds and well sustained by adjudications in other Courts.” 98 N. C., at 604, 4 S. E., at 520-521. (Emphasis added.) The court then held that the witness had waived his privilege against self-incrimination.

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Thus, the authorities relied on by the Court in Hale v. Henkel provided no support for the conclusion that under the Fifth Amendment “the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty.” Nor was its attempt to distinguish Chief Justice Marshall’s opinion in United States v. Saline Bank of Virginia, supra, more successful. The Court’s reading of Saline Bank suggests that the state, rather than the federal, privilege against self-incrimination applies to federal courts when they are administering state substantive law. The most reasonable reading of that case, however, and the one which was plainly accepted by Justice Holmes in Ballmann v. Fagin, supra, is that the privilege against self-incrimination precludes a federal court from requiring an answer to a question which might incriminate the witness under state law. n11 This reading is especially compelling in light of the English antecedents of the Saline Bank case. See East India Co. v. Campbell, discussed, supra, at 58; and Brownsword v. Edwards, discussed, supra   [*28]   , at 58-59.

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n11 It has been argued that “it is abundantly clear … that Saline Bank stands for no constitutional principle whatever. It was merely a reassertion of the ancient equity rule that a court of equity will not order discovery that may subject a party to criminal prosecution. In fact, the decision was cited in support of that proposition by an esteemed member of the very Court that decided the case. 2 Story, Commentaries on Equity, § 1494, n. 1 (1836).” Hutcheson v. United States, 369 U.S. 599, 608, n. 13 (opinion of MR. JUSTICE HARLAN).

The cited authority does not, however, support the argument “that Saline Bank stands for no constitutional principle whatever.” That case was cited by Story, intermingled with more than a dozen other cases, in a footnote to the following statement: “Courts of Equity … will not compel a discovery in aid of a criminal prosecution … for it is against the genius of the Common Law to compel a party to accuse himself; and it is against the general principles of Equity to aid in the enforcement of penalties or forfeitures.” (Emphasis added.) This statement suggests that the common-law privilege and the equitable rule are so intermeshed that it serves no useful purpose to attempt to ascertain whether a given application by a Court of Equity rested on the former or the latter.

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The weakness of the Hale v. Henkel dictum was immediately recognized both by lower federal courts n12 and by this Court itself. In Vajtauer v. Commissioner of Immigration, 273 U.S. 103, decided in 1927 by a unanimous Court, appellant refused to answer certain questions put to him in a deportation proceeding on the ground that they “might have tended to incriminate him under the Illinois Syndicalism Law … .” Id., at 112. Instead of deciding the issue on the authority of the Hale v. Henkel dictum, the Court held that the privilege had been waived. The Court then said:

“This conclusion makes it unnecessary for us to consider the extent to which the Fifth Amendment guarantees immunity from self-incrimination under state statutes or whether this case is to be controlled by Hale v. Henkel, 201 U.S. 43; Brown v. Walker, 161 U.S. 591, 608; compare United States v. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U.S. 186, 195.” 273 U.S., at 113.

In a subsequent case, decided in 1933,  [*30]   this Court said that the question — whether “one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law” — was “specifically reserved in Vajtauer v. Comm’r of Immigration,” and was not “definitely settled” until 1931. United States v. Murdock, 290 U.S. 389, 396.

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n12 See, e. g., United States v. Lombardo, 228 F. 980, aff’d on other grounds, 241 U.S. 73, where the court accepted defendant’s contention that if she answered certain questions, she might “incriminate herself under the criminal laws of Washington.” See also, e. g., Buckeye Powder Co. v. Hazard Powder Co., 205 F. 827; In re Doyle, 42 F.2d 686, rev'd without opinion, 47 F.2d 1086.

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In 1931, the Court decided United States v. Murdock, 284 U.S. 141, the case principally relied on by respondent here. Appellee had been indicted for failing to supply  [*31]   certain information to federal revenue agents. He claimed that his refusal had been justified because it rested on the fear of federal and state incrimination. The Government argued that the record supported only a claim of state, not federal, incrimination, and that the Fifth Amendment does not protect against a claim of state incrimination. Appellee did not respond to the latter argument, but instead rested his entire case on the claim that his refusals had in each instance been based on federal as well as state incrimination. In support of its constitutional argument, the Government cited the same two English cases erroneously relied on in the Hale v. Henkel dictum — King of the Two Sicilies v. Willcox, supra, which had been overruled, and The Queen v. Boyes, supra, which was wholly inapposite. An examination of the briefs and summary of argument indicates that neither the Government nor the appellee informed the Court that King of the Two Sicilies had been overruled by United States of America v. McRae, supra. n13

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n13 The Government also relied on the North Carolina case of State v. March, supra, which, as previously noted, see note 10, supra, had been discredited by the subsequent case of State v. Thomas, supra.

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This Court decided that appellee’s refusal to answer rested solely on a fear of state prosecution, and then concluded, in one brief paragraph, that such a fear did not justify a refusal to answer questions put by federal officers.

The Court gave three reasons for this conclusion. The first was that:

“Investigations for federal purposes may not be prevented by matters depending upon state law. Constitution, Art. VI, § 2.” 284 U.S., at 149.

This argument, however, begs the critical question. No one would suggest that state law could prevent a proper federal investigation; the Court had already held that the Federal Government could, under the Supremacy Clause, grant immunity from state prosecution, and that, accordingly, state law could not prevent a proper federal investigation. The critical issue was whether the Federal Government, without granting immunity from state prosecution, could compel testimony which would incriminate under state law. The Court’s first “reason” was not responsive to this issue.

The second reason given by the Court was that:

“The English rule of evidence against compulsory self-incrimination, on which  [*33]   historically that contained in the Fifth Amendment rests, does not protect witnesses against disclosing offenses in violation of the laws of another country. King of the Two Sicilies v. Willcox, 7 State Trials (N. S.) 1050, 1068. Queen v. Boyes, 1 B. & S. 311, 330.” 284 U.S., at 149.

The third reason given by the Court in Murdock was that:

“This court has held that immunity against state prosecution is not essential to the validity of federal statutes declaring that a witness shall not be excused from giving evidence on the ground that it will incriminate him, and also that the lack of state power to give witnesses protection against federal prosecution does not defeat a state immunity statute. The principle established is that full and complete immunity against prosecution  [*34]   by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination. Counselman v. Hitchcock, 142 U.S. 547. Brown v. Walker, 161 U.S. 591, 606. Jack v. Kansas, 199 U.S. 372, 381. Hale v. Henkel, 201 U.S. 43, 68.” 284 U.S., at 149.

This argument — that the rule in question had already been “established” by the past decisions of the Court — is not accurate. The first case cited by the Court — Counselman v. Hitchcock — said nothing about the problem of incrimination under the law of another sovereign. The second case — Brown v. Walker — merely held that the federal immunity statute there involved did protect against state prosecution. The third case — Jack v. Kansas — held that the Due Process Clause of the Fourteenth Amendment did not prevent a State from compelling an answer to a question which presented no “real danger of a Federal prosecution.” 199 U.S., at 382. The final case — Hale v. Henkel — contained dictum in support  [*35]   of the rule announced which was without real authority and which had been questioned by a unanimous Court in Vajtauer v. Commissioner of Immigration, supra. Moreover, the Court subsequently said, in no uncertain terms, that the rule announced in Murdock had not been previously “established” by the decisions of the Court. When Murdock appealed his subsequent conviction on the ground, inter alia, that an instruction on willfulness should have been given, the Court affirmed the Court of Appeals’ reversal of his conviction and said that:

“Not until this court pronounced judgment in United States v. Murdock, 284 U.S. 141, had it been definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law. The question was involved, but not decided, in Ballmann v. Fagin, 200 U.S. 186, 195, and specifically reserved in Vajtauer v. Comm’r of Immigration, 273 U.S. 103, 113.” United States v. Murdock, 290 U.S. 389, 396.

In 1944 the Court, in Feldman v. United States, 322 U.S. 487, was confronted with the situation where evidence compelled by a State under a grant of state immunity was “availed of by the [Federal] Government” and introduced in a federal prosecution. Jack v. Kansas, 199 U.S., at 382. This was the situation which the Court had earlier said it did “not believe” would occur. Ibid. Nevertheless, the Court, in a 4-to-3 decision, upheld this practice, but did so on the authority of a principle which is no longer accepted by this Court. The Feldman reasoning was essentially as follows:

“The Fourth and Fifth Amendments, intertwined as they are, [express] supplementing phases of the same constitutional purpose … .” 322 U.S. 489-490.

“One of the settled principles of our Constitution has been that these Amendments protect only against invasion of civil liberties by the [Federal]   [*37]   Government whose conduct they alone limit.” Id., at 490.

“And so, while evidence secured through unreasonable search and seizure by federal officials is inadmissible in a federal prosecution, Weeks v. United States, supra; … incriminating documents so secured by state officials without participation by federal officials but turned over for their use are admissible in a federal prosecution. Burdeau v. McDowell, 256 U.S. 465.” 322 U.S., at 492.

The Court concluded, therefore, by analogy to the then extant search and seizure rule, that evidence compelled by a state grant of immunity could be used by the Federal Government. But the legal foundation upon which that 4-to-3 decision rested no longer stands. Evidence illegally seized by state officials may not now be received in federal courts. In Elkins v. United States, 364 U.S. 206, the Court held, over the dissent of the writer of the Feldman decision, that “evidence obtained by state officers during a search which, if conducted by federal officers,  [*38]   would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.” 364 U.S., at 223. Thus, since the fundamental assumption underlying Feldman is no longer valid, the constitutional question there decided must now be regarded as an open one.

The relevant cases decided by this Court since Feldman fall into two categories. Those involving a federal immunity statute — exemplified by Adams v. Maryland, 347 U.S. 179 — in which the Court suggested that the Fifth Amendment bars use by the States of evidence obtained by the Federal Government under the threat of contempt. And those involving a state immunity statute — exemplified by Knapp v. Schweitzer, 357 U.S. 371 — where the Court, applying a rule today rejected, held the Fifth Amendment inapplicable to the States. n14

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n14 In Mills v. Louisiana, 360 U.S. 230, the Court, without opinion, simply applied the rule announced in Knapp v. Schweitzer, 357 U.S. 371. In Hutcheson v. United States, 369 U.S. 599, there was no opinion of the Court.

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In Adams v. Maryland, supra, petitioner had testified before a United States Senate Committee investigating crime, and his testimony had later been used to convict him of a state crime. A federal statute at that time provided that no testimony given by a witness in congressional inquiries “shall be used as evidence in any criminal proceeding against him in any court … .” 62 Stat. 833. The State questioned the application of the statute to petitioner’s testimony and the constitutionality of the statute if construed to apply to state courts. The Court, in an opinion joined by seven members, made the following significant statement: “a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute.” 347 U.S., at 181. n15 This statement suggests that any testimony elicited under threat of contempt by a government to whom the constitutional privilege against self-incrimination is applicable (at the  [*40]   time of that decision it was deemed applicable only to the Federal Government) may not constitutionally be admitted into evidence against him in any criminal trial conducted by a government to whom the privilege is also applicable. This statement, read in light of today’s decision in Malloy v. Hogan, ante, at 1, draws into question the continuing authority of the statements to the contrary in United States v. Murdock, 284 U.S. 141, and Feldman v. United States, supra. n16

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n15 The Court in Adams v. Maryland, 347 U.S. 179, went on to construe the statute as affording more protection than would be provided by the Fifth Amendment alone. It held that the statute applied even where, as there, the witness had not claimed his privilege against self-incrimination before being required to testify. It held, as well, that the statute did, and constitutionally could, prevent use of the testimony in state as well as federal courts.

n16 In Ullmann v. United States, 350 U.S. 422, decided two years after Adams, the Court did not reach the constitutional question of whether a State could prosecute a person on the basis of evidence obtained by the Federal Government under a federal immunity statute. The Court again construed the applicable statute, which related to testimony involving national security, to apply to the States and held that the paramount federal “authority in safeguarding national security” justifies “the restriction it has placed on the exercise of state power … .” Id., at 436.

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Knapp v. Schweitzer, 357 U.S. 371, involved a state contempt conviction for a witness’ refusal to answer questions, under a grant of state immunity, on the ground that his answers might subject him to prosecution under federal law. Petitioner claimed that “the Fifth Amendment gives him the privilege, which he can assert against either a State or the National Government, against giving testimony that might tend to implicate him in a violation” of federal law. Id., at 374. The Court, applying the rule then in existence, denied petitioner’s claim and declared that:

“It is plain that the [Fifth Amendment] can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole — although deeply valuable — purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth.” Id., at 380.

The Court has today rejected that rule, and with it, all  [*42]   the earlier cases resting on that rule.

The foregoing makes it clear that there is no continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.

IV. CONCLUSIONS.

[4]

In light of the history, policies and purposes of the privilege against self-incrimination, we now accept as correct the construction given the privilege by the English courts n17 and by Chief Justice Marshall and Justice Holmes. See United States v. Saline Bank of Virginia, supra; Ballmann v. Fagin, supra. We reject — as unsupported by history or policy — the deviation from that construction only recently adopted by this Court in United States v. Murdock, supra, and Feldman v. United States, supra. We hold that the constitutional privilege against self-incrimination protects a state  [*43]   witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.

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n17 The English rule apparently prevails also in Canada, Australia and India. See Grant, Federalism and Self-Incrimination: Common Law and British Empire Comparisons, 5 U. C. L. A. L. Rev. 1 (1958).

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We must now decide what effect this holding has on existing state immunity legislation. In Counselman v. Hitchcock, 142 U.S. 547, this Court considered a federal statute which provided that no “evidence obtained from a party or witness by means of a judicial proceeding … shall be given in evidence, or in any manner used against him … in any court of the United States … .” Id., at 560. Notwithstanding this statute, appellant, claiming his privilege against self-incrimination, refused to answer certain questions before a federal grand jury. The Court said “that  [*44]   legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.” Id., at 585. Applying this principle to the facts of that case, the Court upheld appellant’s refusal to answer on the ground that the statute:

“could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court … ,” id., at 564, that it:

“could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted … ,” ibid.,

and that it:

“affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness  [*45]   or party.” Id., at 586.

[5] [6] [7]

Applying the holding of that case to our holdings today that the privilege against self-incrimination protects a state witness against federal prosecution, supra, at 77-78, and that “the same standards must determine whether [a witness’] silence in either a federal or state proceeding is justified,” Malloy v. Hogan, ante, at 11, we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal  [*46]   Government must be prohibited from making any such use of compelled testimony and its fruits. n18 This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.

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[8]

n18 Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.

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It follows that petitioners here may now be compelled to answer the questions  [*47]   propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court’s decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal prosecution. We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. Cf. Raley v. Ohio, 360 U.S. 423. Accordingly, the judgment of the New Jersey courts ordering petitioners to answer the questions may remain undisturbed. But the judgment of contempt is vacated and the cause remanded to the New Jersey Supreme Court for proceedings not inconsistent with this opinion.

It is so ordered.

MR. JUSTICE BLACK concurs in the judgment and opinion of the Court for the reasons stated in that opinion and for the reasons stated in Feldman v. United States, 322 U.S. 487, 494  [*48]   (dissenting opinion), as well as Adamson v. California, 332 U.S. 46, 68 (dissenting opinion); Speiser v. Randall, 357 U.S. 513, 529 (concurring opinion); Bartkus v. Illinois, 359 U.S. 121, 150 (dissenting opinion); and Abbate v. United States, 359 U.S. 187, 201 (dissenting opinion).

CONCURBY:   HARLAN; WHITE

CONCUR:   MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, concurring in the judgment.

Unless I wholly misapprehend the Court’s opinion, its holding that testimony compelled in a state proceeding over a witness’ claim that such testimony will incriminate him may not be used against the witness in a federal criminal prosecution rests on constitutional grounds. On that basis, the contrary conclusion of Feldman v. United States, 322 U.S. 487, is overruled.

I believe that the constitutional holding of Feldman was correct, and would not overrule it. To the extent, however, that the decision in that case may have rested also on a refusal to exercise this Court’s “supervisory power” over the administration of justice in federal courts, I think that it can no longer  [*49]   be considered good law, in light of this Court’s subsequent decision in Elkins v. United States, 364 U.S. 206. In Elkins, this Court, exercising its supervisory power, did away with the “silver platter” doctrine and prohibited the use of evidence unconstitutionally seized by state authorities in a federal criminal trial involving the person suffering such a seizure. I believe that a similar supervisory rule of exclusion should follow in a case of the kind now before us, and solely on that basis concur in this judgment.

I.

The Court’s constitutional conclusions are thought by it to follow from what it terms the “policies” of the privilege against self-incrimination and a re-examination of various cases in this Court, particularly in the context of early English law. Almost entirely absent from the statement of “policies” is any reference to the particular problem of this case; at best, the statement suggests the set of values which are on one side of the issue. The discussion of precedent is scarcely more helpful. It intertwines decisions of this Court with decisions in English courts, which perhaps follow a different rule,  [*50]   n1 and casts doubt for one reason or another on every American case which does not accord with the result now reached. When the skein is untangled, however, and the line of cases is spread out, two facts clearly emerge:

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n1 The English rule is not clear. In United States of America v. McRae, L. R., 3 Ch. App. 79 (1867), the case on which the majority primarily relies, the United States came into court as a party and sought to elicit from the defendant answers which would have subjected him to a forfeiture of property under the laws of the United States. Upholding the defendant’s refusal to answer, the Lord Chancellor pointed out that the “. . . Plaintiffs calling for an answer are the sovereign power by whose authority and in whose name the proceedings for the forfeiture are instituted, and who have the property to be forfeited within their reach.” Id., at 85. That case, in which one sovereign, as a party in a civil proceeding, attempted to use the judicial process of another sovereign to obtain answers which would subject the witness to a forfeiture under the laws of the former is clearly distinguishable from the present case.

In King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116 (1851), the Vice-Chancellor had said that “the rule of protection [against self-incrimination] is confined to what may tend to subject a party to penalties by our own laws … .” 1 Sim. (N. S.), at 331, 61 Eng. Rep., at 128 (emphasis added). The Lord Chancellor said in McRae, supra, that King of the Two Sicilies had been “most correctly decided,” L. R., 3 Ch. App., at 85, but that the general rule there laid down was unnecessarily broad. He declined to apply the rule in McRae on the ground that “the presumed ignorance of the Judge as to foreign law … [had been] completely removed by the admitted statements upon the pleadings, in which the exact nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated … ,” L. R., 3 Ch. App., at 85, and the further ground, noted above, that the property subject to a forfeiture was “within the power of the United States,” id., at 87.

The other two English cases which the majority cites in this connection were decided more than 100 years earlier than < i>King of the Two Sicilies. Moreover, both cases involved disclosures which would have been incriminating under a separate system of laws operating within the same legislative sovereignty. East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749); Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157 (Ch. 1750). In King of the Two Sicilies, which involved the laws of another sovereign, the Vice-Chancellor observed that there was an “absence of all authority on the point” raised before him. 1 Sim. (N. S.), at 331, 61 Eng. Rep., at 128.

There is little agreement among the authorities on the effect of these cases. See Grant, Federalism and Self Incrimination: Common Law and British Empire Comparisons, 5 U. C. L. A. L. Rev. 1-8; 8 Wigmore, Evidence (3d ed. 1940), § 2258, n. 3; Kroner, Self Incrimination: The External Reach of the Privilege, 60 Col. L. Rev. 816, 820, n. 26; McNaughton, Self-Incrimination Under Foreign Law, 45 Va. L. Rev. 1299, 1302.

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(1) With two early and somewhat doubtful exceptions, this Court has consistently rejected the proposition that the danger of incrimination in the court of another jurisdiction is a sufficient basis for invoking a privilege against self-incrimination;

(2) Without any exception, in every case involving an immunity statute in which the Court has treated the question now before us, it has rejected the present majority’s views.

The first of the two exceptional cases is United States v. Saline Bank of Virginia, 1 Pet. 100, decided in 1828; the entire opinion in that case is quoted in the majority opinion, ante, pp. 59-60. It is not clear whether that case has any bearing on the privilege against self-incrimination at all. n2 The second case is Ballmann v. Fagin, 200 U.S. 186, decided in 1906. The statement that the appellant “was exonerated from disclosures which would have exposed him to the penalties of the state law,” id., at 195, was at best an alternative holding and probably not even that. n3 Ballmann had based his refusal to testify before the Grand Jury solely on the possibility  [*52]   of incrimination under state law, id., at 193-194. Nevertheless, before considering the effect of state incrimination at all, the Court pointed out that the facts showed a likelihood of incrimination under federal law. Id., at 195. The Court then proceeded to say: