Full opinion text
WYZANSKI, District Judge. The Court, (orally) I am grateful to counsel for refreshing my recollection on the facts and informing me of the law which they regard as controlling in these proceedings. I am not going to deal by any means with every point which was made by counsel, but there are some things which were said which I do believe deserve a preliminary set of observations. First, I am glad that Mr. Smith recognizes that it is my view that any lawyer worthy of his salt will on behalf of his client make whatever arguments seem to him to be professionally warranted, regardless of any risk of offense, if any risk there be, to the Judge who is sitting; and I hope that at no time will any lawyer have any doubt that I welcome as bold an assault as the facts and the law warrant. On a number of different occasions during his first and his last argument, Mr. Smith referred to this as though it were perhaps a Grand Jury proceeding or one that ought to be a Grand Jury proceeding. It seems we have forgotten that this is a proceeding consequent upon an alleged failure of Worcester to perform his duty before a Grand Jury. There has been no want of a Grand Jury proceeding. On the contrary, this is Step 2 of which Step 1 was a Grand Jury proceeding, which led to a complaint filed by the United States Attorney. I am not going to make any reference to the numerous characterizations which, in a parade of horribles, Mr. Smith marched forth, at the beginning of the argument, as descriptive, as he said, in my words of what this proceeding involves. Some of the quotations were accurate; some were in a context, or with a slant for which I bespeak consideration of the original transcript. Moreover, there was in Mr. Smith’s argument a reiterated playing upon the symbolism, as though it were from Herman Melville, of the Whale and the Red Herring. With due regard for the dramatic device, I cannot refrain from referring again to tlje record, itself. The record, itself, will, I am sure, show that in the course of an examination of a witness by a counsel, another counsel objected on the ground that the first counsel was engaged in a fishing expedition. It was in relation to that objection that I said that the first counsel seemed to be after a whale and not after a red herring. It was not I that was looking for Leviathan. It would be idle for me to pretend that only this afternoon have I addressed myself to the very serious problems which underlie these motions. On at least five occasions I have had the deepest self-scrutiny with regard to whether these proceedings should be cast in this form. First, when I wrote the letter to Mr. Bartlett, from which he has quoted, I was aware of some, though not all, of the serious legal and moral problems which were involved, and before I wrote that letter I considered with great care, and with no little research, the problems involved. Second, when I received from Mr. Richardson, in his capacity as United States Attorney, the complaint which initiated these revocation proceedings, I once again had the opportunity to, and exercised the opportunity to, consider the legal and moral problems. My frame of reference was at each stage of the consideration widened by new facts. Third, as the hearings proceeded, and I issued the subpoena now under challenge, I was aware that it once more was incumbent upon me to consider whether, as a matter of law and as a matter of sound moral policy, it was desirable to go ahead, and on this third occasion I again studied what I regarded as the precedents and the wider problems. The fourth occasion came when, 10 days ago, Mr. Smith filed the motions which seemed to me, despite the fact the Court of Appeals did not seem to think so, to be a brief setting forth his position, no less than a pleading setting forth his position. Thus, I had the advantage of an overt challenge with reference to specific points and, as Mr. Smith, himself, said, such a challenge was due in a proper way. It always helps a Judge to be effectively challenged. The ancient Greek Heraclitus said, “Strife is the source of all things.” Lawyers and Judges know that on the anvil of debate much is hammered out that otherwise would have remained un-shapen metal. A fifth occasion came when Mr. Smith, on behalf of Mr. Callahan, made me, quite properly, as far as the procedure goes, a respondent in connection with a Petition for a Writ of Mandamus and for a Writ of Prohibition. Thus, once again, being likely, myself, to be a person from whom a formal Answer might be required by an Appellate Court, I studied the authorities and what seemed to me to be the controlling principles. It would be naive for me to claim that I had not reduced my ideas to writing. And though I think I might be able, without too much effort, to reproduce the whole of the 45 pages orally, I prefer to, and now do file a Memorandum of my reasons for denying, as I now do deny, all four motions [handing to the Clerk the document herein called “Opinion of Dec. 29, 1960,” set forth below]. Mr. Smith. If your Honor please, would your Honor now accept a Motion to Stay the Proceedings in so far as the witness Callahan is concerned the proceeding before the Court of Appeals ? Certainly, may I suggest to the Court, a day is not going to be that important to this proceeding that has been going on here. The Court. The only reason I am not going to do that, Mr. Smith, is I think you will have to see from my Memorandum that there is only one effective way — it is a terribly perilous one — to challenge this Court. Mr. Smith. I understand what your Honor is going to say: take the chance of going to jail for contempt. The Court. I think it is the only way. Therefore, I won’t grant a stay because I don’t think there is any other review except at peril. Opinion of Dec. 29, 1960, as amended Jan. 3, 1961. On December 19, 1960 Paul T. Smith, Esq., on behalf of William F. Callahan, filed four motions: (1) to quash a subpoena ad testificandum addressed to William F. Callahan, (2) to “cease, confine, stay” the present proceedings, (3) to strike evidence, and (4) to strike or limit evidence. The following is an abbreviated account of the background to these motions. 1. (a) Thomas H. Worcester and various corporations, including Thomas Worcester Inc., of which he was president, have for many years been engaged in the engineering business. They have had numerous contracts with private and public agencies, including the Commonwealth of Massachusetts, and its agencies the Department of Public Works and the Massachusetts Turnpike Authority. 1. (b) At various times William F. Callahan has been the chairman of the DPW and the MTA, and of the latter he is now chairman. 1. (e) Following an intensive investigation by the Federal Internal Revenue Service, the Grand Jury of this District in 1957 in two indictments, hereafter called one case, indicted for wilful evasion of the federal tax laws Worcester individually and Thomas Worcester, Inc. 1. (d) In accordance with the system of assignment by lot prevailing in this District, the case was assigned forthwith to Judge William T. McCarthy. He held some pre-trial sessions, but he had not tried the case when in June 1960 he retired. In late June or early July the case was re-assigned to me, and in July I set the case down for trial in August 1960 before a court and jury. 1. (e) In the course of a thirteen day trial before me, testimony indicated that, with the active participation of Worcester, personally, the corporation paid about$275,000 to one Francis Norton as a purported salesman to secure contracts for the corporation with various public bodies. The evidence was strongly suggestive of the possibility that Norton had passed on some of the money as bribes to public officials. Also the evidence indicated that with Worcester’s knowledge the corporation, nonetheless, in its federal corporate income taxes had taken the payments to Norton as deductions from gross income, on the claim that they were “ordinary and necessary [business] expenses.” Internal Rev.Code § 23(a) (1) (A); 53 Stat. 12, as amended, 56 Stat. 819, 26 U.S.C.A. § 23(a) (1) (A). Tank Truck Rentals v. C.I.R., 356 U.S. 30, 33, 78 S.Ct. 507, 2 L.Ed.2d 562; Textile Mills Securities Corp. v. C.I.R., 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249; Rugel v. C.I.R., 8 Cir., 127 F.2d 393. 1. (f) This Court in its charge instructed the jury that if Worcester knowingly, and being aware of the character of the payments, participated in taking such deductions, he was guilty of a wilful violation of what was then § 145(b) of the Internal Revenue Code of 1939. 26 U.S.C. § 145(b). 1. (g) The jury on September 5, 1960 convicted Worcester on the two indictments. 1. (h) This Court, being persuaded that the testimony indicated that Worcester had derived no large financial benefit from his wrongdoing wrote, and filed in the court records, the. following letter, dated September 9, 1960, to his counsel, Calvin P. Bartlett, Esq.: “Dear Mr. Bartlett: “I am writing this letter to you, as counsel for Thomas H. Worcester. I shall send a copy to the United States Attorney, and shall place another copy in the open records of the Clerk’s office. “As you will recall, at an earlier date I stated to you, in the presence of the United States Attorney, that if Worcester were to be convicted by the jury I would impose upon him a prison sentence of 18 months. “The jury has now returned verdicts of guilty against Worcester. I regard these-verdicts as according to law and just. But I firmly believe, and I should not be surprised if many of the jurors believe, that in his tax evasion crimes Worcester was seeking to keep in business as much for the sake of his staff as for his own sake, that personally he derived no substantial gain, and that the money which was improperly reported was paid directly or indirectly to a conduit for dishonorable public officials, and probably ultimately to those corrupt officials themselves. “I am persuaded, and perhaps the jury too was persuaded, by two of your convincingly presented arguments. First, I am confident that Worcester’s net worth was not increased substantially, if at all, by his tax evasions. Second, Worcester was the victim of the criminal conduct of others. You have suggested that the others were officers, employees or agents of Thomas Worcester, Inc. I am of the view that they were officers, employees, or agents of the Commonwealth of Massachusetts. “In my opinion it would now be just for me to offer, and I do herewith officially offer, to impose upon Thomas Worcester a sentence of 18 months, to be suspended and the defendant to be placed on probation on the express condition that, to my satisfaction, he shall cooperate with, and give full, candid testimony to any national, state, or local prosecutor, grand jury, petit jury, legislative body, legislative committee, or authorized public agency of inquiry concerning any matter directly or indirectly relevant to those matters covered in the trial before me. “This offer is not an example either of maudlin sentimentality or of magnanimity. It is designed to strike a just mean. “This offer is not calculated to place pressure on Worcester to become an informer on his- friends. The men who received the benefits of the tax evasion were not his friends. Nor are they friends of any civic-minded person. Nor is the Court placing Worcester under pressure. Indeed its object is to relieve him of consequences he may otherwise sustain as the result of the pressure wrongfully placed upon him by public officials who admittedly devised a preferred list of persons to whom they would give public business. “Finally, let me assure you — who need no such assurance — that the professional skill and courage with which you represented your client have enabled me to see aspects of the case to which I might otherwise have been blind. Of course, if your professional advice or any other cause leads you or your client not to welcome this offer but inclines you or him to run the risk of the 18 months sentence which I originally said I would impose, and to seek by appeal or otherwise a complete vindication of the innocence or asserted innocence of Worcester, I shall in no way resent your or his selection of that option. The choice is in the hands of your client, guided by your skill, wisdom, and high character. “Faithfully, “Charles E. Wyzanski, Jr.” 1. (i) Mr. Bartlett, on behalf of Worcester, accepted this proposal by a letter, dated September 15, 1960, also filed in the court records. 1. (j) Then on September 21,1960, in open court, in 57-62-W this Court “adjudged that defendant [Worcester] is sentenced to 18 months imprisonment. Execution of prison sentence suspended and defendant is placed on probation for 5 years. Prison sentence'and probation to run concurrently and to run concurrently with prison sentence and probation period in indictment 57-63. Probation is on the condition that the defendant, to the satisfaction of the United States District Court, give full, candid testimony to any national, state, or local prosecutor, grand jury, petit jury, legislative body, legislative committee, or authorized public agency of inquiry concerning any matter directly or indirectly relevant to those matters covered in the trial of this indictment.” In 57-63-W, this Court on the same day imposed substantially the same sentence to run concurrently with the sentence in 57-62-W. 2. This Court declares that, on the date of sentencing, it assumed that, at an early date, the United States District Attorney would summon Worcester to testify before the United States grand jury, that, (in view of the letters by the Court, dated Sept. 6, 1960, addressed to Calvin P. Bartlett, Esq., and by Calvin P. Bartlett, Esq., dated Sept. 15, 1960, addressed to the Court, and the statements at the time of sentencing made by the Court and by Worcester himself,) Worcester would give full, candid testimony in camera to the grand jury, and that this Court would have no further occasion to consider the matter. 3. On September 28, 1960, United States District Attorney Elliot Richardson summoned Worcester before the Grand Jury of this District. There Worcester gave testimony, of which a transcript was kept. On October 4, 1960, Mr. Richardson, at Mr. Bartlett’s request and in his presence, had a further session before a notary public in the United States District Attorney’s office, of which a transcript was also kept. 4. October 27, 1960 the United States District Attorney filed in this Court his “complaint, of failure to comply with condition of probation”. The complaint alleged that “The testimony of Worcester-before the Grand Jury * * * does not, in the opinion of the United States Attorney, fulfill the aforesaid condition of Worcester’s probation,” “submitted that a fair reading of both transcripts [before: the grand jury and before the United States Attorney] make it clear that Worcester was and is withholding information”, and prayed that “the Court revoke the probation of the defendant Worcester and require him to serve the sentence imposed or such lesser sentence as it shall deem appropriate.” 5. The same day, at 11:45 A.M., the. Court directed “the clerk to issue an order to show cause, returnable October 28, at 9:30 A.M., why the probation of Thomas Worcester should not be revoked. Pursuant to the request of Mr. Bartlett, counsel for Worcester, I remove all restrictions of secrecy upon the transcripts of the Grand Jury transmitted with this complaint, such transcripts being necessary to a fair hearing upon the complaint.” 6. Oct. 28, this Court held its hearing pursuant to the rule to show cause. This Court declares that, on the morning of the hearing, it assumed that the United States Attorney surely and Worcester’s attorney probably would let the Court make its determination exclusively upon the transcripts annexed to the complaint. However, out of an abundance of caution, this Court inquired whether either counsel wished to supplement the transcripts with oral testimony. Mr. Bartlett then indicated that he wished to offer viva voce testimony, that he had in mind calling as witnesses persons referred to in the transcripts, and that he needed a postponement or adjournment fairly to present the case on behalf of Worcester. The Court thereupon adjourned the case until Nov. 4, 1960. 7. Shortly after this Court, on October 27, at 11:45 A.M., had removed the restrictions upon the transcripts, William Callahan and Mary Norton separately made statements, outside of court, not under oath, released to the press. These statements flatly contradicted Worcester’s testimony before the grand jury. 8. When this Court resumed its hearing on Nov. 4,1960 this Court stated (pp. 2, 3) that it regarded “this as being analogous to a proceeding in which a person appearing before a Grand Jury is regained by the United States Attorney as having committed before that body an act of perjury. “A person who appears before a Grand Jury is sworn to tell the truth, the whole truth and nothing but the truth. If, in the opinion of the United States Attorney, the individual fails to tell ‘the truth’, the United States Attorney would have the option of seeking to proceed by way of an indictment for perjury, or by way of an application for contempt. “If he chose to proceed by way of an application for contempt, obviously the total record before the Grand Jury would be part of the record before the United States District Court. In this connection, the record would naturally be a public record. Despite newspaper and other statements to the contrary, there is nothing unusual about the disclosure in such circumstances of the total record before the Court. In fact, the failure so to disclose would be a defiance of the Constitutional mandate with respect to public trial. “In this particular proceeding, because of the nature of the Court’s order imposing the sentence and placing the defendant Worcester on probation, the United States Attorney has available to him, in addition to the usual remedies by way of indictment for perjury, [and] an application to the Court for a proceeding by way of contempt, an application for revocation of Worcester’s probation. The United States Attorney has chosen to follow the third of the optional procedures open to him.” 9. At the Nov. 4 hearing Worcester’s counsel began by calling John G. Curley, Henry M. Santosuosso, Vincent J. Shan-ley, Katherine B. Ross, William J. Wallace, and (for a purely technical point) Walter Powers, Jr. Contrary to the assumptions which the Court had previously entertained, the hearing grew in scope, and it became transparent that, as contradiction followed contradiction, and ramifications indicated possible holes in Worcester’s story before the grand jury, the Court would be required to sit longer than it had expected for the taking of relevant testimony. The Court, giving priority to its emergency business, such other cases as were ready for trial, and such other judicial business as it had to do in Boston or elsewhere, continued to conduct hearings, not always on successive days, in this Worcester matter. 10. As it became apparent that the testimony might reflect upon others than Worcester and might prejudice persons called as witnesses, this Court, on its own motion, took steps designed to extend the maximum of protection to such persons— a degree of protection exceeding any familiar requirement prescribed by the United States Constitution, by precedent, or by the commonly received standards of fairness. On its own initiative, this Court stated repeatedly, and perhaps most fully at pages 1, 2 and 4, 5 of the transcript of November 25, 1960, that it would allow witnesses to have their own counsel, and that such counsel would be allowed to examine, cross-examine, subpoena witnesses, object, argue, and file briefs. I cited the statement of a former English Lord Chancellor, The Earl Jo-witt, that in England “When we set up a tribunal of investigation * * * we always arrange that anyone whose conduct'is under investigation shall have the right to be represented by counsel and to hear all that can be said against him.” I added, in speaking to a particular witness, typical of many witnesses, “This is, of course, not an investigation of you; this is a proceeding in connection with the revocation or possible revocation of probation of Thomas Worcester and in no formal sense are you ‘under investigation.’ “Nonetheless, I am aware * * * that some persons might wrongly suppose that this is a proceeding directed at you or at others than Thomas Worcester, which it is not. And I think it is important that if you feel that your rights require that other testimony be given on your behalf, or that you have yourself examined by your own counsel in addition to other counsel, or if you feel it important that you should be cross examined or that somebody else should be cross examined, or if you feel it important that there should be additional testimony offered or additional witnesses summoned or additional argument presented, I do not want you, at any time, to feel that you did not have the opportunity, if you wished it, to have an advocate to speak for you, to examine for you, present your views. “You are really here as a witness, but a witness in a rather different proceeding than that which is sometimes faced by a criminal court. You are more like a witness in a proceeding of investigation and therefore I wanted to give you whatever opportunity you wished.” 11. As a further safeguard for witnesses and others who might possibly be affected by the revocation proceedings, this Court urged the United States Attorney to order for the Court as well as for the Department of Justice a daily copy of the transcript. The Court announced that this transcript would be available for inspection by anyone at any reasonable time. . 12. Taking advantage of these opportunities, counsel for Callahan, as his motions show, had complete, unrestrained access to the transcript on a current basis and with adequate opportunity to copy citations. 13. Taking advantage of these opportunities, counsel for witness Schoenfeld examined witness Flynn on December 20. Other lawyers examined other witnesses. 14. During his testimony on Nov. 14, at p. 83, Worcester, responding to his own counsel’s question, flatly denied the veracity of a statement attributed to Callahan by The Boston Traveler, Friday, Aug. 28, 1960. This statement categorically contradicted Worcester’s testimony that he had given Mrs. Norton cash which she put in Callahan’s overcoat pocket. 15. Wishing to spare Callahan even the appearance of being summoned, expecting from Callahan little more than a voluntary restatement under oath of what he had rushed into print to say out of court, and aware that if Callahan left •uncontradicted under oath Worcester’s •sworn testimony, a Court would probably be led to make an explicit finding that Worcester had given money to Callahan, I, as shown at p. 86 of the testimony of Nov. 14, directed the Clerk to send a telegram giving him an opportunity to appear voluntarily. 16. Callahan’s secretary telephoned the Clerk that he would not come voluntarily. The Court, at pp. 1-5 of the transcript for No. 15, after reciting the message from Callahan’s secretary, the affidavit of Mrs. Ross referring to Callahan, find Worcester’s testimony involving Callahan, issued the subpoena which Callahan’s counsel challenges in the first motion now before the Court. 17. Contrary to this Court’s assumption, the testimony offered supporting and rebutting the United States Attorney’s complaint has occupied many days. Frequently, this Court incorrectly estimated that the examination of witnesses would be rapidly concluded. But, mindful of the gravity of the central issue as to Worcester’s candor, and determined to vindicate or refute Worcester’s claim he had complied with the Court’s order placing him on probation, counsel have exhaustively explored all relevant aspects. In this they have been encouraged by the Court. Moreover, not always persuaded that the witnesses were obedient to their oath to tell the whole truth, the Court itself has asked questions of the witnesses. No objection was contemporaneously made, despite unfettered opportunity for any counsel to object. It is against this background of fact, fully revealed in the available transcript, that this Court now addresses itself to the relevant issues of law and discretion presented for decision. A. Power of the Court to impose upon Worcester a sentence placing him upon probation conditioned upon his disclosure of evidence relevant to the crime of which he was convicted. 1. 18 U.S.C. § 3651 provides that “upon entering a judgment of conviction * * * any court * * * when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation * * * upon such terms and conditions as the court deems best.” 2. There is no room to doubt that the foregoing section empowers a United States Court to impose the conditions of disclosure set forth in Worcester’s sentence. Indeed, in 1956 in Kaplan v. United States, 8 Cir., 234 F.2d 345, the Eighth Circuit held that even where the trial court at the time of sentencing a defendant had failed specifically to stipulate as a condition of probation that the defendant make further disclosures to the grand jury, “the * * * defendant * * * while on probation” could be “specifically ordered by the court to appear before the grand jury and disclose the source of his heroin purchases” for which he had been convicted, (at page 347). “No claim of constitutional privilege was or could have been maintained.” (at page 347). The Eighth Circuit, in the light of these obvious considerations, held that defendant’s “refusal to follow the court’s direction that he disclose to the grand jury the source of his heroin was a sufficient ground for the revocation of probation and we think that the trial court did not abuse its discretion in so doing.” (at page 349). 3. Indeed, it is abundantly clear that, even when conditions of probation are not in any way involved, and even where there is no relevant immunity statute, a court may require a person already convicted of crime, despite the fact that he is serving a sentence for that crime, fully to disclose who were his associates, and what parts they played in the crime. Reina v. United States, 81 S.Ct. 260, 264. “The ordinary rule is that once a person is convicted of a crime, he no longer has the privilege against self-incrimination as he can no longer be incriminated by his testimony about said crime.” As Chief Justice Warren said in reply to a contrary argument, “He may have paid his obligation to society to serve his term, but he has not paid his obligation to give the facts.” B. Power of the Court to conduct a public hearing to determine whether Worcester has violated the condition of his probation. 4. When the Court receives information that indicates that a probationer has violated the conditions of his sentence, the Court has a duty to afford the probationer a hearing. Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, interpreting what is now 18 U.S.C. § 3653. The Act of June 16, 1933, c. 97, 48 Stat. 256, formerly 18 U.S.C. Supp. § 725, now 18 U.S.C. § 3653 provides that “the probationer shall be taken before the court.” This legislative command means, said Mr. Justice Cardozo, that “there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper.” 295 U.S. at page 493, 55 S.Ct. at page 820. “When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal.” At page 494, 55 S.Ct. at page 820. 5. The ordinary rule is that the hearing should be public to avoid any question under Amendment VI to the United States Constitution, stipulating that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Strictly construed, the Amendment may not reach a post-conviction stage of a criminal proceeding involving not the ascertainment of guilt, but the revocation of a probation granted by the sentence imposed. However, in the light of the divided vote in Levine v. United States, 1960, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989, commented on in 74 Harv. L.Rev. 81, 144, it would be imprudent for a lower court, except for good cause, to conduct the revocation proceedings in secret. See also Note, (1951), 65 Harv.L. Rev. 309. 6. Moreover, the nearest analogy to a revocation of probation proceeding involving the issue whether the probationer told the whole truth to a grand jury, is a contempt proceeding involving the issue whether a witness told the whole truth to a grand jury. In the latter case, the approved procedure is for a court to hold a public plenary hearing in which the prosecution offers in evidence relevant parts of the grand jury transcript and the court takes testimony in open court from the allegedly contemptuous witness and others who have relevant evidence. In re Reina, D.C.S.D.N.Y., 170 F.Supp. 592, affirmed, United States v. Reina, 2 Cir., 273 F.2d 234; affirmed 81 S.Ct. 260. 7. It is paradoxical to suggest that a court errs when it conducts a revocation of probation proceeding in public instead of private. Every court hearing, at least in criminal cases, has as one of its principal objects to assure the public that justice is being done. This is a special instance of the familiar maxim that justice must not only be done, but also be seen to be done. 8. In the profoundest sense, publicity is part of the educational process of a democracy. It is the outward symbol of the inner health of the system of public' order. It is a safeguard against a corrupt, or incompetent, or inert judiciary. As Mr. Justice Black said in In re Oliver, 1958, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682, “The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” In accord are Holmes, J., in Cowley v. Pulsifer, 137 Mass. 392, 394; 1 Cooley, Constitutional Limitations, (8th ed., 1927) at p. 647; and 1 Bentham, Rationale of Judicial Evidence, (1827), p. 524. 9. The public character of a hearing has a particular advantage to a defendant, probationer, or other party. He knows who are the witnesses against him, and what they say. He can effectively insist that “their cross-examination should not be curtailed summarily * * * especially when it has a direct bearing on the substantial issues of the case.” Stone, J., in District of Columbia v. Clawans, 1937, 300 U.S. 617, 630-631, 57 S.Ct. 660, 665, 81 L.Ed. 843. Moreover, he has his own lawyer present. That lawyer has the right- to call witnesses, to cross examine, to object, to argue, to file pleadings, and to submit briefs. 10. It is not without significance, that in the case at bar it was the probationer, Worcester, who sought and was granted the opportunity to offer evidence and call witnesses in open court. He makes no complaint that his request was granted. 11. It is more than doubtful if as a mere witness, Callahan, has any standing to object to the open character of the hearing to which he is summoned. 12. If Callahan has a standing to object, his objection is without merit. There is no general rule that a person summoned to give relevant evidence has a privilege to give it in private. If his testimony will be embarrassing or disgraceful that is not a consideration which outweighs the considerations that a party and the public are entitled to have given in public the truth, the whole truth, and nothing but the truth, so far as relevant to an issue in the proceeding. 13. Of course, after responding to a subpoena, the witness has the right to decline to answer a particular question on the ground that it is irrelevant, immaterial, or invades a privilege he seasonably and properly claims. 14. But a witness has no just claim that, because of the publicity from which he suffers, a court shall “cease, confine, or stay” a public proceeding involving possible revocation of another’s probation. The argument that such a proceeding is in some sense a one-man grand jury proceeding is without historical or other support. 15. A grand jury is an accusato-rial body. Its function is wholly different from that of a court determining whether to revoke a probation imposed by its own sentence. 16. In our day it is certainly the rule for a grand jury to sit privately, and for its members, in accord with Rule 6 (e) of the Rules of Criminal Procedure, 18 U.S. C., to be sworn to secrecy. See, in general, Pittsburgh Plate Glass Co. v. U. S., 1959, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed. 2d 1323. Yet this secret aspect of the grand jury was not fully established until after the reign of Charles II. Trial of Shaftesbury, 3 Harg.St.Tr. 417, cited in 4 Bl.Com. (14th ed., 1803) 303, note 1; 1 Holdsworth, Hist. of Eng.Law, (2nd ed., 1927) p. 322, note 7; Note (1921) The Grand Jury, 21 Col.L.Rev. 376. In the early days the grand jury acted publicly solely on hearsay. Thayer, A Preliminary Treatise on Evidence of The Common Law, pp. 130-132; P. H. Win-field, The History of Conspiracy and Abuse of Legal Procedure, p. 77. As late as the Seventeenth Century, though by then it heard witnesses, it heard them in public, and the government was thought to have the right to demand such public confrontation. Trial of Shaftesbury; Holdsworth; both cited above. Secrecy was deplored by Jeremy Bentham, Rationale of Judicial Evidence, Bk. II, c. 10. But, nonetheless, secrecy is now the universal practice. 17. The reasons for secrecy have so recently been analyzed by Mr. Justice Brennan at page 405 of 360 U.S., at page 1243 of 79 S.Ct. of the Pittsburgh Plate Glass Co. case that they do not need restatement. But it may be emphasized that, like Cummings and McFarland, Federal Justice, p. 366, note 1, and the Seventeenth Century tract, The Security of Englishmen’s Lives (1681) cited in note 6 in 21 Col.L.Rev. 376, Mr. Justice Brennan gives as the first reason for secrecy the risk lest the suspected person escape justice. A secondary reason is that the same suspected person (not a person whose name is incidentally drawn into the evidence) be protected from derogatory information. 18. It has been suggested that other advantages of secrecy are that complainants, witnesses, and grand jurors will be less inhibited if their words are veiled. Pittsburgh Plate Glass Co. v. U. S., 360 U.S. 395, 400, 405, 79 S.Ct. 1237; 21 Col.L.Rev. 376, 378, note 20; Chafee, Blessings of Liberty, (Phila. and N.Y., 1956), p. 219. But it may be doubted whether those who whisper delations to the grand jury are more reliable than were the Renaissance calumniators who dropped unsigned notes in the box in the Doges’ Palace' in Venice. Cf. Henry Matusow, False Witness, (Cameron & Khan, N.Y., 1955). Moreover, while testimony before a grand jury is excluded from the operation of the Jencks Act, 71 Stat. 595, 18 U.S.C. § 3500, and from the holding in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, a trial judge, in the exercise of his discretion, may order the minutes of a grand jury witness produced for use on his cross-examination at trial. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129; United States v. Procter & Gamble, 1958, 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077; Pittsburgh Plate Glass Co. v. U. S., 1959, 360 U.S. 395, 400, 409-410, 79 S.Ct. 1237. 19. Furthermore, England, to whom we owe the grand jury, has long since abolished it and substituted, as the usual alternative, (except in a few cases where judges receive in secret testimony against a culprit), the offering in public before examining magistrates of the evidence upon which the prosecution intends to rely at the trial itself. Indictable Offenses Act, 1848; Summary Jurisdiction Act, 1879; Magistrates’ Courts Act, 1952. See Sir Patrick Devlin, The Criminal Prosecution in England (Yale 1958) ch. 4, pp. 107, 112, 113, 117. Far from objecting to such advance disclosures, defendants insist on them. Indeed they object to any evidence offered at the trial which was not so disclosed (p. 113). 20. Defendants in England do not appear to have felt that they suffer prejudice from the risk that the examining magistrates, through error, will admit in the preliminary committal proceedings evidence which is not ultimately admitted against them in the full trial, and that such error, if widely publicized in advance of trial, will infect the minds of the petit jurors, (pp. 117, 118). 21. So far as appears, in England no prospective witnesses or others have raised objections to disclosures at the magistrates’ preliminary stage of evidence that may or may not be offered at the trial itself. 22. Of course, it can be said, and will be said, that English practice is irrelevant because Americans are unlike Englishmen. Our prosecutors, magistrates, juries, judges, press, and other media of communication do not always exhibit characteristic British understatement and self-restraint. And there is both a real and a technical difference between a magistrate’s hearing preliminary to a trial and a judge’s post-conviction hearing on revocation of probation. But there is, nonetheless, this similarity: in both, innocent third persons may have their names sullied and smirched by popular association with defendants. Yet in each the overriding considerations are that the public and the defendant are entitled to a public inquiry. 23. In short, this revocation proceeding is not the analogy of a grand jury proceeding. Even if it were analogous, there would be nothing in those considerations of policy which keep secret grand jury proceedings that ought to be governing considerations of policy to keep secret these proceedings. Indeed, recent developments, such as the Jencks rule and the Jencks statute as well as the English transmutation of accusatorial procedure, all suggest that publicity rather than privacy is the proper atmosphere for the procedure of revocation of probation. 24. Nor can it be said that privacy ought to be maintained in the case at bar because here testimony may run unconfined and that there is no such hedge as the grand jury proceedings supply. The truth is precisely the reverse. 25. A grand jury can roam almost at will. If often does. What else is meant by the phrase “a runaway grand jury” ? The witness called before it cannot effectively claim that neither he nor it know what the charge is or will be. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652. 26. In the present proceedings, on the contrary, the issues are plainly cabined. Nothing is relevant unless it relates to the claim that Worcester failed fully to disclose “matters covered in the trial of” indictments in Cr. Nos. 57-62 or 57-63. There are fixed points of reference to determine relevance. 27. Here, if error is made by the trial court in admitting or excluding evidence, there is a review. For the defendant, “the remedy is by appeal” from a revocation of probation, if revocation occurs. Escoe v. Zerbst, 295 U.S. 490, 494, 55 S.Ct. 818, 79 L.Ed. 1566. For a witness, the remedy is to refuse to answer, to run the risk of citations for civil and criminal contempt, and, from an adverse determination, to appeal. Reina v. United States, 81 S.Ct. 260; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090. C. Power of the Court bo Summon and to Interrogate Witnesses 28. The starting point in considering the status of the judge in these revocation proceedings is Mr. Justice Cardozo’s characterization of his appropriate role as that of an “inquisitor”. Escoe v. Zerbst, 1935, 295 U.S. 490, 493, 55 S.Ct. 818. With deference to one of the greatest of judges, it seems to me that his characterization may have connotations too broad, and too historically alarming, to be entirely satisfactory. Yet the Supreme Court surely intended to draw to the attention of the lower courts that in proceedings involving revocations or probation, as indeed in all aspects of probation, the judges exercise functions of administration as well as functions of inquiry and adjudication which differ from those in the usual adversary proceedings or in the main body of a criminal trial. 29. In adversary proceedings, and especially in a criminal trial, much is to be said for a judge maintaining an attitude of aloofness. Glanville Williams, The Proof of Guilt, (2nd ed., 1953) p. 4. Not less than others, I deserve to be reminded of “the classic advice to a * * * judge * * * that he should take a sup of holy water in his mouth at the beginning of a case, and not swallow it until the- evidence on both sides has been heard”. Ibid, p. 26. In their celebrated History of English Law (2nd ed.), vol. II, p. 671, Pollock and Maitland taught us that from its earliest days our law has looked upon the judge as, in many aspects, (but not all, see Hughes, C. J.’s description of the trial judge as the “governor of the trial,” Quercia v. U. S., 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321) a neutral like an umpire in a cricket match who asks only “How’s that?”. Lord Hewart phrased the judge’s role more owlishly: “the business of a judge is to hold his tongue until the last possible moment, and to try to be as wise as he is paid to look.” G. Williams, op. cit, p. 26. 30. But these austere standards of reserve, so difficult for some of us, are never quite imperative when the nature of the proceedings is administrative. The judge, considering revocation, is not only ascertaining facts. He is constantly concerned with what Mr. Justice Cardozo called a “probe”. Escoe v. Zerbst, 1935, 290 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566. He is concerned not with guilt but with punishment. He is to decide what is a proper disposition, taking into account, but not relying exclusively upon, what the parties have chosen to place before him. He is to determine what disposition will reflect the deepest public concerns, their interests in individual liberty, in the common weal, and in moral responsibility. 31. Against this background of obligation, a judge is clearly warranted, on his own initiative, in summoning a witness who has relevant testimony. See G. Williams, The Proof of Guilt, (2nd ed., 1953) p. 35; Wyzanski, A Trial Judge’s Freedom and Responsibility, (1952) 65 Harv.L.Rev. 1281, 1293-1294. Cf. the broad language of Rule 17 (a) of the Rules of Criminal Procedure. Indeed in some revocation proceedings, he might be the only one on whom an unrepresented, uninformed, or’indigent defendant could rely to subpoena a necessary witness. See Rule 17(b) of the Rules of Criminal Procedure. Or in a case where the prosecution, having secured a conviction, was indifferent to post-conviction problems, the judge again might be the only available source of a summons indispensable to achieve a just result. 32. In the case at bar there were many adequate, nay compelling, reasons to require testimony from Callahan. The defendant Worcester had given evidence indicating he had paid money to Mrs. Norton who, in or out of his presence, slipped it into Callahan’s overcoat pocket. In an out-of-court statement, Callahan had given the press a flat contradiction. Furthermore, Mrs. Ross, in affidavit and oral testimony, had given evidence suggesting that Worcester had made a conscious effort to avoid public contacts with Callahan. These testimonial items, which may be entirely unreliable, require confirmation or contradiction under oath, and court confrontation. No one else having summoned Callahan, this Court had the obligation so to do. 33. Callahan’s counsel has objected not only to the summons addressed to his client, but also to the questions addressed by the Court to other witnesses. None of these other witnesses has objected to particular questions put by the Court. None has suggested that the Court by a course of questioning has prejudiced him. Nor has defendant Worcester objected. Therefore, it would seem that Callahan has no standing to object to the Court’s course of questioning, whatever rights he may have to object to any question put to him as a witness involving him as an individual. 34. Even if Callahan had a standing to object, and even after a re-reading of the transcript, the questions which I put do not seem objectionable to me. Of course, I realize I am not the best judge of my own conduct. Also, of course, I am not unmindful of my own self-indulgent and impatient habits in putting questions. But, inasmuch as I cannot avoid passing upon the issue of my own conduct, after exercising every effort to look without favor or fear at my own failings, I have concluded that the motions are not sound in their claim that the proceedings have been, in whole or in part, infected by my interrogations. 35. Having so concluded, I may properly acknowledge that I recognize that one of the evils of interrogations by a judge is that he may invite himself (as I have invited myself in this case) into a position where he inevitably has to pass judgment on his own conduct. This by itself is an excellent reason for a judge not to put avoidable questions. 36. Yet there are some questions which a judge can and should put. Where a witness does not understand a lawyer, or a lawyer does not understand a witness, ‘ or time is being lost through a failure to come to the point, or a witness is evasive, a judge may properly use such powers as he has of intellectual clarification, dramatic condensation, and moral authority. Also the judge, after the lawyers have finished examining a witness, may inquire as to matters left cloudy or uncovered. Glanville Williams, The Proof of Guilt, (2nd ed., 1953) pp. 24-28. 37. But at all times the judge should be aware of the great power he has. “0, it is excellent “To have a giant’s strength; but it is tyrannous “To use it like a giant.” 38. A judge’s questions ought not to be sarcastic or rude. They ought so to be phrased as not to intimidate a witness who probably is already ill at ease on the stand. They ought never to be such as to drive a witness into an admission which reflects not the witness’s refreshed recollection, but rather his fear of not falling in with the judge’s wish. 39. No one who reads the record in this case — least of all myself' — will find that on every occasion I have observed my own canons of conduct. There are regrettable lapses, I acknowledge. And I have no wish to disjoin “remorse from power”. But looked at as a whole, my questions seem to me to have helped, not harmed, the legitimate objects of the present proceeding. D The Propriety of the Court’s Exercise of Discretion to Exercise Its Powers first to make disclosure of Worcester’s confederates a condition of his probation, and second to conduct extensive hearings to determine whether Worcester had violated the conditions of his probation. 40. Up to this juncture this opinion has reviewed questions as to what are its powers with respect to imposing conditions on a probationer, holding open hearings, and summoning and questioning witnesses. It might be said that if I am right that the powers do exist as a matter of law, and that there have,been no such abuses as to constitute reversible error, my opinion ought not to go farther. Generally, judges do well to follow the Greek proverb to “sow with the hand and not with the whole sack” R. W. Livingstone, Literature, The Greek Legacy, (Ox., 1922) p. 265. But there are strong reasons in this case not to terminate my opinion at this point. 41. First, I ought not to pretend that the issues which underlie this case are purely technical'. This Court can see what all the rest of the world can see. The proceedings in their combination of technical devices and in the range of inquiry represent not an invention nor innovation, but a composite, possessing a total significance different from a mere addition of the separate details. The whole is more than the sum of all its parts. It is important, as a matter both of jurisprudence and of public policy, to face up to the totality. 42. One of the perennial difficulties of American public law has been that so many major constitutional, administrative, and penal questions have been looked at as though the sole question to be considered is what is permissible. Does the text of the Constitution permit? Does the statutory law allow? Do the precedents support? Has the positive law erected any barrier? Those have become the staple line of inquiry. And the unwillingness avowedly to examine larger issues of history, philosophy, social policy, and wisdom debilitate our jurisprudence. 43. A major consequence of the abstention of judges from consideration of broad issues has been to make it appear to the layman that what is constitutional is wise. Again and again in debate, before and after judicial decision, in legislative hall, in country store, and in domestic parlors, there has been a tendency to argue that what a court upholds as law is on that account just and wise. Sometimes the permissible is not the preferable. 44. The strong and sound principle which has rightly precluded a court from invalidating because of its lack of wisdom legislation, or executive or administrative action, and the more dubious practice which has prevailed in courts which refrain from commenting on the expediency and fairness of legislative or executive or administrative action, certainly do not imply as a corollary that a court may not consider whether judicial action, permissible under the Constitution, statutes, and cases, is nonetheless unwise. And in considering the wisdom, or imprudence, or even folly, of action, there is hardly any branch of learning or common sense to which one may not turn for guidance. 45. A second reason not to stop with the purely technical question whether the present proceedings meet the minimum standards of the Constitution, the statute-book, and the case law is that we are here dealing with not a mere case or series of cases, but with the methods and materials of the criminal law, a topic always of major public interest. Montesquieu in his Spirit of The Laws, Bk. XII c. 2 wrote that “The knowledge * * * concerning the surest rules to be observed in criminal judgments is more interesting to mankind than any other thing in the world.” While one may be startled that a Frenchman establishes such a hierarchy of values, and while one may discount the pardonable emphasis and exaggeration of an author who founded the whole topic of comparative jurisprudence, it is undeniable that there is now, and perhaps at all times there is, widespread interest in what are the fairest and best ways to inquire into public wrongdoing (or, to be more accurate, malfeasance in office), to establish standards for righteous public conduct, and, in accordance with due process, expose and punish those who have failed in their duties of honor and integrity. 46. Bearing in mind the reasons for a broader opinion, I shall now consider whether it was wise to impose upon Worcester a sentence suspended on the condition that he should testify as to his fellow wrongdoers. 47. It is, of course, quite usual for a prosecutor to suggest to one of many wrongdoers that if he will turn state’s evidence the prosecutor will recommend to the court that the informing defendant shall receive a lighter sentence. But it perhaps is not so usual for a judge to make it a condition of suspending a sentence and placing a defendant on probation that the defendant shall disclose the activities of his fellow wrongdoers. 48. I have already pointed out in part A of this opinion that imposition of such a condition is within a Court’s power. Now I am considering only the question whether to have made such a condition was wise. 49. One favorable factor is that the imposition of such a condition in suspended sentence and probation orders was probably foreseen when the probation statute was passed. The statute was enacted March 4, 1925, [43 Stat. 1259; 18 U.S.C. § 3653], It followed the decision of the Supreme Court of the United States in Ex parte United States, 1916, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, holding that without statutory authority a federal judge could not suspend a sentence and place a defendant on probation. When that case was argued in the Supreme Court, Richard W. Hale, Esq., and Frank W. Grinnell, Esq., as amid curiae, presented to the court a brief showing that the placing of a defendant on probation derived some of its historical support from the ancient prac-ice of approvement, wherein a defendant was not given the expected punishment if he furnished the evidence upon which others could be and were convicted. See F. W. Grinnell, The Common Law Origin of Probation, XLY Mass.L.Qu. 70, 87. 50. But the difficulty in Mr. Grinnell’s and my reference to the ancient procedure of approvement is that the reference tends to distract lawyers and others interested in the present proceedings from both (a) the precise technical basis upon which this revocation of probation rests (see part A of this opinion) and (b) the larger issues of present day policy (see part D of the opinion, of which, of course, this paragraph is a subdivision). Even Callahan’s own counsel in his motions seems to have become distracted or confused on this point. For he argues as though the case at bar involved an approvement. It does not. The references to approvement were merely by way of analogy or historical antecedent. 51. Leaving historical curiosities aside, we should focus on exactly what is Worcester’s situation. He is a convicted person called upon, in a revocation of probation proceeding, to give under oath, before a grand jury or like body, testimony with respect to his associates in a conspiracy involving wilful evasion of federal taxes, (§ 145(a) of the 1939 Internal Revenue Code, now part of 26 U.S. C. § 7203,) the federal offense of misprision of felony, (18 U.S.C. § 4), the federal offense of perjury, (18 U.S.C. § 1621), the federal offense of making false statements to federal agencies, (18 U.S. C. § 1001), and, incidentally, certain offenses under state law, such as bribery of state officials. (Mass.G.L., c. 268, §§ 7 and 8). 52. Worcester is not a person who came forward voluntarily to inform, or, as the slang phrase has it, to peach on a fellow culprit. Hughes, Tom Brown at Oxford, XII (quoted in VII O.E.D. 585); E. M. Forster, Two Cheers For Democracy, pp. 68, 69; E. Barker, Alexander to Constantine, 250, 321; C. Bailey, The Greek Atomists and Epicurus, p. 516; A. N. Whitehead, Adventures of Ideas, end of ch. V, p. 69; George H. Moore, Judaism, II, 181-188; S. Rapaport, Tales and Maxims From The Talmud, (London 1910), p. 99; R. H. Rovere, Senator Joe McCarthy, (Meridian, 1960), pp. 26, 158, 159, 216, 217. 53. Worcester is not a person who came forward voluntarily either out of zeal or spite, patriotism or malice. Palfrey, Compendious History of New England, vol. III, pp. 103-104, 108, 109, 111, 116; Plutarch, Lives, (Clough ed., Boston, 1895) Life of Brutus, vol. V, p. 340; Klausner, Jesus of Nazareth, (N.Y.1928), Bk. 6, ch. Ill, p. 325; D. Donald, Charles .Sumner, pp. 264-265; Deuteronomy XIII, 2-12; The Meaning Of The Glorious Koran, (M. M. Pickhall ed., Mentor, 1953), p. 369, par. 12; Creon in Sophocles, Antigone, lines 181-182; Shakespeare, Othello; E. M. Forster, Two Cheers For Democracy, pp. 68-69; F. H. Bradley, Is There Such A Thing As Pure Malevolence, Essays, vol. I, p. 133; Coleridge, Essays And Lectures on Shakespeare, (Everyman, London, 1907) p. 172; Whittaker Chambers, Witness; John Strachey, The Strangled Cry, Encounter Magazine, Nov. 1960, pp. 3, 13-15. 54. Worcester is not a person who came forward voluntarily to disclose a secret he held in a professional capacity. C. K. Allen, R. v. Dean, CCXXV The Law Qu.Rev. 87, Jan. 1941. Cf. Mason, Brandeis, pp. 274-276; Jessup, Elihu Root, I, 158-159; Pringle, W. H. Taft, I 470-.514; Stimson & Bundy, On Active Service, 29. 55. Worcester is not a person who came forward voluntarily in response to the promise of a financial reward consequent upon another’s conviction. J. J. Strachan-Davidson, Problems Of The Roman Criminal Law, (Ox.1912) vol. I, pp. 39-45, vol. II, pp. 1, 2, 6-50, and 136-140; Coke, Inst. 194; Beccaria, An Essay on Crimes and Punishments (2nd ed., London, 1769) ch. XXXVI and Voltaire’s commentary thereon, pp. 1-liii; Montesquieu, The Spirit of The Laws, Bk. XII c. XVI; Allen, The Queen’s Peace, pp. 90-92; F. W. Maitland, Justice and The Police, p. 18; 4 Blackstone, Commentaries *132; Radzinowicz, A History of Criminal Law, vol. I (1948), pp. 682-684; vol. II (1956) p. 35, note 6; Macaulay, History of England, vol. I c. 3; J. L. & B. Hammond, Poverty, Crime, and Philanthropy, Johnson’s England, vol. I, pp. 300-335, 313, 328; Jonathan Wild’s Case (1719), East 2 P.C. 746, s. c. (1725), 1 Leach 17, (1725) East 2 P.C. 770; Goebel, Colonial Law Enforcement in N. Y., p. 382. 18 U.S.C. § 3059; 19 U.S.C.A. § 1619; 31 U.S.C. §§ 231, 232, 234, 322; United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443; Cummings & McFarland, Federal Justice pp. 197-199, 201, 208; Note, 69 Harv.L.Rev. 1106, 1107 note 8; E. Freund, Standards of American Legislation, p. 253; L. O. Flaherty; The Informer. 56. Worcester is not a person who came forward voluntarily in response to a statutory or other offer to let him go unpunished if another was convicted on the basis of Worcester’s testimony. Bracton’s Notebook, Case 1159 Bra.cton, 523; Hale P. C., II 226-235; 4 Bl.Com. c. 25, *330; 2 Stephen, The Criminal Law, 250; Sir C. K. Allen, The Queen’s Peace, 88-90; 2 Pollock & Maitland, A Hist. of Eng. Law, (2nd ed.) 631; 3 Holdsworth, A Hist. of Eng. Law, 608-609; Helen Maud Cam, The Hundred and The Hundred Rolls, (referring to the 26th article of inquiry in the Ragman’s Rolls of 1274), pp. 70, 179; Rex v. Rudd, (1775), 1 Cowp. 331, 98 Eng.Rep. 1114; The Whiskey Cases, 99 U.S. 594, 599, 602-605, 25 L.Ed. 399. 57. Worcester is not a person who came forward in response to a duty laid upon him as a grand juror or other person, such as a member of a certain order, or a local unpaid temporary constable, or a member of the local unpaid watch to discover criminals. George Lee Haskins, Law and Authority in Early Mass. p. 213 n. 116 (referring to Mass. Laws and Liberties of 1648 at 47). 58. Worcester is not a person who came forward in response to a duty laid on his community or special group to report offenders in their number or in their area. Maitland, The Criminal Liability of The Hundred in Collected Legal Essays, vol. I, pp. 230, 232, 239; Pollock & Maitland, History of English Law (2d. ed.), vol. I, p. 142; Vinogradoff, English Society in The Eleventh Century, pp. 6, 10-11, 216; Vinogradoff, Villainage, p. 357, note 1; Helen Maud Cam, The Hundred and The Hundred Rolls, pp. 18-19, 30-32; Sir C. K. Allen, Queen’s Peace, pp. 70, 75-79; F. M. Stenton, Anglo-Saxon England, (2nd ed., 1947), pp. 503, 643; A. L. Poole, From Domesday Book to Magna Carta, pp. 58-59; T. F. T. Plucknett, Edward I and Criminal Law, p. 89; Note, 8 U. of Chic.L.Rev., pp. 338-343. See Lummus, J., in Com. v. Lopes, 318 Mass. 453, 456, 61 N.E.2d 849, note 2. 59. Worcester is not a person upon whom there is laid a statutory duty to keep a record of his own or another’s conduct. Shapiro v. U. S., 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. 60. Worcester is not an o