Circuit Judge (concurring as to affirmance but dissenting as to one ruling).
1. I entirely agree that we must affirm thé convictions on the grounds that the court had jurisdiction, and that the defendants had no constitutional privilege either with reference to producing the Bail Fund’s records or as to oral testimony concerning matters “auxiliary to the production” of those record's.
2. But I disagree on one point decided in the last few paragraphs of my colleagues’ opinion: The defendants were asked to testify orally in answer to some other questions which — so my colleagues concede — (1) would tend to self-incrimination, (2) were not at all “auxiliary” to the production of the records, and (3) would ordinarily be covered by the anti-self-incrimination constitutional privilege. Peculiarly within that category were questions about when the defendants last saw, or about their acquaintance with, the Dennis-case refugees. .This is precisely the kind of question the reply to which the Supreme Court, earlier this year, held privileged as tending to self-incrimination, in a case much like this. See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. There the witness Hoffman refused, when asked, to give testimony as to his connections with fugitives for whom bench warrants had been issued. The questions to which the privilege applied were, 341 U.S. at page 481, 71 S.Ct. at page 816:
“Q. Do you know Mr. William Weisberg? A. I do.
******
“Q. When did you last see him ? A. I refuse to answer.
“Q. Have you seen him this week? A. I refuse to answer.
* * * * * *
“Q. Do you know where Mr. William Weisberg is now? A. I refuse to answer.”
The following, almost identical questions asked the defendant Hunton in the present case, are held today by my colleagues to be without the privilege:
“Q. Do you know Henry Winston? A. I cannot answer the question on the ground that the answer may tend to incriminate me.
“Q. Do you know where Robert G. Thompson, Gilbert Green, Gus Hall or Henry Winston are presently located ? A. I do not.
“Q. When did you last, see Robert G. Thompson ? A. I decline to answer on the ground that the answer might tend to incriminate me.
“Q. When did you last see Gilbert Green? A. I decline to answer on the ground that the answer might tend to incriminate me.
“Q. Have you seen Robert G. Thompson since Thursday of last week? A. I decline to answer on the ground that the answer might tend to incriminate me.
“Q. Have you seen the defendant Gilbert Green since July 5? A. I decline to answer on the ground that the answer might tend to incriminate me.”
My colleagues’ position as to those questions is this: The defendants bargained away the privilege many months before any judicial inquiry arose, when they voluntarily became sureties and thereby impliedly promised to disclose to the government any information which might aid in bringing into custody the convicted persons for whom the defendants had gone bail. I have no doubt that the defendants did assume that *103obligation. Doubtless, too, the effective assertion of the privilege would be flatly inconsistent with that obligation and would be a breach of it. But I do not accept my colleagues’ thesis that a court may criminally punish a man who breaks such a contract by which he agrees, long in advance, to surrender his anti-self-incrimination privilege. In short, I think that no such advance (preinquiry) contract can validly destroy the privilege (not to give oral self-incriminating testimony) when asserted by a witness in response to questions during a proceeding, if that privilege would otherwise apply.
No case relating to bail sureties, or other persons, has been cited by my colleagues in support of their position. Nothing in any of the previous decisions relative to this Bail Fund bears on the subject.1 My colleagues’ ruling is a startling innovation; it marks the deepest inroad on the privilege to this date. In this particular case, that ruling may seem to have relatively little consequence; for, even if my view prevailed, it would mean only that the defendants would be entitled to urge the trial judge to use his discretion to reduce their sentences.2 When, however, the defendants have served their sentences, they may again be asked the same questions and again be held in contempt, if they repeat their refusals to answer. Moreover, the majority ruling on this point may have wide precedential consequences. All this explains why I shall spell out my reasons for disagreeing on this issue.
1 think that, as I shall try to show, my colleagues have erroneously applied (1) cases admittedly having nothing to do with oral testimony, and (2) cases holding that civil remedies (i.eremedies other than criminal punishment) may be used, where one who asserts the privilege thereby breaks an obligation, voluntarily assumed, to testify orally.
I begin with the latest federal case on which my colleagues rely, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. I think that it plainly demonstrates that an advance voluntary assumption of an obligation to testify orally does not destroy the privilege. In the Shapiro case the Court was construing an OPA statute, 50 U.S.C.A. Appendix, § 922, which required those engaged in a business regulated by that Act both (a) to make and keep records open to inspection and subject to subpoena and (b) to “appear and testify” orally under oath at administrative inquiries. The Court held that the defendant, by engaging voluntarily in such a business, assumed the obligation of compliance with these requirements. It also held that the statute made “public records” of the required records; that therefore the defendant had no constitutional privilege with respect to their production; and that, accordingly, on compulsorily producing them, he was not entitled to immunity from prosecution on the basis of the facts disclosed therein, despite the statutory immunity provision in § 202(g) of the OPA statute. The immunity thus conferred, said the Court, was only “co-terminous with what otherwise would have been the constitutional privilege.” But, significantly, the Court carefully differentiated the lack of effect on the privilege of the obligation to testify assumed by the defendant. The Court said, 335 U.S. 1 at page 27, 68 S.Ct. 1375, at page 1389, “Of course all oral testimony * * * can properly be compelled only by exchange of immunity for waiver of privilege.” 3
*104To summarize: The defendant Shapiro took on two obligations — (1) to keep and produce records and (2) to testify orally. The first was not at odds with the privilege, because the records had been made “public records.” But the Supreme Court said that the second was within the privilege, which means that the privilege not to testify orally could not be destroyed by Shapiro’s previous voluntary assumption of an obligation so to testify. As a result, Shapiro could have been compelled to testify orally as to matters tending to self-incrimination only because of the correlative statutory grant of immunity. But, in the case on appeal before us here, as there was no grant of immunity to the defendants, their privilege remained, notwithstanding, their implied promise to make disclosure.
The distinction, laid down in the Shapiro case, between production of required records and compulsion of oral testimony has been reaffirmed in our own court: “We recognize that if Daisart had been required to submit reports pursuant to OPA’s record-keeping requirements, then Smith could not claim immunity if compelled to produce them. Shapiro v. United States, 68 S.Ct. 1375. We think, though, the production df records must be distinguished from oral testimony as to what the records would contain, had they been produced. * * * [T]he very matter that would incriminate had to be forced from the lips of the defendant himself, rather than obtained from the records or books.” United States v. Daisart Sportswear, 2 Cir., 169 F.2d 856, 862, reversed on other grounds, Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264.
My colleagues in now wiping out this distinction rely on (1) state court cases which, like the Shapiro case, sustained, as valid, in the face of the privilege, statutes requiring druggists or others to keep records open to public or official inspection and to produce them in court,4 or (2) cases requiring certain kinds of oral reports to be made to the police.5 But in these cases the state courts themselves have carefully pointed out, as a basis of sustaining those statutes, that the statutes made no attempt to compel the reporter, against an assertion of his privilege, to testify in court as to the contents of such reports.6 I think that not *105the slightest intimation in those cases justifies my colleagues’ interpretation of them as holding that one required by statute to make such reports loses his privilege, in a judicial inquiry to which the contents of the report are relevant, to refuse to give self-incriminating oral testimony. Such a result is, I believe, without precedent in this country. The Supreme Court, in fact, took all these state court reporting statutes into consideration in Shapiro v. United States, 335 U.S. 1, 18, 68 S.Ct. 1375.7 Yet it was adamant in insisting that the privilege still applied to all oral testimony.
My colleagues consider it an “anomaly” to differentiate the production of documents from “questions concerning their contents.” Even had the questions asked of the defendants here been thus restricted, I would not regard the distinction as anomalous; more to the point, the Supreme Court does not. But whatever there may be of anomaly in applying the privilege to questions concerning the books’ contents vanishes with respect to the questions asked here which were utterly unrelated to these contents, i.e., questions about when the defendants had last seen the fugitivess and the like.
My colleagues do not cite, and I have been unable to discover, a single American case deciding that a statute can validly abolish the privilege with respect to giving oral testimony. Moreover, in the instant case, no statute required the defendants to report or make disclosures. Their obligation to disclose is wholly contractual, deriving by implication from their contract as sureties. No American case has been cited, and I can find none, to the effect that, by any advance contractual promise, the privilege can be abrogated. All the pertinent decisions hold the other way. Consider the case of a fiduciary. He patently owes an obligation, assumed when he becomes a fiduciary — an obligation which is at least as important as if embodied in an express contractual promise — to disclose to his beneficiary all dealings with the beneficiary’s money or other property. Yet when a beneficiary has sued his fiduciary, it has been uniformly held in this country that the fiduciary may refuse to give self-incriminating oral testimony about such dealings, although the result may be seriously to impede or frustrate the obligation he unquestionably undertook voluntarily. See, e.g., Ex parte Berman, 105 Cal.App. 37, 287, P. 125; Vineland v. Maretti, 93 N.J.Eq. 513, 117 A. 483; Warren v. Holbrook, 95 Mich. 185, 54 N.W. 712. The inapplicability in these United States of the English case of Green v. Weaver, 1 Sim., Ch., 404, cited by my colleagues, is explained in Ex parte Berman, supra.
Very much in point are the cases relative to policemen and other public officers, for they involve contractual obligations owed to a government. A policeman, when he takes office, contracts in the most solemn manner conceivable — as signalized by his oath of office — to aid in the detection and apprehension of criminals. His solemn promise obviously includes a promise to give information to the government about the deeds of suspected criminals. Yet the courts, whenever the issue has arisen, have said, with no exception, that such an officer, if called in an inquiry concerned with facts squarely within the scope of the officer’s sworn official duty, may efficaciously assert the privilege. See Christal v. Police Commission of San Francisco, 33 Cal.App.2d 564, 92 P.2d 416; In re Lemon, 15 Cal.App.2d 82, 59 P. 2d 213; Drury v. Hurley, 402 Ill. 243, 83 N.E.2d 575; Scholl v. Bell, 125 Ky. 750, 102 S.W. 248; cf. Claiborne v. United States, 8 Cir., 77 F.2d 682, 690. The courts, in such cases, fully acknowledging the official’s obligation to testify orally, hold that the rem*106edy for the breach is not criminal punishment, but removal from office. “We are not unmindful of the constitutional privilege * * * which may be exercised by all persons, including police officers, in any proceeding, civil or criminal [citations]. As we view the situation, when pertinent questions were propounded to appellants before the grand jury, the answers to which questions would tend to incriminate them, they were put to a choice which they voluntarily made. Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but * * * they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them.” Christal v. Police Commission of San Francisco, supra [33 Cal.App.2d 564, 92 P.2d 419].8
Suppose a policeman who had been assigned to arresting the Dennis-case fugitive Thompson had been asked, just as one of the defendants here was asked: “When did you last see Thompson?” Suppose the officer, on the basis of the privilege, had refused to answer. The precedents all teach that he could not have been adjudged in contempt.
In short, on the assertion of the privilege, the courts will not use criminal punishment as a means of compelling specific performance of a policeman’s contractual obligation, but will approve other remedies for the policeman’s breach of that obligation. So here: The defendants, because they have broken their contractual disclosure-obligation, may be rejected as sureties in future cases. Concord Casualty & Surety Co. v. United States, 2 Cir., 69 F.2d 78, 81, 91 A.L. R. 885; United States v. Lee, D.C.S.D. Ohio, 170 F. 613; United States v. Flynn, 2 Cir., 190 F.2d 672. And if money damages can 'be proved, they can be held civilly liable. But I think that, no more than the privilege-asserting policeman, can they be jailed or fined for the breach.
My colleagues, I think, betray the weakness of their position by citing, as “apposite,” Canteline v. McClellan, 282 N.Y. 166, 25 N.E.2d 972. Was anyone there held in contempt for refusal to answer questions? Not at all. The court there quoted with approval the passage from the Christal case which I quoted above. That alone should serve to show how inapposite is Canteline. But we have better proof of its irrelevance: There was before the court in that case an amendment to the New York constitution which, so far as New York proceedings were concerned, could have wiped out the privilege for public officials, or, indeed, for everyone. But that amendment did not modify the privilege; it did not provide that an official could be jailed if he refused to answer self-incriminating questions; it provided merely that an official exercising the privilege should lose his office.9 In Canteline, the court applied that amendment.
The weakness of my colleagues’ position further appears from their citation of Hickman v. London Assur. Corp., 184 Cal. 524, 195 P. 45, 18 A.L.R. 742, and Swedish-American Tel. Co. v. Fidelity & Casualty Co., 208 Ill. 562, 70 N.E. 768. In the Hickman case, the plaintiff, insured by the defendant, agreed in his policy to submit to an examination under oath in matters concerning the loss. Plaintiff brought suit on the policy, although, setting up his privilege, he had previously refused to disclose the required information to defendant. The court found that, as he had breached it, he could not recover on the policy. The court did not, however, attempt, by punishing the plaintiff, to coerce him into specifically per*107forming his contractual promise. The Swedish-American Tel. Co. case seems singularly inapposite, since it did not in any way involve the privilege against self-incrimination. In that case, the defendant company, insured by the plaintiff, had agreed that, in order to enable the plaintiff to check on the premiums earned, the defendant’s books should be open to inspection ■by the plaintiff. In a suit, about the premiums, brought by the plaintiff, the court ordered defendant to produce for plaintiff’s inspection the pertinent books of the defendant. The company was fined for civil contempt when it refused. It asserted that the discovery order was an unreasonable search and seizure. The Supreme Court of Illinois held that it was not. Nothing in that case relates to oral testimony.
All the precedents say that the self-incrimination privilege relative to oral testimony cannot be abolished constitutionally by advance contracts between private persons or even between a government and its crime-detecting officials. My colleagues are either ignoring those precedents or announcing a new doctrine which, for these purposes, puts contracts between governments and bail-sureties in a special class. But why such a special class ? Why should a policeman, suspected of conspiracy with criminals whom he owes a duty to detect and arrest, have the benefit of the privilege despite his contractual duty, while a private bail-surety does not, although the harm such a surety, if allowed to keep silent, does to society and public morals is far less grave than that done by such a silent policeman? The fact that a policeman wears a uniform, advertising his status as a public servant, certainly does not mean that discharge of his obligation — a part of his “due performance of accepted office” — is not at least as “close and direct” as that of a private citizen acting as a surety. Nor is the surety’s assumption of his obligation one iota more “voluntary” than is that of a policeman. In truth, one might plausibly argue that, in a practical sense, the surety’s is less ‘voluntary”; for every man entering the police force thoroughly understands — more, he is told at length — that he is agreeing to detect and disclose crimes, whereas the implied disclosure-obligation of a private bail-surety is not generally well understood.
Since then, my colleagues’ decision cannot reasonably rest on the notion of a special class, it must be taken as overruling the precedents, i.e., as holding that any advance contractual promise inconsistent with the exercise of the privilege extinguishes the privilege. If my colleagues’ remarks about the need for a “close and direct” relation between promise and privilege leave any lingering doubts on this score, those doubts can be easily dispelled in this way: insert in a contract an express provision that one of the parties promises to divulge, to the other, information of a designated kind, and that the promissor surrenders his privilege with reference to oral testimony in so far as it would interfere with performance of that promise. Then, presto chango, up the chimney goes the privilege. Thus, if my colleagues’ decision is generally accepted, the sole practical effect of the constitutional privilege will be to add a few words to a contract. So the high hopes of Madison and his fellows, expressed in this Fifth Amendment privilege, will end up in a rubber-stamp contractual clause. Especially will all government employees be stripped of the privilege — by contract. Before long, rubber-stamped out of existence, the privilege will be but a quaint item of antiquarian lore.
At any rate, my colleagues are today ruling that, by a contract with the government, any man can validly surrender that constitutional privilege long before there arises a judicial inquiry in which he is asked to give self-incriminating oral testimony ' under oath. I regard that ruling as at odds with the rationale of Supreme Court decisions in respect of other constitutional privileges.10 Thus, for example, no one thinks an official *108or prívate person can validly contract away his right to trial by jury in any or all future criminal proceedings; he can, however, waive that right after indictment if then fully aware of what he is doing.11 Advance abandonment is forbidden to prevent the right being thoughtlessly foregone. And, for like reasons, the same rule governs the advance abandonment of the privilege against oral testimony which tends to incriminate. Nevertheless, it might be suggested that, since the privilege is personal and may be relinquished by not asserting it when one is judicially questioned, it must be capable of disposition by a contract made long in advance of the questioning. The answer is that the courts hold that, because of public policy considerations, many important rights or privileges cannot be bartered away before the happening of events calling them into operation, but may be abandoned after such happening. “A promise not to plead the statute of limitations as a defense, or a promise to ‘waive’ the benefit of it, has generally been held to be contrary to the public interest if it is made at the time of the contract the enforcement of which is involved”; but such a'promise “is valid if made after the accrual of the cause of action to be affected by it.” 12 “A contractor cannot in advance bargain away such defenses as fraud and duress, and yet he can * * * validate a previous bargain that was induced by fraud or duress.”13 So with the disposition, of a mortgagor’s “equity of redemption.”14 Similarly, a worker cannot, in advance of their accrual, “contract out” his rights under a workmen’s compensation statute.15 A licensee under a patent may not lawfully agree in advance not to, plead the invalidity of any patent if sued for infringement.16 A provision of a contract is invalid by which one party agrees not to bring suit in or remove a suit to a federal court, although the right thus to sue or remove may be abandoned lawfully when the cause of action arises.17 In the same way, to this extent, the self-incrimination privilege is inalienable — not to be yielded up — in advance.18
It seems to me that my colleagues have forgotten or have undervalued the stirring words uttered by the Supreme Court years ago: “* * * [A]ny compulsory discovery by extorting the party’s oath, * * * to convict him of crime, or to forfeit his *109property, is contrary to the principles of a free government. * * * [I]t is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.” Boyd v. United States, 116 U.S. 616, 631,632, 6 S.Ct. 524, 533, 29 L.Ed. 746. Perhaps I am too old-fashioned, but I confess to being thrilled by those words. If we take them lightly, if by one after another encroachment we keep diminishing this constitutional privilege, a bit here and a bit there, I fear that we are likely to move rapidly, although unwittingly, in the direction of the unfree, authoritarian, kind of government whose principles have long seemed unprincipled to Americans. Eastern European history is proving once more the value of this privilege — proving that a law-enforcement system habitually trusting to compulsory self-incriminating disclosures cannot long escape recourse to bullying and torture.19 It is noteworthy, too, that those American officials who, deplorably, use the brutalitarian Third Degree manifest unusually strong hostility to this privilege.20 So that if, at times, this privilege protects the guilty, yet often it serves as a shield to the innocent.21 I think my colleagues have left little of that shield.
To be sure, some persons — Wigmore is typical22 — who are by no means brutalitarian look upon the privilege as largely one which fosters foolish sentimentality towards criminals, and wish that it were not incorporated in the Constitution. But even if that wish were warranted (which I gravely doubt) the way to realize it would be by amending the Constitution, not by judicial decisions which erase it.23
. Judge Swan, in United States v. Field, 2 Cir., 190 F.2d 554, based bis denial of bail solely on the refusal to turn over the books and records. Judge L. Hand followed Judge Swan, United States v. Hunton et al., 2 Cir., 190 F.2d 556. Justice Reed did the same; Field v. U. S., 2 Cir., 193 F.2d 86, 91. In U. S. v. Flynn, 2 Cir., 190 F.2d 672, we did not have before us the issue of jailing the Bail Fund Trustees for contempt.
. That is, to reduce the sentences to the extent that he imposed them for refusal to answer the questions here being discussed.
Field’s sentence has already run. Because of St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199, I doubt whether we may pass on his conviction, since the appeal seems to be moot, although I find it somewhat difficult to reconcile St. Pierre with Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310.
. Emphasis as in original.
Frankfurter, J., dissenting in Shapiro v. United States, 335 U.S. at page 42, 68 S.Ct. at page 1396, confirmed the dis*104tinction: “The Court supports * * * the ‘short answer’ that the immunity provided does cover compliance with any of those requirements as to which a person would have been excused from compliance because of his constitutional privilege. * * * Plainly, the Court construes § 202(g) as according immunity only to oral testimony under oath.”
. See, e.g., State v. Davis, 108 Mo. 666, 18 S.W. 894; People v. Henwood, 123 Mich. 317, 82 N.W. 70.
. See, e. g., Ex parte Kneedler, 243 Mo. 632, 147 S.W. 983, 40 L.R.A.,N.S., 622; People v. Rosenheimer, 209 N.Y. 115, 102 N.E. 530, 46 L.R.A.,N.S., 977.
. “The statute is a simple .police regulation. * * * It does not attempt in terms to authorize the admission of the information as evidence in a criminal proceeding.” Ex parte Kneedler, supra note 5, 243 Mo. at page 639, 147 S.W. at page 984. “I might hesitate * * * in upholding a statute which required the operator of a vehicle to appear and be examined as a witness on the trial of a criminal prosecution against himself for his conduct in the occurrence.” People v. Rosenheimer, supra note 5, 209 N.Y. at page 122, 102 N.E. at page 532. See also People v. Creeden, 281 N.Y. 413, 24 N.E.2d 105, 107; Bowles v. Amato, D.C.Colo., 60 E.Supp. 361, 363.
It is worth noting that many of the state reporting statutes, like the ones above, have been upheld on the ground that the -scanty and non-incriminating nature of the information required, i.e., driver’s identity and license number, constituted no real threat to the informer. See Ex parte Kneedler, supra note 5, 243 Mo. at page 639,147 S.W. 983; Commonwealth v. Joyce, 326 Mass. 751, 97 N.E.2d 192, 194; State v. Davis, supra note 4, 108 Mo. at page 671, 18 S.W. 894. See Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198, the privilege does not extend to answers to questions too remote and unsubstantial; Swingle v. United States, 10 Cir., 151 F.2d 512, compulsory identification alone does not violate the privilege. A statute requiring a “full report” to a police officer of details of motor accidents has been held unconstitutional. Rembrandt v. City of Cleveland, 28 Ohio App. 4, 161 N.E. 364.
There is an important practical difference between these reporting statutes, *105even those carrying criminal penalties for failure to keep such reports, and the abrogation of the privilege as to oral testimony. A man can be sent to jail only once for failure to keep certain records. But he can be imprisoned as many different times in as many different proceedings as he is asked questions about those reports, if he has no privilege as to their contents.
See United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, to the effect that perhaps it may not be a violation of a record-keeping or report-making statute to exclude from the record or report any statements tending to self-incrimination.
. See also Frankfurter, J., dissenting 335 U.S. at pages 59-65, 68 S.Ct. at pages 1404-1407.
. Emphasis added.
. This new provision of the New York constitution was adopted in 1938, six years after Judge Seabury’s speech (cited by my colleagues) advocating express relinquishment of the privilege by public officials as a condition of taking office. It illustrates the reluctance of the states, even by constitutional amendment, to abrogate tbe privilege for any class of citizens.
Yet New York has always required public officials to turn over public records in their custody. People v. Coombs, 158 N.Y. 532, 53 N.E. 527. The New York courts apparently see no “anomaly” in this distinction.
. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; United States v. Glasser, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268.
. Patton v. U. S., 281 U.S. 276, 312, 313, 50 S.Ct. 253, 74 L.Ed. 854.
. Corbin, Contracts §§ 218, 1515 (1950). Cf. as to discharge in bankruptcy, Federal Nat. Bank v. Koppel, 253 Mass. 157, 148 N.E. 379, 40 A-L.R. 1443.
. Corbin, Contracts § 1515 (1950).
. Ibid.
. See, e.g., Red Rover Copper Co. v. Industrial Commission, 58 Ariz. 203, 215, 118 P.2d 1102, 137 A.L.R. 740; Wass v. Bracker Construction Co., 185 Minn. 70, 240 N.W. 464.
. Pope Mfg. Co. v. Gormully, 144 U.S. 224, 12 S.Ct. 632, 636, 36 L.Ed. 414. The Court there quoted with approval as follows from Crane v. French, 38 Miss. 503: “But there appears to be * * * a clear distinction between declining to take advantage of a privilege which the law allows to a party, and binding himself by contract that he will not avail himself of a right which the .law has allowed to him on grounds of public policy. A man may decline to set up the defense of usury, or the statute of limitations, or failure of consideration to an action on a promissory note. But it would scarcely be contended that a' stipulation inserted in such a note, that he would never set up such a defense, would debar him of the defense if he thought fit to make it.” See also Nachman Spring-Filled Corp. v. Kay Mfg. Co., 2 Cir., 139 F.2d 781.
. Home Insurance Co. v. Morse, 20 Wall. 445, 22 L.Ed. 365. See Corbin, op. cit. supra note 12, § 1445; Restatement; Contracts § 558 (1932).
. See In re Sales, 134 Cal.App. 54, 59, 24 P.2d 916, 919, where the court refused to find petitioners in contempt for asserting their privilege in violation of an agreement made with the district attorney to repeat at trial testimony given before the grand jury: “ * * * there can be no contractual relationships with the witnesses * . * * any agreement attempted to be made by him [the witness] as to whether or not he would testify would be wholly void and no rights whatever would be created thereunder.”
. A wag, after reading that terrifying book “1984,” might say that, if we do not watch out, we will find truth at the bottom of an Orwell.
. In re Fried, 2 Cir., 161 F.2d 453, 459, 460, 1 A.L.R.2d 996.
. 49 Tale L.J. 1059, 1078 (1940); People ex rel. Taylor v. Forbes, 143 N.Y. 219, 38 N.E. 303.
. 8 Wigmore on Evidence 318, 319 (3d Ed. 1940).
. See United States v. St. Pierre, 2 Cir., 132 F.2d 837, at page 847, 850, 147 A.L. R. 240 (dissenting opinion), certiorari granted St. Pierre v. United States, 318 U.S. 751, 63 S.Ct. 769, 87 L.Ed. 1126, but case dismissed as moot, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199.