(concurring and dissenting):
I concur with the majority as to the admissibility of the money order against Hubert Payne, but as to the admissibility of the out of court statement of Bur-rell Payne, I respectfully dissent.
We are faced here with a hearsay question and also with the reserved question in Green: is the confrontation clause satisfied when the witness, being present, claims he cannot remember the events in question, and the court then admits a prior out of court statement as substantive evidence?
The witness here testified that not only was he unable to remember the events he allegedly discussed in his prior conversation with the Secret Service Agent, but he also could not remember talking with the agent at all. Under such circumstances, the physical presence of the witness was a nullity so far as it touched direct or cross-examination concerning his extrajudicial statement. The defendants were no better off than had the witness been physically unavailable for trial. The admission of the hearsay statement as substantive evidence under the facts of this case is not only a violation of the hearsay rule, it also deprives the defendants of their Sixth Amendment right to be confronted with the witnesses against them.
The Hearsay Problem
While the majority, by way of dicta, takes the position that Burrell’s statement should be admissible under the recorded past recollection exception to the hearsay rule, it does not hold the statement so admissible, and bases its conclusion as to admissibility on the supposed inherent reliability of the statement. I am not in agreement with either proposition. I do not think the statement is within the recorded past recollection exception and further believe that it has few, if any, attributes of reliability.
As I understand it, recorded past recollection, in those jurisdictions which follow this exception, is supposed to have earmarks of reliability since it is a writing or recording made when the facts recorded were fresh in the witness’ memory and which the witness can testify were accurately recorded. Because of such reliability, recorded past recollection has often been admitted as substantive evidence when the witness cannot remember the facts at the trial, although cross-examination of the witness at the time the statement was made was not had. Under this exception, even though the statement may be read to the jury, it should not be admitted as an exhibit as happened here.1
*456Wigmore’s treatise is fraught with examples of when recorded past recollection may be admitted, and all would require as a minimum that the witness verify the accuracy of the record either at trial or at the time it was made.2 To say that a contrary result here would potentially foster perjury by witnesses feigning failure of recollection is to ignore the equally plausible possibilities that his prior statement was false, or that the person to whom the statement was made would misquote the declarant, or mistakenly transcribe what the de-clarant said.3 Furthermore, the trial court concluded that Burrell was not feigning his inability to remember.
The exception that the majority relies upon is outside the existing law of evidence.4 It recites that prior inconsistent statements of a witness available for cross-examination may be received as substantive evidence where the prior statement was given at a former trial or before a grand jury,5 but then, ignoring the rule as stated, holds Burrell’s guilty plea at his arraignment and his silence in the face of testimony by agent Donald at the arraignment as sufficient to satisfy the requirements. I consider this result unsound and incorrect for at least the following reasons: (1) Bur-rell’s previous guilty plea concerned only his own action, his own guilt; (2) the actual substance of Burrell’s prior statement (which was admitted here) was neither admitted in evidence nor referred to at his arraignment; (3) Bur-rell was not under oath or subject to cross-examination at his arraignment; (4) for all practical purposes, Burrell was not subject to cross-examination at the trial here in question regarding his prior statement; (5) the substance of his statement that implicated the other defendants was never admitted or adopted by Burrell at any judicial proceeding; (6) the ancient rule that the confession of an accomplice may not be received in evidence against another, at least as old as Tong’s Case, Kelyng 18, 84 Eng. Rep. 1061, 1062 (K.B.1663), is violated. Phillips v. Commonwealth, 202 Va. 207, 116 S.E.2d 282 (1960). The rule, at least until this time, has been “universally accepted.” Dutton, infra, 400 U.S. 74, at 98, 91 S.Ct. 210, 27 L.Ed.2d 213; (7) admitting the statement makes a shambles of the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to the effect that co-defendants may not be tried together if the confession of one implicating the other is to be introduced, for insurmountable Sixth Amendment prejudice will result to those not confessing. Of what avail would it be here for Burrell’s co-defendants to ask for severance in order to avoid his confession if the confession may be used against them in any event? It is stretching logic too far to say the statement of a witness who re*457members making it is inadmissible under Bruton, but the statement of a witness who does not remember making it is admissible under the majority decision here; (8) the statement itself is unsworn to, unsigned, not in Burrell’s handwriting, and was concluded with the inscription that it was incomplete and unsigned because Burrell complained of “lapses of memory and dizzy spells.” The statement itself, for these additional reasons, is suspect on its face;6 (9) we must not forget this prosecution is for conspiracy. The conspiracy ended at the latest November 30, 1971. Burrell’s statement was made on January 11, 1972, to a law enforcement officer, and had nothing to do with either the pursuit or furtherance of the conspiracy. Such an out of court declaration of one conspirator, not made in pursuit of and in furtherance of the objectives of the conspiracy, is not admissible against the other conspirators. I know of no federal cases to the contrary. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953).6A
The Confrontation Problem.
Of more significance here, especially philosophical, is the Sixth Amendment problem of whether or not the defendants were deprived of their right to be confronted with the witnesses against them, which is, as before noted, set in the factual situation reserved by Green and there described as a narrow question lurking in the case.
Were the opinion of the court in Green a majority opinion, or were the subsequent opinion in Dutton, perhaps I would undertake with less alacrity speculation upon the ultimate answer to the reserved question in Green and comment upon the historical background of the confrontation clause, and this especially in view of the penetrating and exhaustive concurring opinions in those cases. The concurring opinion of the Chief Justice, however, in Green, 399 U.S. p. 171-172, 90 S.Ct. 1930, may seem sub silentio to infer that the rule of West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904), that the States are not necessarily bound by the Sixth Amendment, subject to the limit that “such procedure must-not work a denial of fundamental rights,” 194 U.S. 258, 263, 24 S.Ct. at 652, is apparently not as dead as might be supposed by the language in Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), where the Sixth Amendment was declared to be “enforced against the States . . . according to the same standard . . . [as] against federal encroachment.” Indeed, the Chief Justice, with reason, construes Green as not imposing “rigid limits” on the States. And the later holding in Dutton7 lends *458credence to this position. The concurrences of Mr. Justice Harlan in Green and Dutton make it clear that not only is the scope of the effect of the confrontation clause on the States not yet entirely fixed, but the decisions leave the entire subject of the scope of the confrontation clause less than clear: “[The] . . . decisions have, in my view, left ambiguous whether and to what extent the Sixth Amendment ‘constitutionalizes’ the hearsay rule. . . . ” Green, 399 U.S. at 173, 90 S.Ct. at 1943; only a “glimmer of light” is shed by history on its extent, Green, at 177, 90 S.Ct. at 1945; “[i]t is common ground that the historical understanding of the clause furnishes no solid guide to adjudication,” Dutton, 400 U.S., at 95, 91 S.Ct. at 223.
A majority of the Supreme Court has been of opinion that the confrontation right and the hearsay rule are not coextensive, Green, 399 U.S. 155, 174, 90 S.Ct. 1930. And Mr. Justice Harlan has correctly noted in Green, at 172, 90 S.Ct. 1930, the tendency to indiscriminately equate cross-examination with confrontation. Although he may have modified, this reasoning in Dutton, where he equates the cross-examination right to a mode of procedure, in my opinion he there states, 400 U.S. at p. 94, 91 S.Ct. 210 the correct conclusion that the confrontation clause was “intended to regulate trial procedure.” This construction of the confrontation clause is consistent both with the historical background and most American court decisions until recent years, when the courts commenced chipping away at the rule, even as they did to the statutes of 5 Edw. VI, c. 12, § 22, and 1 & 2 P & M, c. 10 & 11, in the time of Sir Walter Raleigh. These statutes just referred to required in literal and plain English that the witness not only be brought into court in person, if alive in the one case, and if alive and within the realm in the other, but also there “in person before the party accused (arraigned,)” “avow and maintain that which they have to say” (5 Edw. VI), or “say openly in his hearing what they . . . can against him” (1 & 2 P & M).
Development of the hearsay rule began in the middle 1500’s when the English court system was evolving to the point where juries for the first time were forced to depend on testimonies offered to them in court, and did not become a settled part of the law until the late 1600’s.8 The most often stated safeguard of the hearsay rule, as it developed and as it is today, is that statements offered testimonially must be subjected to the test of cross-examination.9 The rule excluding the extra-judicial statement of a witness if the witness were available apparently gained general acceptance following Raleigh’s trial.10 In that case, the damning evidence introduced against Raleigh was the confession of Lord Cobham which implicated Raleigh, and, although Cobham was imprisoned in the very building where Raleigh was being tried, he was never called as a witness.11 At the time of Raleigh’s trial, the general rule was that depositions of absent witnesses were read in court, and oral examination of witnesses was rare;12 nevertheless, Raleigh’s pleas to confront his accuser did, to some extent, become a reality for English defendants who followed shortly after him, so the difficulties of his plight may not have fallen totally on deaf ears.13
*459The Sixth Amendment right of a defendant to be confronted with the witnesses against him was apparently not expressed in any of the American colonial charters or enactments. The closest a colonial charter seems to have come to guaranteeing Sixth Amendment trial rights is the Pennsylvania Charter of Privileges, which, in 1701, provided “all criminals shall have the same privilege of witnesses and council as their prosecutors.”14 Upon reflection, such omission was not unusual, since, until the Act of Settlement of William and Mary put the matter to rest, the colonies generally had been considered personal property of the monarch rather than property of the realm. Indeed, the debates of that period between the Crown and the colonies frequently centered around the insistence of the colonies that, since they were the personal property of the Crown, they were not to be subjected to discriminatory acts of Parliament.15
While many of the rights later included in the federal Bill of Rights had been granted to the colonies by charter or enactment prior to the end of the colonial period, the trial rights embodied in the Sixth Amendment had not.16
It remained for the revolutionary conventions to articulate the trial rights of the people expressed in constitutions, spurred on by, of all people, Lord Coke by his decision in Bonham’s Case: “[F]or when an Act of Parliament is against common right and reason or repugnant or impossible to be performed, the common law will eontroul it and adjudge such act to be void.”17
Of the revolutionary conventions, by far the most important and the one with more influence on our history was the Virginia convention of 1776 held in Williamsburg, which was the fifth and last of the Virginia colonial conventions originally convened to fill the governmental gap caused by Lord Dunmore’s dissolution of the House of Burgesses.18 The convention named a committee to prepare a Declaration of Rights and a Constitution. Among the members of the committee were George Mason, the author of the Virginia Declaration of Rights, and James Madison, the author of the federal Bill of Rights. The Virginia Declaration of Rights was the first true Bill of Rights in the modern American sense, since it is the first protection for the rights of the individual contained in a Constitution adopted by the people acting through an elected convention.19 It is almost wholly the individual work of Mason,20 and its importance as the source of the federal Bill of Rights may not be overemphasized. The failure of the federal Constitution to contain a Bill of Rights was a, if not the, principal contention at the Virginia ratifying convention in 1788. Patrick Henry, for example, among others, spoke passionately against ratification for this reason.21 At that time, it must be remembered, Virginia was not only the oldest colony, she was the richest and most populous, and her territory, running from the Atlantic to the Mississippi, cut the country in half, so that a failure of Virginia to ratify the federal Constitution, although nine States had then done so, would have almost certain*460ly meant the failure of the new government. Virginia finally ratified the new Constitution by way of compromise, that is to say, she did ratify with the reserved right to withdraw and recommended at the same time a Bill of Rights to be adopted as amendments to the new Constitution.22 The drafting committee of the proposed federal Bill of Rights included not only Mason and Madison but also Patrick Henry, John Marshall and George Wythe.23 Every specific guarantee in the Virginia proposal, save one, later found a place in the federal Bill of Rights which was introduced in the first Congress by Madison as proposed by Virginia herself. Among those was the right “to be confronted with the accusers and witnesses,” a lineal descendant of the phrase in the Virginia Declaration.24
Although Schwartz notes the omission of references to English law and colonial charters in the Virginia Declaration, taking at face value its assertion of the law of nature as the source of the enumerated rights, I think it is far more likely that Mason’s articulation of trial rights, which is really the basic guarantee of the Sixth Amendment, has its roots in the abuses by the Crown and is an attempt to determine that the abuses might never take place under the new government which was being established. As Mason said in a letter to Richard Henry Lee: “We are now going upon most important of all subjects— ‘government!’.”25 Indeed, this statement of Mason’s is rather more aligned to the conclusion of Schwartz that a con-census had developed among Americans on the fundamental rights which the law should protect,26 and it is consistent with Mrs. Bowen’s statement as to the public reaction to Sir Walter Raleigh’s defense of himself: “LAW antedated the laws and would exist if every man-made statute were expunged. It was a native conception, part of the common inheritance. Sir Walter had presented the law as plain citizens knew it in their minds and held it in their hearts, no matter what construction had been put upon it by legalists now or in Queen Mary Tudor’s time.” 27
It is noteworthy that research on the subject of confrontation clause inevitably leads to Raleigh’s trial.27A The trial is mentioned in many of the opinions and by the writers.28 As noted in Green, at least one author traces the confrontation clause to the reaction against the abuses in Raleigh’s trial. Although this notion is characterized by Mr. Justice Harlan essentially as an assertion,29 the space devoted to the trial by Wigmore leaves no doubt as to the" weighty part it played in his thinking. The trial is all the more noteworthy because Sir Edward Coke was the Attorney General who prosecuted Raleigh. While I am not certain enough of my ground to flatly advocate Heller’s position that Raleigh’s trial was the direct antecedent of the confrontation clause, I do not think his conclusion may be rejected out of hand.
With Raleigh’s accomplishments30 in mind, is it any wonder that the trial and *461execution made an impression on the English people? Indeed, it has been passed down to us for almost 400 years as a horrible example. Can there be the slightest doubt that this trial was fresh in the minds of Mason and Madison, and Wythe and Marshall and Henry? And in the unlikely event the particular trial was not, can we say that the abuses exemplified by the trial were not among those which the authors of the Bill of Rights sought to correct? I think not.
It should be kept in mind that there had been many other state trials in which similar abuses had been committed by the Crown,31 and the Supreme Court, in Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409, has accurately expressed the purpose of the confrontation clause in language startlingly reminiscent of that used by Raleigh in his own defense:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
Such purposes as are expressed in Mat-tox are bound to have been in the minds of Mason and Madison as they drafted the Virginia Declaration and the Bill of Rights.
What were Raleigh’s complaints? What were the abuses of the time ? What demanded correction ?
First, there were not two witnesses to prove the charge, and, second, the witness did not maintain the accusation to his face.32
He argued: “I may be told that the statutes I before named be repealed, for I know the diversity of religion in the Princes of those days caused many changes, yet the equity and reason of those laws remains. They are kept to illustrate how the common law was then taken and ought to be expounded.”33 Raleigh had argued that the statutes of Edw. VI required two witnesses to condemn him, and had also argued that the statutes required the presence of the witness in person. The argument was unavailing. To quote Wigmore, “From the very year of the latter enactment (1554) until the end of the succeeding century, it remained by judicial eon-*462struction a dead letter.”34 The courts had construed the statute of 1 & 2 P. & M., together with the statute of 5 Edw. VI, to reach a result that trials for treason would be conducted as at common law. In the words of the court, the statutes of Edw. VI “were found to be inconvenient and are therefore repealed by the 1st and 2nd of P. & M.”35
How were the abuses corrected? The two witness rule was corrected in the Constitution itself, and in the debates on treason it is particularly noted that both Madison and Mason took part. The definition of treason, including the necessity of an overt act, based on an old statute of 25 Edw. Ill, was frozen into the Constitution,36 as was the two witness rule, a source of which is obviously the English statutes of Edw. VI and P. & M., as well as the statute of I Elizabeth, c.l., § 37.37
Is it too farfetched to say that the remaining abuse was corrected in the Bill of Rights ? Again, I think not.
The shifting sands of English politics of the time and the vagaries of the religion of the Princes, as Protestants and Roman Catholics struggled through the years for ascendency in England, had too often made prosecutions matters of state policy rather than punishment for acts of disloyalty to the Crown.
The federal Constitution had corrected a few of the abuses, and others remained, thus the Bill of Rights. And how should it be construed? Should
the trial right guarantees receive any less protection because in a Bill of Rights rather than in the body of the Constitution? John Dickenson, of Delaware, demanded exactly what was meant in the old statute by requiring the testimony of two witnesses, and this was achieved.38 Randolph in his Essay stated as one of the objects of the Virginia Declaration, “that in all the revolutions of time, of human opinion, and of government, a perpetual standard should be erected.”39 Was this an implausible reference to the repeal and reenactment of the old statutes from time to time according to the politics of the moment by Parliament, or by judicial construction?40 I think not. The Bill of Rights, then, ought to represent a political judgment, that certain principles shall be timeless, “a standing ark, to which first principles can be brought on to a test.”41 While the article has been described as modes of defense for accused persons similar to those under English law,42 no reason can be given, and it would seem unlikely, that the colonists meant to abandon the rights which had existed from time to time under the old statutes and commit themselves to the harsher doctrines of the common law.
With these principles in mind, I turn to the conclusions in the two latest cases on the subject and to Wigmore.42A A plurality of the court in Green and Dut-ton apparently feels that the confrontation clause may be satisfied in many in*463stances (not including the historical exceptions) other than by an appearance of the witness before the trier of fact and there giving his testimony. It is noteworthy, as before related, that the opinions favoring admissibility yet seem to be based to some extent, although not articulated, on the denial of fundamental rights’ theory of West, although it may be increasingly difficult to cling to this in view of the language of the court in Pointer that the confrontation right will be enforced against the States in the same terms as it is against the federal government. Wigmore’s conclusion that confrontation is, in its main aspect, merely another term for the test of cross-examination has been rejected by the court as has, I submit, his conclusion that the Constitution does not prescribe what kinds of testimonial statements shall be given infra-judieially, this depending on the law of evidence for the time being, and that the Constitution limits only the mode of procedure to be followed, that is to say, a cross-examination procedure, and that only as is prescribed by the ordinary law of evidence.43 Taking the two statements of Wig-more together, then, as they must be taken, and they have been adopted in large part by the majority here by its relating the admissibility of the statement solely to rules of evidence rather than giving effect to the prescribed procedure, little or nothing is left of the confrontation clause, and we have very nearly arrived at the point where the rules of evidence concerning hearsay are the same both in criminal and civil cases. I cannot conceive that the framers of the Sixth Amendment ever dreamed such a result could be attained.
In none of the Supreme Court eases do I find that the right of the accused to have his accuser testify on the witness stand in the courtroom is a secondary or subsidiary right. Rather, the rights of confrontation and cross-examination are spoken of in all the eases in the conjunctive, or as the right of cross-examination being included in the right of confrontation,44 which seems to me to be entirely consistent with the Sixth Amendment’s application only to criminal trials, leaving the development of the ordinary rules of hearsay to the courts and to the legislature. But neither the courts nor the legislature should be allowed to change the rules of hearsay so as to deprive an accused of his basic right to have the witnesses against him appear on the witness stand and there “in person before the party accused” “avow and maintain that which they have to say.”
The exceptions in the old English statutes, of course, made for a witness who was dead at the time of the trial or one who was beyond the realm, might consistently be read into the clause. Mattox gave effect to the exception for 'the witness who was dead and who had testified at a previous trial. In United States v. Angell, 11 F. 34 (CC, DNH 1881), it was held that although the wit*464ness was out of the United States, testimony at a preliminary hearing was not admissible, although, even at Raleigh’s trial, he had conceded that such evidence might have been admitted there. The right of cross-examination might very well, and probably should, be construed to determine when the historic exceptions to the confrontation clause are applicable.
To me, a reading of Wigmore’s extensive, thorough and painstaking history of the hearsay rule and the cases45 makes it clear that the right to have the accusing witness appear in person came first. Because the witness, then, was already in court, the right to cross-examine followed. And then, since the right to cross-examine the witness was established, next came the right to have an attorney to cross-examine the witness. Assuming the steps in this order are correct, and I believe they are, the entire history of the matter falls into place alongside the development of the hearsay rule, but not coextensive with it and not necessarily subject to its exceptions. Thus, development of the rules for the admissibility of hearsay takes its place in the scheme of things, unless the development admits hearsay in conflict with the Sixth Amendment. In such case, of course, the Amendment must control. Under this theory, the evidence of the witness here is not admissible because the witness did not state on the witness stand his accusatory statements. The fact that he was not subject to cross-examination is an additional reason to exclude the evidence. This analysis is consistent with the opinion of the court in that part of the opinion in Dutton, 400 U.S. at 82, 91 S.Ct. at 216, where it quoted Green to say “. indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception.” This is also consistent with the concurring opinion of Mr. Justice Harlan in Dutton except where he, with Professor Wigmore, while defining the confrontation right as a “mode of procedure,” then limits the mode of procedure to “a cross-examining procedure.” This, I would not do. It relegates the appearance of the witness in person before the jury and there making his accusatory statements to a secondary role. Such secondary role of the personal appearance of the witness while he is testifying, as I see it, has no background either in history or in the cases.46 As to the result, then, in both Dutton and Green, I believe that both history, and precedent, until after Mattox, support the dissents in their construction of the Sixth Amendment. I can find nothing after Mattox to support any justifiable change. It is true that, in Dutton and Green, as in all the cases which have been decided by the Supreme Court which have come through the State courts, the decisions may be justified by application of the West standard of denial of fundamental rights rather than by the application of the Sixth Amendment to the precise situation. But, after Pointer, in 1965, such justification has become increasingly difficult. We are not concerned here with due process or with the standard of denial of fundamental rights, but rather with a straightforward application of the confrontation clause in a trial in the federal courts. No reason is given to engraft hearsay exceptions onto the confrontation clause and thus confuse with the developing law of evidence what started out and remained for many years a rule of procedure.
*465In partial summary, I believe the defendants here were convicted on evidence which was not taken under oath, not signed, not written by the witness, not remembered by the witness, not subject to cross-examination, and not given in the courtroom in the presence of the jury and the accused. This court, since it might entirely dispose of the case by reversing on the non-constitutional basis of Tong’s Case, Lutwak, Krulewitch, and Bridges, should never reach the constitutional problem of the confrontation clause. See Alma Motor Company v. Timken Company, 329 U.S. 129, 136, 67 S.Ct. 231, 91 L.Ed. 128 (1946).
In all events, whether on the constitutional ground, although I consider the question prematurely reached, or on non-constitutional evidentiary grounds, it follows that I would reverse and remand for a new trial if the United States be so advised.
. See Proposed Federal Rules of Evidence, 801(d)(1), Prior Statement of Witness, and 803(5), Recorded Recollection. The Advisory Committee’s Notes to each rule are a good discussion of the cases supporting both admissibility and non-admissibility and the rationale supporting each rule as proposed. I take cognizance particularly of the note to *456Rule 803(5), including the statement that the recorded past recollection exception was not included under Rule 801(d)(1) because that category requires the declarant to be “ ‘subject to cross-examination’ as to which the impaired memory aspect of this exception raises doubts.”
. III Wigmore on Evidence (3d Ed. 1940) (hereinafter, Wigmore) § 746-748 § 751. See also 125 A.L.R. 140, 165 and 82 A.L.R.2d §§ 29-46 for notes and a collection of cases. See Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) where the witness denied making the statement.
. Of course, the proponent of the evidence is the one who nearly always stands to profit from the statement being admitted whether the forgetfulness is feigned or in good faith, for in either event the statement gets to the jury without the possibility of cross-examination.
. A.L.I., Model Code of Evidence (1942), p. 234.
. I submit Mingoia did not admit the previous testimony as affirmative evidence as cited by the majority, rather it held the prior grand jury testimony admissible as a previous inconsistent statement, 424 F.2d at 713. Insana did the same. It recited that although such might be admissible under the proposed rules, under “present rules” it “can be considered inconsistent,” and had “no occasion to pass upon the broader suggestion,” 423 F.2d at 1169. United States v. DeSisto, 329 F.2d 929 (2nd Cir. 1964) did so hold, but there the witness admitted he made the prior statements.
. I also note that it may be doubtful if the statement would have been admissible as substantive evidence in a trial of Burrell, for the statement on its face does not comply either with Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The testimony concerning its taking may be less than conclusive.
. The Supreme Court apparently has not considered in the context of admissibility of evidence in a federal court whether or not the statement of a co-conspirator, uttered pursuant to and in furtherance of the conspiracy, is in conflict with the confrontation clause. Cf. Dutton, infra. So, to some extent, we write with a clean slate. Quere: have the courts and attorneys taken the view, without expressing it, that such statements are not hearsay, but are admissions, as in the federal Proposed Rules of Evidence, Rule 801(d)(2)(E)? Cf. Lutwak, 344 U.S. p. 617, 73 S.Ct. 481, “the agent of the other.” For philosophical objections to conspiracy indictments, as well as practical evidence problems, see the concurrence of Mr. Justice Jackson in Krulewitch, and Davenport, The Confrontation Clause and Co-conspirator Exception in Criminal Prosecutions, 85 Harv.L.Rev. 1378 (1972).
. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), held valid a Georgia statute which allowed a statement by a co-conspirator to be admitted in evidence against another conspirator although the statement was made during the concealment phase of the conspiracy rather than during its pendency to further its purpose. In the case before us, the statement was made well after the conspiracy.
. Wigmore, § 1364.
. Wigmore, §§ 1362, 1365. Also see discussion on page 7 that an oath was not required at common law but was merely an incidental feature to cross-examination.
. Wigmore, § 1364, note 47.
. Facts taken from Jardine, Criminal Trials I, as reported in Wigmore, § 1364 and Bowen, The Lion and the Throne (1956), Ch. 15-36.
. Wigmore, § 1364, note 45.
. Wigmore, § 1364, at 21, note 47. Also see Green, supra, at 157, note 10, where the court points out that at least one author (F. *459Heller, The Sixth Amendment (1951) ) traces the confrontation clause to the common law reaction against the abuses of the Raleigh trial.
. Schwartz, The Bill of Rights, A Documentary History, 1971, pp. 170, 179, 180, 231-234. Hereinafter cited as Schwartz.
. Schwartz, pp. 40-44, 52. Goebel, History of the Supreme Court, 1971, Vol. 1, Ch. I, esp. pp. 66, 84. Hereinafter Goebel.
. Schwartz, pp. 232-234.
. Schwartz, at 182; Goebel, Ch. I, esp. at 92, et seq.
. Schwartz, pp. 231-234.
. Schwartz, at 231.
. Schwartz, at 231; E. Randolph, Essay on the Revolutionary History of Virginia, Ibid., at 246, et seq.; Dabney, Virginia: The New Dominion (1971), at 136. An interesting footnote to history is that Mason wrote the Virginia Declaration in his room at the Raleigh Tavern. Schwartz, at 232.
. Elliot’s Debates, Chronicle of the Virginia Convention; Schwartz, at 762, et seq., contains abstracts from many of the speeches.
. See abstracts from minutes of the Virginia Convention reported in Schwartz, esp. at 828-846.
. Schwartz, at 765.
. Schwartz, at 765; the Virginia proposed federal Bill of Rights is found at Schwartz, at 840, et seq.
. Quoted in Schwartz, p. 232.
. Schwartz, at 233.
. Bowen, The Lion and the Throne, at 202.
. Also noteworthy here is the fact that Raleigh was tried for conspiracy. 2 How. St. Tr. 16, 18; Jardine’s Or. Tr. I, 418-20; Churchill, The New World (1956), at 160.
. E. g. Green, supra; Wigmore; Campbell, Life of Lord Chief Justice Popham, Life of Sir Edward Coke.
. Green, 399 U.S. pp. 177-178, 90 S.Ct. 1930.
. Raleigh, the youngest son of a Devonshire squire, in an age not noted for equal opportunity of employment, had risen to the highest positions of responsibility in England. He had been a member of Parliament; fought the Spanish wherever he found them and had an important part in the defeat of the Armada; sailed with Howard, Hawkins, *461and Frobisher; campaigned with Essex; settled North Carolina; stormed Cadiz; and was the captain of the palace guard. A patron of the arts and friend of Spenser, he would, while in prison, write a scholarly History of the World. True to the custom of the time, he was forced to defend himself upon his indictment for treason without an attorney, and his prosecutor was the greatest of the common lawyers. Although convicted and later executed, history has never waivered for a moment in its verdict of Raleigh as one of, if not, the greatest of the Elizabethan Englishmen. Churchill describes his execution as a deed of shame and remarks upon his unjust trial. Churchill, The New World, 1956, esp. at 160; Irwin, That Great Lucifer (1960) ; W. and A. Durant, The Age of Reason Begins; Bowen, The Lion and the Throne.
. Some mentioned in Wigmore are: The Duke of Norfolk’s Trial (1571) ; The Earl of Stafford’s Trial (1640) ; Archbishop Laud’s Trial (1644).
. “If then, by the statute law, by the civil law and by God’s word it be required that there be two witnesses at the least, bear with me if I desire one. Prove me guilty of these things by one witness only, and I will confess the indictment. If I have done these things I deserve not to live, whether they be treasons by the law or no. Why then, I beseech you, my Lords, let Cobham be sent for. Let him be charged upon his soul, upon his allegiance to the King. And if he then maintain his accusation to my face, I will confess myself guilty.” Quoted in Bowen, The Lion and the Throne, at 202-203.
. Quoted in Bowen, The Lion and the Throne, p. 202.
. Wigmore, Vol. 5, at 19.
. Wigmore, Vol. 5, at 19; § 1364 n. 42. See also from n. 42 the quotation from the prosecuting Serjeant in the Duke of Norfolk’s Trial: “. . . the law was so for a time, in some cases of treason, but since the law hath been found too hard and dangerous for the Princes, and it hath since been repealed.”
. U.S. Const., Art. III, § 3; Madison’s Notes of Debates in the Federal Convention of 1787 (Ohio Univ. Press 1966), at 489, et seq.; Charge to Grand Jury (C.C.S.D. N.Y. 1861) 30 Fed.Cas. 1034.
. Wigmore, Required Number of Witnesses, 15 Harv.L.Rev. 12 (1901).
. Bowen, Miracle at Philadelphia (1966), at 221.
. Essay reprinted in part, Schwartz, p. 249.
. Coke later, in his Third Institute, revised his opinion that the statute of 5 Edw. VI had been repealed by the statutes of Philip and Mary. 15 Harv.L.Rev. 12, 103 (1901).
. Randolph’s Essay, Schwartz, at 248.
. Randolph’s Essay, Schwartz, at 248.
. Wigmore’s depth of case and statutory research dwarfs all other writing I have found on the subject.
. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), held inadmissible testimony at a preliminary hearing at which accused was present but had no attorney and did not cross-examine. Witness was in a federal prison in another state at time of trial. But the court added, p. 725, 88 S.Ct. 1318, it would reach the same result if defendant had had an attorney and cross-examined the witness at the preliminary hearing. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed .2d 923 (1965), reached the same result on slightly different facts on the ground that the confrontation clause “has [to be] held to include the right to cross-examine.” [Italics added]. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 3 L.Ed.2d 934 (1965), the court held inadmissible the statement of a co-defendant who refused to testify on the ground it might incriminate him. The court said the right of cross-examination is “a primary interest” but did not equate it to confrontation. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), traced a confrontation right to Acts 25 :16, long before common law hearsay was dreamed of, and reversed a denial of extension of a security clearance because of lack of “confrontation and cross-examination. They have ancient roots.” [Italics added].
. See cases n. 42. Also see Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
. Wigmore, Ch. XLV.
. Snyder, n. 43, supra: “Thus, the privilege to confront one’s accusers and cross-examine them face to face is assured to a defendant by the Sixth Amendment. . . . ” 291 U.S. at 106, 54 S.Ct. 332. In Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911), the court construed the phrase “to meet the witness face to face” to mean substantially the same as the confrontation clause. In Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968), the court said of the right of confrontation: “It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” [Italics added].