Page:Harvard Law Review Volume 10.djvu/147

NOTES. 121 disgrace and infamy which would naturally result from his disclosures ; and, secondly, that Congress was exceeding its power in attempting to protect the witness from prosecution, the pardoning power being exclu- sively a prerogative of the President. As to the first of these arguments, it is difficult to find any authority for it beyond the early case of Respub- lica V. GibhSy 3 Yeates, 429. The well settled rule, that, if prosecution for the crime is barred by the Statute of Limitations, the witness must tes- tify, is inconsistent with such a view. And it certainly seems on general principles that the constitutional provision was not intended to be pushed to such an extent. The second argument put forward by Mr. Justice Field seems to have even less weight. As is pointed out in the majority opinion, statutes of this sort, which are virtually acts of general amnesty, are by no means uncommon, either in England (see 2 Taylor on Evidence, § 1455) or in this country, and they have, almost without exception, been held constitutional. State v. Nowell, 58 N. H. 314; People v. Sharp, 107 N. Y. 427 ; Ex parte Cohen ^ 104 Cal. 524. The three remaining dissenters, speaking through Mr. Justice Shiras, advance what appears to be a stronger argument. Their contention is that it is beyond the power of Congress to grant immunity from prosecution in the courts of a State for an offence against the State ; that therefore the protection afforded the witness by the statute is not coextensive with the constitutional privilege. It hardly seems a satisfactory answer to this to say, with the majority of the court, that the applicability of a federal statute of this sort may well extend to the State courts under the sixth article of the Constitution. On the contrary, it is somewhat difficult to believe that Congress can order a State court to refrain from prosecuting an offender against the State. The true answer to the argument of the dissenting judges would appear to be that the constitutional protection is solely against prosecutions of the government that grants it ; that if the witness is guaranteed against prosecution in the federal courts, the fifth amendment is complied with. The possibility of prosecution in a for- eign country would not warrant the withholding of self-incriminating tes- timony. (See the opinion of Cockburn, C. J., in Queen v. Boyes, i B. & S. 311, 330.) Why should not this rule apply as between the federal jurisdiction and the States? The decision of the court in Brown v. Walker seems on the whole sound in point of constitutional law. And the added power it gives to the Interstate Commerce Commission certainly renders it very satisfac- tory from a practical point of view. The Relation of a Receiver of a Corporation towards its Exec- utory CoNiRACTS. — When a receiver is appointed to administer the assets of a corporation, the same phrase is commonly used to describe his relation towards the executory contracts of the corporation which is used to describe the relation of an assignee in bankruptcy towards the contracts of his insolvent or the relation of a person just come of age to his contracts made during infancy; namely, that he has a "reasonable time " in which to determine whether to affirm or disaffirm. It seems generally to have been assumed that the other incidents of the doctrine of reasonable time, as applied in the two cases named, apply also to a receiver ; and, among them, that if with a knowledge of all the circum- stances he cither neglects unnecessarily to commTinicate his disaffirmance,