not exactly incompetent, are privileged from testifying in certain cases: (1) Attorneys and Counsel. Where a confidential communication takes place between an attorney or counsel and his client, the communication is privileged. The privilege extends also to the agents and clerks of the attorney, and to an interpreter between the attorney and his client. The privilege is that of the client and not of the attorney, and the courts will prevent the latter, although willing, from making the disclosure. But if the attorney of one of the parties is called by his client, and examined as to a matter of confidential communication, he may be cross-examined as to that matter, though not as to others. The privilege is not limited as to time. In civil courts a person, though by profession an attorney, if not employed in the particular business which is the subject of inquiry, is not precluded from giving evidence, though he may have been consulted privately. In courts-martial, where officers and soldiers are often employed as counsel, the privilege of not testifying should be extended to them. There are some cases to which the privilege does not extend : (a) An attorney is not privileged from disclosing matters communicated to him before his retainer, or after it has ceased. (b) He may be compelled to disclose facts of which he obtained a knowledge in his individual capacity, and not in his character of professional adviser. (c) He may be called to prove his client's handwriting, though his knowledge may have been obtained by seeing him write since his retainer.1 This privilege does not extend to confidential com 1 Roscoe, p. 189. munications made to any other persons. Confessions to a clergyman, or disclosures to a physician, though made in the strictest confidence, are not privileged. (2) State Secrets. Another class of privileged communications are secrets of state. Under this head come matters communicated confidentially in furtherance of the administration of justice. The rule has been recently settled that, in a public prosecution, no question can be put which tends to reveal who was the secret informer of the government; even though the question be addressed to a witness in order to ascertain whether he was not himself the informer.1 In the same class come official communications between the heads of the department of state, and their subordinate officers. Thus, communications between a provincial governor and a military officer under his authority; or the report of a military commission of inquiry made to the commander-in-chief; and the correspondence between an agent of the government and a secretary of state, are confidential and privileged matters, which the interests of the state will not permit to be disclosed." Parties to the Suit, The party who prefers the charges is not incompetent. The judge-advocate, though representing the interests of the government which is one of the parties, is not incompetent. A member of the court may testify. By a recent act of Congress the accused in courtsmartial and courts of inquiry is, at his own request, a competent witness, and his failure to make such request is not to create any presumption against him. This rule allowing the accused to testify at his own request is one of the 1 Attorney-General vs. Briant, cited by Greenleaf, § 250, Note 1. changes which Congress has made in the common law rules of evidence; but is one which several of the States have adopted. The question naturally arises as to whether an accused, once having taken the stand, may be compelled to answer any question which the court deems proper. On this point Judge Cooley says,-"If he does testify he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to make a full one, such weight, as under the circumstances, they think it entitled to; otherwise the statute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger." In further explanation of this he said, "What we intend to affirm by it is, that the privilege to testify in his own behalf is one the accused may waive without justly subjecting himself to unfavorable comments; and that if he avails himself of it, and stops short of a full disclosure, no compulsory process can be made use of to compel him to testify. It was not designed to be understood that, in the latter case, his failure to answer any proper question would not be the subject of comment and criticism by counsel; but, onthe contrary, it was supposed that this was implied in the remark that it must be left to the jury to give a statement which he declines to make a full one such weight as, under the circumstances, they think it entitled to.' All circumstances which it is proper for the jury to consider, it is proper for counsel to comment upon." The right of comment where the party makes himself his own witness and then refuses to answer proper questions, is as clear as the right to exemption from unfavorable comment when he abstains from asserting his statutory privilege. 1 Cooley's Constitutional Limitations, § 317, and Note 2. Judge Campbell, in speaking of the right which the Michigan statute gives to cross-examine a defendant who has made his statement, said :-"While his constitutional right of declining to answer questions cannot be removed, yet a refusal by a party to answer any fair question, not going outside of what he has offered to explain, would have its proper weight with the jury."1 An accessory, whether before or after the fact, is not competent to testify for the principal. A person who receives the reward for arresting a deserter is not rendered incompetent to testify thereby. Incompetency from Infamy. Persons who have been convicted of infamous offenses are held incompetent to give evidence. But the question immediately arises, what offenses are considered infamous so as to render a witness incompetent. The usual enumeration of offenses having this effect is treason, felony, and the crimen falsi. Crimen Falsi. Under this head come perjury, subornation of perjury, forgery and some others. Conviction for desertion will not render incompetent. How proved. A person can only be disqualified by the judgment of a court of competent jurisdiction; and, the record of that judgment, proved in the ordinary way, or an authenticated copy, must be produced in court. Oral evidence of the guilt of the party, or even the admission of the party himself that he had been convicted of an infamous offense, would not render him incompetent, although it might affect his credibility. The judgment of a foreign tribunal will not render incompetent, nor that of a State court, unless it would render incompetent in the State where it was given. How Restored. A person convicted of an infamous offense may have his competency restored. 1 People vs. Thomas, 9 Mich. 321. For definition, see Chapter XXVI. (1) By reversal of judgment. Proof of this would have to be made in the same way as prescribed for proving the judgment. (2) By a pardon. If the pardon is conditional, the conditions would have to be fulfilled before competency would be restored. The Revised Statutes prescribe two cases-perjury and subornation of perjury-where competency can be restored only by reversal of judgment.' Serving out the term of imprisonment for a felony, does not restore the party to his competency. Compellable Witnesses. All persons, not incompetent for any of the before mentioned reasons, are competent and compellable witnesses. It is for the court to decide what witnesses are necessary, and whether or not their testimony is required. No witness has a right to leave the court until properly discharged. In the case of Captain C., a department commander, called to testify, discharged himself on the ground that, being the reviewing officer, he could not be held at the will of a court ordered by himself. The Judge-Advocate General held that the act of the witness was one without precedent in our military practice, and in a civil case would have constituted a grave contempt of court.s CREDIBILITY OF WITNESSES. It is the province of the court to decide how much credit it will give to the testimony of any particular witness. It is true they agree to find according to evidence, but, though a number of witnesses may testify to the same fact, and one testify to the contrary, they may give more credit to the one than to all. 1 Secs. 5392-5393. U. S. vs. Brown, 4 Cranch, C. C., 607. |