poem. Because a man is able to speak, it does not follow that he can make an oration; or because he can tell an incident, that he can write history; or because he can make a rhyme, that he can produce poetry. Capacity to make a will may imply very different and opposite states of mental power, for it may mean either the ability to make a simple bequest, as, for example, I give my watch to A. B., or it may mean ability to recollect and comprehend the contents of many pages of paper, reciting, besides simple bequests, trusts of various kinds, devises over, contingent remainders, provisions to meet the possibility ' of issue extinct, and all that the fertile ingenuity of counsel may invent. To ask any subscribing witness or medical expert, before hearing such an instrument read, whether the testator had mental capacity enough to make a will, meaning any will, simple or complex, is asking them to answer the most ambiguous of questions. For, in contesting the probate of any will on the ground of mental incapacity, the issue is not whether the testator could have made a will in general, or any kind of a will, but whether he had capacity enough to make the particular will in question, and until the witnesses or experts know the character of the instrument, so as to be able to appreciate the mental capacity necessary to comprehend the purport of its provisions, it is plainly beyond their power to answer the question in whatever form it may be put. Hence, until knowledge both of the mental condition of the testator and of the contents of his will are possessed by subscribing witnesses or medical experts, it is impossible for them to express an opinion upon his capacity to make a will in general, and much less the particular one which forms the subject matter of dispute.

§ 150. In recapitulating the ordinary and most pregnant

sources whence difficulties of mutual comprehension between counsel and medical experts so often arise, it will be found that they spring from,

First. The assumption on the part of counsel that experts are exclusively called in the interests of the party who summons them. This is ignoring the cardinal fact that an expert is not an ordinary witness,-does not state facts, but, as a paradox in the law of evidence, is called for the purpose of expressing an opinion upon them, so that his testimony belongs as much to one party as to the other.

Second. The propounding of universal propositions in contingent matters to experts, and requiring of them categorical answers applicable to particular instances. This selection of the law of analysis in preference to synthesis, excludes from the inquiry, ab initio, many categories which would sensibly vary the degree of resemblance between particular instances, thus translating apparent analogies into absolute homologies, and ignoring the principle, that wherever there is room for a difference, there is opportunity for an antithesis.

Third. The failure on the part of experts to perceive the drift of their own answers to such propositions, and the inevitable self-contradictions into which they are insensibly led.

Fourth.-Both counsel and expert at times confounding the a priori with the a posteriori argument, or the post hoc, ergo propter hoc.

Fifth. The use of ambiguous words in questions or answers, or appeals in the nature of the argumentum ad hominem.1

1

1 Itaque mala et inepta verborum impositio miris modis intellectum obsidet. Neque defitiones aut explicationes, quibus homines docti se munire

Sixth.-Asking recondite and irrelevant questions to which it is impossible to give either definite or satisfactory

answers.

Seventh-Requiring experts to prove, to the satisfaction of laymen, the reason of opinions based exclusively upon professional experience.

It is much to be regretted that courts do not exercise a more critical scrutiny over the examination of experts, so as to save them from that inevitable antagonism into which they are placed by the party not calling them. If they could be examined by the court alone, and this would seem the most proper way, since the facts they are called upon to interpret are assumed to be admitted, the door to much casuistry and unnecessary wrangling would at once be closed. They are so little related to ordinary witnesses that this could be done without prejudice to either party, and it is in fact largely adopted in the courts of continental Europe, where the expert is treated more as an amicus curic than he is under our common law jurisdiction.

et vindicare in nonullis consueverunt, rem ullo modo restituunt. Sed verta planè vim faciunt intellectui, et omnia turbant, et homines ad inanes et innumeras controversias et commenta deducunt. Nov. Organum, Aph. XLIII.

CHAPTER IV.

STATUTORY ENACTMENTS, RELATING TO THE PRACTICE OF MEDICINE, IN FORCE IN THE STATES OF ALABAMA, ARKANSAS, CALIFORNIA, CONNECTICUT, DELAWARE, FLORIDA, GEORGIA, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, NEW JERSEY, NEW YORK, OHIO, SOUTH CAROLINA, TEXAS, VERMONT, VIRGINIA, WISCONSIN, AND THE DISTRICT OF COLUMBIA.

ALABAMA-STATUTES AND RULINGS.

§ 151. No person, unless he has received a diploma from some regularly constituted medical institution in the United States, is allowed to practice physic or surgery in this State, without a license from scme one of the medical boards created by act of the legislature, under a penalty of $500, to be recovered in an action of qui tam, one-half to go to the informer, and one-half to be paid into the treasury of the county in which such suit may be tried.

The statute of 1854, in amendment of the above, enacts, "That all regular graduates of any medical college in the United States be allowed to practice their profession without obtaining license from the medical boards or societies as established by law."

By the original act, passed December 22d, 1823, none but licensed physicians are allowed to practice. Contracts for professional services with those not licensed, are void.

'Session Laws, 1853-4, p. 348.

Five Boards of examining physicians established. Shall meet annually on the first Monday in December, to examine applicants and grant licenses.

Two members to be a quorum.

May grant licenses to practice either medicine, or surgery, alone.

Any member may grant a permit to practice until the stated meeting.

Fees, five dollars for each diploma, and five dollars for each permit.

Board may elect officers and enact by-laws.

Members of General Assembly not eligible to board, vacancies filled by a quorum of the board, until meeting of General Assembly.

Absence for two successive annual meetings shall vacate member's place.

Law not to affect physicians already in practice.

Five hundred dollars penalty for violating the law. Law not to apply to graduates of any medical institution in the United States.

Graduates of a medical university may exhibit diploma, and enroll their names without examination.

Penalties of law not to apply to Thompsonian physicians, provided, they should not bleed, blister with Spanish flies, or administer calomel or any of the mercurial preparations, antimony, arsenic, tartar-emetic, opium, or laudanum.1

The Alabama Medical Society was incorporated in 1841, and by its charter

1. May adopt a constitution and by-laws.

2. May hold property, real and personal, not exceeding $60,000.