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 compre-
hend 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 con-
testing 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 impossi-
ble 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

is able to speak, it does not oration; or because he can tel write history; or because he he can produce poetry. Cape imply very different and oppe

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.

, for it may mean either the s est, as, for example, I give mys an ability to recollect and con any pages of paper, reciting, be ts of various kinds, devises , provisions to meet the possi I that the fertile ingenuity of c any subscribing witness or me g such an instrument read, whe ntal capacity enough to make ar hple or complex, is asking them biguous of questions. For, in f any will on the ground of me is not whether the testator o general, or any kind of a will bacity enough to make the parti until the witnesses or experts k e instrument, so as to be able al capacity necessary to compre provisions, it is plainly beyond the question in whatever form it may nowledge both of the mental cont the contents of his will are possess sses or medical experts, it is imposs ess an opinion upon his capacity al, and much less the particular ect matter of dispute.

ating the ordinary and most pregna

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 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 verba planè vim faciunt intellectui, et omnia turbant, et homines ad inanes et innumeras controversias et commenta deducunt. Nov. Organum, Aph. XLIII.

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.

Clay's Alabama Digest, 487-91, § 1–43.