LEGAL RESPONSIBILITY 
AND 
ACCOUNTABILITY. 
BY / 
SIMON STERNE, ESQ.,' 
OF THE NEW YORK BAR. 
READ BEFORE THE 
MEDICO-LEGAL SOCIETY 
OF THE 
* 
CITY OF NEW YORK, 
jit the “Regular Meeting of the Society, November 26th, 1873, 
f ofk; 
RUSSELL BROTHERS, PRINTERS, 
17, 19, 21, 23 Rose Street. 
1874. LEGAL RESPONSIBILITY 
AND 
ACCOUN T A J31LIT Y. 
\y 
SIMON STERNE, ESQ., 
OF THE NEW YORK BAR. 
r;ead before the 
MEDICO-LEGAL SOCIETY 
OF THE 
CITY OF NEW YORK. 
c4i the “Regular Jfeeting of the Society, November 2(sth, 187$* 
RUSSELL BROTHERS, PRINTERS, 
17, 19, £1, £3 Kosk Street. 
187 4. Legal Responsibility and Accountability. 
By SIMON STERNE. 
American law, botli in its criminal and civil branches, is unsatis- 
factory in its methods of dealing with those subjects which are 
quasi of a metaphysical character. The penalty that we perhaps 
pay for the intensely practical nature of our Anglo-Saxon mind, 
and the great material achievements which are its resultant, is, 
that when we come to deal with intricate and delicate questions, 
we lack the subtlety and patience necessary for their mastery, and 
hence fail to organize a body of laws upon such subjects in con 
formity to what their natures require. 
I use the words “responsibility” and “accountability” with 
the object of drawing attention to a distinction not etymologically 
inherent in the words themselves, but one which exists in fact ; 
and I, therefore, during the course of my remarks, shall give to 
these words an arbitrary meaning, for the purpose of elucidating 
my ideas. Responsibility, in this essay, shall mean a man’s an- 
swerableness for his acts to society at large, i. e., amenability to 
criminal law; and “ accountability,” his answerableness to individ- 
uals arising from his obligations, expressed or implied, either under 
contract or from his status in society, such as husband, son, ser- 
vant, trustee. 
Every man of mature years is properly held both responsible and 
accountable for his acts, upon grounds both of public safety and 
private weal. 
The basis of penal law is the substitution of punishment by the 
public for private vengeance. Society is inconceivable to us with- 
out the element of authority or command. Even in so simple a form 
as the curice or a single family, authority is its basis. Responsibility 
is coupled with the right to issue commands, and exacting, on pain 
of punishment, obedience thereto. 
In the primitive ages of humanity these punishments were un ■ 
certain and capricious. Founded, however, upon an imperative need 4 
of society, they followed the manners, the customs, the prejudices 
of the institutions they were called upon to protect. But every- 
where the idea which was at the bottom was the substitution of public 
for private vengeance, and this substitution did not, until modern 
times, take absolute control of the whole field of crime, as is indi- 
cated by feuds, vendettas and reprisals, which have reached down 
to recent times, and indeed in some parts of the world still exist. 
I myself witnessed in Dalmatia a scene which showed that there 
the right of the vendetta was recognized even until recent years. 
A circle was formed wherein the elders of the village took seats; 
the younger ones stood around with heads bared in respectful 
silence. A crime had been committed: the member of one family 
murdered the member of another family, and the elder member of 
the family from which a member had been torn by the murder 
was permitted to draw some blood from the murderer in expiation. 
The first change probably came through the priesthood$ the 
men who committed murder or pillage made expiatory sacrifice to 
appease the vengeance of the gods, and the priests were consulted 
as to reprisals, recapture, and restitution. A custom thus grew 
up, of which government availed itself of forms and modes of resti- 
tution ; the law lex talionis was probably originally but a rude form 
of vengeance. The eve for an eye, the tooth for a tooth, was proba- 
bly but the mere formulization by government of a natural instinct 
of revenge. Even Greek and Roman law recognize this lex 
talionis, and have made it part of their penal law. The many fines 
for crimes was the first substitution for this rude form of the law 
of reprisal, and this was carried by the Germans of Tacitus to the 
utmost extreme—they had a sum to represent almost every species 
of crime as damage to the injured party. 
The development among each people or each nation of a central 
authority created the tendency for the substitution of public for 
private vengeance. 
This authority, whatever it was, owed protection and redress to 
the offended party, and revenged him. 
Of course, in the event of these respective mulcts or fines not being 
paid, personal penalties were inflicted, which varied from absolute 
slavery to years of servitude for the benefit of the injured party. 
When you take into consideration that originally the state 
avenged the individual wronged, that only by revenging him could 5 
it induce that individual to refrain from reprisal by his own hands, 
it will explain the cruelty of all penal codes down to the present 
day. 
The limit to the pain, governments would accordingly inflict, is 
but the limit which men, in their savage state, would recoil from 
inflicting upon their personal enemies. 
At Athens stoning to death, crucifixion, burning alive, were 
penalties inflicted not only fora murder, but for treason, cowardice 
in face of the enemy, some kinds of theft, profanation of mysteries 
or sacrilege. At Rome the condemned were precipitated from the 
Tarpeian Rock, sewn in a sack and thrown into the Tiber or the 
sea, burned alive, crucified, thrown to wild, ferocious beasts, the 
tongues of criminals were torn out, and they were frecpiently cas- 
trated. In the middle ages it seems as though all the ingenuity 
which, at a subsequent period, was used to invent machinery to 
supply man’s wants, was then applied to the discovery of human 
torture. 
In France alone there were one hundred and fifteen different 
crimes punishable with death, and many forms of inflicting the 
death penalty. Burnings to death, horrible mutilations were nu. 
merous, splitting open of lips, cutting off of noses, ears, hands, feet, 
and castration were common penalties. 
It was not until the eighteenth century that some change 
came, and that simultaneously with the discussion of the rights of 
man, although Locke, and Hobbes, and Yattel had written against 
the system. It was not until Beccaria published his pamphlet on 
crimes and their punishment in 1766 that this old system received 
its death blow. Beccaria, while denying the right of vengeance, 
still insisted that the repression of crime was the main justification 
of the State to act. 
A modern school—which makes it the duty of the State to enforce 
the divine or moral law, and to punish as an all wise Creator is 
supposed to punish ; which seeks the justification of punishment in 
some fancied soc ial contract, and is careful to look into motives— 
has grown up, and with its fanciful theories, its weak humanitar- 
ianism and exaggerated sentimentality, has well nigh made the re- 
pression of crime impossible. 
If you will constantly bear in mind that the historical basis of 
all criminal law is the substitution of public vengeance for the 6 
private vendetta, what will follow will appear less harsh than it 
otherwise might sound. 
I admit that we should constantly bear in mind the possible 
improvement of the malefactor, also the effect which cruel and 
unusual punishments have upon the moral sense of the community; 
yet these are but subsidiary considerations ; the main idea must 
always be that certainty of punishment which on the one hand 
will repress the crime, and on the other prevent the relapse into 
the state of the private exercise of the lex talionis. 
Having said this much for the basis of criminal law, I shall now 
proceed to apply the principles historically derived, to the con- 
sideration of some of the questions of the day. 
Men arc to be held as responsible to the public for crimes to 
persons as they would be to the persons themselves, or their 
friends, were there no public or penal law. Motives are properly 
of primary importance as matter of moral law and moral codes, 
but are subsidiary considerations in matters relating to criminal 
law when the act is intended. 
In all organized society, large classes of exceptions have been 
made from this general accountability and responsibility. The 
king, in monarchial governments, being the fountain and source of 
all law, is above it, and is therefore neither responsible nor account- 
able in the ordinary sense of those terms. Strangely enough, in 
our own country, the exemption of Government from suits has its 
origin in the same principle. Persons acting under compulsion, 
when that compulsion is sufficiently powerful, have been held not 
to be accountable, and their responsibility under such circum- 
stances is very much limited. 
Persons who cannot properly be said to have any wills at all, to 
wit, idiots, are not accountable, and scarcely responsible. Persons 
of perverted wills, arising from mental diseases, or diseases which 
affect nerve centres to the extent of bringing the will under the 
control of something other than reason, are generally held to be 
neither accountable nor responsible. 
It is of the latter class—the insane—that I wish to treat more 
especially this evening. As wide as is the range and breadth of 
diseases which affect the mental organization, and hence the will 
power, and as various as the forms that dementia may take, should 
be the different degrees of responsibility and accountability to 7 
which that class of members of society should be held. And it is 
herein that the statute laws are glaringly defective—defects which 
have not by any means been supplemented by the wisdom or 
scientific attainments of the judges who apply them. There is 
scarcely any material difference between the class of evidence 
which is admissible to prove insanity on the part of a testator, and 
that which is listened to in a criminal court to prove insanity on 
the part of a murderer ; and yet the mental defect which might 
and should affect the testamentary power of a citizen, ought not in 
the slightest degree to affect his responsibility as a criminal. It is 
the unconscious perception of this fact on the part of the com- 
munity which causes its members to regard with so much suspicion 
and contempt the, under proper restrictions, perfectly justifiable 
plea of insanity, when it is interposed in our criminal courts. 
Even as to the question of responsibility, various degrees might 
be established, corresponding to different degrees of crime, holding 
those excusable only, for the most heinous of offences, who are ab- 
solutely insane, and who were unconscious of the act that they were 
doing, so as to make the act an accidental event, and, strictly 
speaking, not an act at all. Such a classification would necessarily 
and in itself exclude a vast mass of testimony which is now taken 
in our criminal courts upon the subject of insanity, and in future 
cause the inquiry to be confined to the one question, not whether 
the man was insane, but whether he had that degree of insanity 
which would render him incompetent to know the nature of the 
act with the committing of which he stands charged. It is thus, 
and thus only, that the law, in its administrative part, can take 
cognizance of, and keep pace with, the progressive advancement 
of medical science upon the subject of insanity. 
It does not follow that that, which the physician, for purposes of 
his own, and for medical treatment, would call insanity, should be 
so classed by the law, except in instances where the man, for the 
performance of the highest trust with which society can charge 
him, should be in the full and free possession of all his faculties. 
That nervous excitability and mental derangement, slight as it 
may be, which leads men to risk their all in desperate ventures— 
an excitability which even physicians would consider a very mild 
form of insanity—the law should take note of, if the person thus 
afflicted is a guardian of important trusts, and remove him from 8 
such trusts, so that his mental peculiarity should not affect the 
safety of others ; and yet it would be manifestly absurd to say, that 
such trustee should be permitted to use the same kind of evidence, 
as an excuse for the murder of his ward, which the person desiring 
to remove him from the trust of guardian would adduce in support 
of his petition. Extreme as this case is, it illustrates my idea of 
the necessity of a proper classification of the law upon the subject 
of insanity. 
Society has been at work, since it exists as such, to repress cer- 
tain anti-social evils, of which robbery and murder are the rudest 
forms. To say that the insane should be exempted from the influ- 
ences of these repressive tendencies, is to impliedly assert that the in- 
sane are not subject to the influences of fear, or hope of reward; and 
no one who has had much experience with them, and who has had 
their treatment in charge, but knows that they are—to a more 
limited extent, of course, than rational persons, still to a very con- 
siderable extent—influenced by fear of punishment and the hope of 
reward. To remove the fear of the punishment of the law from 
their imagination has, in itself, a tendency to increase outward 
manifestations of insanity, because one of the main motives to cor- 
rect action is withheld from them. Few insane persons injure 
themselves with cutting instruments, because they have conscious- 
ness enough to know that the instrument will inflict a wound if 
misused, without the slightest regard to the mental condition of 
him who uses it. Criminal law should, with very rare exceptions, 
be quite as inexorable. The strange revolution that takes place in 
the feelings towards friends and relatives on the part of persons 
suffering from some forms of mental disease, which causes them to 
regard with enmity and hatred those whom they should love and 
cherish, which causes them to disinherit the very people for whom 
they have laboriously accumulated fortunes, should cause a court 
to set aside a will made by such a person, on the ground that thus 
the injury done by the insane person can be set right, and the 
knowledge of that fact deter others similarly suffering from making 
such wills. But, for the selfsame reason, a criminal judge should 
sentence to the gallows him who, under such a delusion, poisons 
some dear friend. The knowledge of that fact would have a de- 
terring influence even upon some other one, suffering from the 
same delusion, from the committing of the like crime. 9 
Under certain barbarous forms of society it is almost a matter of 
course that you will kill your enemy, and that your enemy, with 
equal opportunity, will kill you. It is only in process of years and 
by slow stages that society has reached the point of overcoming 
the barbarians in its midst, and preventing its members from grati- 
fying passion or seeking revenge by such a method. The insane 
person is upon that point a barbarian. He imagines his friend to 
be his enemy. But his insanity goes no farther. If permitted by 
the law to kill his enemy, he will do so. If deterred from it by the 
fear of punishment, by the knowledge that in killing his enemy he 
endangers his own life, many lives would be, or in any event may 
be saved. Anything that involves n plan on the part of the insane 
person which embraces the calculation of probable events sufficient 
to enable the criminal also to take into consideration the probable 
event that lie himself will be hung, should be punished precisely as 
though the person were sane. A crime, however, committed by one 
unconscious of the act itself cannot in any sense be considered a 
crime ; it is a mere accident, and the person who unconsciously 
commits it is blameless. The man who in a fit strangles another, 
without being conscious of the fact that he is strangling, is blame- 
less. The man who in a paroxysm kills another without the intent 
of doing the other any injury, and there being no ill-will between 
them of any kind which would justify the presumption of any such 
intent, is blameless Mary Lamb, who killed her mother, com- 
mitted no crime. At the time of the act she did not know that it 
was her mother. She did not know that she was killing. She did 
not even know that she was injuring her. It was a curious 
and, though a natural, certainly a mistaken tendency, which until 
very recently had taken possession of the medico-legal mind, to 
suppose that the refinements of physicians upon the subject of 
mental diseases should necessarily be taken cognizance of by the 
criminal courts ; and many a judge refrained from rigorously ex- 
cluding testimony which was improperly offered, from the motive, 
doubtless, that he feared that he might be suspected by scientists 
to be behind the age. There is but little justification, 1 apprehend, 
for the complacency and self-satisfaction with which our pseudo- 
enlightened medical legal jurists look upon the rigorous common 
law with its simple test of insanity in criminal cases, viz : whether 
the man was laboring under such an hallucination that he was 
unconscious of the consequences of his acts. 10 
A statutory enactment regarding the grades of insanity, which 
shall or shall not leave men accountable for their acts, as between 
man and man, and responsible for their acts to the community, would 
lead to a classification of insanity by its effects upon acts for pur- 
poses of the law, in addition to a medical classification b\* groups of 
symptoms for pathological investigation, and for curative purposes. 
The objection that would be raised by medical men is, that such 
classification would not be scientific, but that objection is just to this 
extent illogical, that it assumes that there is no scientific classification 
other than that which is adopted for medical scientific treatment. 
Jurisprudence is a science, having for its objects the preservation 
of society, the substantiation of human rights, the redress of 
wrongs, and the enforcement, of the social law of status, and if, 
for its purposes, it adopts a classification based upon acts, instead 
of forms of disease, and groups together widely different and 
diverse objects, from the medical standpoint, it deals scientifically 
from a juridical point of view, quite as much so as when it de- 
duces rights and remedies from the relation of husband and wife, 
and parent and child, without regard to the differences physiologi- 
cally and psychologically, of the people of the community who 
enter into or find themselves in such relations. I have before ob- 
served that wherever a motive exists, however slight it might 
appear to the judge before whom the case is tried, or the jury who 
are to give a verdict, the law should act rigorously and inexorably. 
No uncontrollable frenzy causes people to dash out their brains, 
because of some slight self-reproach, by beating their heads against 
a stone wall, if they do not intend to commit suicide ; and that 
arises simply from the knowledge of all men, however rude their 
instincts, that natural inanimate objects pay no regard, in their 
effects, to the frame of mind in which the man may be. It is just 
the savagery which such mental conditions exemplify, that society 
has been striving for centuries to overcome, and members of 
society who are seized by such frenzies should be put out of it. 
It would be amazing to anyone were the history of some rude, 
savage people ever written, how innumerable the instances that 
we would then have recorded of desperate atrocities from what 
would seem to us very trivial causes by people who arc not insane. 
The classification upon the matter of accountability and respon- 
sibilitv would be about as follows : The first class should be com- 11 
posed of such persons who should be removed from trusts, and 
comprise all who suffer from idiosyncrasies so marked that they 
border upon insanity. Under the second class—persons who are not 
fully accountable—may be comprised those who suffer from melan- 
choly, hysterics, incipient monomania, and all such as suffer from 
intermittent attacks of nervous diseases, also all epileptics and drunk- 
ards who, although they can frequently tell beforehand when they 
are liable to their fits of epilepsy or drunkenness, are nevertheless 
placed in frames of mind during their freedom from attacks which 
makes them in part non-accountable. As part of the interdiction to 
enter into contracts, there should be an absolute prohibition to those 
who suffer from hereditary or transmissible diseases to enter the mar- 
riage state. When we consider the vast misery inflicted upon subse- 
quent generations, the deterioration of the race, and the lowering 
of its average of strength and wholesomeness by the adoption of 
the laisse faire principle upon that point by Government, very 
grave doubt may be entertained whether Government has not neg- 
lected an obvious duty in this regard, without a compensating 
advantage ; and all of this class should be incapacitated from 
making executory contracts, except with the consent of a guardian— 
but all of this class should be held strictly responsible. 
The third class would be comprised of such who suffer from incip- 
ient stages of softening of brain, lunacy, and monomania of a 
virulent type, also all cases of chronic, progressive, and incurable 
intermittent nervous disorders. With the members of this class 
their whole accountability should cease, and their responsibility be 
limited to felonies only. 
The fourth class includes idiots, incurable lunatics, those who 
suffer from dementia senilis, apoplectiea, and dementia paralytica. 
In such cases both accountability and responsibility should be pre- 
sumed to cease ; a presumption rebuttable, however, in the case of 
felonies committed, by proof of the making of a plan indicating 
calculation of probable events. 
This classiflcation, insufficient and tentative as it is, is neverthe- 
less, to my mind, an indicator of the true method of the future pro- 
gress of juridical reform in dealing with the question of accounta- 
bility and responsibility. Officers of tfic Soricfn for 18734. 
President, 
CLARK BELL, Esq., 20 Nassau Street. 
First Vice-President, 
J. C. PETERS, M. D, 83 Madison Avenue. 
Second Vice-President, 
CHARLES P. DALY, Esq., 84 Clinton Place. 
Recording Secretary, 
GEO. W. WELLS, M. D., 144 Broadway. 
Corresponding Secretary, 
J. F. CHAUVEAU, M. D., 134 West Houston Street. 
Treasurer, 
T. S. BAHAN, M. D., 461 Hudson Street. 
Librarian, 
R. S. GUERNSEY, Esq, 150 Broadway. 
Curator and Pathologist, 
P. E. DONLIN, M. D, 129 West Houston Street. 
Chemist, 
Prof. R. OGDEN DOREMUS, M D, 70 Union Place. 
Assistant Recording Secretary, 
M. N. MILLER, M. D, 356 West 18th Street. 
Trustees, 
T. C. FINNELL, M. D, 132 West Houston Street. 
STEPHEN ROGERS, M. D, 249 West 42d Street. 
JAMES ROSS, M. I), 65 Bank Street. 
GEORGE H. YEAMAN, Esq, 14 East 16th Street. 
WILLIAM A. HAMMOND, M. D„ 162 West 34th Street.