Attempt

There was no general crime of attempt in the early English common law. Historians have uncovered scattered decisions, dating back as far as the fourteenth century, in which courts did convict of felony the perpetrator of an unsuccessful attempt. But punishment of attempts was at the most sporadic, and was limited to cases in which rather serious harm had occurred in any event. During the sixteenth century, the Court of Star Chamber began to correct perceived shortcomings in the common law, by affording needed remedies that were unavailable in the common law courts. Cases involving attempts to coin money, threats, and attempted dueling were held punishable in the Star Chamber. The court apparently did not develop a general doctrine of criminal attempts, however (Hall, pp. 561, 567–568).

The Court of Star Chamber was abolished in 1641, and historians disagree about whether its jurisprudence had any influence on subsequent developments (cf. Sayre, p. 829; Meehan, pp. 153–154; Hall, p. 569). In any event, more than a century elapsed before anything like the modern theory of attempt was suggested in the common law courts. The first decision of consequence, Rex v. Scofield, Cald. 397 (1784), held that the defendant was properly charged with a misdemeanor for an unsuccessful attempt to burn down a house. Subsequently, in Rex v. Higgins, 102 Eng. Rep. 269, 275 (K.B. 1801), the court upheld an indictment charging an unsuccessful attempt to steal and stated in broad terms that "all such acts or attempts as tend to the prejudice of the community, are indictable."

The principle enunciated in Higgins was quickly accepted by courts and commentators, and it was soon considered settled that an attempt to commit either a felony or a misdemeanor was itself indictable as a crime. This remains the rule in the United States. In most jurisdictions, the rule is reflected in statutes specifying the punishment applicable to cases of attempt. The term attempt itself, however, is often left undefined, so that its meaning must be drawn from common law sources. In a few jurisdictions, the penal statutes may not provide explicitly for punishing criminal attempts, but such attempts nevertheless remain punishable as "common law crimes," unless the law of the jurisdiction requires that all criminal offenses be defined by statute.

Why did the law punishing attempts develop so slowly, and why did the general theory of attempts win acceptance only in relatively recent times? Part of the explanation lies in the availability, probably throughout history, of other means for dealing with threatening or dangerous behavior. In earlier times dangerous persons could be required to give a pledge as a guarantee of good behavior, under the systems of frankpledge and of surety for the peace. Moreover, some substantive crimes, such as vagrancy or unlawful assembly, could be used to punish attempt-like behavior, and such offenses as assault and burglary were undoubtedly developed as a means of reaching conduct that was merely preparatory to the infliction of actual harm. Even today, many statutes treat as completed substantive crimes conduct that involves only steps toward the commission of some specific offense, for example, possession of burglary tools with intent to commit burglary. A general crime of attempt was, and is, necessary only to the extent that there remain gaps in the network of substantive offenses relating to specific kinds of attempts.

Another factor in the belated acceptance of attempt principles may have been a tendency to view criminal law as concerned primarily with vengeance or retaliation. At the earlier stages of common law development, crime and tort were not yet neatly differentiated. Even though public prosecution and punishment now have become distinct from the private lawsuit to recover damages, the retaliatory principle—an eye for an eye—may still figure prominently in attitudes about punishment.