How Judges Should Properly Respond And Treat Criminal Attempts Within The Realm Of Early English Common Law

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The quandary of how judges should properly respond and treat criminal attempts within the realm of early English Common Law can be traced back to two philosophers, known as Plato and Henry of Bracton (Samaha, 2013). While they both had their influence on common law, each man had a dissimilar view of how criminal attempts should be treated. Plato believed that if a person had the intention to commit a crime that he or she should be treated as if the crime was completed regardless if they succeeded or not (Samaha, 2013). Conversely, since early English Common Law did not punish criminal attempts, Henry of Bracton explained this by asking, “What harm did the attempt cause, since the injury took no effect” (Lippman, 2007). As a result, English Common Law sided with Bracton’s view. Then, during the 1500’s, the King authorized the Court of the Star Chamber to modify common law rules where necessary in hopes to prevent violence in the kingdom (Lippman, 2007). Rather than prosecuting criminal attempts, the Court of the Star Chamber implemented laws that illegalized activities, which they believed could result into criminal activities such as, “laws against unlawful assemblies, walking at night… keeping guns or crossbows in the house, lying in wait, or drawing a sword to harm a judge” (Lippman, 2007). Additionally, in 1614, Sir Francis Bacon prosecuted a case before the Star Chamber, which according to Lippman (2007), “argued that acts of preparation for a sword fight should be punished in order to discourage armed confrontations” (Lippman, 2007). However, it was not until 1784 where the law of attempt was finally recognized by common law in the case of Rex v. Scofield (Samaha, 2013). By the 1800s, common law atte... ... middle of paper ... ...ined to commit the intended crime (Samaha, 2013). Next, the probable desistance test determines whether or not the defendants have reached the point of no return in their actions (Samaha, 2013). In other words, it is unlikely that the defendants will not turn back once they have come close enough to completing the crime. Lastly, the Model Penal Codes (MPC) substantial steps test focuses on what substantial steps have been taken and the steps that “strongly corroborates the actor’s criminals purpose (Samaha, 2013). That is to say, the substantial steps test evaluates how determined the defendants are to commit the crime. According to Samaha (2013), “the vast majority of criminal codes have adopted the MPC substantial steps test”. For that reason, it is important to evaluate the similarities and differences between English Common Law and specific state statutes.

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