The Hottentots nowadays punish attempt, but only leniently.[137] The Wadshagga punish it less severely than the accomplished act.[138] Among some of the Marshall Islanders it is not punished at all.[139] The same holds good of the Ossetes[140] and Swanetians[141] of the Caucasus, as also of ancient Russian law.[142] The Teutons, as a general rule, had no punishment for him who tried to do harm, but failed; and if they did punish an unsuccessful attempt, the penalty was out of proportion lenient.[143] This feature of ancient Teutonic law has had a lasting effect upon European legislation, largely through the influence it exercised upon the Italian jurists of the Middle Ages,[144] whose theories laid the foundation of modern laws and doctrines on attempt. In conformity with the Roman law, they held attempts to commit crimes to be punishable, and in atrocious cases they even admitted that the attempt might be subject to the same punishment as the accomplished crime. But their general theory was that it should be punished less severely, and that the penalty should be lenient in proportion as the actual deed was remote from the act intended.[145] These views were generally adopted by the later legislation. Among present European lawbooks, the French Code Pénal[146] is almost the only one that punishes an attempt with the same severity as the finished crime.[147] And the French law on the subject is of modern origin; before the year IV. the present rule was applied only to the conatus proximus in a few specified cases of a very heinous character.[148]
[137] Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 353.
[138] Merker, quoted by Kohler, ibid. xv. 63.
[139] Kohler, ibid. xiv. 418.
[140] Kovalewsky, Coutume contemporaine, p. 296 sq.
[141] Dareste, Nouvelles études d’histoire du droit, p. 237.
[142] Kovalewsky, op. cit. pp. 291, 299.
[143] Wilda, op. cit. p. 598 sqq. Zachariä, Die Lehre vom Versuche der Verbrechen, i. 164 sqq.; ii. 130 sq. Brunner, Deutsche Rechtsgeschichte, ii. 558 sqq. Pollock and Maitland, ii. 475, 509.
[144] Seeger, Versuch der Verbrechen in der Wissenschaft des Mittelalters, p. 8.
[145] Zachariä, op. cit. i. 169; ii. 141. von Feuerbach-Mittermaier, Lehrbuch des Peinlichen Rechts, p. 74.