With the extension of Roman dominion and the acquisition of more and more distant territory, the fetial procedure gradually fell into desuetude. We find, indeed, the pater patratus still mentioned in the time of Claudius;1 and other texts testify to the later existence of the college. But all kinds of evasions were continually devised, so that the system had at length really become a mere shadow, and by the fourth century A.D. the entire institution disappeared. The growth of materialistic conceptions, the thirst for power and pleasure and riches, the decay of religionall this was but a larger manifestation of the great falling away of the Romans from their earlier traditions.*

1 Cf. Orelli, Inscriptionum Latinarum ... 2276.

3

"Cf. Amm. Marcell. xix. 2. 4. 3 Lactantius, Divin. inst. vi. 9.

4 Cf. G. Boissier, La religion romaine d'Auguste aux Antonins (Paris, 1874), vol. i. p. 63.

CHAPTER XXVII

MEASURES SHORT OF WAR

IN ancient Greece there obtained certain practices, like Forcible ἀνδροληψία (androlepsia) and σύλαι—corresponding to measureste the modern reprisals and letters of marque-which were adopted as forcible measures for the exaction of justice, when it was held to have been refused without justification. The former was the more primitive remedy, and was substantially a regularized application of the ancient ius talionis. It fell into disuse at an early period, though without having been formally abrogated. The latter was always maintained in practice; but from time to time the proceedings relating thereto were regulated by municipal decrees or international conventions, which, indeed, sometimes even established in the case of certain communities or individuals complete immunity from such summary treatment.

Androlepsia (seizure of men,' a term derived from Androlepsia. ἀνήρ, ἀνδρός, a man, and λαμβάνω, λήψομαι, to take, to seize) was a special form of reprisal, or retaliation, applied in a drastic manner. If an Athenian citizen was considered to have been unjustly put to death in a foreign country, and if the government by whose subject and in whose jurisdiction the crime was committed allowed the murderer to go unpunished, and also refused his surrender, then the relatives of the victim were empowered by Athenian law to seize three citizens belonging to that State, and to hold them as

1 Cf. E. Caillemer, in Daremberg-Saglio, s.v. Androlepsia.

hostages until restitution was made, or the murderer surrendered; and the possessions found upon their persons were confiscated. It appears that only such relatives were entitled to act as were capable of inheriting from the deceased,—èvròs åve↓iótηtos, that is, those of not more distant degree of relationship than that of second cousins. The practice was also described as ἀνδρολήψιον ; though it has been suggested that this term designated more strictly the right to adopt it, whilst avoponía signified the practice itself. ἀνδροληψία The right was granted to the party entitled thereto, irrespectively of the murderer's nationality. If, however, after the commission of the crime he fled beyond the confines of Attic territory, it is doubtful whether the retaliatory measures could still be exercised, as flight under such circumstances constituted the offender an exile, and therefore operated, in a sense, as an expiation for the misdeed.3

It is not clear whether the measure was resorted to only when the victims were Athenian citizens, or also if they were isoteles, metoecs, or Athenian slaves. Certain writers hold that it was equally applicable; the grounds for this opinion are by no means conclusive, although (as has been shown in a previous chapter) these inferior classes of Athenian inhabitants, even when they journeyed abroad, received certain protection from the Athenian government. But to what extent the government was prepared to proceed on their behalf is not

certain.

1 Demosth. c. Macart. 57 (p. 1068).

2 Cf. the opinion of Lipsius (note 411, p. 345, in Meier and Schömann's Der attische Process, Berlin, 1883-7), who agrees with such distinction as drawn by E. W. Weber (Demosthenis Oratio in Aristocratem, Jena, 1845, p. 298): "Vielmehr wird man mit Weber ...so zu scheiden haben, dass ανδρολήψιον das Recht, ἀνδροληψία die diesem gemäss ausgeübte Handlung bezeichnet."

3 Pollux, viii. 51.

4 On the status of isoteles and metoecs in Athens, see vol. i. pp. 157 seq. 6 See vol. i. p. 172.

5 Cf. Weber, op. cit. pp. 297 seq.

be exercised.

According to the law as cited by Demosthenes, it Where it could would seem that androlepsia could be exercised on the territory of every alien community without distinction; it is there stated that the practice applied to any people amongst whom the crime has been committed, πap' ois av Tò Tábos Yévntau. Some modern writers, however, suggest a distinction. Thus Weber maintains that it was permissible only in the case of peoples bound to Athens by international compacts. On the other hand, Meier holds (and, it must be said, with greater reason) that if such treaties existed between Athens and foreign States, there was in consequence an implied understanding-in the absence of explicit provisions-- between them for dealing with criminals of the character in question, either by their condemnation by a local tribunal, or, more generally, by extradition; and that if the foreign State refused to offer satisfaction in either of these ways, the existing treaty was thereby annulled, and androlepsia thus became applicable, as in the case of countries with which no convention had been concluded.3 Weber's view is, indeed, untenable; for it is in direct antagonism to the entire practice of treaty-making and to the specific relationships established by conventions.

1 Demosth. c. Aristocr. 84.

2 Op. cit. p. 298: "Hac iudicii forma provisum erat, ne laesi iniuriam per vim ulciscerentur, neve in eos, qui laesissent, gravius consuleretur, eamque nonnisi in iis populis assumtam puto, quibuscum foedere facto Atheniensibus commercium iuris praebendi et repetendi erat, ut ad τὰ σύμβολα περὶ τοῦ μὴ ἀδικεῖν pertinuisse videatur, quibus propria esset pacata iniuriarum compensatio."

3 M. H. E. Meier, Opuscula academica (Halis Saxonum, 1863), vol. ii. p. 189. In reference to Weber's opinion, Meier says he has not been able to find any good ground therefor : "Istius sententiae rationem nos quidem frustra quaesivimus" (p. 189). And he goes on to state a contrary view, which is undoubtedly the better one: "Immo, si quid videmus, dvdpoλnyía in eas tantum civitates dabatur, quibuscum nulla essent Atheniensibus σúußola; quacum vero civitate intercederent Atheniensibus pactiones de iure inter utriusque civitatis, cives reddendo et accipiendo, in eam ne opus quidem erat avspodnía, sed si qui Atheniensium illa in civitate esset interfectus, licebat propinquis caesi ex ipsis foederibus ius repetere; quod si negaretur, foedera violata ruptaque erant" (p. 189).

Whether

summary

measures were

adopted by the captor.

Religious basis.

After the seizure of the three fellow-countrymen of the homicide, it is very unlikely that Athenian law permitted the captor to adopt summary measures, or accorded him full liberty to treat them just as his anger and caprice might incite him. In all probability they were brought before the Athenian tribunals,1 where sentence was pronounced according to the circumstances of the particular case. Pollux speaks of androlepsia as a special procedure; and elsewhere it is also described as a species of indictment, εἶδος ἐγκλήματος. Such description, however, is not unlikely incorrect, as the institution was undoubtedly part of the public law of Hellas. The exact nature of the proceedings and of the penalties imposed on the captured victims is not known. But there is no doubt that if the court found that the seizure was unjustifiable, damages were awarded to the individuals who had been illegitimately dragged before it, ἡ βουλὴ ποιεῖται ζημίας ἐπιβολήν.

This institution, apart from being a means of international self-help in view of a denial of justice, had a religious basis. Every murder, it was conceived, must be duly expiated; otherwise (as M. Caillemer observes), the departed victim would ever pursue with his imprecations the impious relatives who neglected to avenge his death," autrement la victime poursuivra de ses imprécations les parents impies qui négligent de la venger. '5 Hence, with the modification of the strict religious traditions, and the growth of scepticism fostered by philosophical speculations, the practice of androlepsia gradually fell into disuse.

1 Cf. I. Bekker, Anecdota Graeca, 3 vols. (Berolini, 1814-21), vol. i. 213-214.

2 Pollux, viii. 41, 50.

8 Etymologicum magnum.

4 Pollux, viii. 51.-Cf. Heffter, Die athenäische Gerichtsverfassung (Cöln, 1822), p. 429: "Er konnte unstreitig durch die díky Bialov [that is, action for forcible seizure] oder ähnliche Rechtsmittel zur Rechenschaft gezogen und zum Schadensersatz angehalten werden."

5 In Daremberg-Saglio, loc. cit.