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BOULEU´SEOS

BOULEU´SEOS GRAPHÉ (βουλεύσεως γραφή), an impeachment for conspiracy. Βουλεύσεως, being in this case the abbreviated form of ἐπιβουλεύσεως, is the name of two widely different actions at Attic law. I. The first was the accusation of conspiracy against life, and might be instituted by the person thereby attacked, if competent to bring an action; if otherwise, by his or her legal patron (κύριος). In case of the plot having succeeded, the deceased might be represented in the prosecution by near kinsmen (οἱ ἐντὸς ἀνεψιότητος), or, if they were incompetent, by the κύριος, as above [p. 1.314]mentioned (Att. Proc. p. 164, with Lipsius' note in the new ed.). The criminality of the accused was independent of the result of the conspiracy (Harpocrat.), and the penalty, upon conviction, was the same as that incurred by the actual murderers (Antiph. Tetral. 3.2.5; Andoc. de Myst. § 94). Capital punishment was, however, not inflicted unless death followed; in the case of attempted murder, the penalty for βούλευσις was the same as that for τραῦμα ἐκ προνοίας, outlawry and confiscation. (See references under TRAUMATOS EK PRONOIAS GRAPHÉ.) The presidency of the court upon a trial of this kind, as in most δίκαι φονικαί, belonged to the king archon (Att. Proc. p. 312); and the court itself was composed of the Ephetae, sitting in the Palladium, according to Isaeus and Aristotle, as cited by Harpocration, who, however, also mentions that the Areiopagus is stated by Deinarchus to have been the proper tribunal. Various attempts have been made in recent times to reconcile these statements. Schömann conjectures that, if death ensued, the Areiopagus was the proper authority; in other cases the Palladium (Antiq. 1.469 n., E. T.). Sauppe suggests, as the ground of distinction, the presence or absence of premeditation (Orat. Att. 2.235). Whether βούλευσις could exist without πρόνοια is a rather subtle question of Athenian law, which is usually marked by the absence of such refinements. In the speech of Antiphon On the Choreutes the prosecution contend that there has been βούλευσις on the part of the defendant ( § 16), while they admit that there has been no πρόνοια ( § 19); but Prof. Jebb has rightly pointed out that this is not the technical βούλευσις (= ἐπιβούλευσις) of Harpocration's βουλεύσεως γραφή (Jebb, Att. Or. 1.62 n.). There can be little doubt that Caillemer (in Daremberg and Saglio) has justly concluded with Isaeus and Aristotle that all cases of βούλευσις were tried before the Ephetae in the Palladium; and Harpocration, as he suggests, may have mistaken the meaning of Deinarchus. To this it may be added that the locus classicus on the jurisdiction of the Areiopagus in cases of homicide, Demosth. c. Aristocr. pp. 641-3, § § 65-70, makes no mention of βούλευσις. The latest writer on the subject, Lipsius (on Att. Process, n. 534), does not appear to us to have shaken this conclusion.

II. The other action βουλεύσεως was available when a person found himself wrongfully inscribed as a state debtor, against the person who had so inscribed him (ὅταν ἐγγεγραμμένος ὡς δ̓φείλων τῷ δημοσίῳ αὐτὸς δικάσηταί τινι ὡς οὐ δικαίως αὐτὸν ἐγγεγραφότι, Harpocrat.). It was thus closely akin to the ψευδεγγραφῆς γραφή. The two are not clearly distinguished by the grammarians: and Pollux even alleges (8.43) that the two γραφαὶ were applicable to the same offence. On this point the explanation of Boeckh is now generally accepted. Whoever falsely declared that another had been registered was liable to the action for false registration (ψευδεγγραφῆς γραφὴ, or, in Suidas, ψευδέγγραφος δίκη), whether the plaintiff owed nothing, or less than the sum stated in the register. If, on the other hand, a man who had been a state debtor had paid all that was due, but his name was not erased, or having been erased was re-entered, the action for conspiracy (βουλεύσεως) applied. In both cases, if the plaintiff was successful, his name was erased, and the defendant became indebted to the state for an equal sum (Boeckh, P. E. p. 390, quoting for the substitution of the defendant's name the Demosthenic c. Aristog. i. p. 792.73). The vague language of the grammarian (δικάσηταί τιϝι) leaves a further question, against what class of persons these two actions would lie. Meier suggests that a magistrate who had so offended would probably be proceeded against at the εὔθυναι or ἐπιχειροτονία, the two occasions on which the public conduct of magistrates was examined; so that generally the defendant in this action would be a private citizen who had directed such an insertion at his own peril (Att. Process, p. 339). The conclusion of Müller (in Pauly) and Caillemer (in D. and S.) is more in accordance with the usual practice of the Athenians: that these actions lay only against the public treasurer; that he was responsible for the entries he made on information from others; that if cast in a suit of this description, he would have to seek his remedy by δίκη βλάβης or ψευδομαρτυριῶν against those who had misled him. Another doubtful point is, whether the disfranchisement (ἀτιμία) of the plaintiff as a state debtor was in abeyance while this action was pending. In two passages of the speech just referred to, it is first stated as a fact (c. Aristog. i. p. 778.28), and then argued as a point of law (ib. pp. 791-2, § § 71-73) that it was not. Boeckh suggests (note in Att. Process, p. 340) that there was probably ἄδεια for the complainant, as otherwise the law would sophistically shut a man's mouth while requiring him to prove his innocence. He may, however, if still ἄτιμος, have been allowed to plead his cause through an advocate (συνήγορος). Both γραφαὶ, βουλεύσεως and ψευδεγγραφῆς, were brought before the Thesmothetae.

[J.S.M] [W.W]

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