PARA´GRAPHE
PARA´GRAPHE (
παραγραφή). This word does not exactly correspond with any term in
our language, but may without much impropriety be called “a
plea.” It is an objection raised by the defendant to the
admissibility of the plaintiff's action: “exceptio rei adversus
actorem, actionemve, querentis aut de foro haud competente, aut de
tempore, modove procedendi illegitimo.” (Reiske,
Index Gr.
in Oratt.) Sir William Jones, in the preface to his translation
of Isaeus, compares it with a
demurrer. But this is
not so correct; because a demurrer is an objection arising out of the
adversary's own statement of his case: whereas the
παραγραφὴ was an objection depending on facts stated by the
defendant himself, and therefore rather resembles a plea, or (more strictly)
a special plea. This appears from the
παραγραφικοὶ
λόγοι of Demosthenes, in which we find the defendant
introducing new allegations into the cause, and supporting them by proof.
Thus, in the speech against Nausimachus and Xenopithes, the ground of
objection is, that the father of the defendants having obtained a release
from the plaintiffs, it was no longer open to the plaintiffs to bring an
action for the same cause (p. 984.1; p. 986.5, cf.
pro Phorm.
p. 951.23; p. 952.25;--
c. Pantaen. p. 966.1; p. 972.19). But
the first mention of this release is made by the defendants in their plea.
In the speech against Zenothemis the defendant objects, that the
ἐμπορικὴ δίκη does not lie, because there was
no written contract between him and the plaintiff; and this (says he)
appears from the declaration itself (
ἐν τῷ
ἐγκλήματι, p. 882.1 f.; cf.
c. Apatur. p.
892.2; see also
c. Pantaen. p. 976.35;
c.
Lacrit. p. 939.45 f.). As parties could not be defeated at Athens by
a technical objection to the pleadings, the defendant in the above case,
notwithstanding the defective statement of the plaintiff in the declaration,
was compelled to bring forward his objection by plea, and to support it
before the jury. In the speech against Phormio, the plaintiff says that as
the defendant only denies that he has committed a breach of the contract,
there was no occasion for a
παραγραφή: the
question merely was, whether the plaintiff's charge was true (p. 908.4 f.).
It seems that a
παραγραφὴ might be put in,
not only when the defendant could show that the cause of action was
discharged, or that it was not maintainable in point of law; but also when
the form of action was misconceived, or when it was commenced at a wrong
time (
pro Phorm. p. 952.26 f.), or brought before the wrong
magistrate (
c. Pantaen. p. 976.33 f.). In the last case the
παραγραφὴ would answer to our
plea to the jurisdiction.
The
παραγραφή, like every other answer
(
ἀντιγραφή) made by the defendant to
the plaintiff's charge, was given in writing, as the word itself implies
(Dem.
c. Phorm. p. 912.17;
c. Pantaen. p.
976.34;
π. ἀντιλαγχάνειν or
δοῦναι, or
παραγράφεσθαι). If the defendant merely denied the plaintiff's
allegations, or (as we might say)
pleaded the general
issue, he was said
εὐθυδικίᾳ
εἰσιέναι or
εἰσέρχεσθαι (Isae.
Philoct. § § 3, 43, 52; Dem.
c.
Stephan. i. p. 1103.6;
εὐθυδικίαν
εἰσιέναι occurs only
c. Phorm. p. 908.4, and
ἡ εὐθεῖα instead of
εὐθυδικία is late,
argum. Dem.
c. Zenoth. p. 881).
1 In this case a court was at once held for the trial of the cause.
If, however, he put in a
παραγραφή
(
παρεγράψατο μὴ εἰσαγώγιμον εἶναι τὴν
δίκην), and the plaintiff acquiesced in the ground of
objection raised, the action was either brought before a different
magistrate or in a different form (i. e. not as
δίκη
ἐμπορική, but as
δίκη
βλάβης or
χρέως), or it was
dropped altogether; if, however, the plaintiff did not acquiesce, a court
was held to try the preliminary question, whether the cause could be brought
into court or not. Upon this previous trial the defendant was considered the
actor (Pollux, 8.58), and hence is said by
Demosthenes (
c. Phorm. p. 908.4)
κατηγορεῖν τοῦ διώκοντος: he began and
[p. 2.339]had to maintain the ground of objection which he relied upon
(Dem.
c. Stephan. i. p. 1103.5 ff.). If he succeeded, as
Phormio did, by bringing witnesses that he had obtained a release from the
plaintiff, the whole cause was at an end; if however the objection was only
to the form of action, or some other such technicality, the cause was
recommenced in the proper manner. If, however, the plaintiff succeeded, the
jury merely decided
εἰσαγώγιμον εἶναι τὴν
δίκην, and then the original action, which in the meantime had
been suspended, was proceeded with (Dem.
c. Zenoth. p. 888.22
f.;
c. Lacrit. p. 939.45). Both parties on the trial of the
παραγραφὴ were liable to the
ἐπωβελία, on failure to obtain a fifth part of
the votes (Isocr.
c. Callim. 2; Dem.
c.
Stephan. i. p. 1103.6). [
EPOBELIA]
The course of proceeding on a
παραγραφὴ was
obviously calculated to delay the progress of the cause, and was therefore
not looked on with favour by the dicasts.
Ὑπωμοσίαι
καὶ παραγραφαὶ (
c. Mid. p. 541.84) and
σοφίσματα καὶ παραγραφαὶ καὶ
προφάσεις (
c. Lacrit. p. 924.2) are classed
together by the orator as being the manœuvres of defendants to
defeat justice (cf.
c. Euerg. et Mnes. p. 1151.39; p.
1153.45;
Lex. Rhetor. Cantabr. p. 673 ff., and Meier
ad l.c.; Pollux, 8.60). Hence we find in the extant
παραγραφικοὶ λόγοι, that the
defendant, in order to remove the prejudice of the dicasts against himself,
not only supports the ground of the
παραγραφή, but discusses the general merits of the cause, and
endeavours to show that there is no foundation for the plaintiff's
complaint. And there is no doubt that the dicasts were materially influenced
by such discussion, however in strictness irrelevant (
argum. pro
Phorm. p. 944;
c. Zenoth. p. 881).
There was no such thing as this proceeding by
παραγραφή, where the defendant had the advantage of
beginning, until, after the expulsion of the Thirty Tyrants, when a law was
passed on the proposal of Archinus,
ἄν τις
δικάζηται παρὰ τοὺς ὅρκους, ἐξεῖναι τῷ φεύγοντι
παραγράψασθαι, τοὺς δὲ ἄρχοντας περὶ τούτου πρῶτον εἰσάγειν,
λέγειν δὲ πρότερον τὸν παραγραψάμενον, ὁπότερος δ᾽ἂν ἡττηθῇ,
τὴν ἐπωβελίαν ὀφείλειν, originally only for the special
case that an action was brought in violation of the amnesty, but later on
extended to other grounds of defence. Before the time when this law was
passed, all special objections to the adversary's course of proceeding seem
to have been called by the general term of
ἀντιγραφαί. Thus when Pancleon was summoned before the
polemarch by the speaker of the 23rd speech of Lysias, as being a resident
alien, he put in a “plea to the jurisdiction” on the ground
that he was a Plataean by birth, and that therefore the action ought not to
have been brought before the polemarch ( § 5,
ἀντεγράψατο μὴ εἰσαγώγιμον εἶναι, cf. § 10;
Jebb,
Att. Oratt. i. p. 302, gives
πρὸς παραγραφὴν as title of the speech, but it ought to run
πρὸς τὴν Π. ἀντιγραφήν); and in
this case it is clear from the tenor of the speech, that the defendant did
not address the court first [cf.
EXOMOSIA 3]. (
Att. Process, ed. Lipsius, pp.
849-854, 948.)
[
C.R.K] [
H.H]
