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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 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]

1 Aeschylus (Aesch. Eum. 433) similarly uses the term εὐθεῖα δίκη as opposed to the oath of one or the other party on which they might have agreed to rest the issue (429): see Aesch. Eum. ed. Müller, p. 159 f. Linwood (Lex. to Aesch. s. v.) wrongly translates, “pass a righteous sentence.”

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  • Cross-references in notes from this page (1):
    • Aeschylus, Eumenides, 433
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