). An indictment instituted against a person who had
proposed or carried an illegal, or rather unconstitutional, psephisma or
law. The illegality might consist either in its form or in its contents, or
in both. Thus a psephisma might be impugned for matter of form, if it was
i. e. had not been
submitted to the senate: such was the proposal of Androtion (Dem. c.
p. 594.5), to award a crown to the outgoing senators as
usual in spite of their having failed to build the necessary number of
p. 596.10 f.), of Aristogiton against
Hierocles ([Dem.] c. Aristog.
i. p. 767, argum.
), of Thrasybulus to confer citizenship upon Lysias ([Plut.]
Vit. X. Oratt.
p. 835 F);--or a proposal to restore an
or release a public debtor or
admit him to composition with the state was illegal, if permission (ἄδεια
) had not first been granted by an
assembly at which not less than 6,000 Athenians had voted (Dem. c.
p. 715.46). As regards a law, it was illegal if the
rules had not been complied with which regulated the introduction of new
laws: thus Timocrates had not put up his law in the usual way for public
perusal nor observed the regulations as to the time when the nomothetae
should be appointed (Dem. c. Timocr.
p. 708.26: cf. c.
p. 485.94). As to the contents, a psephisma was illegal if
inconsistent with a law, for ψήφισμα μηδὲν μήτε
βουλῆς μήτε δήμου νόμου κυριώτερον εἶναι
§ 87: cf. Dem. c.
p. 649.87, and c. Lept.
p. 485.92, ἀλλὰ ἐναντιώτεροι [νεώτεροι
MSS.] οἱ νόμοι, καθ᾽ οὓς
[p. 2.340]τὰ ψηφίσματα δεῖ
), and it is clear that this point was capable of
very wide interpretation, from the fact that a proposal to confer
citizenship on a foreigner might be impugned if the deserts of the foreigner
could be called in question, since the law stipulated that this honour
should be bestowed only on one deserving it, δι᾽
ἀνδραγαθίαν εἰς τὸν δῆμον τὸν Ἀθηναίων
p. 1375.89). A law might be impugned as being
inconsistent with some other law that had not been repealed (Dem. c.
p. 711.34;--c. Lept.
p. 485.93; p.
486.96): since a special law provided that new laws should come into
operation from the day on which they were passed (unless a date was
expressly mentioned, usually the beginning of the year following),
Timocrates should have repealed this law, Demosthenes argues (p. 714.43; p.
723.73), before proposing his own with retrospective action. Some writers
have maintained that the γραφὴ παρανόμων
lay not merely against unconstitutional legislation, but against bad
legislation in general, so that a law or psephisma might be assailed on the
charge of inexpediency (μὴ ἐπιτήδειον,
Dem. c. Timocr.
p. 711.33, lex;
cf. Pollux, 8.56 and 44). Madvig takes a different view (Kleine phil.
p. 378 ff.). In his opinion a γραφὴ παρανόμων
only lay against unconstitutional
legislation, i. e. against a law or psephisma in proposing which certain
regulations had not been complied with (ὡς παρὰ
τοὺς νόμους τὸ ψήφισμα εἴρηται,
p. 626.18 f., cf. p. 653.100; c. Timocr.
721.66: these laws which had been contravened the prosecutor wrote in
parallel columns with the law or psephisma indicted, παραγράφεσθαι,
Dem. c. Androt.
etc., cf. Dem. c. Aristocr.
ed. Weber, p. 221), and any
arguments as to the expediency of the law or psephisma in itself, which in
practice played an important part, were beside the legal point at issue,
being cited merely as additional reasons for rejection. Lipsius adopts
Madvig's view, only separating objections based on the contents, e. g. that
a psephisma is inconsistent with a law, from objections of a purely formal
nature: cf. Gilbert, Handb. d. gr. Staatsalt.
p. 284, n. 1,
and Busolt, Staats. u. Rechtsalt.
§ 193. Wayte (Dem.
and c. Timocr.
p. xxxv.), on
the other hand, holds that any law, “however carefully all
constitutional forms had been observed, might be assailed on the vague
charge of inexpediency. The γραφὴ
lay, therefore, not merely against unconstitutional
but against bad legislation in general; and any law might be pronounced
‘bad’ against which a majority, however
small, could be obtained in a court where the last thing expected of the
jurors was to leave their politics behind them.” Schöll,
too (Sitzungsber. d. k. b. Akad.,
München, 1886, p.
136 ff.), contends that a law (not a psephisma) might be impugned by means
of a γραφὴ παρανόμων
on the ground of
inexpediency, relying especially upon Pollux, 8.87, οἱ μὲν θεσμοθέται . . . . εἰσάγουσι καὶ τὰς τῶν παρανόμων
γραφὰς καὶ εἴ τις μὴ ἐπιτήδειον νόμον γράψειεν.
Against the proposer of a psephisma a γραφὴ
might be preferred either before the taking of the
votes (e. g. against Aristocrates and Ctesiphon: hence their motions are
p. 625.14, etc.; de Cor.
p. 228.9, cf. Xen. Hell. 1.7
), or after the voting had taken place and
the people had approved of it (Dem. c. Androt.
etc.; [Dem.] c. Neaer.
p. 1347.5, etc.). Any citizen might
prefer this indictment; if he declared in the popular assembly on oath
Xen. Hell. 1.7
, and Schömann, de Comit.
161 f., whose explanation of the passage Grote, Hist. of Gr.
vii. p. 445 n., does not accept; Lex. Rhet. Cantabr.
3, etc.) that he intended to proceed against the proposer by means of a
such a declaration
necessitated the postponement of the voting, or had the effect of suspending
the validity of the psephisma, until the court had given its decision. The
indictment which Aeschines preferred against Ctesiphon's proposal in B.C.
336 was not brought to trial till six years later; since Ctesiphon's
proposal was a προβούλευμα
of the senate,
it remained in force only a year (ἐπέτειον,
Dem. c. Aristocr.
p. 651.92), but, as
Schaefer (Dem. u. s. Zeit,
iii. p. 207 f.) suggests, it was
renewed in B.C. 330 (hence Ctesiphon's personal responsibility), and now
Aeschines was compelled to proceed with his indictment to escape the fine of
1000 drachmas (Dem. c. Theocr.
p. 1323.6). The same
proceeding might be instituted against the proposer of a law, not, however,
whilst the law was in due form under consideration on the part of the
nomothetae (Schömann, Opusc.
i. p. 258 f.), but only
when an attempt was made to rush it through the popular assembly, or when
the law had been approved of by the nomothetae to prevent its becoming
: thus Leptines' law had not come
into operation in consequence of Bathippus's indictment: cf. Dem. c.
p. 497.134; p. 499.139; p. 501.143 (Schömann,
i. p. 239 f.).
The indictment was directed against the mover personally, who, if the court
decided against him, incurred more or less punishment: death (Dem. c.
p. 743.138) or a fine, 10 talents (c.
p. 573.182; c. Theocr.
p. 1332.31), 1 talent
(instead of the 15 proposed by the prosecutor, [Dem.] c.
p. 1348.8), 25 drachmas (Hyp. pro Eux.
31); and the law or the psephisma was repealed. A person thrice so convicted
lost the right of making proposals in the popular assembly in future (Dem.
de Cor. trierarch.
p. 1231.12; Meier, de Bon. Damnat.
p. 130, n. 435). Aristophon was seventy-five
times indicted for having moved illegal decrees, and every time acquitted;
whilst Cephalus could boast that, though he had proposed more decrees than
any one else, he had not once been indicted (Aeschin. c.
§ 194). The prosecutor who failed to obtain one-fifth
of the votes at the trial, as Aeschines did (Plut.
), incurred a fine of 1000 drachmas, and lost the right of
instituting a γραφὴ παρανόμων
(Theophr. π. νόμων,
Lex. Rhet. Cantabr.
p. 677, 8). After the expiration of a
year from the day when the psephisma or the law was proposed or passed, the
mover was free from personal responsibility: this was the case with Leptines
(Dem. c. Lept.
p. 501.144; argum.
453, μομὸς γὰρ ἧν τὸν γράψαντα νόμον ἢ
ψήφισμα μετὰ ἐνιαυτὸν μὴ εἶναι ὑπεύθυνον
), though, as
we learn from this instance, the law itself might still be impeached before
a jury, and in such case the people appointed advocates to defend it (five
Leptines himself and [p. 2.341]
the four named, p. 501.146; cf. Wolf, p. cxxxvi.).
In Grote's opinion the γραφὴ παρανόμων
“was probably introduced by Pericles at the same time as the
formalities of law-making by means of specially delegated
Nomothetae” (Hist. of Gr.
v. p. 430): cf. Gilbert,
Handb. d. gr. Staatsalt.
i. p. 150, n. 2; Busolt,
Gr. Staats-u. Rechtsalt.
§ 138. Mahaffy
7.1881, p. 87 f.) places it later:
“Though it may have long existed in the special form of an action
against direct verbal contradictions of particular laws by new
enactments, its importance dates only from the disuse of ostracism (417
B.C.), and was even a direct consequence of this disuse.” In B.C.
411 it must have been firmly established as a bulwark of the democratic
constitution, or the Four Hundred would not have repealed it before
proposing their revolutionary changes (Thuc.
; Dem. c. Timocr.
p. 748.154; Aeschin. c.
§ 191). (Att. Process,
Lipsius, pp. 428-437.)