previous next


PARA´NOMON GRAPHE (παρανόμων γραφή). 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 ἀπροβούλευτον, i. e. had not been submitted to the senate: such was the proposal of Androtion (Dem. c. Androt. 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 triremes (l.c. 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 ἄτιμος 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. Timocr. 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. Lept. 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 (Andoc. de Myst. § 87: cf. Dem. c. Aristocr. p. 649.87, and c. Lept. p. 485.92, ἀλλὰ ἐναντιώτεροι [νεώτεροι MSS.] οἱ νόμοι, καθ᾽ οὓς [p. 2.340]τὰ ψηφίσματα δεῖ γράφεσθαι), 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 ([Dem.] c. Neaer. p. 1375.89). A law might be impugned as being inconsistent with some other law that had not been repealed (Dem. c. Timocr. 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passed (unless a date was expressly mentioned, usually the beginning of the year following), Timocrates should have repealed this law, Demosthenes argues (p. 714.43; p. 723.73), before proposing his own with retrospective action.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. Schriften, 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, Dem. c. Aristocr. p. 626.18 f., cf. p. 653.100; c. Timocr. p. 721.66: these laws which had been contravened the prosecutor wrote in parallel columns with the law or psephisma indicted, παραγράφεσθαι, Dem. c. Androt. p. 604.34, 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. c. Androt. 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 παρανόμων 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 παρανόμων might be preferred either before the taking of the votes (e. g. against Aristocrates and Ctesiphon: hence their motions are called προβουλεύματα, Dem. c. Aristocr. p. 625.14, etc.; de Cor. p. 228.9, cf. Xen. Hell. 1.7, 12), or after the voting had taken place and the people had approved of it (Dem. c. Androt. p. 594.5, etc.; [Dem.] c. Neaer. p. 1347.5, etc.). Any citizen might prefer this indictment; if he declared in the popular assembly on oath (ὑπωμοσία, ὑπομόσασθαι, Xen. Hell. 1.7, 34, and Schömann, de Comit. p. 161 f., whose explanation of the passage Grote, Hist. of Gr. vii. p. 445 n., does not accept; Lex. Rhet. Cantabr. p. 665, 3, etc.) that he intended to proceed against the proposer by means of a γραφὴ παρανόμων, 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 κύριος: thus Leptines' law had not come into operation in consequence of Bathippus's indictment: cf. Dem. c. Lept. p. 497.134; p. 499.139; p. 501.143 (Schömann, Opusc. 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. Timocr. p. 743.138) or a fine, 10 talents (c. Mid. p. 573.182; c. Theocr. p. 1332.31), 1 talent (instead of the 15 proposed by the prosecutor, [Dem.] c. Neaer. p. 1348.8), 25 drachmas (Hyp. pro Eux. col. 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. Ctes. § 194). The prosecutor who failed to obtain one-fifth of the votes at the trial, as Aeschines did (Plut. Dem. 24), incurred a fine of 1000 drachmas, and lost the right of instituting a γραφὴ παρανόμων in future (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. p. 453, μομὸς γὰρ ἧν τὸν γράψαντα νόμον 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 σύνδικοι, 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 (Hermath. 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. 8.67; Dem. c. Timocr. p. 748.154; Aeschin. c. Ctes. § 191). (Att. Process, ed. Lipsius, pp. 428-437.)

[C.R.K] [H.H]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: