Metalepsis, paragraphe and the scholia to Hermogenes - Leeds ...

MALCOLM HEATH, METALEPSIS, PARAGRAPHE AND THE SCHOLIA TO HERMOGENES
were assigned from the emperor’s entourage once he had undertaken to hear the
case. Proceedings begin with Aristaenetus, for the defence, entering a paragraphe:
a case that has not been heard in the lower court cannot be appealed. This
argument is questionable: although it was unusual to take a case directly to the
emperor, it is not clear that it was strictly irregular. On the other hand, the emperor
would certainly have been entitled to refer the case to the governor. So when
Aristaenetus portrays the petition as an unscrupulous ambush at the end of a busy
day of legal business, he may be trying to present Caracalla with a respectable
pretext for retracting his agreement to hear the case. That he thinks this worth
trying suggests that he believed (as presumably the plaintiff did when he
presented the petition in the first place) that it would be more advantageous for the
defence if the case were heard by the governor. Since the transcript is incomplete,
we can only guess the reason for this. But one possible explanation would be that
there were technical weaknesses in the plaintiffs’ case: a judge at a lower level,
whose decisions were subject to appeal, would have had less freedom than the
emperor to waive legal technicalities. In fact, Caracalla rejects the paragraphe
and the primary case proceeds. If he had upheld the paragraphe, the primary case
would have been adjudicated by the governor in a separate hearing. So this is
analogous to the theorists’ ‘incomplete paragraphe’: the defendant does not reject
the primary case entirely, but the court in which it is being brought; the primary
case can still be heard elsewhere. If my interpretation is correct, the paragraphe in
this case is a tactical move attempting to shift the case to a court in which the
plaintiffs would be disadvantaged.
One might compare the device by which the sophist Heliodorus managed to
get out of a difficult situation when appearing before Caracalla as advocate on
behalf of his city (Philostratus VS 625f.). The case was called while his colleague
was ill and before he had completed his own preparations, so he entered a
paragraphe against the case, on the grounds that he would have to plead alone
without imperial authority. Here, obviously, the purpose of the incomplete
paragraphe (based on the person of the advocate for the plaintiff—though it is the
advocate himself who entered the paragraphe!) was to have the case deferred to
another hearing, at which his side would be better prepared. Caracalla was greatly
impressed, presumably at least in part by the technical ingenuity of the paradox,
and upheld the paragraphe. The time allocated for the trial was given over to a
declamation instead. It should be noted that Heliodorus, as well as being entrusted
with his city’s representation, was appointed advocatus fisci; we should not
succumb in his case to the stereotype image of the impractical sophist, detached
from the realities of the courts. 50
Early in AD 250 the prefect of Egypt heard a case in which the council of
Arsinoe continued an attempt to coerce villagers into undertaking civic liturgies to
which they had been nominated. 51 Part of the hearing is concerned with a
paragraphe on behalf of the villagers, who claim that the council meeting at
which the nominations were made was not validly convened. The prefect seeks to
50 I argue against this stereotype more generally in Heath (2004b) §9.4.
51 SB 7696; Crook (1995) 98f. See Skeat and Wegener (1935).
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