jusjurandum

jusjurandum v. 2 jus

jūsjūrandum, (9) ī, n. , serment : Cic. Off. 3, 104 ; v. jurare, adigere ; jusjurandum dare Pl. Most. 1084, prêter serment ; conservare Cic. Off. 3, 100, tenir son serment ; alicui deferre, offerre Quint. 5, 6, 4 ; 5, 6, 1, déférer à qqn le serment, offrir de sʼen rapporter à son serment ; jurejurando obstringere Cæs. G. 1, 31, 7, lier par un serment.

➳ tmèse : jus igitur jurandum Cic. Off. 3, 104 ; jurisque jurandi Cic. Cæl. 54 || pl. jura juranda d. P. Fest. 133, 29.

JUSJURANDUM

JUSJURANDUM(ὅρκος), an oath.

Greek

An oath is an appeal to some superior being, calling on him to bear witness that the swearer speaks the truth, or intends to perform the promise which he makes (μετὰ θείας παραλήψεως, Anaxim. Ars Rhet. 17; Clem. Alex. Strom. 7.8). Hence the expression ἴστω Ζεύς, θεὸς ἴστω, and others of the same import, so frequently used in the taking of oaths (Soph. Trach. 399; Ant. 184; Oed. Col. 521;--St. Paul, Ep. Galat. 1.20). It is obvious that such an appeal implies a belief not only in the existence of the being so called upon, but also in his power and inclination to punish the false swearer; and the force of an oath is founded on this belief.

1. By whom did the Greeks swear? Sometimes all the gods were invoked: ὀμνύω τοὺς θεοὺς καὶ τὰς θεὰς ἅπαντας καὶ ἁπάσας (Dem. c. Conon. p. 1269.41), πρὸς θεῶν Ὀλυμπίων (Lys. c. Agorat. § 95, de bon. Aristoph. § § 33, 54; Isae. Philoct. § 58), μὰ τοὺς θεούς ([Lys.] Accus. adv. Famil. § 18), πρὸς θεῶν καὶ δαιμόνων (Isae. Menecl. § 47), ὦ Ζεῦ καὶ θεοὶ πάντες (Antiph. Sup. Chor. § 40; Dem. F. L. p. 345.16), ὦ γῆ καὶ θεοί (Dem. c. Boeot. 1. p. 1000.21). At other times the occasion suggested a special deity: thus, Iphigeneia the priestess swore by Artemis (Eur. Iph. Taur. 728); Menelaus bids Antilochus swear by Poseidon (the equestrian god), the subject being on horses (Il. 23.584; cf. Aristoph. Nub. 83): cf. νὴ τὸν Δία τὸν Ὀλύμπιον καὶ τὸν Ἀπόλλω (Aeschin. c. Tim. § 83; Isae. Philcot. § 61), μὰ τὸν Δία τὸν Ὀλύμπιον (Aeschin. c. Tim. § 55), μὰ τὸν Δία ([Lys.] c. Andoc. § § 7, 32, 38), μὰ Ἀπόλλωνα (Il. 1.86; see Lys. c. Theomn. 1.17), Helios (Eur. Herc. Fur. 857), νὴ τὴν Ἥραν (Plat. Phaedr. p. 230 B), νὴ τὴν Ἀθηνᾶν (Lyc. c. Leocr. § 75), νὴ τὴν Δήμητρα (Dem. F. L. p. 425.262; Olynth. 3. p. 37.32), etc. Women too had their favourite oaths: μὰ τὼ θεώ, i. e. Demeter and Persephone (Aristoph. Eccles. 156), νὴ τὴν Ἀφροδίτην (Aristoph. Eccles. 189 ff.: cf. Plat. Symp. p. 183 B, ἀφροδίσιον ὅρκον οὔ φασιν ἐ̄ναι), etc. The Lacedaemonians swore by Castor and Pollux (ναὶ τὼ σιώ, Xen. Hell. 4.4, 10; Plut. Mor. p. 189 F; Aristoph. Lys. 148), the Boeotians by Hercules and Iolaus (Aristoph. Acharn. 850, 867), the Corinthians by Poseidon (Aristoph. Eq. 609, etc.), the Athenians principally by three deities (so Draco ordained, Schol. Venet. B. on Il. 15.36; cf. Pollux, 8.142, τρεῖς θεοὺς ὀμνύναι κελεύει Σόλων), viz. Zeus, Poseidon, and Athena (Schol. Venet. l. c.), or Zeus, Poseidon, and Demeter (decree of the deme Aexone in Mitth. d. a. Inst. Ath. 4. p. 201; Dem. c. Timocr. p. 747.151, jusjurandum, and Schol. Venet. l. c.), or Zeus, Apollo, and Demeter (Dem. c. Callipp. p. 1237.9; Aristoph. Eq. 941; 100.1. A. i. No. 9, ii. No. 578; Pollux, 8.122; Schol. Aeschin. c. Tim. § 114), or Zeus, Apollo, and Athene (Dem. c. Mid. p. 578.198); see also Plat. de Legg. 11. p. 936 E; Aesch. Sept. 42 ff. But the Greeks also swore by whatever was dear and sacred to them: Achilles swears by his sceptre (Il. 1.234), Telemachus by the sorrows of his father (μὰ Ζῆν' . . . καὶ ἄλγεα πατρὸς ἐμοῖο, Od. 10.339), Helena to her husband by his head (Eur. Hel. 835; cf. Hippol. 605), friends to one another by their friendship (Xen. Cyrop. 6.4, 6), warriors by their weapons (Eur. Phoen. 1677), Demosthenes by the ancestors who fought at Marathon, etc. (de Cor. p. 297.208; cf. [Longin.] de Sublim. 16), the disciples of Pythagoras by their master (Plut. Mor. p. 877 A), etc. The god, however, by whom the most solemn oaths were sworn, was Zeus (ὅρκιος, Soph. Philoct. 1324, Trachin. 1188; Eur. Hippol. 1025, Med. 208; Apollon. 4, 95; ὃς ὅρκων θνητοῖς ταμίας νενόμισται, Eur. Med. 171); by his head (Hymn. in Mercur. 274), or by the Styx (the most terrible oath the gods swear, Il. 15.36 ff., Od. 5.184 ff.). Zeus punishes the violation of oaths (Aristoph. Nub. 397; cf. Paus. 5.24, 2), and Dike is seated by his side (ξύνεδρος Ζηνός, Soph. Oed. C. 1381; [Dem.] c. Aristog. 1. p. 772.11). The poets frequently allude to the punishment of perjury after death (Il. 19.260, 3.279; Pind. O. 2, 71; cf. Aristoph. Ran. 275), and we find many proofs of a persuasion that perjurers would not prosper in this world (Lyc. c. Leocr. § 79; Plb. 4.33, 3; Hesiod, Op. et Dies, 285, etc.). One of the most striking is the story told by Leotychides to the Athenians, of Glaucus the Spartan, who consulted the Pythian oracle whether he should restore a deposit, or deny on oath that he had ever received it; and who, for merely deliberating upon such a question, was cut off with his whole family (Hdt. 6.86; cf. Theogn. 199 ff.; Juv. Sat. 13.199 ff.).

2. As to the customs observed in taking an oath. Anciently the prince who took an oath stood up (Il. 19.175), raised his sceptre (Il. vii, 412; 10.231, etc.), and lifted up his eyes and hands to heaven, as he would in prayer (Il. 19.257; Pind. O. 7, 65); for an oath was a species of prayer, and required the same sort of ceremony. Oaths were accompanied with sacrifice and libation; the victims (Plut. Pyrrh. 6) on such occasions were not eaten (Paus. 5.24, 2), but either buried in the ground or thrown into the sea(Schol. to Il. 3.310; 19.268), and the wine used was undiluted (Il. 3.269 and Schol.; ἄκρητοι σπονδαί, Il. 4.159 and Schol.: cf. Spengel, Herm. 1880, p. 330). Those who swore laid their hands on the victims (προσλαβοῦ μοι τοῦ κάπρου, Aristoph. Lysistr. 202; ὀμνύναι καθ' ἱερῶν, Isae. Apollod. § 28; Dem. c. Eubul. p. 1306.26; [Dem.] c. Neaer. p. 1365.60, etc.; Suid. s. v. βοῦς ὁ Μολοττῶν: Bernhardy, p. 1027), or on the altar (λαβόμενος τοῦ βωμοῦ, Andoc. Myst. § 126; πρὸς τὸν λίθον ἄγοντες, Dem. c. Conon. p. 1265.26, and Harpocr. s. v. λίθος: cf. also Pericles' saying, μέχρι τοῦ βωμοῦ φίλος εἰμί, Plut. Mor. p. 186 C; Gellius, N. A. 1.3, 20), or on the heads of their children (κατὰ παίδων, Dem. c. Conon. p. 1270.40; c. Aphob. 3. p. 852.26; Lys. c. Diogit. § 13), pronouncing a solemn form of imprecation (Lys. c. Eratosth. § 10; Dem. c. Conon. p. 1270.41; Aeschin. c. Tim. § 114; Aristoph. Eq. 660). The alliance between Hercules and the sons of Neleus is confirmed by oath, ἐπὶ τομίων κάπρου (Paus. 4.15, 4; see 3.20, 9, ἐπὶ τοῦ ἵππου τῶν τομίων: cf. Aristoph. Lysistr. 192, and Plut. Pyrrh. 6); the Greeks and Ariaeus took an oath to be true allies after sacrificing a bull, a wolf, a boar, and a ram over a shield (Aristoph. Lysistr. 188), the Greeks dipping their swords and the barbarians their lances into the blood (Xen. Anab. 2.2, 9; cf. Hdt. 4.70, on the rites of the Scythians). The Phocaeans, before setting out for Cyrnus, invoked the heaviest curses on the man who should draw back from the expedition, and, having dropped a red-hot mass of iron into the sea, swore never to return to Phocaea till that mass reappeared upon the surface (Hdt. 1.165; Hor. Epod. 16, 17 ff.; and Suid. s. v. Φωκαέων ἀρά: cf. Plut. Arist. 25). Valckenaer (Opusc. 1. p. 27 f.) tries to prove, from Hymn. in Vener. 27 and Soph. Trach. 1180 ff., that it was customary to touch the head of the person to whom the promise was made: certain it is that the hands were joined in making agreements and contracts (Il. 4.158 ff.; Soph. Philoct. 803; Eur. Iph. Aul. 57, 471; Med. 496 ;--Xen. Anab. 7.3, 1; 2.4-Z2, 1). To make the taking of an oath more impressive, it was done sometimes in temples or other localities sacred to popular belief. Thus at Athens, in the temple of Athena on the Acropolis (Andoc. de Myst. § 42; Isocr. Trap. § 20; Dem. pro Phorm. p. 949.15; cf. Lys. c. Diogit. § 13); at Sparta, in the temple of Athena Chalcioecus (Plut. Mor. p. 218 D); in Arcadia, near the Styx, not far from Nonacris (Hdt. 6.74); at Haliartus, in the temple of the Praxidicae (Paus. 9.33, 2); at Syracuse, in the temple of Demeter and Persephone (Plut. Dio 56); at Gortyn, near the Amyclaean temple (Gort. Code, 3.1. 8), etc.

3. The occasions when oaths were taken. We find early mention in the Greek writers of oaths being taken on solemn and important occasions, as treaties, alliances, vows, compacts, and agreements, both between nations and individuals. Thus, when the Greeks and Trojans agree to decide the fate of the war by a single combat between Menelaus and Paris, they ratify their agreement by an oath (Il. 3.276). The alliance between Croesus and the Lacedaemonians is confirmed by oath (Hdt. 1.69). So in the treaty between the Medes and Lydians, whose rites in swearing (as Herodotus tells us, 1.74) were the same as those of the Greeks, with this addition, that they made an incision in their arms and tasted each other's blood (cf. Tacitus, Tac. Ann. 12.47). We may further notice the alliance between Athens, Argos, Mantinea, and Elis, upon which every state was to swear, τὸν ἐπιχώριον ὅρκον τὸν μέγιστον κατὰ ἱερῶν τελείων (Thuc. 5.47); such treaties were as a rule cut in στῆλαι, together with the imprecations upon perjurers, and such στῆλαι were set up in or near temples (C. I. G. No. 2554, 2555); a part of the original monument from which Thucydides copied was discovered lately near the Dionysiac theatre (C. I. A. iv. No. 46b, and Hicks, Manual, No. 52. See also Thuc. 5.18, 23); the oath of the Amphictyons (Aeschin. c. Ctes. § 109); the vow of the Ionian women (Hdt. 1.146); of the Acarnanians (Plb. 9.40, 4; Liv. 26.25), etc. Every new constitution, every settlement of party feuds, had to be confirmed and ratified by an oath. Thus the senate collectively and the archons individually swore to observe Solon's laws with fidelity for the space of ten years (Plut. Sol. 25; see also Hdt. 1.29); when, after the overthrow of the Four Hundred, the democracy was restored at the beginning of the archonship of Glaucippus, Demophantus proposed and carried a decree prescribing the form of an oath to be taken by all Athenians to stand by the democratical constitution (Andoc. de Myst. § 97 f. ; cf. Lye. c. Leocr. § 127, and Dem. c. Lept. p. 505.159, τῆς Δημοφάντου στήλης); see also the additions to the oaths taken by the senate and by the dicasts (Andoc. de Myst. § 91). The security which an oath was supposed to confer induced the Greeks, as it has people of modern times, to impose it as an obligation upon persons invested with authority, or entrusted with the discharge of responsible duties. The Athenians, with whom the formalities of legislation were carried to the greatest perfection, were, of all the Greek states, the most punctilious in this respect. The youth after having completed his seventeenth year was not allowed to assume the privileges of a citizen and to be registered in the ληξιαρχικὸν γραμματεῖον without taking a solemn oath in the temple of Aglaurus (Dem. F. L. p. 438.303; Plut. Alc. 15; Pollux, 8.105: the Schol. to Dem. l. c. explains the reason why in the temple of Aglaurus). For the oath itself, cf. Pollux, [8.105, Stob. Floril. 43, 48, and Lye. c. Leocr. § 76 f.; see also the oath sworn by all the Greeks at Plataeae (Lyc. c. Leocr. § 80 f., μιμησάμενοι τὸν παρ' ὑμῖν εἰθισμένον ὅρκον: cf. Diod. 11.29; Isocr. Panegyr. § 156). All ἀρχαὶ were required to bind themselves by an oath to perform their respective duties (Lyc. c. Leocr. § 79, yet see Hermann, Staatsalt. 1.154, 1; of. [Xenoph.] Rep. Laced. 15, on the oaths of the kings and ephors in Sparta). The archons first took the oath at the βασίλειος στοά (ἐπὶ τοῦ λίθου ἐφ' οὗ τὰ τόμια συός, φυλάξειν τοὺς νόμους καὶ μὴ δωροδοκήσειν ἢ χρυσοῦν ἀνδριάντα ἀποτῖσαι, Pollux, 8.86, as emended by Bergk, Rhein. Mus. 1878, p. 448 ff.: cf. Plat. Phaedr. p. 235 D; Heracl. Polit. quae extant, ed. Schneidewin, p. 5, 15, and Plut. Sol. 25), and repeated it on the Acropolis (Pollux, l. c.). Part of the oath of the στρατηγοὶ is quoted by Lys. pro Mil. § 15, τοὺς ἀστρατεύτους καταλέξειν: as we learn from Plut. Per. 30, on the motion of Charinus a clause was added to the oath in B.C. 431: ὅτι καὶ δὶς ἀνὰ πᾶν ἔτος εἰς τὴν Μεγαρικὴν ἐμβαλοῦσιν, cf. Thuc. 4.66; they took their oath (Dinarch. c. Philocl. § 2) μεταξὺ τοῦ ἔδους (i. e. the ἄγαλμα of Athena Polias: Bekk. Anecd. p. 246, 3) καὶ τῆς τραπέζης (on which the myrtle branches lay: Pollux, 10.69; Gilbert, Staatsalt. 1. p. 212, n. 1). The oath of the judges of the games is mentioned in Dem. c. Mid. p. 520.17; p. 535.65; [Andoc.] c. Alcib. § 21; Plut. Cim. 8; Aristoph. Eccles. 1160 (cf. the oath of the athletes in Paus. 5.24, 2, δέκα ἐφεξῆς μηνῶν ἀπηκριβῶσθαί σφισι τὰ πάντα ἐς ἄσκησιν). We know portions of the βουλευτικὸς ὅρκος from various sources: κατὰ τοὺς νόμους βουλεύσειν (Xen. Mem. 1.1, 18), τὰ βέλτιστα βουλεύσειν τῷ δήμῳ τῷ Ἀθηναίων ([Dem.] c. Neaer. p. 1346.4; Lys. c. Philon. § § 1, 31; c. Nicom. § 10), not to divulge the discussions at secret sittings (Lys. c. Philon. § 31; c. Agor. 21;--[Dem.] c. Aristog. 1. p. 776.23; Aristoph. Eccles. 442 ff.), ἀποφαίνειν εἴ τίς τινα οἶδε τῶν λαχόντων ἀνεπιτήδειον ὄντα βουλεύειν (Lys. c. Philon. § 2), οὐδὲ δήσω Ἀθηναίων οὐδένα, ὃς ἂν ἐγγυητὰς τρεῖς καθιστῇ τὸ αὐτὸ τέλος τελοῦντας πλὴν ἐάν τις ἐπὶ προδοσίᾳ τῆς πόλεως ἢ ἐπὶ καταλύσει τοῦ δήμου συνιὼν ἁλῷ, λτ;γτ; τέλος τι πριάμενος ἢ ἐγγυησάμενος ἢ ἐκλέγων μὴ καταβάλλῃ (Dem. c. Timocr. p. 745.144; p. 746.147; p. 747.151;--Andoc. Myst. § 93: cf. [Andoc.] c. Alcib. § 3). In the archonship of Glaucippus in B.C. 410-409 was added, καθεδεῖσθαι ἐν τῷ γράμματι ᾧ ἂν λάχωσι (Philochorus, fr. 119 = Schol. Aristoph. Plut. 972: cf. Gilbert. Beitr. z. innern Gesch. Athens, p. 348 ff.); and in the archonship of Eucleides, οὐ δέξομαι ἔνδειξιν οὐδὲ ἀπαγωγὴν ἕνεκα τῶν πρότερον γεγενημένων πλὴν τῶν φυγόντων (Andoc. de Myst. § 91; Taylor, Lect. Lysiac. p. 325). Fraenkel (Hermes, 1878, p. 452 ff.; see also Westermann, de iusiur. iudic. Athen. formula, and Att. Process, ed. Lipsius, p. 153) restores the oath of the Heliastic dicasts (Dem. c. Timocr. p. 746.149) as follows: ψηφιοῦμαι κατὰ τοὺς νόμους καὶ τὰ ψηφίσματα τοῦ δήμου τοῦ Ἀθηναίων καὶ τῆς βουλῆς τῶν πεντακοσίων, περὶ δ'ὧ ἂν νόμοι μὴ ὦσι γνώμῃ τῇ δικαιοτάτῃ, καὶ οὔτε χάριτος ἕνεκ' οὔτ' ἔχθρας. καὶ ψηφιοῦμαι περὶ αὐτῶν ὧ ἂν ἡ δίωξις ᾖ καὶ ἀκροάσομαι τῶν τε κατηγορούντων καὶ τῶν ἀπολογουμένεν ὁμοίως ἀμφοῖν. ὄμνυμι ταῦτα νὴ τὸν Δία, νὴ τὸν Ἀπόλλω [or Ποσειδῶ], νὴ τὴν Δήμητρα καὶ εἴη μέν μοι εὐορκοῦντι πολλὰ καὶ ἀγαθά, ἐπιορκοῦντι δ'ἐξώλεια αὐτῷ τε καὶ γένει. This cath very probably also contained (after ἔχθρας) the phrase: οὐδὲ δῶρα δέξομαι τῆς ἡλιάσεως ἕνεκα οὔτ' αὐτὸς ἐγὼ οὔτ' ἄλλος ἐμοὶ οὔτ' ἄλλη εὶδότος ἐμοῦ οὔτε τέχνῃ οὔτε μηχανῇ οὐδεμιᾷ. Westermann (l. c. pt. 3. p. 6 f.) took exception to ἐμοὶ οὔτ' ἄλλη ( putida same haec est utriusque sexus distinctio), but Hofmann (de jurandi ap. Athen. formulis, p. 49) restores the same phrase in C. I. A. ii. No. 578, and points to a similar one in Ch. Inscr. Brit. Mus. ii. No. 299 a (Calymna).υαὶ τὸν Δία ακὶ τὸον Ἀπόλλω τὸν Λύκ[ιον καὶ Τᾶν δικασσέω περὶ] ὦν ται ἀντίδικοι ἀντώμοσαν κατὰ γ[νώμαν τὰν δικαιοτάτα]ν . . . . οὐδὲ δῶρα ἔλαβον τὰς δίκας ταύτας ἕ[νεκεν ο]ὔτε αὐτὸς ἐγὼ οὔτε ἄλ (λος) οὔτε ἄλλα ἐμὶ[ν οὐ μηχανᾷ οὐδ]εμιᾷ εὐορκεῦντι μέμ μοι ἐ̄ εἷμεν, ἐπιορκεῦντ[ι δὲ τὰ ἐναντία] Cf. also the oath administered to the dicasts in the inscription from Eresus (Cauer,2 No. 430 c, 50.11 ff.): [ηλτ;γτ;] [μ]ὰν δικάσσω τὰν [δίκαν] [ὄ]σσα μὲν ἐν τοῖ[ς νόμο]ις, τὰ δὲ ἄλλα ἐθ[ελ]όντας ὠς ἄριστα [καὶ δ]ικαίτατα, καὶ τιμά[ς]ω, αἴ κε κατάγυω, ὄρθω[ς κ]αὶ δικαίως οὔτω ποήσω ναὶ μὰ Δία καὶ Ἄλιον. For a time ( its value being essentially temporary, Grote, Hist. of Gr. 8. p. 101 n.) the clause καὶ οὐ μνησικακήσω οὐδὲ ἄλλῳ πείσομαι, ψηφιοῦμαι δὲ κατὰ τοὺς κειμένους νόμους (Andoc. de Myst. § 91) was added to the oath.--The demotae took an oath at a διαψήφισις (ψηφιεῖσθαι γνώμῃ τῇ δικαιοτάτῃ καὶ οὔτε χάριτος ἕνεκ' οὔτ' ἔχθρας, Dem. c. Eubul. p. 1318.63; cf. p. 1301.8, p. 1306.26; Aeschin. c. Tim. § 78); and when the youths were enrolled in the ληξιαρχικὸν γραμματεῖον (Dem. c. Eubul. p. 1318.61; Isae. Apollod. § 28): for the oaths of the euthyni, logistae, and synegori of the demes, cf. C. I. A. ii. No. 578, and Aeschin. c. Tim. § 107; for that of the demarchus or some other officer in connexion with the sacra and the finances of the demes, cf. C. I. A. i. No. 9 = Gk. Inscr. Brit. Mus. i. No. 1.--The oath to be sworn in the δίκαι φονικαὶ is mentioned by Dem. c. Aristocr. p. 642.67; Din. c. Dem. § 47 (ἐν Ἀρείῶ πάγῳ), [Dem.] c. Neaer. p. 1348.9 f. (ἐπὶ Παλλαδίῳ); we know something of its contents: ἐν τῷ ὅρκῳ διορίζεται ὅ τι προσήκων ἐστί, [Dem.] c. Everg. et Mnes. p. 1161.73; μὴ ἄλλα κατηγορήσειν . . . . ἢ εἰς αὐτὸν τὸν φόνον, etc. (Antiph. de caed. Herod. § 11, cf. de Choreut. § 9; Lys. c. Simon. § 46; Pollux, 8.117); ὁ μὲν διώκων ὡς ἔκτεινε διόμνυται, ὁ δὲ φεύγων ὡς οὐκ ἔκτεινεν (Lys. c. Theomn. 1.11; c. Simon. § 21; Antiph. de Choreut. § 16). An oath on the part of the prosecutor after he had gained his suit (ἐπὶ Παλλαδίῳ) is only mentioned by Aeschin. F. L. § 87. In other cases both the accuser and the defendant had to swear an oath in the ἀνάκρισις [ANAKRISIS]; on the oath of the witness, see MARTYRIA; on the evidentiary oath (even a woman who was not competent to give testimony could take an oath of this kind: Att. Process, ed. Lipsius, p. 898 ff.), see DIAETETAEThe importance, at least apparently, attached to oaths in courts of justice, is proved by various passages in the orators. Demosthenes constantly reminds his judges that they are on their oaths, and Lycurgus (c. Leocr. § 79) declares that τὸ συνέχον τὴν δημοκρατίαν ὅρκος ἐστίν: cf. Lys. de Affect. Tyrann. Apol. § 28.

According to Gortyn law, the judge (δικαστὰς) was bound in all the cases where this was prescribed by law to follow the evidence of witnesses, and to give credit to a denial on oath (δικάδδεν κατὰ μαιτύρανς ἒ ἀπόμοτον) touching other matters he had to decide himself under oath (ὀμνύντα κρίνεν, xi. ll. 26-31). Several instances of this oath of exculpation are given: it is sworn by a debtor, in default of witnesses (9.50.54); by a wife (within twenty days) who was charged with having taken away from the house more than her due on being divorced. from her husband (3.1. 7; 11.1. 48 ff.). If a wife bore a child after being divorced, she had to carry it to her husband's house in the presence of three witnesses; if he refused to receive it, it was in her power either to bring it up or to expose it. If she exposed it, however, without having presented it, she made herself liable to a fine of 50 staters; if the husband afterwards claimed such a child or the fine for exposing it, her relatives and witnesses had preference in taking the oath (or had more title to credence) whether they carried the child to the father (ὁρκιοτέρος δ'ἔμεν τὸς καδεστὰνς καὶ τὸς μαιτύρανς, αἰ ἐπέλευσαν, 3.1. 44 ff.). A man taken in adultery with a free woman (not in her father's, brother's, or husband's house) was liable to a fine of 50 staters. The captor had to give notice, in the presence of three witnesses, to the kinsmen of the man taken, that they had to redeem him within five days; if he was not redeemed within that time, it was in the power of the captor to do with him as he liked. If the man taken asserted that a plot had been laid for him, the captor himself and four others had to swear, each calling down curses on himself, that no plot was laid (2.1. 37 ff.). Lastly, a female house-slave debauched by force had a prior claim to swear, or had more title to credence (ὁρκιοτέρα, 2.1. 15 ff.).

The experience of all nations has proved the dangerous tendency of making oaths too common. The history of Athens and of Greece in general furnishes no exception to the observation. The practice of swearing in daily life became very common amongst the Greeks, and in vain did lawgivers and philosophers try to check it. Rhadamanthus did not allow swearing by the gods at all, but ordained swearing by beasts (Schol. Aristoph. Av. 521); Lampon used to swear by the goose, Socrates by the dog (Plat. Apol. p. 21 E: cf. Athen. 9.9), etc., in order that they might not take the names of the gods in vain (cf. phrases like μὰ τὸν with the name of the deity suppressed, Aristoph. Ran. 1374; Plat. Gorg. p. 466 E, etc.). Ὅρκῳ μὴ χρῶ was the maxim of one of the wise men (Stob. Floril. 3, 80): cf. Theognis, 399, 1195 if. Accept an imposed oath for two reasons only, says Isocrates (ad Demon. § 23), either to free yourself from a shameful charge, or to rescue your friends from great perils; never swear where it is a question of money: cf. Plat. Legg. 12. p. 948, who restricts the oath to those who, as far as men may judge, have nothing to gain by a false oath. The sayings of Solon (καλοκἀγαθίαν ὅρκου πιστοτέραν ἔχε, Diog. 50.1.60) and Aeschylus (οὐκ ἀνδρὸς ὅρκοι πίστις, ἀλλ' ὅρκων ἀνήρ, fr. 290 Dind. = Stob. Floril. 27, 2) do not imply depreciation of the oath, but rather enforce the necessity of truthfulness in all the transactions of life. Complaints about perjury are almost as old as the oath itself (Hesiod, Op. et D. 190 foll.; Eur. Iph. T. 1171; Plat. Legg. 12. p. 948, etc.), and the Greeks never enjoyed the reputation of observing their oaths very strictly, although they were probably in this respect no worse than others (Mahaffy takes a more unfavourable view of them: Social Life in Greece, pp. 123, 414 if.). The Spartans especially had a bad name for violating oaths (Isocr. de Pac. § 96; Eur. Androm. 447 ff., ψευδῶν ἄνακτες, etc.; Aristoph. Acharn. 308: cf. the story of king Cleomenes and the Argives in Plut. Moral. p. 223 B, C, and the saying of Lysander, ὅπου ἡ λεοντῆ μὴ ἐφικνεῖται, προσαπτέον ἐκεῖ τὴν ἀλωπεκῆν, etc., Plut. Lys. 7). The Cretans were proverbially perjurers (Callim. Hymn.in Jov. 8, Κρῆτες ἀεὶ ψεῦσται: St. Paul, Tit. 1.12, etc.), and so were the Thessalians (Dem. Olynth. 1. p. 15.22; c. Aristocr. p. 657,. § 112; ἀεὶ τὰ Γετταλῶν ἄπιστα, ἡ παροιμία φησίν, Schol. Aristoph. Plut. 521). It was different with the Athenians, and fides Attica was proverbially used to denote perfect trust-worthiness and good faith (Vell. Paterc. 2.23, 4); the words which Euripides put in the mouth of Hippolytus (611), ἡ γλῶσσ' ὀμώμοχ', ἡ δὲ φρὴν ἀνώμοτος, are said to have provoked cries of indignation amongst the audience. (Lasaulx, Ueber den Eid bei den Griechen). [L.S] [H.H]

(Appendix). Some particulars about the oath of the nine archons are supplied by the Ἀθ. πολ.; it is said that they swear [καθάπερ ] ἐπὶ Ἀκάστου [τῆς πόλεως ἄρξ]ειν; and this is used as an argument to show that the archon was first associated with the king at the accession of Acastus (100.3: cf. ARCHON).

The archons were bound to observe the laws of Solon by an oath which was still sworn by them in the time of the writer (100.7; cf. 100.55): ἀναβάντες δ' ἐπὶ τοῦτον (τὸν λίθον ὑφ ᾧ τὰ ταυιεῖα ἐστίν) ὀμνώουσιν δικαίως ἄρξειν καὶ κατὰ τοὺς νόμους καὶ δῶρα μὴ λήψεσθαι τῆς ἀρχῆς ἕνεκα, κἄν τι λάβωσιν ἀνδρίαντα ἀναθήσειν χρυσοῦν. ἐντεῦθεν δ' ὁμόσαντες, etc. At the same stone οἱ μάρτυρες ἐξόμνυνται τὰς μαρτυρίας.

The treaty in 100.23 (ἐφ οἷς [ὅρκοις] καὶ τοὺς μύδρους ἐν τῷ πελάγει καθεῖσαν) supplies a parallel to Hdt. 1.165(p. 1046 a).

2. Roman

The subject of Roman oaths may be treated under four different heads, viz. (i.) oaths taken by magistrates and other persons who entered the service of the Republic, (ii.) oaths taken in transactions with foreign, nations in the name of the Republic, (iii.) oaths or various modes of swearing in common life, (iv.) oaths taken before the praetor or in courts of justice.

(i.) Oaths taken by magistrates or other persons who entered the service of the Republic.

In the later periods of Roman history we find evidence of an oath which was taken by candidates immediately on their election and before the renuntiatio was made. This oath of fealty to the state was taken by the Emperor Trajan on his election to the consulship (Plin. Pan. 64), and the form of the execratio is given by Pliny (l. c. explanavit verba quibus caput suum,. domum suam, si sciens fefellisset, deorum ille irae consecraret), the gods appealed to being Jupiter and the Dii Penates, to whom were added. later the genii of the deified emperors (Lex. Malacitana, C. I. L. ii. n. 1964, cc. 57, 59). We have every reason to think that this oath extended back to republican times, but Mommsen remarks that it could never have been formally necessary, since it supposed the presence of the candidate, which had not been always a necessary condition of election (Staatsr. 1. p. 620). Besides this oath, there was another originating from the power the populus possessed of binding either present or future magistrates to respect a lex. This became eventually a general oath in leges, which was required of all magistrates. already elected before entering on their official functions, and which had to be taken five days after entrance on office (Liv. 31.50). If we may argue from the Lex Salpensana (C. I. L. ii. n. 196, 100.26), the magistrate could not summon the senate until the oath had been taken; and from the fact that the new magistrate generally summoned the senate upon the day of his entrance on office, it is concluded that the oath must generally have been taken on Jan. 1st. (Mommsen, Staatsr. 1. p. 621). The penalty for not taking the oath within five days was. originally loss of office (Liv. l. c.); afterwards apparently only a fine (Lex Salpens. 100.26): but persistence in a refusal to take the oath must always have been followed by the severer penalty. Vestal virgins and the flamen Dialis. were not allowed to swear on any occasion (Liv. l. c.; Fest. s. v. jurare; Gell. 10.15; Plut. Qu.Rom. p. 275); but whether they also entered upon their sacred offices without taking an oath analogous to that of magistrates is unknown. Where a flamen dialis was elected to a magistracy he might petition the people for an especial dispensation (ut legibus solvereteur), and with their consent depute some one to take the oath for him. During the later period of the Republic we also find that magistrates, when the time of their office had expired, addressed the people and swore that during their office they had undertaken nothing against the Republic, but had done their utmost to promote its welfare (Cic. ad Fam. 5.2, § 7 ; pro Sulla, 11; in Pison. 3; pro Dom. 35). During the Empire we find the Emperor Augustus taking this oath after the holding of the census (Dio Cass.), as it had been taken by the censors of the Republic (Liv. 39.37), and the Emperor Trajan taking it when laying down the consulship (Plin. Pan. 65). In cases where the people required the observance of a special lex to be sworn to, the existing magistrates were sometimes required to take the oath five days after the passing of the law (Lex Bantina, C. I. L. i. n. 197, 1. 14). Other laws bound candidates for office to swear to their observance, as was the case with Caesar's Campanian law (Cic. ad Att. 11.1. 8, 2, habet etiam Campana lex execrationem in contione candidatorum): and in the case of the agrarian law of Saturninus the whole senate was made to promise on oath that they would observe the plebiscitum, and allow it to be carried into effect. The censor Q. Metellus, who refused to swear, was sent into exile (App. Bell. Civ. 1.30; Plut. Mar. 29). Analogous to the oath in leges was that which was required to be taken during the Empire, to observe the acta of the emperors. The obligation to swear in acta Caesaris began in 45 B.C. (App. Bell. Civ. 2.106), and was renewed during the triumvirate (Dio Cass.), the formula running se nihil contra acta Caesaris facturum. This oath bound both magistrates and senate to observe the ordinances of all past emperors, except those whose reigns and memory had been condemned (Suet. Tib. 67; Tac. Ann. 1.72, 12.11-Z2; Dio Cass., 59.9), and was renewed yearly on Jan. 1st (Dio Cass.).

All Roman soldiers, after they were enlisted for a campaign, had to take the military oath (sacramentum). The sacramentum first gave the soldier the right of using weapons against enemies, and distinguished true militia from mere rapine or latrocinium (Liv. 8.34, latrocinii modo caeca et fortuita pro solemni et sacrata militia sit). The oath contained an execratio, and he who broke it was sacer. Hence he could be put to death without trial by the general (Dionys. 11.43). In accordance with the collegiate principle the oath was taken to all the colleagues, the soldier being said jurare in verba consulum, &c. (Liv. 2.52). It was a personal obligation and did not descend to successors in command, except these were in the circle of colleagueship. It, therefore, had to be renewed at every change of command (Liv. 3.20; Mommsen, Staatsr. 1. p. 623), and ceased to be binding when the general was taken by the enemy (Caes. Bell. Civ. 2.32). The formal sacramentum was administered in the following manner. Each tribunus militum assembled his regiment, and picked out one of the men to whom he put the oath that he would obey the commands of his generals and execute them punctually (ἦ μὴν πειθαρχήσειν καὶ ποιήσειν τὸ προσταττόμενον ὑπὸ τῶν ἀρχόντων κατὰ δύναμιν, Plb. 6.21, 2). The other men then came forward one after another and expressed their obligation to the oath, which had been sworn conceptis verbis by the first, by the words idem in me (Fest. s. v. Praejuratio, p. 224; Polyb. l. c.; Liv. 2.45; Serv. in Aen. 7.1). Livy (Liv. 22.38) says that until the year 216 B.C. the military oath was only a sacramentum taken by acclamation, the soldiers swearing voluntarily (conjurabant), and promising that they would not desert from the army nor leave the ranks except to fight against the enemy or to save a Roman citizen. But in the year 216 B.C. the soldiers were compelled by the tribunes to take the oath which the tribunes put to them, that they would meet at the command of the consuls and not leave the standards without their orders, so that in this case the military oath became a jusjurandum. The conjuratio, however, continued to exist side by side with the later sacramentum, and was employed in cases of tumultus, in which there was no time for the recruits to swear singly, and the oath was uttered simultaneously by the troops (Serv. ad Aen. 8.1). Lastly, in cases of sudden danger we find the evocatio employed, which gave rise to the third kind of military oath. The name was applied to the demand made on soldiers who had served their time to resume service on a sudden emergency ; the general addresses these citizens (cives, for they are not properly milites, Serv. ad Aen. 2.157) with the words Qui Rempublicam salvam vultis me sequimini (Donat. ad Ter. Eunuch. 4.7, 2): and they answer by an acclamation that has all the force of an oath. The true sacramentum only belonged to legitima militia, which was distinguished from the conjuratio and evocatio, as a more to a less formal mode of exercising war; but in each case it was the oath which rendered the act of warfare legitimate, by showing that the soldier was acting in the service of the state. Polybius (Plb. 6.33) speaks of another military oath which was taken in camp. This was put to all who served in the army, whether freemen or slaves, as soon as the castrametatio had taken place, by which all promised that they would steal nothing from the camp, and that they would take to the tribunes whatever they might happen to find. A perfect formula of a military oath is preserved in Gellius (Gell. 16.4).

During the Empire the sacramentum acquired a greater extension as the oath of fealty to the emperor. There was no special oath to the princeps as such, but the military oath was taken to him as imperator. As the republican soldier swore in verba consulis, so the subjects of the emperor swore in verba principis or in nomen principis (Tac. Ann. 1.7and 8). The subjects of the emperor, whether citizens or provincials, were in the habit of swearing allegiance, although the oath was only formally necessary for the soldiers, and was a voluntary act on the part of the magistrates, the burgesses and the provincials (Tac. Ann. 1.7; Plin. ad Traj. 52). It was renewed on every recurrence of the day on which it had been taken (Plin. l. c.) and also on every new year's day (Tac. Ann. 1.8; Hist. 1.55). It was administered both at Rome and in the provinces: at Rome by the chief magistrates, the consuls (Tac. Ann. 1.7); in the provinces by the provincial governor (Tac. Ann. 1.34; J. AJ, 3). On the accession of Tiberius we and that the consuls took it first, then administered it to the two chief nonsenatorial officers, the praefecti praetorio and annonae, and then to the senate, soldiers, and populus (Tac. Ann. 1.7). The form of the oath was probably on the whole the same as that of the sacramentum taken to the republican imperator; but we find that a clause was added in which the soldiers declared that they would consider the safety of the emperor of more importance than anything else in life, and that they held him dearer than themselves and their children (Suet. Calig. 15; Dio Cass.). (On the magistrate's oath, see Mommsen, Römisches Staatsrecht, i. pp. 619-622; Madvig, Verwaltung und Verfassung des römischen Stoats, 1. p. 393, 2. p. 547. On the military oath, see Brissonius, de Formul. 4.100.1-5; Mommsen, Röm. Staatsr. 1. p. 623, 2. p. 792; Marquardt, Römische Staatsverwaltung, 2. p. 372 ff.; Madvig, Verw. und Verf. d. röm. St. ii. pp. 479, 546.)

(ii.) Oaths taken in transactions with foreign nations in the name of the Republic.

There were two main forms of agreement with a foreign nation: the sponsio (the formula of question and answer), which soon lost the religious signification which it possessed, and the foedus or sworn treaty. The latter was usually ratified by two or more members of the college of Fetiales, under the authority of the magistrates of the state. The conclusion of the terms of agreement was the act of the magistrate, the king, the consul, or the proconsul in the field; but after he had dictated, or had accepted the terms of agreement, the Fetiales came forward at his bidding (Liv. 1.24, 30.43-Z2), and swore, on behalf of the state, that they should be observed. The presence of the magistrate at this ceremony was not necessary, and the foedus might contain only the names of the Fetiales as witnesses to its observance (Liv. 9.5, 4); but it was necessarily understood that the oath which they took was taken by the imperator (Liv. 1.24, 9), and the state was bound by this act of magistrate and priest. It is probable, however, that for the ratification of a sworn foedus the intervention of the Fetiales was not necessary, although their presence gave added sanctity to the treaty; and that, besides the sponsio, we must consider that there was a foedus capable of being sworn to by an imperator besides that sworn to by the Fetiales. Of the former kind was in all probability the treaty concluded at the Caudine Forks; the absence of the Fetiales made it none the less binding, but rendered its violation less of an open breach of religion than would have been the case, had they been present and sworn its observance (Mommsen, Staatsr. 1. p. 251, n. 1). The Fetiales did not accompany the general to the field; and in every case of a treaty being sworn to with full solemnity at a distance from Rome, they had to be sent to the seat of war (Liv. 38.39, 1): thus, after the Second Punic War, we find them travelling to Africa to perform the ancient ceremonies (Liv. 30.43). The oath which they took was in the form of an execratio, or imprecation pronounced on the state they represented, in the case of its wilful violation of the terms of the treaty ( Si prior defexit publico consilio dolo malo, Liv. 1.24). The most ancient form of oath of this kind is recorded by Livy (Liv. 1.24) in a treaty between the Romans and Albans. The pater patratus pronounced the oath in the name of his country, and struck the victim with a flint stone, calling on Jupiter to destroy the Roman nation in like manner as he (the pater patratus) destroyed the animal, if the people should violate the oath. The execratio was sometimes differently worded, the Fetiales casting away the stone from his hands and saying, Si sciens fallo, tum me Diespiter salva urbe arceque bonis ejiciat, uti ego hunc lapidem (Festus, s. v. Lapidem, p. 115). Owing to the prominent part which the stone (lapis silex) played in this act, Jupiter himself was called Jupiter Lapis (Cic. Fam. 7.1. 2; cf. Plb. 3.25); other deities whose names might enter into the execratio were Mars and Quirinus (Polyb. l. c.). In swearing to a treaty with a foreign nation a victim (a pig or a lamb) was always sacrificed by the Fetiales (whence the expressions foedus icere, ὅρκια τέμνειν), and the priest, while pronouncing the oath, touched the victim or the altar (Verg. A. 11.201; Liv. 21.45: cf. FETIALES). The employment of the Fetiales for the purpose of ratifying a foedus continued throughout the Republic (Varro, L. L. 8.86): in the Empire it seems to have sunk into disuse, although the ceremony was revived by Claudius (Suet. Cl. 25). At first the Romans were very scrupulous in observing their oaths in contracts or treaties with foreigners, and even with enemies; but attempts were soon made by individuals to interpret an oath sophistically and explain away its binding character (Gell. 7.18; Liv. 3.20, 22.61-Z2; Cic. de Off. 3.2. 7, § 102); and from the Third Punic War to the end of the Republic, perjury was common among the Romans in their dealings with foreigners as well as among themselves. (Mommsen, Römisches Staatsrecht, 1. p. 249 ff.) [L.S] [A.H.G]

(iii.) Oaths or various modes of swearing in common life.

The practice of swearing or calling upon some god or gods as witnesses to the truth of assertions made in common life or in ordinary conversations, was as common among the Romans as among the Greeks. The various forms used in swearing may be divided into three classes:-- 1. Simple invocations of one or more gods, as Hercle or Mehercle, --that is, ita me Hercules juvet, amet, or servet (Fest. s. v. Mecastor); Pol, Perpol or Aedepol, that is, per Pollucem; per Jovem Lapidem, or simply per Jovem; per superos; per deos immortales; medius fidius, that is, ita me Dius (Δῖος) filius juvet (Fest. s. v.; Varro, de Ling. Lat. 5.66 M.); ita me deus amet, or dii ament. Sometimes also two or a great number of gods were invoked by their names (Plaut. Bacchid. 4.8, 51; Terent. Andr. 3.2, 25). The genii of men were regarded as divine beings, and persons used to swear by their own genius, or by that of a friend, and during the Empire by that of an emperor (Hor. Epist. i. 7, 94; Suet. Calig. 27). Women as well as men swore by most of the gods; but some of them were peculiar to one of the sexes. Thus women never swore by Hercules, and men never by Castor; Varro, moreover, said that in ancient times women only swore by Castor and Pollux, while in the extant writers we find men frequently swearing by Pollux (Gellius (Gell. 11.6). Juno and Venus were mostly invoked by women, but also by lovers and effeminate men in general (Plant. Amphitr. 2.2, 210; Tibull. 4.13, 15; Juven. 2.98; Ovid, Amor. 2.7, 27, 2.8, 18).2. Invocations of the gods, together with an execration, in case the swearer was stating a falsehood. Execrations of this kind are, Dii me perdant (Plaut. Mil. Glor. 3.2, 20; Cistell. 2.1, 21); dii me interficiant (Plant. Mostell. i. 3, 35); dispeream (Hor. Sat. 1.9, 47); ne vivam (Cic. ad Fam. 7.2. 3; Mart. 10.12, 3); ne salvus sim (Cic. ad Att. 16.1. 3), &c.3. Persons also used to swear by the individuals or things most dear to them. Thus we have instances of a person swearing by his own or another man's head (Dig. 12, 2, 3, 4; Ovid, Ov. Tr. 5.4, 45; Heroid. 3.107 ; Juven. 6.16), by his eyes (Plant. Menaech. 5.9, 1; Ovid, Amor. 2.16, 44), by his own welfare or that of his children (Dig. 12, 2, 5; Plin. Ep. 2.20), by the welfare of an emperor (Cod. 2, 4, 41), &c.

Respecting the various forms of oaths and swearing, see Brissonius, do Formul. viii. cc. 1--18. [L.S]

(iv.) Oaths of parties to an action.

A party to an action might be required to take an oath (jusjurandum) either when the proceedings were before the magistratus (in jure) or when the trial was taking place before a judex (in judicio). The jusjurandum in jure is the oath which one party proffered to his adversary (detulit) that he should take about the matter in dispute, the effect of taking or refusing it being equivalent to that of judgment. Thus, if the defendant took the oath on its being proffered to him by the plaintiff, he was free of the action, and he had answer to any future action on the same claim in the exceptio (plea) jurisjurandi, analogous to the exceptio rei in judicium deductae and rei judicatae. If he simply refused to take it, such refusal was equivalent to confession ( confessionis est nolle nec jurare nec jusjurandum referre), and so he was in the position of a judgment debtor. A defendant might, however, instead of taking the oath, throw it back on the plaintiff (jusjurandum referre), in which case, if the plaintiff accepted the oath, the action was concluded in his favour; and on the other hand, if he refused it, his claim was extinguished. A defendant not challenged to take the oath by the plaintiff might himself propose it (Paul. 2.1, 1: alter ex litigatoribus). A person before accepting the oath might call on the person proposing it to take the jusjurandum calumniae (CALUMNIA; cf. Quintil. Inst. Or. 5.6, 5).

In the event of the defendant refusing to swear, or of the plaintiff accepting the oath when it was offered to him, the plaintiff was allowed by the praetor an actio in factum, which corresponded to the actio judicati. The reason of the jusjurandum having the effect of judgment is explained to be that a party to a cause makes his adversary the judex by proffering the oath to him (deferendo ei jusjurandum, Dig. 44, 5, 1: cf. Quintil. l. c. § 4, qui defert, alioqui agere modeste videtur, cum litis adversarium judicem faciat); the person who proffers the oath voluntarily leaving the matter to the judgment of the Gods and to the conscience of his opponent, instead of having it tried in the ordinary way. Its effect was even greater than that of judgment, since it did not leave an outstanding obligatio naturalis (Dig. 12, 2, 2: Jusjurandum speciem transactionis continet, majoremque habet auctoritatem quam res judicata).

The jusjurandum in jure is called necessarium, because he to whom it is proffered cannot simply refuse it, being thus opposed to the jusjurandum voluntarium, which was a proceeding of the same kind as the jusjurandum in jure, except that it took place out of court. The jusjurandum voluntarium, as well as the jusjurandum necessarium, might be a bar to any further claim (Dig. 44, 5, 1; Ep. Hebr. 6.16, πάσης ἀντιλογίας πέρας . . . ὁ ὅρκος), or it might give rise to an actio in factum.

As the proffer of an oath was possibly prejudicial to a person's interests, so only those who were fully capable of acting for themselves could proffer it. A person could not be compelled to take the oath unless he was of sufficient age: thus a pupillus could not be made subject to the oath. Nor could a procurator or defensor, a vestal and a flamen dialis, be compelled to swear (Gell. 10.15).

The jusjurandum in jure may have been first used in the legis actio per condictionem, and hence its connexion with the actio pecuniae creditae in the Code. In the formulary procedure its lega<*> effects depended on the edict of the praetor. The jusjurandum in judicio (jusjurandum judiciale), which is an oath proffered by one party to the other at the trial of the action, has not the effect of the jusjurandum in jure; it is merely evidence, and the judex can give it such probative force as to him seems just. The employment of it was sometimes prejudicial to the party who proposed it. (See Quintil. Inst. Or. 5.6; M. Annaeus Seneca, Controv. iii. praef.) The oath was not compulsory, but the refusal of it was regarded as strong evidence against the party refusing, unless he was ignorant of the matter in question, or was excused from swearing in order that he might not lay himself open to the suspicion of perjury.

A judex might require a party to an action to make a declaration on oath respecting a matter in dispute. Such an oath was particularly applicable in cases in which the judex had to determine the value of the matter in dispute. As a general rule the aestimatio, or estimation of value or damages, was to be made by the judex conformably to the evidence furnished by the plaintiff; but if the defendant by his dolus or contumacia prevented the plaintiff from recovering the specific thing which was the object of the action, and consequently the plaintiff must have the value of it, the judex could put the plaintiff to his oath as to the value of the thing: but he could also fix a limit (taxatio) which the plaintiff must not exceed in the amount which he declared upon oath. This is called jusjurandum in litem (Dig. 12, 3). This oath is merely evidence: the judex may still either acquit the defendant or condemn him in a less sum.

As to the jusjurandum calumniae, see CALUMNIA; and see JUDEX, JUDICIUM. (Paul. 2.1, de rebus creditis et de jurejurando; Dig. 12, 2, de jurejurando sive voluntario sive necessario, sive judiciali; Cod. 4, 1, de rebus creditis et jurejurando; Puchta, Inst. § 173; Savigny, System, § § 309-313; Keller, Civilprocess, § 64; Bethmann-Hollweg, Civilprocess, § 107.)

[G.L] [E.A.W]