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. i. 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. Cl. 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. Her.
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. iii. p. 37.32), etc.
Women too had their favourite oaths:
μὰ τὼ
θεώ, i. e. Demeter and Persephone (
Aristoph. Eccl. 156),
νὴ τὴν Ἀφροδίτην (
Aristoph. Eccl. 189 ff.: cf. Plat.
Symp. p. 183 B,
ἀφροδίσιον
ὅρκον οὔ φασιν ἐ̂ναι), 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. Ach.
850,
867), the Corinthians by
Poseidon (
Aristoph. Kn. 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. iv. 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. Kn. 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. xi. 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. Cl.
397; cf.
Paus. 5.24,
2), and Dike is seated by his side (
ξύνεδρος Ζηνός,
Soph. Oed. C. 1381; [Dem.]
c. Aristog. i. 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. Frogs 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.
[p. 1.1046]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. Lys. 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. iii. 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. Kn. 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. Lys.
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. Lys. 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. i. 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,
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,
[p. 1.1047]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. i. 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. <*>160 (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. i. p. 776.23;
Aristoph. Eccl. 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,
<*> 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. Pl. 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. iii. 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).
1 For a time ( “its value
being essentially temporary,” Grote,
Hist. of
Gr. viii. 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
DIAETETAE The 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.
[p. 1.1048]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. Birds 521); Lampon
used to swear by the goose, Socrates by the dog (Plat.
Apol. p. 21 E: cf.
Ath. 9.370),
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. Frogs
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. xii. 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. xii. 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.
Ach. 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. i. p. 15.22;
c.
Aristocr. p. 657,. § 112;
ἀεὶ τὰ Γετταλῶν ἄπιστα, ἡ παροιμία φησίν,
Schol.
Aristoph. Pl. 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 ὑφ̓ 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 (
ἐφ̓ 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. i. 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. i. 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;
Gel. 10.15; Plut.
Qu.
[p. 1.1049]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. 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
(
D. C. 53.1), 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. 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. BC
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. BC 2.106),
and was renewed during the triumvirate (
D. C.
47.18), 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;
D. C.
57.8,
59.9), and was renewed
yearly on Jan. 1st (
D. C. 58.17).
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. A. R. 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. i. p. 623), and
ceased to be binding when the general was taken by the enemy (
Caes. 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 (
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 (
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 (
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. 1.7 and 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
[p. 1.1050]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 18.5,
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;
D. C. 59.9). (On the magistrate's oath,
see Mommsen,
Römisches Staatsrecht, i. pp.
619-622; Madvig,
Verwaltung und Verfassung des
römischen Stoats, i. p. 393, ii. p. 547. On the
military oath, see Brissonius,
de Formul. 4.100.1-5;
Mommsen,
Röm. Staatsr. i. p. 623, ii. p.
792; Marquardt,
Römische Staatsverwaltung,
ii. 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), 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. i. 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 (
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 (
Gel. 7.18;
Liv. 3.20,
22.61;
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, i. 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. [p. 1.1051]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, 11.6). Juno and Venus were mostly invoked by
women, but also by lovers and effeminate men in general
(Plaut. Amphitr. 2.2, 210; Tib. 4.13, 15; Juv. 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 (Plaut. Mostell.
i. 3, 35); dispeream
(Hor. Sat. 1.9, 47); ne vivam (Cic. Fam. 7.2. 3; Mart.
10.12, 3); ne salvus sim (Cic. 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
; Juv. 6.16), by his eyes (Plaut.
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 (
Gel. 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.
[p. 1.1052]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]
