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p659 Jusjurandum

Article by George Long, M.A., Fellow of Trinity College
on pp659‑663 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

JUSJURANDUM (ὅρκος), an oath.

1. 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. Hence the expressions ἴστω Ζεὺς, θεὸν μαρτύρομαι, and others of the same import, so frequently used in the taking of oaths (Soph. Trach. 399, Antig. 184; St. p660Paul, Galat. i.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. Hence an oath is called θεῶν ὅρκος (Hom. Hym. ad Merc. 272. 515; Pind. Ol. VII.119). Ζεὺς ὅρκιος (Soph. Philoct. 1324) is the god who has regard to oaths, and punishes their violation. Ζῆν᾽ ἔχων ἐπώμοτον (Soph. Trach. 1190) means (according to Suidas) ὅρκου ἐγγυητήν.

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. III.276). The alliance between Croesus and the Lacedaemonians is confirmed by oath (Herod. I.69). So is the treaty between the Medes and Lydians, whose rites in swearing (as Herodotus tells us, I.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. We may further notice the treaty of peace between the Athenians and Peloponnesians, upon which every state was to swear ἐπιχώριον ὅρκον τὸν μέγιστον (Thucyd. V.47), the vow of the Ionian women (Herod. I.146), that of the Phocaeans (Id. 165), and the promise of Circe to Ulysses (Od. X.345). The reliance placed in an oath is specially shown in the dialogue between Aegeus and Medea in Eurip. Med. 736‑730; and the speech of Athena in Eurip. Suppl. 1196. For other examples we refer the reader to soph. Oed. Tyr. 647, Oed. Col. 1637, Trachin. 1183; Herod. VI.74; Hom. Il. IX.132.

That the Greeks (as a nation) were deeply imbued with religious feeling, and paid high regard to the sanctity of oaths, may be gathered from the whole tenor of their early history, and especially from the writings of the poets, Homer, Aeschylus, and Pindar (see Thirlwall, Hist. of Greece, vol. I c. vi §3). They prided themselves on being superior in this respect to the barbarians (Aelian. XIV.2). The treacherous equivocation practised by the Persians at the siege of Barca (Herod. IV.201) would have been repugnant to the feelings of a people, whose greatest hero declared that he hated like hell one

Ὅς χ᾽ ἕτερον μὲν κεύθῃ ἐνὶ φρεσὶν, ἄλλο δὲ βάζῃ.

Il. IX.313.

The poets frequently allude to the punishment of perjury after death, which they assign to the infernal gods or furies (Hom. Il. IV.157, XIX.260; Pind. Olymp. II.118; Aristoph. Ran. 274), and we find many proofs of a persuasion that perjurers would not prosper in this world (Hom. Il. IV.67, 270, VII.351; Hesiod. Op. et Dies, 280; Thuc. VII.18). One of the most striking is the story told by Leutychides 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 (Herod. VI.86; Pausan. II.18, VIII.7; Juv. Sat. XIII.202).

Anciently the person who took an oath stood up, and lifted his hands to heaven, as he would in prayer; for an oath was a species of prayer, and required the same sort of ceremony (Hom. Il. XIX.175, 254; Pind. Ol. VI.119). Oaths were frequently accompanied with sacrifice or libation (Hom. Il. IV.158; Aristoph. Acharn. 148, Vesp. 1048). Both sacrifice and libation are used in the compact of the Greeks and Trojans in Il. III.276. The victims on such occasions were not eaten; but, if sacrificed by the people of the country, were buried in the ground; if by strangers, were thrown into the sea or river (Il. III.310, XIX.267).

The parties used also to lay their hands upon the victims, or on the altar or some other sacred thing, as if by doing so they brought before them the deity by whom the oath was sworn, and made him witness of the ceremony. Hence the expressions πρὸς τὸν βωμὸν ἐξορκίζειν, ὀμνύναι καθ᾽ ἱερῶν (see Reiske, Index ad Dem. s.v. Ὀμνύναι; Harpocr. s.v. Λίθος; Thuc. V.47; Goeller, ad loc.; Juv. Sat. XIV.219; Ovid, Epist. Dido ad Aen. 129). In Homer (Il. XIV.270), Juno, making a solemn promise to Sleep, takes the Earth in one hand and Heaven in the other, and swears by Styx and the subterranean gods. To touch the head, hand, or other part of the body, of the person to whom the promise was made, was a common custom. The hand especially was regarded as a pledge of fidelity, and the allusions to the junction of hands in making contracts and agreements abound in the ancient writers (Eurip. Medea, 496; Soph. Philoct. 812, Trach. 1183; Ovid. Ep. Phyllis ad Demoph. 21, Briseis ad Ach. 107; Hom. Hym. ad Ven. 26). Other superstitious rites were often superadded, to give greater solemnity to the ceremony (Aesch. Sept. c. Theb. 42; Soph. Antig. 264; Demosth. c. Con. 1269), which appear to be ridiculed by Aristophanes (Lysist. 188).

The different nations of Greece swore by their own peculiar gods and heroes; as the Thebans by Hercules, Iolaus, &c., the Lacedaemonians by Castor and Pollux, the Corinthians by Poseidon (Aristoph. Acharn. 774, 860, 867, Equites, 609, Lysist. 81, 148); the Athenians swore principally by Zeus, Athena, Apollo (their πατρῶος θεὸς), Demeter, and Dionysus.

The office or character of the party, or the place, or the occasion often suggested the oath to be taken. Thus, Iphigeneia the priestess swears by Artemis in Eurip. Iph. in Tauris. Menelaus bids Antilochus swear by Poseidon (the equestrian god), the subject being on horses (Il. XXIII.585). So Philippides, in Arist. Nub. 83, is made ridiculously to swear νὴ τὸν Ποσειδῶ τὸν ἵππιον. Achilles swears by his sceptre (Il. I.234), Telemachus by the sorrows of his father (Od. XX.339). Hence the propriety of the famous oath in Demosthenes, by the warriors who fought at Marathon, &c. Here we may observe, that as swearing became a common practice with men upon trivial occasions, and in ordinary conversation, they used to take oaths by any god, person, or thing, as their peculiar habits or predilections, or the fancy of the moment, dictated. Pythagoras on this account swore by the number Four (Lucian, Pythag. 4; Plut. de Plac. Phil. I.3.16). Socrates used to swear νὴ τὸν κύνα, in which he was absurdly imitated by others (Athen. IX p370). Aristophanes, so keenly alive to all the foibles of his countrymen, takes notice of this custom, and turns it into ridicule. Hence he makes the sausage-dealer swear νὴ τὸν Ἑρμῆν τὸν ἀγοραῖον (Equit. p661297), Socrates μὰ τὴν Ἀναπνοὴν, &c. (Nub. 627.) (See further Vesp. 83, Aves, 54, 1611, Ran. 336, 1169.)

Women also had their favourite oaths. As the men preferred swearing by Hercules, Apollo, &c., so the other sex used to swear by Aphrodite, Demeter, and Persephone, Hera, Hecate, Artemis; and Athenian women by Aglauros, Pandrosus, &c. (Lucian, Dial. Meretr. 7; Xen. Memor. I.5 §5; Aristoph. Lysist. 81, 148, 208, 439, Eccles. 70, Thesm. 286, 383, 533; Theocr. Idyll. XV.14).

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 vested with authority, or intrusted with the discharge of responsible duties (Plato, de Leg. XII. p948). The Athenians, with whom the science of legislation was carried to the greatest perfection, were, of all the Greek states, the most punctilious in this respect. The youth, entering upon his 20th year, was not permitted to assume the privileges of a citizen, or to be registered in the ληξιαρχικὸν γραμματεῖον, without taking a solemn oath in the temple of Aglauros to obey the laws and defend his country. (The form of his oath is preserved in Pollux, VIII.105.) The archon, the judge, and the arbitrator, were required to bind themselves by an oath to perform their respective duties (see Pollux, l.c.; Hudtwalcker, über die Diät. p10; and Dicastes). As to the oath taken by the Senate of Five Hundred, see Demosth. c. Timoc. 745. As to the oath of the witness, and the voluntary oath of parties to an action, see Martyria. The importance, at least apparently, attached to oaths in courts of justice, is proved by various passages in the orators (Andoc. de Myst. 5; Lycurg. c. Leocr. 157 ed. Steph.; Antiph. de m. Herod. 139, 140 ed. Steph.; Demosth. c. Aphob. 860). Demosthenes constantly reminds his judges that they are on their oaths, and Lycurgus (l.c.) declares that τὸ συνέχον τὴν δημοκρατίαν ὅρκος ἐστίν.

The experience of all nations has proved the dangerous tendency of making oaths too common. The history of Athens and of Greece in general furnished no exception to the observation. While in the popular belief and in common parlance oaths continued to be highly esteemed, they had ceased to be of much real wealth or value. It is impossible to read the plays of Aristophanes, the orators, and other writers of that period, without seeing that perjury had become a practice of ordinary occurrence. The poet who wrote that verse which incurred the censure of the comedian, ἡ γλῶσσ᾽ ὀμώμοχ᾽, ἡ δὲ φρὴν ἀνώμοτος (Eur. Hippol. 612; Aristoph. Thesm. 275), was not the only person who would thus refine. The bold profligacy described by Aristophanes (Nub. 1232‑1241, Equit. 298) was too often realized in action. To trace the degeneracy of the Greek character belongs not to this place. We conclude by reminding our readers that in a later age the Greeks became a by-word among the Romans for lying and bad faith (Cic. pro Flacco, 4; Juv. Sat. III.60, &c.).

A few expressions deserve notice. Νὴ is used by Attic writers in affirmative oaths, μὰ in negative. The old form of affirmation, still preserved by the other Greeks, and used by Xenophon, was ναὶ μὰ (Xen. Mem. II.7 §14, Apol. Socr. 20). Νὴ is nothing more than another form of ναὶ, used with an accusative case, μὰ being omitted, as it often is in negative oaths (Soph. Oed. Tyr. 660, 1088, Elect. 758, 1063). Νὴ, however, is never used by the tragedians, who always employ a paraphrase in affirmative oaths, such as θεὸν μαρτύρεσθαι. Ἐπομνύναι is used affirmatively, ἀπομνύναι negatively, according to Eustathius (Hom. Od. II.377). Διόμνυσθαι is to swear strongly, to protest (Soph. Trach. 378). ὅρκιον, though often used synonymously with ὅρκος, signifies more strictly a compact ratified by oath; ὅρκια τάμνειν is to make a compact with oaths and sacrifice; and through the frequent practice of sacrificing on such occasions, it came that ὅρκιον was sometimes used for the victim itself (Hom. Il. III.245). In the phrase ὀμνύναι καθ᾽ ἱερῶν, the original meaning of κατὰ was, that the party laid his hand upon the victims; but the same phrase is used metaphorically in other cases, where there could be no such ceremony. Thus κατὰ χιλίων εὐχὴν ποιήσασθαι χιμάρων (Arist. Equit. 660) is to make a vow to offer one thousand kids; as though the party vowing layed his hands upon the kids at the time, as a kind of stake. The same observation applies to ὀμνύναι κατ᾽ ἐξωλείας (comp. Lasaulz, Ueber den Eid bei den Griechen, Würzburg, 1844).

2. Roman. The subject of Roman oaths may be treated under four different heads, viz.: 1. Oaths taken by magistrates and other persons who entered the service of the republic. 2. Oaths taken in transactions with foreign nations in the name of the republic. 3. Oaths, or various modes of swearing in common life. 4. Oaths taken before the praetor or in courts of justice.

I. Oaths taken by magistrates and other persons who entered the service of the republic. — After the establishment of the republic the consuls, and subsequently all the other magistrates, were obliged, within five days after their appointment, to promise on oath that they would protect and observe the laws of the republic (in leges jurare, Liv. XXXI.50; compare Dionys. V.1). Vestal virgins and the flamen dialis were not allowed to swear on any occasion (Liv. l.c.; Festus, s.v. Jurare; Plut. Quaest. Rom. p275), but whether they also entered upon their sacred offices without taking an oath analogous to that of magistrates is unknown. When a flamen dialis was elected to a magistracy, he might either petition for an especial dispensation (ut legibus solveretur), or he might depute some one to take the oath for him. But this could not be done unless the permission was granted by the people. The first Roman consuls seem only to have sworn that they would not restore the kingly government, nor allow any one else to do so (Liv. II.1; Dionys. l.c.), and this may have been the case till all fears of such a restoration having vanished, the oath was changed into a jusjurandum in leges. The consular oath was occasionally taken under the empire (Plin. Paneg. 64).

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. V.2 §7, pro Sulla 11, in Pison. 3, pro Dom. 35; Dion Cass. XXXVII p52, XXXVIII p72, LIII p568, ed. Steph.; Liv. XXIX.37). In some cases a tribune of the people might compel the whole senate to promise on oath that they would observe a plebiscitum, p662and allow it to be carried into effect, as was the case with the lex agraria of Saturninus. The censor Q. Metellus, who refused to swear, was sent into exile (Appian, B. C. I.29; Cic. pro Sext. 47; Plut. Mar. 29). During the time of the empire all magistrates on entering their office were obliged to pledge themselves by an oath that they would observe the acta Caesarum (jurare in acta Caesarum, Suet. Tiber. 67; Tac. Annal. I.72, XIII.26, XVI.22; Dion Cass. XLVII p384, &c.), and the senators had to do the same regularly every year on the first of January (Dion Cass. LVIII. p724; compare Lipsius, Excurs. A. ad Tacit. Annal. XVI.22).

All Roman soldiers after they were enlisted for a campaign, had to take the military oath (sacramentum), which 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. The other men then came forward one after another and repeated the same oath, saying that they would do like the first (idem in me, Polyb. VI.21; Festus, s.v. Praejurationes). Livy (XXII.38) says that until the year 216 B.C. the military oath was only sacramentum, i.e. the soldiers took it voluntarily, and promised (with imprecations) that they would not desert from the army, and not 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. But Livy here forgets that long before that time he has represented (III.20) the soldiers taking the same jusjurandum. A perfect formula of a military oath is preserved in Gellius (XVI.4; compare Dionys. VI.23).

It may here be remarked that any oath might be taken in two ways: the person who took it, either framed it himself, or it was put to him in a set form, and in this case he was said in verba jurare, or jurare verbis conceptis. Polybius (VI.33) speaks of a second oath which was put to all who served in the army, whether freemen or slaves, as soon as the castrametatio had taken place, and 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. The military oath was, according to Dionysius (XI.43), the most sacred of all, and the law allowed a general to put to death without a formal trial any soldier who ventured to act contrary to his oath. It was taken upon the signa, which were themselves considered sacred. In the time of the empire a clause was added to the military oath, in which the soldiers declared that they would consider the safety of the emperor more important than anything else, and that they loved neither themselves nor their children more than their sovereign (Arrian, Epict. III.14; Suet. Calig. 15; Ammian. Marc. XXI.5). On the military oath in general, compare Brissonius, De Formul. IV. c1‑5.

II. Oaths taken in transactions with foreign nations in the name of the republic. The most ancient form of an oath of this kind is recorded by Livy (I.24), in a treaty between the Romans and Albans. The pater patruus 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 patruus) destroyed the animal, if the people should violate their oath. The chiefs or priests of the other nation then swore in a similar manner by their own gods. The ceremony was sometimes different, inasmuch as the fetialis cast away the stone from his hands, saying, Si sciens fallo, tum me Diespiter salva urbe arceque bonis ejiciat, uti ego hunc lapidem. (Festus, s.v. Lapidem.) Owing to the prominent part which the stone (lapis silex) played in this act, Jupiter himself was called Jupiter Lapis (Polyb. III.25), and hence it was in aftertimes not uncommon among the Romans in ordinary conversation to swear by Jupiter Lapis (Gellius, I.21; Cic. ad Fam. VII.1, 12; Plut. Sulla, 10). In swearing to a treaty with a foreign nation, a victim (a pig or a lamb) was in the early times always sacrificed by the fetialis (whence the expressions foedus icere, ὅρκια τέμνειν), and the priest while pronouncing the oath probably touched the victim or the altar (Virg. Aen. XII.201, &c.; Liv. XXI.45; compare Fetiales). This mode of swearing to a treaty through the sacred person of a fetialis, was observed for a long time, and after the second Punic war the fetiales even travelled to Africa to perform the ancient ceremonies (Liv. XXX.43). The jus fetiale, however, fell into disuse as the Romans extended their conquests; and as in most cases of treaties with foreign nations, the Romans were not the party that chose to promise anything on oath, we hear no more of oaths on their part; but the foreign nation or conquered party was sometimes obliged to promise with a solemn oath (sacramentum) to observe the conditions prescribed by the Romans, and documents recording such promises were kept in the capitol (Liv. XXVI.24). But in cases where the Romans had reason to mistrust, they demanded hostages as being a better security than an oath, and this was the practice which in later times they adopted most generally. 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 (Gellius, VII.18; Liv. III.20, XXII.61; Cic. de Off. III.27, &c.), 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.

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 (Festus, 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 (Δίος) filius juvet (Fest. s.v.; Varro, de Ling. Lat. IV. p20, Bip.); ita me deus amet, or dii ament. Sometimes also two or a great number of gods were invoked by their names (Plaut. Bacchid. IV.8.51; Terent. Andr. III.2.25). The genii of p663men 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 (Horat. 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, XI.6). Juno and Venus were mostly invoked by women, but also by lovers and effeminate men in general (Plaut. Amphit. II.2.210; Tibull. IV.13. 15; Juv. II.98; Ovid. Amor. II.7.27, II.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. III.2.20, Cistell. II.1.21); dii me interficiant (Plaut. Mostell. I.3.35); dispeream (Horat. Sat. I.9.47); ne vivam (Cic. ad Fam. VII.23; Mart. X.12.3); ne salvus sim (Cic. ad Att. XVI.13), &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. tit. 2 s3 §4; Ovid, Trist. V.4.45; Heroid. III.107; Juv. VI.16), by his eyes (Plaut. Menaech. V.9.1; Ovid. Amor. II.16.44), by his own welfare or that of his children (Dig. 12 tit. 2 s5; Plin. Epist. II.20), by the welfare of an emperor (Cod. 2 tit. 4 s41), &c.

Respecting the various forms of oaths and swearing see Brissonius, de Formul. VIII. cc.1‑18.

[L. S.]

IV. Oaths taken before the praetor or in courts of justice. There might be a jusjurandum either in jure or in judicio. The jusjurandum in jure had a like effect to the confessio in jure, and it stood in the place of the Litis Contestatio (Dig. 5 tit. 1 s28 §2). The jusjurandum in jure is the oath which one party proposed to his adversary (detulit) that he should make about the matter in dispute; and the effect of the oath being taken or refused was equivalent to a judicium. If the defendant took the oath, he had in answer to the actio an exceptio (plea) jusjurandi, analogous to the exceptio rei in judicium deductae and rei judicatae. If the plaintiff swore, he had an actio in factum (on the case) analogous to the actio judicati. The reason of the jusjurandum having this effect is explained (Dig. 44 tit. 5 s1) to be, that a party to a cause makes his adversary the judex by proposing to him to take the oath (deferendo ei jusjurandum).a This jusjurandum which is proposed (delatum) in jure, is called necessarium, because he to whom it is proposed cannot simply refuse it; he must either take the oath, or, in his turn, propose (referre) that the proposer shall take it. Simple refusal was equivalent to confessio (confessionis est nolle nec jurare nec jusjurandum referre; Dig. 12 tit 2 s38). In the Edict (Dig. 12 tit. 2 s34 §6), the praetor says that he will compel the person from whom the oath is demanded to pay or to take the oath. A pupillus, a procurator, a defensor, a Vestal, and a flamen dialis could not be compelled to swear (Gell. X.15).

The jusjurandum in judicio (jusjurandum judiciale) is required by the judex, and not by either of the parties, though either of the parties may suggest it. This jusjurandum 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. Such an oath is only wanted when other evidence fails.b The judicial 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 estimate 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 that he declared upon oath. This is called jusjurandum in litem (Dig. 12 tit. 3). This oath is merely evidence; the judex may still either acquit the defendant or condemn him in a less sum (Dig. 22 tit. 3; De probationibus et praesumptionibus).

As to the Jusjurandum Calumniae, see Calumnia; and see Judex, Judicium.

[G. L.]

Thayer's Notes:

a The jusjurandum was taken so seriously that an accidental challenge could be insisted on as valid by the judges, the defendant getting off scot-free; as happened to Albucius, an (otherwise!) famously successful rhetorician — Suet. de Rhet. 6.

b An interesting example is given by Gellius, IV.20.7.

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