Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/131

Rh completion, and when produced for proof be confirmed by oath of the producer.

In lieu of proof by witnesses or documents, oaths were sometimes resorted to. The judge might propose to one of the parties to support his allegation by an oath, and, if the oath was taken, the judge would naturally decide that point in his favour. But either party might challenge the other, either before trial or in the course of it, to swear to some particular matter, and if the party so challenged swore in the terms of the challenge, the matter would be held to be decided as much as by a judgment, and in any further dispute between the parties or their sureties or persons joined with them the oath if relevant could be pleaded or acted on as decisive. And the same result ensues, if the party to whom the oath is tendered declares his readiness to swear and the other then waives the demand. The party called on to swear may instead of taking the oath retort the demand, and the other party is then in the same position as if the oath had been originally tendered to him. In earlier times probably such tender of oath could be declined in most cases without prejudice, but Justinian apparently makes no restriction, and a defendant for instance to an action for money lent, if plaintiff tendered him an oath whether it was due or not, had no choice except either to take the oath or admit the debt, unless indeed he retorted the tender. Plaintiff, if he accepted the retort, would have first to swear to his own good faith and then could establish his claim by the oath. In all cases the oath, if it is to carry the consequence stated, must not be volunteered, but taken in reply to the challenge and must conform precisely to the terms.

The requirement of an oath was also resorted to in some cases by the judge in order to compel obedience, wrongly refused, to an interlocutory decision. The plaintiff was allowed to fix the damages himself, by an oath of the amount due. This was called in litem jurare, "to swear to the disputed claim."

The criminal law was put in force either on the magistrate's own initiative or by private persons. Women and soldiers were not admitted as accusers, unless the crime was against themselves, or their near relatives. Anyone desiring to bring an accusation had to specify the date and place of the crime and to give a surety for due prosecution. Laws of Constantine, and Arcadius, retained by Justinian, directed that any servant (familiaris) or slave bringing an accusation against his master should be at once put to death before any inquiry into the case or production of witnesses. And the like was enacted (423) in the case of a freedman accusing his patron. Excepted from this rule were cases of adultery, high treason, and fraud in the tax-return (census). An accuser not proving his case was (373) made subject to the penalty belonging to the crime charged. A like rule of talion was prescribed in some other cases.