Quintilian's Institutes of Oratory
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Book 5 - Chapter 6

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On offering to take an oath, and receiving that of the opposite party § 1, 2. Arguments on the subject, 3-5. Judgment of the experienced respecting it, 6.

1. AS to an oath, parties going to law either offer their own or refuse to receive that of their adversary when offered, or they require one from him, or refuse to take one when required from themselves. For a person to offer to take an oath himself, without allowing his opponent to take his, is commonly a sign of bad faith. 2. He, however, who shall do so must either shelter himself under such purity of moral conduct as to make it incredible that he will commit perjury, or under the influence of religion (in regard to which he will gain more credit if he act in such a manner as not to appear to come forward with eagerness to take his oath, and yet not to shrink from taking it); or on the small importance of the cause, should such be its nature, for the sake of which he would hardly incur the divine displeasure; or if, in addition to other means of gaining his cause, he offers his oath, superabundantly, as it were, as the testimony of a pure conscience.

3. He who shall be unwilling to receive the oath of his adversary will allege the inequality of the terms and remark that the fear of taking an oath is lightly regarded by many, as even philosophers have been found to deny that the gods pay any attention to human affairs. He who is ready to swear without any one putting him to his oath is disposed to give sentence himself in his own cause and to show how light and easy a thing he considers the obligation by which he offers to bind himself. 4. But he who offers to accept his adversary's oath, besides appearing to act with moderation, as he makes his opponent the arbiter of the cause, relieves the judge also, to whom the decision belongs, from a heavy responsibility, since he would certainly rest rather on another man's oath than on his own. 5. Hence the refusal to take oath becomes the more difficult, unless the affair in question happens to be such that it cannot be supposed to be known to the party. If this excuse be wanting, there will be but one course left for him, which is to say that odium is sought to be excited against him by his opponent, whose object is to make it appear that he has ground for complaint in a cause in which he cannot obtain victory. Accordingly, though a dishonest man would have eagerly availed himself of such a proposal, he himself would rather prove what he asserts than leave it doubtful in the mind of any one whether he were guilty of perjury.

6. But in my younger days, men who had grown old in pleading used to lay it down as a rule that we should never give our opponent the option of taking his oath, as also that he should never be allowed the choice of a judge, and that a judge should not be taken from the counsellors of the opposite party, since if it was thought dishonorable in an advocate to speak against his client, it should assuredly be considered more dishonorable to do anything that would injure him.


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Lee Honeycutt (honeycuttlee@gmail.com) Last modified:6/28/2004
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