Note 133 — Chapter LVI · FROM THE FESTIVAL OF OLYMPIAD NINETY DOWN TO THE BATTLE OF MANTINEIA.

Thucyd. v, 77. The text of Thucydidês is incurably corrupt, in regard to several words of this clause; though the general sense appears sufficiently certain, that the Epidaurians are to be allowed to clear themselves in respect to this demand by an oath. In regard to this purifying oath, it seems to have been essential that the oath should be tendered by one litigant party and taken by the other: perhaps therefore σέμεν or θέμεν λῇν (Valckenaer’s conjecture) might be preferable to εἶμεν λῇν.

To Herodot. vi, 86, and Aristotel. Rhetoric. i, 16, 6, which Dr. Arnold and other commentators notice in illustration of this practice, we may add the instructive exposition of the analogous practice in the procedure of Roman law, as given by Von Savigny, in his System des heutigen Römischen Rechts, sects. 309-313, vol. vii, pp. 53-83. It was an oath tendered by one litigant party to the opposite, in hopes that the latter would refuse to take it; if taken, it had the effect of a judgment in favor of the swearer. But the Roman lawyers laid down many limits and formalities, with respect to this jusjurandum delatum, which Von Savigny sets forth with his usual perspicuity.