was or fne hundred {isxt’s depending t>n the \ alue of the propert\' claimed, and the penaltx' was depcxsited with an official. The ne.xt stage of the action proceeded on the issue of the \ eracit\’ of the oaths, and the loser forfeited the penalt\’.'' Of course, the main point-the sole point-of the action, which apparenth’ has now slippped into the background, was the determination of ownership of the thing. But whose oath was true could be determined only on the basis of who had secular legal title. Ciaius reports: "Procedure hy oath was general. One proceeded by oath for those matters for which otherwise no action was pro\ ided by statute.""’ 'fhus is re\ ealed that once again the oath is used as 'fhe Last Best Cdiance. Where no action is pro\ ided, but where there ought to be one, the secular issue can be litigated on the basis of the oath, .\gain, the secular content of the institution has to be stressed. .Magic or interxention of a god is not inxolxed. d’he oath simplx’ enables the trial to continue, with an examination of the facts bx’ men. d'he problem at issue, oxx iiership, is a secular one. fhere is no dix’ine sanction for breach of the oath, simply the secular loss of the secular penaltx’. But more seems to be going on. fhere is again an element of illogicalitx’. ILxcept for the exceptional case of iiisinriDidiimlibcrti, an oath cannot create a legal obligation, hence cannot x alidate the initiation of legal proceedings. 1 loxx then can legal proceedings be begun in general, xvithout any apparent xalidation, and then haxe their progress X alidated by an oath.- In a second use of the oath in procedure, the iiisiunuuiiimui litem, 'the oath in the laxx suit,' the oath xxas used in more limited circumstances, 'fhe axxard, condcnuuitio, in a Roman prixate laxx action xxas alxvaxcs in iTKxnex’. But at times xx hat the plaintiff really xx anted, and 15 G. 4.10-20. 16 G. 4.13. 132
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