it was reasonable for him to have, was the object of the dispute, d'hen, hut only for certain types of action, the instructions to the judge might contain the clausula arhitraria, authorization to order restitution to his satisfaction, failing which there would he the candcmjMtio in money. Restitution could not he directly enforced. But if it failed to occur, the judge could condemn either in his own estimation or he could proffer the oath, the iusiurandum in litem, to the plaintiff to state the value of the object, and this valuation would then he the judge's monetary award. The jurist Paul writes: 'It is not readily allowed to enquire into the perjury of one who swears the iusiurandum in litc^n under the necessitv of law. It remains to add that the iusiurandum in litem could onlv be taken when the defendant »17 was acting maliciously or contumaciously."' We can thus exclude the possibility that the oath was used as a shortcut to find the true valuation. It is intended to force the defendant to return the thing, or suffer for it. lusiurandum in litemis a fine example of The Last Best Chance. Its purpose is entirely secular, and it is used to achieve indirectly what cannot he achieved directly."' But it may easily he misunderstood by modern scholars. Fritz Schulz objects to the classicality of the oath on the ground that Romans would not easily foreswear themselves.-" Once again, I am not suggesting had faith on the part of those wTo invented and continued to use the oath in Roman procedure and substantive law. ' On the contrary, oaths were very prominent in Roman life, and until late in the Republic Romans wore regarded and 17 D. 12.3.11. 18 D. 5.i.64pr.; 6.1.68; 6.1.71; 12.3.2; 12.3.4.4; 12.3.5.3; 12.3.8. 19 For other not dissimilar uses of the oath in litigation see Buckland, Textbook, p. 633. 20 Classical Roman taw(Oxford, 1951), p. 370. 21 For Roman manipulation of religion for political ends see. e.g., Alan Watson, The State, Law and Religion: Pagan Rome (Athens, Ga., 1992), pp. 58ff. 133
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