The early contract iinoKed an oath. I'he action proceeded not on the oath hut on a subsequent oath inserted into the pleadings that the plaintiffs claim was true.'' As I stated at the outset of this chapter the action is illogical; It conies into being hv the plaintiffs oath hut the issue is purely secular, the proof, decision and penalty are all secular." I'he illogicalit)^ is reduced, though not eliminated, it the oaths that were required to bring the action into being were connected with the original oath in the contract. Religious inxoKement was there from the start. On this basis the first U'gis actio sncmmeuto \\o\i\d have been in persoaani, not in rem. The Twehe Tables laid down that the procedure tor the s'tipulatio would be the Icgis actio per iudicis postulationeni, "the action of the law by petition tor a judge" {G. 4.17a). V If the argument is accurate then there was a religious element in legal proceedings trom the beginning. Once this procedure by an oath was established its scope was extended to situations where there was no preceding oath. I’his expansion w as easier simph' because of the existing and accepted illogicalit\' in the procedure. In time the action was generalized. (7. 4.1; records; "Procedure h\' sacramento was of general application; one proceeded by it in any cases tor which another procedure had not been prescribed by statute." 8 The usual view is that both the plaintiff and the defendant swore an oath: But see Watson, Rome of the XII Tables, pp. i25ff. Which view is correct is irrelevant here. 9 But in early times the penalty may have gone to be spent on public sacrifices: see, e.g. Francis de Zulueta, The Institutes ofGaius, 2 (Oxford, 1953), p. 235. 160
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