§5.6.1iusiurandum litigatores aut offerunt suum aut non recipiunt oblatum, aut ab adversario exigunt aut recusant, cum ab ipsis exigatur.
Litigants either offer their own oath, or do not accept one when offered, or demand an oath from their adversary, or refuse when it is demanded from them.
offerre suum sine illa condicione, ut vel adversarius iuret, fere improbum est.
To offer one's own oath without that condition—namely, that the adversary also swear—is generally improper.
§5.6.2qui tamen id faciet, aut vita se tuebitur, ut eum non sit credibile peieraturum; aut ipsa vi religionis, in qua plus fidei consequetur, si id egerit, ut non cupide ad hoc descendere sed ne hoc quidem recusare videatur; aut, si causa patietur, modo litis, propter quam devoturus se ipse non fuerit; aut praeter alia causae instrumenta adiicit ex abundanti hanc quoque conscientiae suae fiduciam.
He, however, who does this will defend himself either by his character, so that it is incredible that he would commit perjury; or by the very power of religious feeling, in which he will gain more credibility if he so acts as to appear not to resort to this eagerly, but not even to refuse it; or, if the case allows, by the smallness of the dispute, for the sake of which he would not be likely to subject himself to solemn self-devotion; or, in addition to the other instruments of his case, he adds this confidence of his own conscience also, as something superabundant.
§5.6.3qui non recipiet, et iniquam condicionem et a multis contemni iurisiurandi metum dicet, cum etiam philosophi quidam sint reperti, qui deos agere rerum humanarum curam negarent; eum vero, qui nullo deferente iurare sit paratus, et ipsum velle de causa sua pronuntiare et, quam id quod offert leve ac facile credat, ostendere.
He who will not accept it will say both that the condition is unfair, and that the fear of an oath is disregarded by many, since even certain philosophers have been found who denied that the gods care for human affairs; and as for him who is ready to swear when no one demands it, he will say that he wants to pass judgment on his own case himself, and shows how light and easy he believes that which he offers to be.
§5.6.4at is, qui defert, agere modeste videtur, cum litis adversarium iudicem faciat, et eum cuius cognitio est onere liberat, qui profecto alieno iureiurando stari quam suo mavult.
But he who demands an oath seems to act modestly, since he makes his adversary the judge of the dispute, and he frees the person whose jurisdiction it is from a burden, who indeed prefers that the matter be decided by another's oath rather than his own.
§5.6.5quo difficilior recusatio est, nisi forte res est ea, quam credibile sit notam ipsi non esse.
For this reason, refusal is more difficult, unless perchance the matter is of such a nature that it is credible that it was not known to the person himself.
quae excusatio si deerit, hoc unum relinquetur, ut invidiam sibi quaeri ab adversario dicat atque id agi, ut in causa, in qua vincere non possit, queri possit; itaque hominem quidem malum occupaturum hanc condicionem fuisse, se autem probare malle quae adfirmet, quam dubium cuiquam relinquere, an peierarit.
If this excuse is lacking, only this one thing will remain: for him to say that ill-will is being sought against him by his adversary, and that the aim is that, in a case in which the adversary cannot win, he may be able to complain; and that, therefore, while a bad man would indeed have seized upon this condition, he himself prefers to prove what he asserts, rather than leave anyone in doubt as to whether he has committed perjury.
§5.6.6sed nobis adolescentibus seniores in agendo facti praecipere solebant, ne temere unquam iusiurandum deferremus, sicut neque optio iudicis adversario esset permittenda nec ex advocatis partis adversae iudex eligendus; nam, si dicere contraria turpe advocato videretur, certe turpius habendum, facere quod noceat.
But when we were young, those who had grown old in actual practice used to instruct us never to demand an oath rashly, just as the choice of a judge should not be allowed to the adversary, nor should a judge be selected from the advocates of the opposing party; for, if it seemed shameful for an advocate to say things contrary to his own side, it should certainly be held more shameful to do what is harmful to it.