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only the consideration of how it would be adjudged by a court of
justice in a civil state； constituted by the united will of all。 In
this connection； fulfillment of the formal conditions of
acquisition； that in themselves only establish a personal right； is
postulated as sufficient； and they stand as an equivalent for the
material conditions which properly establish the derivation of
property from a prior putative owner； to the extent of making what
is in itself only a personal right； valid before a court； as a real
right。 Thus the horse which I bought when exposed for sale in the
public market； under conditions regulated by the municipal law；
becomes my property if all the conditions of purchase and sale have
been exactly observed in the transaction； but always under the
reservation that the real owner continues to have the right of a claim
against the seller； on the ground of his prior unalienated possession。
My otherwise personal right is thus transmuted into a real right；
according to which I may take and vindicate the object as mine
wherever I may find it； without being responsible for the way in which
the Seller had come into possession of it。
It is therefore only in behoof of the requirements of juridical
decision in a court （in favorem justitae distributivae） that the right
in respect of a thing is regarded； not as personal； which it is in
itself； but as real； because it can thus be most easily and
certainly adjudged； and it is thus accepted and dealt with according
to a pure principle a priori。 Upon this principle； various statutory
laws come to be founded which specially aim at laying down the
conditions under which alone a mode of acquisition shall be
legitimate； so that the judge may be able to assign every one his
own as easily and certainly as possible。 Thus； in the brocard；
〃Purchase breaks hire；〃 what by the nature of the subject is a real
right… namely the hire… is taken to hold as a merely personal right；
and； conversely； as in the case referred to above； what is in itself
merely a personal right is held to be valid as a real right。 And
this is done only when the question arises as to the principles by
which a court of justice in the civil state is to be guided； in
order to proceed with all possible safety in delivering judgement on
the rights of individuals。
40。 IV。 Acquisition of Security by the Taking of an Oath。
（Cautio Juratoria）。
Only one ground can be assigned on which it could be held that men
are bound in the juridical relation to believe and to confess that
there are gods； or that there is a God。 It is that they may be able to
swear an oath； and that thus by the fear of an all…seeing Supreme
Power； whose revenge they must solemnly invoke upon themselves in case
their utterance should be false； they may be constrained to be
truthful in statement and faithful in promising。 It is not morality
but merely blind superstition that is reckoned upon in this process；
for it is evident it implies that no certainty is to be expected
from a mere solemn declaration in matters of right before a court；
although the duty of truthfulness must have always appeared
self…evident to all； in a matter which concerns the holiest that can
be among men… namely； the right of man。 Hence recourse has been had to
a motive founded on mere myths and fables as imaginary guarantees。
Thus among the Rejangs； a heathen people in Sumatra； it is the custom…
according to the testimony of Marsden… to swear by the bones of
their dead relatives； although they have no belief in a life after
death。 In like manner the negroes of Guinea swear by their fetish； a
bird's feather； which they imprecate under the belief that it will
break their neck。 And so in other cases。 The belief underlying these
oaths is that an invisible power… whether it has understanding or not…
by its very nature possesses magical power that can be put into action
by such invocations。 Such a belief… which is commonly called religion；
but which ought to be called superstition… is； however；
indispensable for the administration of justice； because； without
referring to it； a court of justice would not have adequate means to
ascertain facts otherwise kept secret； and to determine rights。 A
law making an oath obligatory is therefore only given in behoof of the
judicial authority。
But then the question arises as to what the obligation could be
founded upon that would bind any one in a court of justice to accept
the oath of another person as a right and valid proof of the truth
of his statements which are to put an end to all dispute。 In other
words； what obliges me juridically to believe that another person when
taking an oath has any religion at all； so that I should subordinate
or entrust my right to his oath？ And； on like grounds； conversely； can
I be bound at all to take an oath？ It is evident that both these
questions point to what is in itself morally wrong。
But in relation to a court of justice… and generally in the civil
state… if it be assumed there are no other means of getting to the
truth in certain cases than by an oath； it must be adopted。 In
regard to religion； under the supposition that every one has it； it
may be utilized as a necessary means （in causu necessitatis）； in
behoof of the legitimate procedure of a court of justice。 The court
uses this form of spiritual compulsion （tortura spiritualis） as an
available means； in conformity with the superstitious propensity of
mankind； for the ascertainment of what is concealed； and therefore
holds itself justified in so doing。 The legislative power； however； is
fundamentally wrong in assigning this authority to the judicial power；
because even in the civil state any compulsion with regard to the
taking of oaths is contrary to the inalienable freedom of man。
Official oaths； which are usually promissory； being taken on
entering upon an office； to the effect that the individual has sincere
intention to administer his functions dutifully； might well be changed
into assertory oaths； to be taken at the end of a year or more of
actual administration； the official swearing to the faithfulness of
his discharge of duty during that time。 This would bring the
conscience more into action than the promissory oath； which always
gives room for the internal pretext that； with the best intention； the
difficulties that arose during the administration of the official
function were not foreseen。 And； further； violations of duty； under
the prospect of their being summed up by future censors； would give
rise to more anxiety as to censure than when they are merely
represented； one after the other； and forgotten。
As regards an oath taken concerning a matter of belief （de
credulitate）； it is evident that no such oath can be demanded by a
court。 1。 For； first； it contains in itself a contradiction。 Such
belief； as intermediate between opinion and knowledge； is a thing on
which one might