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.Alaw 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 venture to lay a wager but not to swear an oath.2.
