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to the convenience of a court of justice。
For everything alienable must be capable of being acquired by
anyone。 The rightfulness of acquisition； however； rests entirely
upon the form in accordance with which what is in possession of
another； is transferred to me and accepted by me。 In other words；
rightful acquisition depends upon the formality of the juridical act
of commutation or interchange between the possessor of the thing and
the acquirer of it； without its being required to ask how the former
came by it； because this would itself be an injury； on the ground
that： Quilibet praesumitur bonus。 Now suppose it turned out that the
said possessor was not the real owner； I cannot admit that the real
owner is entitled to hold me directly responsible； or so entitled with
regard to any one who might be holding the thing。 For I have myself
taken nothing away from him； when； for example； I bought his horse
according to the law （titulo empti venditi） when it was offered for
sale in the public market。 The title of acquisition is therefore
unimpeachable on my side； and as buyer I am not bound； nor even have I
the right； to investigate the title of the seller； for this process of
investigation would have to go on in an ascending series ad infinitum。
Hence on such grounds I ought to be regarded； in virtue of a regular
and formal purchase； as not merely the putative； but the real owner of
the horse。
But against this position； there immediately start up the
following juridical principles。 Any acquisition derived from one who
is not the owner of the thing in question is null and void。 I cannot
derive from another anything more than what he himself rightfully has；
and although as regards the form of the acquisition the modus
acquirendi… I may proceed in accordance with all the conditions of
right when I deal in a stolen horse exposed for sale in the market；
yet a real title warranting the acquisition was awanting； for the
horse was not really the property of the seller in question。 However I
may be a bona fide possessor of a thing under such conditions； I am
still only a putative owner； and the real owner has the right of
vindication against me （rem suam vindicandi）。
Now； it may be again asked； what is right and just in itself
regarding the acquisition of external things among men in their
intercourse with one another… viewed in the state of nature
according to the principles of commutative justice？ And it must be
admitted in this connection that whoever has a purpose of acquiring
anything must regard it as absolutely necessary to investigate whether
the thing which he wishes to acquire does not already belong to
another person。 For although he may carefully observe the formal
conditions required for appropriating what may belong to the
property of another； as in buying a horse according to the usual terms
in a market； yet he can； at the most； acquire only a personal right in
relation to a thing （jus ad rem） so long as it is still unknown to him
whether another than the seller may not be the real owner。 Hence； if
some other person were to come forward and prove by documentary
evidence a prior right of property in the thing； nothing would
remain for the putative new owner but the advantage which he has drawn
as a bona fide possessor of it up to that moment。 Now it is frequently
impossible to discover the absolutely first original owner of a
thing in the series of putative owners； who derive their right from
one another。 Hence no mere exchange of external things； however well
it may agree with the formal conditions of commutative justice； can
ever guarantee an absolutely certain acquisition。
Here； however； the juridically law…giving reason comes in again with
the principle of distributive justice； and it adopts as a criterion of
the rightfulness of possession； not what is in itself in reference
to the private will of each individual in the state of nature； but
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 j