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.
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