Postliminium, Postliminii Ius
When a Roman citizen during war came into the possession of an enemy, he sustained a
diminutio capitis maxima (see
Caput),
and all his civil rights were in abeyance. Being captured by the enemy, he became a slave; but
his rights over his children, if he had any, were not destroyed, but were said to be in
abeyance (
pendere) by virtue of the
ius postliminii:
when he returned, his children were again in his power; and if he died in captivity, they
became
sui iuris. Sometimes by an act of the State a man was given up
bound to an enemy, and if the enemy would not receive him, it was a question whether he had
the
ius postliminii. This was the case with Sp. Postumius, who was given
up to the Samnites, and with C. Hostilius Mancinus, who was given up to the Numantines, but
the better opinion was that they had no
ius postliminii, and Mancinus was
restored to his civil rights by a special law (
Cic. De
Orat. i. 40, 141;
Cic. Off. iii. 30,
109;
Cic. Top. 8, 36;
Pro
Caec. 34, 98). It appears that the
ius postliminii was founded on
the fiction of the captive having never been absent from home—a fiction which was of
easy application, for, as the captive during his absence could not perform any legal act, the
interval of captivity was a period of legal non-activity, which was terminated on his
reappearance. See Bechmann,
Das Ius Postliminii und die Fictio Legis
Corneliae (Erlangen, 1872).
