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POSTLIMI´NIUM, JUS POSTLIMI´NII. “There are,” says Pomponius (Dig. 49, 15, 14, pr.), “two kinds of Postliminium, for a man may either return himself, or recover something;” and similarly Paulus says (Dig. ib. 19, pr.) that Postliminium “is the right of recovering a lost thing from an extraneus and of its. being restored to its former status, which right. has been established between us (the Romans) and free peoples and kings by usage and statutes (moribus ac legibus): for what we have lost in war or even apart from (citra) war, if we recover it, we are said to recover postliminio <*> and this usage has been introduced by natural equity, in order that he who was wrongfully detained by strangers should recover his former rights on returning to his own territories (in. fines suos):” and Paulus adds, “A man seems to have returned by postliminium when he returns into our territory, just as he is lost. when he leaves it; and even if he has come [p. 2.473]into a state in alliance or friendship with Rome, or to a friendly or allied king, he appears to have at once returned by postliminium, because he then first begins to be safe under the name of the state.” These extracts are given in order to clear up the etymology of the term, which was derived by Scaevola from post and limen, a derivation accepted by Festus, Boethius, and Isidorus, but questioned by Servius Sulpicius: for “what has been lost by us and has come to an enemy, and as it were gone from its own limen, and then has afterwards (post) returned to the same limen, seems to have returned by postliminium” (Cic. Top. 8, 36; Inst. 1.12, 5). According to this explanation, the limen was the boundary or limit within which the thing was under the authority of Rome and her law: similarly Servius (on Verg. A. 11.267) speaks of the limen imperii. Mr. Poste (in his note on Gaius, 1.129) suggests that the word is derived from pot, the root of potestas or possessio, and limen or stlimen = ligamen, and therefore would denote the bridging over of the interval of captivity by a fiction of continued capacity or possession, as a doorway is bridged over by a lintel (limen): but this begs the question as to the derivation of limen itself, and we cannot discover that this etymology is favoured by any consensus among modern scholars. There is a fanciful explanation of the subject by Plutarch (Quaest. Rom. 5) in his answer to the question, Why those who have been falsely reported to have died in a foreign land are not received into the house through the door in case of their return, but are let down through an opening in the roof?

As a principle of law, postliminium seems in origin to have been derived from the Jus feciale, as indeed is suggested by the passage of Paulus in Dig. 49, 15, 19, cited above. Speaking generally, it relates to the rights of Roman subjects who were captured in war and subsequently returned to their own country, and to ownership (or analogous rights) over things or persons who after similar capture were recovered from the enemy. As Pomponius remarks, it has two aspects--one active, and the other passive.

As regards the former--if a Roman citizen during war came into the power of an enemy, he underwent capitis deminutio maxima, and all his civil rights were in abeyance, because he thereby became a slave. But if he returned to his own country, he was held (subject to certain conditions) to recover by postliminium all the rights which belonged to him at the time of his capture or which had accrued to him since; a doctrine which was based on the fiction that he had never been absent from home: “perinde omnia restituuntur ei jura ac si captus ab hostibus non esset” (Dig. 49, 15, 5, 1). Thus he recovered his freedom and civitas (Cic. pro Balbo, 11, 12, 27-30; de Orat. 1.40, 181), his own property and rights over the property of others, and his potestas over children who would have been in his power had he never been captured. If he died a captive, it was a question in Gaius' time (1.129) whether the filiifamilias dated their release from power from the capture or the decease: Justinian, following Ulpian, decided in favour of the former (Inst. 1.12, 5). Originally marriage was dissolved by the capture of either party, and it could not be restored by postliminium, a fresh consensus being required if the captive returned (Dig. 49, 15, 14, 1), but eventually captivity was regarded as in no way differing from ordinary absence, proof being required of the absent party's death before the other could lawfully marry again (Nov. 117, 11). These rights, however, were none of them recovered by a returned captive unless he had been taken with arms in his hands, or if he returned during an armistice; and their recovery must have been intended (Dig. 49, 15, 5, 3). Finally, if a man made a will before he was taken prisoner, and afterwards returned, the will was upheld by postliminium notwithstanding his intermediate slavery: if he died in captivity, it was held good by the fictio of the Lex Cornelia, a statute passed by Sulla B.C. 80, which imposed penalties on those who forged wills of persons who died in captivity, and thus implicitly recognised their validity (Inst. 2.12, 5; Dig. 28, 1, 12).: If a Roman was ransomed by another person, he became free, but he was in the nature of a pledge to the ransomer, and the jus postliminii had no effect till he had repaid the ransom money.

Sometimes a man was given up bound to an enemy by an act of the state; and if the enemy would not receive him, it was a question whether he had the jus postliminii. This was the case with Sp. Postumius, who was surrendered to the Samnites, and with C. Hostilius Mancinus, who was given up to Numantia: the latter was restored to his civic rights by a lex, so that the better opinion was that postliminium had no operation. (Cic. de Orat. i, 40, 141; de Off. 3.30, 109; Top. 8, 36; pro Caec. 34, 98;--Dig. 49, 15, 4; 50, 7, 18).

The Romans acknowledged capture in war as the source of ownership in other nations, as they claimed it in their own case. Accordingly things taken by the enemy lost their Roman owners: but (in its passive aspect) postliminium operated to subject certain things and persons to the dominion and power under which they had been at the time of capture if recovered. Thus free persons in potestas, if they returned from captivity, fell again under the power of their paterfamilias (Dig. 49, 15, 14, pr.; Inst. 2.1, 17); and the same principle was applied to land, slaves, ships, horses and mules (Cic. Top. 1 c. Dig. 49, 15, 2, 3: cf. Festus, s. v. Postliminium). Arms were not included, for it wad a maxim that they could not be honourably lost (Dig. l.c.). In analogy with a rule already stated, the owner of a thing (e. g. a slave) which was ransomed by another person was not entitled to it till he had repaid the ransom; but there may seem to be some difficulty in adjusting the rights of the parties if we suppose that one civis recaptures property subject to the rule of postliminium which had belonged to another Roman citizen. But this may be solved by the observation that in time of war no civis could individually be considered as acting on his own behalf under any circumstances; whatever he did was the act of the state. The rule of the jus gentium that enemies' property is res nullius, and belongs to him who first seizes on it, only applied to hostile property within the territory of the other belligerent (Dig. 41, 1, 51): what was taken from the enemy on his own soil belonged to the state, and vested in individuals [p. 2.474]only by sale or grant (Dig. 49, 15, 28; Dionys. A. R. 7.63). From this principle, however, the things subject to postliminium which have been enumerated above, were excepted (Liv. 5.16;--Dig. 49, 15, 19, 10; ib. 28, 30); the actual taker was regarded as the agent of the state, and the state itself restored them to their previous owners.

The law of Postliminium applied to times of peace as well as of war, when the circumstances were such that the person or thing could become the property of another nation (Dig. 49, 15, 5), as, for instance, of a nation which had neither an amicitia, hospitium, or foedus with Rome: for it might be thus related without being hostis; for a nation was not hostis, in the later acceptation of the term, till either it or Rome had declared war against the other. Robbers and pirates were not hostes, but they had no political organisation, so that capture by them did not change the legal position of the person or property seized: the persons continued free in law, and the property never ceased to belong to its rightful owners, so that no occasion arose for the application of postliminium.

[The best treatises on this subject are those of Hase (Halle, 1851) and Bechmann (Erlangen, 1872), both called Das jus Posttiminii und die Fictio legis Corneliae. For the influence of the principle in International Law the reader may refer to an article on the subject by F. Brockhaus in Holtzendorff's Rechtslexicon.]


hide References (4 total)
  • Cross-references from this page (4):
    • Vergil, Aeneid, 11.267
    • Livy, The History of Rome, Book 5, 16
    • Cicero, Topica, 1
    • Cicero, Topica, 8
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