POSTLIMI´NIUM
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.]
[
J.B.M]
