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 p949  Postliminium

Article by George Long, M.A., Fellow of Trinity College
on pp949‑951 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

POSTLIMI′NIUM, JUS POSTLIMI′NII "There are," says Pomponius (Dig. 49 tit. 15 s14), "two kinds of postliminium, for a man may either return himself or recover something." Postliminium is further defined by Paulus (Dig. 49 tit. 15 s19) to be 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 people and kings by usage and laws (moribus ac legibus); for what we have lost in war or even out of 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)." Again Paulus says, "a man seems to have entered our territory (in fines nostros intraverit); as a foundation is laid for a Postliminium (sicuti admittitur) (?)1 when he has gone beyond our territories (ubi fines nostros excessit). But if a man has come into a state in alliance (socia) or friendship with Rome, or has come to a King in alliance or friendship with Rome, he appears to have forthwith returned by Postliminium, because he then first begins to be safe under the name of the Roman state." These extracts are made for the purpose of clearing up the Etymology of this word, as to which there was a difference of opinion (Cic. Top. 8). The explanation of Scaevola, as given by Cicero, has reference to the etymology of the word, post and limen: "what has been lost by us from its own limen, and then has afterwards (post) returned to the same limen, seems to have returned by Postliminium." According to this explanation, the limen was the boundary or limit within which the thing was under the authority of Rome and an object of Roman law. A recent writer (Goettling, Geschichte der Röm. Staatsverfassung, p117) suggests that Postliminium must be viewed in a sense analogous to Pomoerium. There is a fanciful explanation of this matter by Plutarch (Quaest. Rom. 5) in his answer to the question, Why are  p950 those who have been falsely reported to have died in a foreign land, not received into the house through the door, in case of their return, but let down through an opening in the roof?

If a Roman citizen during war came into the power of an enemy, he sustained a diminutio capitis maxima, 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 Jus Postliminii: when he returned, his children were again in his power: and if he died in captivity, they became sui juris. Whether their condition as sui juris dated from the time of the captivity or of the death, was a disputed matter (Gaius, I.129); but Ulpian, who wrote after Gaius, declares that in such case he must be considered to have died, when he was made captive; and this is certainly the true deduction from the premises. In the case of a filius or nepos being made a captive, the parental power was suspended (in suspenso). If the son returned, he obtained his civic rights and the father resumed his parental power; which is the case mentioned in the Digest (49 tit. 15 s14). As to a wife, the matter was different: the husband did not recover his wife jure postliminii, but the marriage was renewed by consent. This rule of law involves the doctrine, that if a husband was captured by the enemy, his marriage, if any then existed, was dissolved. 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 paid the ransom money.

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 Jus 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 Jus Postliminii (Cic. De Or. I.40, De Off. III.30, Top. 8, Pro Caecina, c34; Dig. 49 tit. 15 s4; 50 tit. 7 s17): and Mancinus was restored to his civic rights by a Lex (Dig. 50 tit. 7 s17).

Cicero (Pro Balbo, c12) uses the word Postliminium in a different sense; for he applies it to the case of a man who had, by his own voluntary act, ceased to be a citizen of the state, and subsequently resumed his original rights by Postliminium.

It appears that the Jus 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 do any legal act, the interval of captivity was a period of legal non-activity, which was terminated by his showing himself again.

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 when they were recovered, they reverted to their original owners. This was the case with land that had been occupied by the enemy, and with the following moveables, which are enumerated by Cicero as Res Postliminii (Top. 8), "homo (that is slaves), navis, mulus clitellarius, equus, equa quae fraena recipere solet" (cf. Festus, s.v. Postliminium). Arms were not Res Postliminii, for it was a maxim that they could not be honourably lost.

The recovery above referred to sems to mean the recovery by the Roman state or by the original owner. If an individual recaptured from an enemy what had belonged to a Roman citizen, it would be consistent that we should suppose that the thing recaptured was made his own by the act of capture; but if it was a res postliminii, this might not be the case. If a thing, as a slave, was ransomed by a person not the owner, the owner could not have it till he had paid the ransom: but it does not appear to be stated how the matter was settled, if a Roman citizen recaptured property (of the class res postliminii) that had belonged to another Roman citizen. This apparent difficulty may perhaps be solved thus: in time of war no Roman citizen could individually be considered as acting on his own behalf under any circumstances, and therefore whatever he did was the act of the State. It is a remark of Labeo (Dig. 49 tit. 15 s28), "Si quid bello captum est, in praeda est, non postliminio redit;" and Pomponius (Dig. 49 tit. 15 s20) states, that if the enemy is expelled from Roman lands, the lands return to their former owners, being neither considered public land nor praeda; in making which remark he evidently assumes the general doctrine laid down by Labeo. Paulus also, in his remark on Labeo's rule of law, merely mentions an exception to the rule, which is of a peculiar kind. If then anything taken in war was booty (praeda), to what did the Jus Postliminii apply? It applied at least to all that was restored by treaty or was included in the terms of surrender, and slaves no doubt were a very important part of all such things as were captured or lost in time of war; and they were things that could be easily identified, and restored to their owners. It also applied to a slave who escaped from the enemy and returned to his master. The maxim "quae res hostiles apud nos sunt, occupantium fiunt" (Dig. 40 tit. 1 s51) has no reference to capture from the enemy, as it sometimes seems to be supposed (Mühlenbruch, Doct. Pand. p242).

It may be objected that the explanation of one difficulty, that has been already suggested, raises another. According to this explanation, if a man in time of war recaptured his own slave, it would be praeda, and he would not at once recover the owner­ship, as above supposed. The answer is, that it may be so, and that this matter of Postliminium, particularly as regards things, waits for a careful investigation. As a general rule all moveables belonging to an enemy, which were captured by a Roman army, were Praeda, apparently not the property of the individual soldier who happened to lay his hands on them, but the property of the state or at least of the army. Now the difficulty is to ascertain whether all moveables so taken were Praeda, except Res Postliminii; or whether all things so taken were Praeda, Res Postliminii included. In the former case, the Res Postliminii would be the property of the owner when he could prove them to have been his, as in the case mentioned by Livy (V.16): in the latter, when a thing had become Praeda, it had lost its capacity (if we may so speak) of being a Res Postliminii. The distinction here made is a fundamental one. The difficulty partly arises from the expression of Labeo above quoted, Si  p951 quid &c., where the Florentine reading has been followed. But Bynkershoek (Op. Omn. I. p76) amends the reading into Si quod, &c., the propriety of which may be doubted. [Praeda.]

If a man made a will before he was taken captive, and afterwards returned, the will was good jure postliminii. If he died in captivity, the will was good by the Lex Cornelia. The law of Postliminium applied to time of peace as well as war, when the circumstances were such that the person or the thing could become the property of another nation (Dig. 49 tit. 15 s5), as for instance of a nation that had neither an amicitia, hospitium, nor a foedus with Rome; for such might be the relation of a nation to Rome, and yet it might not be Hostis. A nation was not Hostis, in the later acceptation of that term, till the Romans had declared war against it, or the nation had declared war against Rome. Robbers and Pirates were not hostes, and a person who was captured by them did not become a slave, and therefore had no need of the Jus Postliminii. There are some remarks on Postliminium in Walter, Geschichte des Röm. Rechts, p50, and the notes, 1st ed.

The Author's Note:

1 "sicuti amittitur," Flor., Geb. et Spang.

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