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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 diminvttio eapitis maxima, and all his civil rights we-re ;in abeyance. Being captured by the enemy, he became a slave ; but his rights over his children, if lie 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 conditipn 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 films or nepos being made a captive, the parental power was suspended (in suspe?iso). 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. s. 14). As to a wife, the matter was different: the husband did not recover his wife jure postliininii., 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 lie was m the nature of a pledge to the ranspmer, and the Jus Postliminii had no effect till he had paid the ransom money.
Sometimes by an &&t .of the state a man was given up bound to aa enemy ; and if the enemy would not receive him., it was a question wliether 3ie 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 .Cae-cina^ c. 34 ; Dig. 49. tit. 15. s. 4 ; 50. tit. 7. s. 17): and Mancinus was restored to his civic rights by a Lex. (Dig. 50. tit. 7. s. 17.)
Cicero (Pro Balbo, c. 12) uses the word Postli-Hiinium in a different sense ; for lie applies it to the case of a man who had, by hjis.own voluntary act, ceased to be a citizen of a state, and subsequently resumed his original civic rights by ;Post|i-ininium.
It appears that the Jus Positliminii was founded on the fiction of the captive having neyor been absent from home ; a fiction which was of eas-y,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 ag the source of ownership in other nations, as they claimed it in their own ease. Accordingly things taken by the enemy lost their Roman owners ; but when tliey 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 inoveables, which are enumerated by Cicero as Res Postliminii (Top. 8), "homo (that is slaves), navis, mulus clitellarius, equus, equa quae fraena fecipere solet." (Compare Festus, s.u.Postliminium.}
Anns were not Res Postliminii, for it was a maxim that they could not be honourably lost.
The recovery above referred to seems to mean the recovery by the Roman state or by the original .owner. If an individual recaptured irom an enemy wjiat 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 fcould 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. s. 28), "Si quid bello captum est, in praeda est, non postliminip redit.;" and Pomponius (Dig. 49. tit. 1-5. s. 20) 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 \\\q 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 (pracdci), 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, an<| restored to their owners, I-t also applied .to a slave who escaped from the enemy and returned to his master. The maxim "quae res hostiles apud nos sunt, occu-pantiura fhmt" (Dig. 40. tit;. 1, s, 51) has no reference to capture from the enemy, as it sometimes seems to be supposed. .(Muhlenbruch, Doct. Pand. p. 242.)
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, arid ihe would not at once recover the ownership, as above supposed. The answer is, that it may be so, and that this matter of Postli-minium, particularly as regards things, waits for a careful investigation. As a general rule all inoveables belonging to an enemy, which were captured by a Hainan; army, were Praeda, apparently not the property of the individual soldier who hap-, pened 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 inoveables 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