Enciclopedia Cattolica Vol. IX, 1952 Canon & civil law

Postliminium

POSTLIMINIO

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Also known as: postliminy; Latin: ius postliminii, jus postliminii

POSTLIMINIUM. - It is an institution characteristic of Roman law which, applied in various ways in medieval law and in canon law, still retains certain reflections in modern law.

I. ROMAN LAW

The citizen who had fallen prisoner to the enemy or had passed over to another country that did not have a foedus amicitiae with the Romans lost his liberty and all the rights that drew their foundation from it, becoming a slave. Nevertheless, since the wartime captivity of a Roman citizen was not held to be a iusta causa of slavery (v.), whenever the captivus returned to his homeland with the intention of remaining there (animus remanendi), he resumed at once, as soon as he had crossed the boundaries of the Roman State, the condition of citizen with all the rights connected with it, ac si captus ab hostibus non esset (D. 49, 15, 5 § 1).

As to the nature of the institution, although the sources prove rather ambiguous and uncertain, the thesis seems more acceptable that it was not a true extinction and consequent revival of rights, but only a suspension or quiescence and subsequent restoration of the same; in the post-classical era, there is more simply talk of a fictio iuris, by virtue of which the captivus, having returned to his homeland, was considered as if he had never lost his liberty and citizenship.

II. INTERMEDIATE AND MODERN LAW

Postliminium passed into the intermediate law, undergoing adaptations and extensions not envisaged in classical Roman law, yet inevitable, following the disappearance of the Roman concept of servitus under the influence of the new Christian concept of legal capacity. It became consolidated principally in the field of public law as an institution characteristic of the ius gentium and for the most part took the form of a possessory action on the specific model of the interdict unde vi or the actio de spolio.

In modern civil legal systems postliminium is preserved as an institution proper to private international law, to which recourse is had, after a war, when, in the absence of precise provisions in peace treaties, the reclamation is undertaken, in favor of the legitimate owners, of those goods and those rights that had undergone a change through the event of war and of which the legitimate holders had been despoiled following enemy occupation. It rests upon the natural principle, universally accepted by tacit convention, that belligerent occupation is not in itself a title transferring the right of ownership.

III. CANON LAW

The p. has had and still retains particular applications also in canon law, which, indeed, may be said to have been in its time the predominant factor that contributed to renewing it, Christianizing it, and introducing it with new formulas into the common law.

In the concept and use of the p., canonical doctrine adhered for several centuries to the principles and the evolution of the common law, but afterward it gradually ended up adapting those principles to ever more specific applications and to forms more proper to the canonical sphere, creating a p. sui generis, entirely proper to the ecclesiastical order. Thus it was customary to speak of a p. secundum canones distinct from that secundum leges. The most characteristic datum was the gradual shift of the factual element, which constitutes its immediate title, from captivity in war and capture by pirates, barbarians and infidels, to the far broader field of unjust despoliation (forced exile, expulsion and unjust detention, etc.) and even to vis maior in general, even if fortuitous and not malicious (fire of the cathedral or of the capitular see, ruin of the monastery, etc.).

The basic texts, on which canonical doctrine on this matter has developed, are provided in the Decretum by cann. 13 and 14 C. 16, q. 3 and, in the Decretals, by c. 10, X, 2, 26. They sanction, as the fundamental basis of the institution, the absolute and unlimited imprescriptibility of the rights of the despoiled, whatever the length of time elapsed since the fact of despoliation.

It is not easy to say, on the subject of the nature of the canonical p., whether it is a true institution in its own right, or merely a nomen, linked to the more modern expressions of the actio recuperandae possessionis, also called actio de spolio, referred to in cann. 1693-98, or also of the rescissory action and of the restitutio in integrum (cann. 1648-89). The fact is that the ius postliminii, even though today it expresses itself in the terms mentioned above, proceeds from a combined and specific application of far broader and more fundamental principles, such as that of the absolute juridical irrelevance of vis iniusta and of the unlimited imprescriptibility of rights, for the entire duration of the vis, in the one who is its victim.

In the 16th and 17th centuries it was customary to have recourse to the right of p. for the recovery of churches, capitular sees and convents usurped by the Protestants, as well as for the reclamation of the goods of the Catholic Church requisitioned and secularized by non-Catholic princes. The same was done for the restoration of convents and monasteries abandoned by religious owing to facts of war or to vis iniusta however determined. The most recent applications of the right of p. concern the recovery and restoration of churches and convents usurped by lay governments in the religious suppressions that occurred from the French Revolution onward.

Bibliography5 works
BIBL.: W. A. Notermans, Dissertatio de Regularium iure redeundi in loca e quibus et et iniustitia expulsi fuerunt, Ruremanda 1899; C. Gennari, Questioni canoniche, Rome 1908, p. 626 ff.; P. Vidal, De iure postliminii in foro ecclesiastico, in Miscellanea Verneersch, I, Rome 1935, pp. 327-36; Ildefonso da S. Fè, De quiescentia iuris, Rome 1941, p. 24 ff. and passim; L. Amirante, Captivitas e postliminium, Naples 1949.

Zaccaria da San Mauro

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By Zaccaria da San Mauro

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Translated from the Enciclopedia Cattolica, vol. IX (1952), coll. 1839–1840.

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Chicago

Zaccaria da S. Mauro. “Postliminio.” In Enciclopedia Cattolica, vol. IX, coll. 1839–1840. Città del Vaticano: Ente per l’Enciclopedia Cattolica e per il Libro Cattolico, 1952. https://azioneromana.com/article/postliminio.

MLA

Zaccaria da S. Mauro. “Postliminio.” Enciclopedia Cattolica, vol. IX, Ente per l’Enciclopedia Cattolica e per il Libro Cattolico, 1952, coll. 1839–1840. Azione Romana, https://azioneromana.com/article/postliminio.

BibTeX

@incollection{ec9_postliminio,
  author    = {Zaccaria da S. Mauro},
  title     = {Postliminio},
  booktitle = {Enciclopedia Cattolica},
  volume    = {IX},
  pages     = {1839--1840},
  note      = {Cited by column},
  publisher = {Ente per l’Enciclopedia Cattolica e per il Libro Cattolico},
  address   = {Città del Vaticano},
  year      = {1952},
  url       = {https://azioneromana.com/article/postliminio}
}

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