POSTLIMINIO. – This is an institution characteristic of Roman law which, applied in various ways in intermediate law and canon law, still retains certain effects in modern law.
I. ROMAN LAW
A citizen who fell into enemy captivity or went to another country that did not have the foedus amicitiae with the Romans lost his liberty and all the rights founded upon it, becoming a slave. However, since the wartime captivity of a Roman citizen was not considered a iusta causa of slavery (v.), if the captivus returned to his homeland with the intention of remaining there (animus remanendi), he immediately resumed, as soon as he crossed the boundaries of the Roman state, the status 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 view that it involves not the actual extinction and consequent revival of rights, but merely their suspension or dormancy followed by their restoration, seems more acceptable; in the post-classical period, it is described more simply as a fictio iuris, by virtue of which the captivus, upon returning to his homeland, was regarded as if he had never lost his liberty and citizenship.
II. INTERMEDIATE AND MODERN LAW
Postliminium passed into intermediate law, undergoing adjustments and extensions not provided for in classical Roman law, which were nevertheless inevitable following the disappearance of the Roman concept of servitus under the influence of the new Christian concept of legal capacity. It became established principally in the sphere of public law as an institution characteristic of the ius gentium and generally took the form of a possessory action on the specific model of the interdict unde vi or 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 an armed conflict when, in the absence of precise provisions in peace treaties, proceedings are undertaken to reclaim, on behalf of the legitimate owners, those assets and rights that have undergone a change as a result of a wartime event and of which the legitimate holders have been deprived following enemy occupation. It rests on the natural principle, universally accepted by tacit convention, that military occupation is not in itself a title transferring the right of ownership.
III. CANON LAW
Postliminium has had and still retains particular applications in canon law, which, indeed, may be said in its time to have been the predominant factor that helped renew it, Christianizing it, and to have introduced it, with new formulas, into the common law.In the concept and use of postliminium, canon doctrine for several centuries adhered to the principles and development of the common law, but subsequently it gradually adapted these principles to increasingly specific applications and to forms more proper to the canonical sphere, creating a sui generis postliminium, entirely peculiar to the ecclesiastical order. Thus people came to speak of p. secundum canones, as distinct from that secundum leges. The most distinctive feature was the gradual shift of the factual element constituting its immediate title from captivity in war and capture by pirates, barbarians, and infidels to the much broader sphere of unjust dispossession (forced exile, expulsion and unjust detention, etc.) and even to vis maior in general, even when accidental and not malicious (the burning of the cathedral or capitular seat, the ruin of the monastery, etc.).
The fundamental texts on which canon doctrine concerning this matter developed are supplied in the Decretum by cann. 13 and 14 C. 16, q. 3 and, in the Decretals, by c. 10, X, 2, 26. They establish, as the fundamental basis of the institution, the absolute and unlimited imprescriptibility of the rights of those dispossessed, whatever the length of time that has elapsed since the act of dispossession.
With regard to the nature of canonical p., it is not easy to say whether it is a genuine institution in its own right or merely a nomen connected with the more modern forms of the actio recuperandae possessionis, also called actio de spolio, referred to in cann. 1693-98, or with the action for rescission and the restitutio in integrum (cann. 1648-89). The fact is that the ius postliminii, although today expressed in the terms mentioned above, proceeds from a combined and specific application of much 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 person who is its victim.
In the sixteenth and seventeenth centuries, recourse was made to the right of p. for the recovery of churches, capitular seats, and convents usurped by Protestants, as well as for the vindication of the property 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 on account of acts of war or vis iniusta of whatever origin. The most recent applications of the right of p. concern the recovery and restoration of churches and convents usurped by secular governments in the religious suppressions that occurred from the French Revolution onward.