As we know, ancient Rome waged wars frequently. Consequently, situations in which Roman citizens were captured were not uncommon. Under Roman law, a prisoner of war ceased to exist as a subject.
Being taken prisoner (captivitas) was an example of capitis deminutio maxima (literally, a diminishment of one’s personality to the utmost degree; from the word caput, meaning head), meaning the loss of citizenship (cives Romani) and legal personality.
Falling into slavery, and consequently the loss of subjectivity, carried far-reaching legal consequences. Such a Roman lost all public rights, as well as civil ones, including paternal authority (patriae potestatis) and the status of pater familias. Limited property rights (e.g., pledges) also expired, and marriages were dissolved (due to the loss of the so-called conubium). In other words, in the legal sphere, someone who was taken prisoner instantly transformed from a person into a thing.
It sometimes happened, however, that such an unfortunate person returned from captivity. There could be many reasons for this change of fate. They could be ransomed or subject to a prisoner exchange. They could escape from captivity, be rescued, or even released.
In such a case, ius postliminii – the right of return – (postliminium) applied. Under this legal institution, a citizen automatically (by operation of law) regained their legal and property status. This occurred upon crossing the border of the Roman state (or one allied with it). This is where the name of the right in question comes from – from the word limen, meaning “threshold.”
Ius postliminii did not apply to individuals who had behaved dishonorably, such as deserters or soldiers who surrendered with weapons in hand. This was intended to maintain rigor and military discipline. However, society was flexible in this regard, especially when it came to surrender. Each case was considered individually. Even those sentenced to work in the mines and subsequently enslaved returned to their homeland as prisoners.
However, there were significant exceptions to the scope of the ius postliminii. Despite the restoration of full rights:
- the Roman citizen did not regain possession;
- the marriage was not “reactivated.” If both parties still desired to be married, the marriage had to be renewed. This could only happen, however, if the woman had not remarried.
Interestingly, a captured pater familias, upon returning from captivity, had to recognize his son’s marriage. This state of captivity eliminated the need to obtain the father’s consent to the marriage.
If the captive died in captivity, ius postliminii did not apply. The lex Cornelia de captivis, enacted around 80 BCE during the dictatorship of Lucius Cornelius Sulla, applied. Based on this law, it was fictitiously assumed that a Roman citizen had died at the moment of capture (i.e., as a free person), which allowed for the validity of a will and inheritance (this was the so-called fictio legis Corneliae). As usual, the practical legal sense of the Romans was evident.
