Sui presupposti di applicazione e la natura giuridica degli effetti del postliminium

By premising a blink to the definition and origins of postliminium, the essay inquires into the elements of postliminium, particularly in Late Roman Law. During this period it lays on war imprisonment, as well as in the past, since before the end of the Republic. Little room was also for imprisonment abroad without existing wars (postliminium in pace), whether from allies or not, as in the past, even if in the allied cities settled into the boundaries of the Empire there was probably no space for postliminium in the Empire because there was no legal deprivation of freedom in this context (but it was no probable at all that a Roman citizen would have suffered deprivation of freedom over there. Kidnapping meant for extortion did not cause legal deprivation of freedom so no room for postliminium). There was no space at all for mutation of citizenship, as well as during the Principate (postliminium for change of citizenship was recognized only during the Foedus Cassianum between Latin cities). The elements of postliminium in late Roman Law were not separated from the ones created by Roman jurisprudence. It is not conceivable that postliminium was extended or were created ad hoc ‘postliminium in pace’ for late war prisoners because they did not fulfill the requirements of Roman jurisprudence to be considered war prisoners. It is only outgoing that a big loud of war prisoners were civilian, freed during the fighting or after the peace – even if no treaty at all was agreed –, captured into the Roman boundaries. But there was space for postliminium in these occasions also according to the Roman classic jurisprudence. To ensure a deep analysis is paid attention also to the effects of postliminium, aspect in which a fundamental role was played by the sullan lex Cornelia de captivis. Before that lex the subject was only reintegrated into Roman citizenship, with no recovery of his possessions, after the lex, with no more universal succession in his possession, births the concept, created by the jurisprudence, of ‘ius postliminii’, which labels the right to recover all possession, with some exceptions. Whether this recovery was a rebirth of extinct rights or a full reception od suspended rights is not easy to define, but there is room to mean that in the sabinian school and in late Roman constitutions the second conception prevails, according to the intent of the cornelian law.