De captivis et de postliminio et redemptis ab hostibus
(Concerning captives, the right of postliminium, and persons ransomed from the enemy.)
1 Marcellus libro vicensimo secundo digestorum. Quod servus eius, qui ab hostibus captus est, postea stipulatus est, aut si legatum sit servo eius, posteaquam ille ad hostes pervenit, hoc habebunt heredes eius, quia et si captivitatis tempore decessisset, adquisitum foret heredi.
1 Marcellus, Digest, Book XXII. If a slave of anyone who has been taken prisoner by the enemy should afterwards enter into a stipulation, or if a legacy should be bequeathed to his slave after he has fallen into the hands of the enemy, his heirs will be entitled to it, for the reason that if he should die during his captivity it would be acquired by his heir.
2 Idem libro trigensimo nono digestorum. Navibus longis atque onerariis propter belli usum postliminium est, non piscatoriis aut si quas actuarias voluptatis causa paraverunt. 1Equus item aut equa freni patiens recipitur postliminio: nam sine culpa equitis proripere se potuerunt. 2Non idem in armis iuris est, quippe nec sine flagitio amittuntur: arma enim postliminio reverti negatur, quod turpiter amittantur:
2 The Same, Digest, Book XXXIX. The right of postliminium attaches to large ships and those used for the transport of merchandise on account of the custom of war; but it does not apply to those of fishermen, or to fast sailing vessels built for pleasure. 1Likewise, a horse or a mare broken to the bridle is acquired by the right of postliminium, for they have been able to escape without the fault of the rider. 2The same rule of law does not apply to arms, for they are not lost without disgrace. Hence arms cannot be recovered by the right of postliminium, since it is dishonorable to lose them.
3 Pomponius libro trigensimo septimo ad Quintum Mucium. item vestis.
3 Pomponius, On Quintus Mucius, Book XXXVII. The same rule applies to clothing.
4 Modestinus libro tertio regularum. Eos, qui ab hostibus capiuntur vel hostibus deduntur, iure postliminii reverti antiquitus placuit. an qui hostibus deditus reversus nec a nobis receptus civis Romanus sit, inter Brutum et Scaevolam varie tractatum est: et consequens est, ut civitatem non adipiscatur.
4 Modestinus, Rules, Book III. It was formerly held that those who are taken by the enemy, or who surrender to him, were entitled to the right of postliminium, after their return. But is he who surrendered to the enemy, and after his return is not received by us, a Roman citizen? This was decided differently by Brutus and Scævola. The result is that he cannot recover his citizenship.
5 Pomponius libro trigensimo septimo ad Quintum Mucium. Postliminii ius competit aut in bello aut in pace. 1In bello, cum hi, qui nobis hostes sunt, aliquem ex nostris ceperunt et intra praesidia sua perduxerunt: nam si eodem bello is reversus fuerit, postliminium habet, id est perinde omnia restituuntur ei iura, ac si captus ab hostibus non esset. antequam in praesidia perducatur hostium, manet civis. tunc autem reversus intellegitur, si aut ad amicos nostros perveniat aut intra praesidia nostra esse coepit. 2In pace quoque postliminium datum est: nam si cum gente aliqua neque amicitiam neque hospitium neque foedus amicitiae causa factum habemus, hi hostes quidem non sunt, quod autem ex nostro ad eos pervenit, illorum fit, et liber homo noster ab eis captus servus fit et eorum: idemque est, si ab illis ad nos aliquid perveniat. hoc quoque igitur casu postliminium datum est. 3Captivus autem si a nobis manumissus fuerit et pervenerit ad suos, ita demum postliminio reversus intellegitur, si malit eos sequi quam in nostra civitate manere. et ideo in Atilio Regulo, quem Carthaginienses Romam miserunt, responsum est non esse eum postliminio reversum, quia iuraverat Carthaginem reversurum et non habuerat animum Romae remanendi. et ideo in quodam interprete Menandro, qui posteaquam apud nos manumissus erat, missus est ad suos, non est visa necessaria lex, quae lata est de illo, ut maneret civis Romanus: nam sive animus ei fuisset remanendi apud suos, desineret esse civis, sive animus fuisset revertendi, maneret civis, et ideo esset lex supervacua.
5 Pomponius, On Quintus Mucius, Book XXVII. The right of postliminium exists both in war and in peace. 1In war, when those who are our enemies seize one of us, and take him within their fortifications, for if he returns during the same war, he will have the right of postliminium; that is to say, all his rights will be restored to him, just as if he had not been captured. Before he is taken into the fortifications of the enemy, he remains a citizen, and he is understood to have returned if he comes to our friends, or within our defences. 2The right of postliminium is also granted in time of peace; for if there is a nation between which and us there exists neither friendship, hospitality, nor any bond of attachment, it indeed is not our enemy. Anything, however, which belongs to us, and passes under its control becomes its property, and any freeman of our people taken in captivity by such a nation becomes its slave. The same rule applies if anything belonging to the said nation comes into our hands, and therefore the right of postliminium is conceded in this instance. 3If a captive has been manumitted by us, and returns to his friends, he is only understood to have returned under the right of postliminium, if he prefers to go to them, rather than to remain in our country. And, therefore, in the case of Attilius Regulus, whom the Carthaginians sent to Rome, it was decided that he did not return under the right of postliminium, because he had sworn that he would return to Carthage, and did not have the intention of remaining at Rome. Hence, when a law was enacted with reference to a certain interpreter, named Menander, who, after having been manumitted while in our hands and sent back to his people, providing that he should remain a Roman citizen, this was not considered necessary, for if he had the intention of remaining with his own relatives, he would cease to be a citizen; but if he expected to return he would still remain a citizen, and therefore the law was superfluous.
6 Idem libro primo ex variis lectionibus. Mulier in opus salinarum ob maleficium data et deinde a latrunculis exterae gentis capta et iure commercii vendita ac redempta in causam suam reccidit. Cocceio autem Firmo centurioni pretium ex fisco reddendum est.
6 The Same, Various Passages, Book I. Where a woman who, on account of some offence, had been sentenced to labor in the salt-pits, was afterwards captured by thieves belonging to a foreign nation, sold by the right of commerce, and then ransomed, was restored to her former condition, the price of her ransom should be paid by the Treasury to the Centurion Coccius Firmus.
7 Proculus libro octavo epistularum. Non dubito, quin foederati et liberi nobis externi sint, nec inter nos atque eos postliminium esse: etenim quid inter nos atque eos postliminio opus est, cum et illi apud nos et libertatem suam et dominium rerum suarum aeque atque apud se retineant et eadem nobis apud eos contingant? 1Liber autem populus est is, qui nullius alterius populi potestati est subiectus: sive is foederatus est item, sive aequo foedere in amicitiam venit sive foedere comprehensum est, ut is populus alterius populi maiestatem comiter conservaret. hoc enim adicitur, ut intellegatur alterum populum superiorem esse, non ut intellegatur alterum non esse liberum: et quemadmodum clientes nostros intellegimus liberos esse, etiamsi neque auctoritate neque dignitate neque viri boni nobis praesunt, sic eos, qui maiestatem nostram comiter conservare debent, liberos esse intellegendum est. 2At fiunt apud nos rei ex civitatibus foederatis et in eos damnatos animadvertimus.
7 Proculus, Epistles, Book VIII. I have no doubt that there are free and united nations which are strangers to us, and that between us and them the right of postliminium does not exist. For what need would there be for any right of postliminium between us and them, as they, when with us, retain their liberty, and the ownership of their property, just as they do at home; and the same happens to us when we are with them. 1A free people is one which, when united, is not subjected to the dominion of any other. Likewise, it may be united in friendship by an alliance on equal terms, or the provision that this people will zealously defend the majesty of another may be included in a treaty; for this is added in order that it may be understood that the latter is entitled to supremacy, and not that the former is not free. And just as we regard our clients as free, although, while being good men, they are not superior to us in authority or dignity; so those who should zealously defend our majesty should also be understood to be free. 2Where persons from allied states are accused of crime while with us, we punish them after they have been convicted.
8 Paulus libro tertio ad legem Iuliam et Papiam. Non ut a patre filius, ita uxor a marito iure postliminii recuperari potest, sed tunc, cum et voluerit mulier et adhuc alii post constitutum tempus nupta non est: quod si noluerit nulla causa probabili interveniente, poenis discidii tenebitur.
8 Paulus, On the Lex Julia et Papia, Book III. A wife cannot be recovered by her husband under the right of postliminium as a son can be recovered by his father, but only when the woman desires it, and provided that she has not married another after the prescribed time. If she should be willing, and there is no legal reason to prevent it, she will be liable to the penalties of separation.
9 Ulpianus libro quarto ad legem Iuliam et Papiam. Apud hostes susceptus filius si postliminio redierit, filii iura habet: habere enim eum postliminium nulla dubitatio est post rescriptum imperatoris Antonini et divi patris eius ad Ovinium Tertullum praesidem provinciae Mysiae inferioris.
9 Ulpianus, On the Lex Julia et Papia, Book IV. When a child born in the hands of the enemy returns under the law of postliminium, he will be entitled to the privileges of a son; for, according to a Rescript of the Emperor Antoninus and his Divine Father, addressed to Ovinius Tertullus, Governor of the Province of lower Mysia, there is no doubt that he has the right of postliminium.
10 Papinianus libro vicensimo nono quaestionum. Pater instituto impuberi filio substituerat et ab hostibus captus ibi decessit: postea defuncto impubere legitimum admitti quibusdam videbatur neque tabulas secundas in eius persona locum habere, qui vivo patre sui iuris effectus fuisset. verum huic sententiae refragatur iuris ratio, quoniam, si pater, qui non rediit, iam tunc decessisse intellegitur, ex quo captus est, substitutio suas vires necessario tenet. 1Si mortuo patre capiatur impubes institutus vel exheredatus, in promptu est dicere legem Corneliam de tabulis secundis nihil locutam eius dumtaxat personam demonstrasse, qui testamenti factionem habuisset. plane captivi etiam impuberis legitimam hereditatem per legem Corneliam deferri, quoniam verum est ne impuberem quidem factionem testamenti habuisse: et ideo non esse alienum praetorem subsequi non minus patris quam legis voluntatem et utiles actiones in hereditatem substituto dare.
10 Papinianus, Questions, Book XXIX. A father, having appointed his son, who had not yet arrived at puberty, his heir, and made a substitution for him, was captured by the enemy, and died in their hands; and the minor, having afterwards died, it was held by some authorities that the heir at law should be admitted to the succession, and that the pupillary substitution did not apply to one who had become his own master during the lifetime of his father. The reason of law, however, is opposed to this opinion; for the reason that as the father, who did not return, is understood to have been dead at the very time that he was taken prisoner, the pupillary substitution would necessarily be valid. 1If, after the death of the father, a minor who had been appointed or disinherited should be taken prisoner, it might be said that the Cornelian Law, not having mentioned pupillary substitutions, only had reference to a person who had testamentary capacity. It is clear, however, that the right to the lawful estate of a minor who is a captive does not immediately vest by the terms of the Cornelian Law, because it is true that a minor is not qualified to make a will, and therefore it would not be improper to hold that the Prætor should follow the intention of the father no less than that of the law, and grant the substitute equitable actions against the estate.
11 Papinianus libro trigensimo primo quaestionum. Quod si filius ante moriatur in civitate, nihil est quod de secundis tabulis tractari possit, sive quoniam vivo patre filius familias mori intellegitur, sive quoniam non reverso eo exinde sui iuris videtur fuisse, ex quo pater hostium potitus est. 1Sed si ambo apud hostes et prior pater decedat, sufficiat lex Cornelia substituto non alias, quam si apud hostes patre defuncto postea filius in civitate decessisset.
11 The Same, Questions, Book XXXI. If the son should die first at home, there is no reason for discussing the pupillary substitution, either because the son under paternal control is understood to have died during the lifetime of his father; or because his father not having returned, the son, on this account, is considered to have become his own master from the very moment when his father was taken by the enemy. 1If, however, both of them should be in captivity, and the father dies first, the Cornelian Law will suffice to establish the pupillary substitution, just as if the son should die at home after the father had expired in the hands of the enemy.
12 Tryphoninus libro quarto disputationum. In bello postliminium est, in pace autem his, qui bello capti erant, de quibus nihil in pactis erat comprehensum. quod ideo placuisse Servius scribit, quia spem revertendi civibus in virtute bellica magis quam in pace Romani esse voluerunt. verum in pace qui pervenerunt ad alteros, si bellum subito exarsisset, eorum servi efficiuntur, apud quos iam hostes suo facto deprehenduntur. quibus ius postliminii est tam in bello quam in pace, nisi foedere cautum fuerat, ne esset his ius postliminii. 1Si quis capiatur ab hostibus, hi, quos in potestate habuit, in incerto sunt, utrum sui iuris facti an adhuc pro filiis familiarum computentur: nam defuncto illo apud hostes, ex quo captus est, patres familiarum, reverso numquam non in potestate eius fuisse credentur. ideo et de his, quae medio tempore adquirunt stipulatione traditione legato (nam hereditate non possunt), tractatum est, ubi non est reversus, si forte alii vel in totum (his exheredatis testamento) vel in partem instituti sunt heredes, utrum in hereditate captivi, quae lege Cornelia inducitur, an propria ipsorum sint. quod verius est: diversumque in his, quae per servos adquiruntur, merito: quia hi bonorum fuerunt et esse perseverant, hi sui iuris exinde sibique ideo adquisisse intelleguntur. 2Facti autem causae infectae nulla constitutione fieri possunt. ideo eorum, quae usucapiebat per semet ipsum possidens qui postea captus est, interrumpitur usucapio, quia certum est eum possidere desisse. eorum vero, quae per subiectas iuri suo personas possidebat usuque capiebat, vel si qua postea peculiari nomine comprehenduntur, Iulianus scribit credi suo tempore impleri usucapionem remanentibus isdem personis in possessione. Marcellus nihil interesse, ipse possedisset an subiecta ei persona. sed Iuliani sententiam sequendum est. 3Medio tempore filius, quem habuit in potestate captivus, uxorem ducere potest, quamvis consentire nuptiis pater eius non posset: nam utique nec dissentire. susceptus ergo nepos in reversi captivi potestate ut avi erit suusque heres ei quodammodo invito, cum nuptiis non consenserit. non mirum, quia illius temporis condicio necessitasque faciebat et publica nuptiarum utilitas exigebat. 4Sed captivi uxor, tametsi maxime velit et in domo eius sit, non tamen in matrimonio est. 5Codicilli, si quos in tempore captivitatis scripserit, non creduntur iure suptili confirmati testamento, quod in civitate fecerat. sed nec fideicommissum ex his peti potest, quia non sunt ab eo facti, qui testamenti factionem habuit. sed quia merum principium eorum in civitate constituto captivo factum est, id est in testamento confirmatio codicillorum, et is postea reversus est et postliminio ius suum recepit, humanitatis rationi congruum est eos codicillos ita suum effectum habere, quasi in medio nulla captivitas intercessisset. 6Cetera quae in iure sunt, posteaquam postliminio redit pro eo habentur, ac si numquam iste hostium potitus fuisset. 7Si quis servum captum ab hostibus redemerit, protinus est redimentis, quamvis scientis alienum fuisse: sed oblato ei pretio quod dedit postliminio redisse aut receptus esse servus credetur. 8Et si ignorans captivum, existimans vendentis esse redemit, an quasi usucepisse videatur, scilicet ne post legitimum tempus offerendi pretii priori domino facultas sit, videamus. nam occurrit, quod constitutio, quae de redemptis lata est, eum redimentis servum facit, et quod meum iam usucapere me intellegi non potest. rursum cum constitutio non deteriorem causam redimentium, sed si quo meliorem effecerit, peremi ius bonae fidei emptoris vetustissimum et iniquum et contra mentem constitutionis est: ideoque transacto tempore, quanto, nisi constitutio eum proprium fecisset, usucapi potuisset, nihil ex constitutione domino superesse recte dicetur. 9Manumittendo autem utrum desinit tantum dominus esse et relictus ab eo servus in ius prioris domini redit? an et liberum eum facit, ne praestatio libertatis dominii fiat translatio? certe apud hostes manumissus liberatur, et tamen si eum nanctus dominus ipsius vetus intra praesidia nostra fuisset, quamvis non secutum res nostras, sed dum eo consilio venisset, ut ad illos reverteretur, servum retineret iure postliminii. quod in liberis aliter erat: non enim postliminio revertebatur, nisi qui hoc animo ad suos venisset, ut eorum res sequeretur illosque relinqueret, a quibus abisset: quia, ut Sabinus scribit, de sua qua civitate cuique constituendi facultas libera est, non de dominii iure. verum hoc non multum onerat praesentem inspectationem, quia hostium iure manumissio obesse civi nostro domino servi non potuit, at is de quo quaeritur lege nostra, quam constitutio fecit, civem Romanum dominum habuit, et an ab eo possit libertatem adsequi, tractamus. quid enim, si numquam ille pretium eius offerat? si nec conveniendi eius sit facultas? liber erit servus, qui nullo merito suo poterit a domino libertatem consequi? quod est iniquum et contra institutum a maioribus libertatis favorem. certe et veteri iure si ab hoc, qui sciens alienum esse redemisset, alius bona fide emisset, usucapere ad libertatemque perducere potuit, et isto quoque modo prior dominus, qui ante captivitatem fuerat, ius suum amittebat. quare igitur iste non habet ius manumittendi? 10Si statuliber fuerit, antequam ab hostibus caperetur, redemptus pendente condicione suam causam retinebit. 11Quid ergo, si ita libertatem acceperat, si decem milia dederit? quaesitum est, unde dare debebit, quoniam etsi concessum est statulibero de peculio dare, hoc tamen, quod apud hunc qui redemit habet, numquid vice illius sit, quod apud hostes quaesisset? utique, si ex re illius aut ex operis suis quaesitum est: ex alia autem causa parto peculio potest dare, ita ut condicioni benigne eum paruisse credamus. 12Si pignori servus datus fuerat ante captivitatem, post dimissum redemptorem in veterem obligationem revertitur, et si creditor obtulerit ei qui redemit, quanto redemptus est, habet obligationem et in priorem debiti causam et in eam summam qua eum liberavit, quasi ea obligatione quadam constitutione inducta: ut cum posterior creditor priori satisfacit confirmandi sui pignoris causa: nisi quod in hoc conversa res est et posterior, quia eum servum, ut apud nos esset, efficit, ab eo, qui tempore prior fuit, ut infirmiore dimittendus est. 13Si plurium servus fuerat et omnium nomine ei qui redemit restitutum pretium erit, in communionem redibit: si unius tantum vel quorundam nec omnium, ad eum eosve qui solverunt pertinebit, ita ut in portione sua pristinum ius optineant et in parte ceterorum ei qui redemit succedant. 14Si fideicommissa libertas debita captivo fuerit, redemptus nondum eam petere poterit, nisi redemptori satisfecerit. 15Si deportatum ab insula hostes ceperunt, redemptus quibus casibus redit, in eam causam veniet, in qua futurus esset, si captus non fuisset: deportabitur igitur. 16Sed si in captivo servo talis praecesserat causa, quae eius vel ad tempus vel in perpetuum libertatem impediret, nec redemptione ab hostibus mutabitur: veluti si in legem Faviam commisisse eum constiterat, vel ita venierat ne manumitteretur: habebit autem interim sine poena sua qui redemit. 17Ergo de metallo captus redemptus in poenam suam revertetur, nec tamen ut transfuga metalli puniendus erit, sed redemptor a fisco pretium recipiet quod etiam constitutum est ab imperatore nostro et divo Severo. 18Si natum ex Pamphila legatum tibi fuerit tuque matrem redemeris et ea apud te pepererit, non videri te partum ex causa lucrativa habere, sed officio arbitrioque iudicis aestimandum constituto pretio partus, perinde atque si, quanto mater est empta, simul et partus venisset. quod si iam natum apud hostes, quod eo tempore quo capiebatur utero gerebat, cum matre redimatur ab eodem uno pretio: oblato tanto, quantum ex pretio, quod pro utroque unum datum est, aestimationem contingere partus: et videtur is postliminio reversus. multo magis, si diversi emptores utriusque extiterint vel unius. sed si suo quemque pretio redemerit, id offerri pro singulis oportebit redemptori, quod hosti pro quoque datum est, ut separatim quoque postliminio reverti possint.
12 Tryphoninus, Disputations, Book IV. The right of postliminium exists in war, as well as in peace, with reference to such as have been taken captive during hostilities, and concerning whom no agreement was made. Servius says that this decision was made because the Romans wished that their citizens should have more hope of returning with military prestige than during peace. But, if war should suddenly break out, will those who during peace have come under the control of others, become the slaves of those who are now our enemies, and through their own act have been seized by them? They will be entitled to the right of postliminium both in war and peace, unless it was provided by a treaty that they should not enjoy that right. 1When anyone is taken prisoner by the enemy, those under his control remain uncertain whether they are their own masters, or whether they should still be considered sons under paternal authority; for if the father should die while in the hands of the enemy, they become independent from the very moment when he was captured; and if he returns, they are considered never to have been free from his control. Therefore, with reference to any property that they may acquire in the meantime, whether by stipulation, delivery, or legacy, (for they cannot become lawful heirs), it should be considered—for example, when he does not return, and, some of them have been appointed heirs to the entire estate, or to a portion of the same, or where certain ones have been disinherited—whether this property, according to the terms of the Cornelian Law, should be held to belong to the estate of the captive, or whether it should be considered to be their own. The latter opinion is the better one. The rule is otherwise with reference to anything acquired by the slaves of the captive; and this is reasonable, because the slaves formed and continue to be a portion of his estate, and those who become their own masters are in consequence understood to have acquired the property for themselves. 2It can be established by no constitution that what has been done has not been done. Therefore, the usucaption of property which was obtained by the party who possessed it himself, and who afterwards recovered it, is interrupted, because it is certain that he has ceased to possess it. Hence Julianus says it should be held with reference to property of which he obtained possession through persons subject to his authority, and acquired by usucaption, or which was afterwards included under the term peculium, that the usucaption was completed in the time prescribed by law, if the same persons always remained in possession. Marcellus says that it makes no difference whether the party himself had possession, or obtained it through someone under his authority, but the opinion of Julianus should be adopted. 3The son whom the captive had under his control can in the meantime marry, although his father cannot consent to the marriage, nor can he withhold his consent. Therefore, his grandson will be under his control from the moment that he returns from captivity, and will be his proper heir, to a certain extent, in spite of him, as he did not consent to the marriage. There is nothing surprising about this, because the circumstances and necessities of the occasion, as well as the public welfare, required a marriage. 4The wife of the captive is not in the married state, although she may extremely desire it, and remain in the house of her husband. 5Any codicil which the prisoner may have written during his captivity cannot, by the strict construction of the law, be confirmed by a will which was made by the prisoner while at home, and a trust cannot be claimed under it, because it was not executed by a person having testamentary capacity. But, for the reason that the true principle of these matters, that is to say, the confirmation of them as dependent upon the will, originated while the captive was in his own country, and as he afterwards returned, and recovered his rights by the law of postliminium, it is agreeable to the dictates of humanity that such a codicil should take effect, as if no captivity had in the meantime intervened. 6After the captive returns under the right of postliminium, all legal questions, so far as he is concerned, are to be considered just as if he had never been in the hands of the enemy. 7When anyone ransoms a slave from the enemy, he becomes his property at the moment of his ransom, although he knows that he belonged to someone else; but by tendering him the price which he paid, he will be held to have returned with the right of postliminium to be received as a slave. 8Where anyone purchases a captive, being ignorant that he is such, and believing that he belongs to the vendor, will he appear to have, as it were, acquired him by usucaption, so that his first master will not have the power to tender the second the price, after the prescribed time has elapsed? is a point which we should consider. It was stated in opposition to this that the constitution which was enacted with reference to ransomed captives renders such a captive the slave of the person who ransomed him, and what is mine already, I cannot be understood to acquire by usucaption. On the other hand, as the constitution has not rendered the condition of him who paid the ransom any worse, but, on the contrary, has made it better, it is unjust as well as contrary to the intention of the constitution that the more ancient right of the bona fide purchaser should be extinguished; and therefore, after the prescribed time has elapsed, during which, if the constitution should not render the captive the property of him who ransomed him, he might acquire him by usucaption, it may properly be said that, by the terms of this constitution, his first master has no further right over the slave. 9However, by manumitting the slave, will he merely cease to be his master, and will the slave abandoned by him return to the control of his former master; or does he render him free in such a way that the gift of liberty merely operates to bring about a change of ownership? It is certain that anyone who is manumitted while in the hands of the enemy becomes free; and still, if his former master finds him within our defences, although he may not have embraced our cause, and has returned with a design of going back to the enemy, the master can retain the slave by the right of postliminium; which rule is not the same with reference to persons who are free. For the latter do not return by the right of postliminium, unless they have gone back to their own people with the intention of espousing their cause, and have left those from whom they came; because, as Sabinus says, each one has free power to determine his citizenship, but not his right of ownership. This, however, does not render the point very difficult of solution, because the manumission made while the slave was in the hands of the enemy presents no impediment to our fellow citizen, the master of the slave; but the party in question, under our law established by a constitution, has had for his master a Roman citizen, and we are considering whether he can obtain his freedom from him. For what if the slave did not tender the price of his freedom to his master, and the latter should not have the power to sue him? Will the slave be free who, through no merit of his own, could have obtained freedom from his master? This is unjust, and contrary to the favor granted by our ancestors to liberty. It is certain that, by the ancient law, any man having knowingly purchased a slave belonging to another from one who had ransomed him, could acquire him by usucaption, and could liberate him; and in this way the former master to whom the slave had belonged before his captivity, lost all his title to him. Therefore, why should he not have the right to manumit him? 10If a slave to be free under a certain condition should be captured by the enemy, and be ransomed while the condition is pending, he will remain in his former state. 11But what would be the rule if he had received his freedom on condition of paying ten thousand sesterces? The question was asked, out of what should he pay it? For if the slave was permitted to pay it out of his peculium, could it not also be said that what he possesses in the hands of the person who ransomed him takes the place of what he might have obtained while in the hands of the enemy? This is certainly the case, where the peculium was derived from the property of him who ransomed him, or from his own services; but if it came from any other source, he can pay the sum out of it, as we indulgently hold that he has, in this way, complied with the condition. 12Where a slave was given by way of pledge, before his captivity, after the person who ransomed him has been paid, he again becomes subject to his former obligation; and if the creditor should tender the price of his ransom to him who paid it, he will then have a double obligation, one arising from the debt itself, and the other from the payment of the sum for which the slave was released; just as if this obligation was established by a certain constitution resembling that by which a subsequent creditor satisfies a former one, for the purpose of strengthening his own pledge, unless, in this instance, the case is reversed, and the last creditor, who now is the first because he has caused the slave to return to us should be satisfied by him who is prior in time, but has a weaker claim. 13When a slave belongs to several persons, and the amount of his ransom was paid to the man who ransomed him, in the name of all of them, he will revert to their common ownership. Where, however, the amount of his ransom was paid in the name of only one, or of some of his owners, he will belong to him, or to them, who made the payment; so that they will regain their former rights, according to the portion paid by each, and will succeed him who purchased the slave to the extent of the share of the others. 14When a captive is entitled to freedtfm under the terms of a trust, he cannot claim it, after having been ransomed, unless he reimburses the person who ransomed him. 15Where enemies capture a person, who has been deported, in the island to which he has been sent, and he is ransomed, if he should then return to his country, he will be restored to the condition in which he would have been if he had not been taken captive, therefore he shall be deported. 16Where, however, in the case of a captured slave some reason existed which prevented the acquisition of his freedom either temporarily or perpetually, his condition will not be changed by his ransom from the enemy; for instance, if it should be proved that he had violated the Favian Law, or that he had been sold under the condition that he should not be manumitted. The person who ransomed him can, in the meantime, hold him without incurring any penalty. 17Hence, anyone who was captured while laboring in the mines, and has been ransomed, will be returned to his punishment; but he should not be punished as a fugitive from the mines, but he who ransomed him shall receive the amount of the ransom from the Treasury; as was decided by our Emperor and the Divine Severus. 18Where a child born of Pamphila is bequeathed to you, and you ransom its mother, and she brings forth a child while in your possession, you will not be considered to have acquired the child by a lucrative title, but an estimate shall be made according to the judgment of the court, who will fix the value of the child, just as if it had been sold at the same time as its mother, and purchased for the same price. If the child was born in the hands of the enemy (the mother being pregnant at the time when she was captured) and it is ransomed with its mother for one and the same price, and an offer is made equal to the sum paid for both, this will be the estimate of the value of the child, and it will be held to have returned under the right of postliminium. There is much more reason for this when there are different purchasers of both, or of one of them. Where, however, anyone has ransomed each for a separate price, the different amounts must be tendered to the person who ransomed them by payment to the enemy, so that they can return separately under the right of postliminium.
13 Paulus libro secundo ad Sabinum. Si me tibi adrogandum dedissem, emancipato me reversum ab hostibus filium meum loco nepotis tibi futurum constat.
13 Paulus, On Sabinus, Book II. If I should give myself to be arrogated by you, and I should afterwards be emancipated, it is established that when my son returns from captivity, he will be considered as your grandson.
14 Pomponius libro tertio ad Sabinum. Cum duae species postliminii sint, ut aut nos revertamur aut aliquid recipiamus: cum filius revertatur, duplicem in eo causam esse oportet postlimini, et quod pater eum reciperet et ipse ius suum. 1Non ut pater filium, ita uxorem maritus iure postliminii recipit: sed consensu redintegratur matrimonium.
14 Pomponius, On Sabinus, Book III. As there are two kinds of the right of postliminium, one under which we return to our friends from the enemy, and the other by which we recover something; when a son under paternal control returns the double right of postliminium is united in him, for his father regains his authority over him, and he himself recovers all his rights. 1A husband does not recover his wife under the law of postliminium in the same way that a father does his son, but the marriage can be renewed by consent.
15 Ulpianus libro duodecimo ad Sabinum. Si patre redempto et ante luitionem defuncto filius post mortem eius redemptionis quantitatem offerat, dicendum est suum ei posse existere. nisi forte quis suptilius dicat hunc dum moritur, quasi iure pignoris finito, nactum postliminium et sine obligatione debiti obisse, ut potuerit suum habere. quod non sine ratione dicetur.
15 Ulpianus, On Sabinus, Book XII. Where the father, after he has been ransomed, dies before reimbursing the person who ransomed him, and his son tenders the amount of his ransom after his death, it must be said that he can be the proper heir of his father; unless someone may say with more subtlety that the father, when he died, recovered the right of postliminium, as it were by the release of a pledge, and died without any liability for his debt, so that he is entitled to have a proper heir. This opinion is not destitute of reason.
16 Idem libro tertio decimo ad Sabinum. Retro creditur in civitate fuisse, qui ab hostibus advenit.
16 The Same, On Sabinus, Book XIII. He who returns from the enemy is considered always to have been in his own country previous to his return.
17 Paulus libro secundo ad Sabinum. Postliminio carent, qui armis victi hostibus se dederunt.
17 Paulus, On Sabinus, Book II. Those who, having been conquered by force of arms, surrender to the enemy, are not entitled to the right of postliminium.
18 Ulpianus libro trigensimo quinto ad Sabinum. In omnibus partibus iuris is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est.
18 Ulpianus, On Sabinus, Book XXXV. Under all the rules of law, anyone who does not return from the enemy is considered to have died at the time when he was captured.
19 Paulus libro sexto decimo ad Sabinum. Postliminium est ius amissae rei recipiendae ab extraneo et in statum pristinum restituendae inter nos ac liberos populos regesque moribus legibus constitutum. nam quod bello amissimus aut etiam citra bellum, hoc si rursus recipiamus, dicimur postliminio recipere. idque naturali aequitate introductum est, ut qui per iniuriam ab extraneis detinebatur, is, ubi in fines suos redisset, pristinum ius suum reciperet. 1Indutiae sunt, cum in breve et in praesens tempus convenit, ne invicem se lacessant: quo tempore non est postliminium. 2A piratis aut latronibus capti liberi permanent. 3Postliminio redisse videtur, cum in fines nostros intraverit, sicuti amittitur, ubi fines nostros excessit. sed et si in civitatem sociam amicamve aut ad regem socium vel amicum venerit, statim postliminio redisse videtur, quia ibi primum nomine publico tutus esse incipiat. 4Transfugae nullum postliminium est: nam qui malo consilio et proditoris animo patriam reliquit, hostium numero habendus est. sed hoc in libero transfuga iuris est, sive femina sive masculus sit. 5Si vero servus transfugerit ad hostes, quoniam, et cum casu captus est, dominus in eo postliminium habet, rectissime dicitur etiam ei postliminium esse, scilicet ut dominus in eo pristinum ius recipiat, ne contrarium ius non tam ipsi iniuriosum sit, qui servus semper permanet, quam domino damnosum constituatur. 6Si statuliber transfuga reversus sit, existente condicione postquam redit, liber efficitur. diversum est, si condicio extitisset, dum apud hostes est: in eo enim casu neque sibi reverti potest, ut liber sit, neque heredi in eo ius postliminii est, quia non potest queri, cum nullum damnum patiatur, libertate iam optingente, si non impediret, quod transfuga factus est. 7Filius quoque familias transfuga non potest postliminio reverti neque vivo patre, quia pater sic illum amisit, quemadmodum patria, et quia disciplina castrorum antiquior fuit parentibus Romanis quam caritas liberorum. 8Transfuga autem non is solus accipiendus est, qui aut ad hostes aut in bello transfugit, sed et qui per indutiarum tempus aut ad eos, cum quibus nulla amicitia est, fide suscepta transfugit. 9Si is, qui emat ab hostibus, pluris alii ius pignoris quod in redempto habet cesserit, non eam quantitatem, sed priorem redemptus reddere debet, et emptor habet actionem adversus eum qui vendidit ex empto. 10Postliminium hominibus est, cuiuscumque sexus condicionisve sint: nec interest, liberi an servi sint. nec enim soli postliminio recipiuntur, qui pugnare possunt, sed omnes homines, quia eius naturae sunt, ut usui esse vel consilio vel aliis modis possint.
19 Paulus, On Sabinus, Book XVI. The right of postliminium is that of recovering from a stranger property which has been lost, and of restoring it to its former condition; and this right has been established among us and other free peoples and kings, by custom and by law. For when we recover anything that we have lost by war or even outside of war, we are said to recover it by the right of postliminium. This rule has been introduced by natural equity, so that anyone who has been detained unjustly by strangers will recover his former rights whenever he returns to his own country. 1A truce is established where it is agreed for a short time and for the present that adversaries shall not attack one another; and during this time the right of postliminium does not exist. 2Persons who have been captured by pirates or robbers remain free. 3Anyone is considered to have returned with the right of postliminium when he passes our frontiers, just as he loses the right as soon as he goes beyond them. When, however, he visits an allied or friendly state, or an allied or friendly king, he is understood to immediately return with the right of postliminium, because, while there, he began to be secure through reliance on the public honor. 4The right of postliminium is not enjoyed by a deserter, for he who abandons his country with evil intent, and with the designs of a traitor, is considered an enemy. This rule only applies to a deserter who is free, whether it be a man or a woman. 5If, however, a slave should desert to the enemy, as his master has the right of postliminium over him, when he is taken by accident, it can very properly be held that he also has the right of postliminium, that is to say, his master will recover all his former rights over him; in order that a contrary rule may not be as injurious to the slave who remains permanently in servitude, as it would be prejudicial to his master. 6If a slave who is to be free under a condition returns after having deserted, and the condition is fulfilled after his return, he will become free. The rule is different, however, when the condition was fulfilled while he was in the hands of the enemy; for in that case he cannot return for himself, so as to become free, nor will the heir have the right of postliminium over him, because he cannot complain, as he has sustained no damage; provided that the slave would have obtained his freedom, if he had not forfeited it by becoming a deserter. 7Again, a son under paternal control, who is a deserter, cannot return with the right of postliminium, even during the lifetime of his father; because his father as well as his country have lost him, as well as for the reason that the discipline of the camp has always been more valued by Roman parents, than attachment to their children. 8Moreover, not only is he understood to be a deserter who joins the enemy, or abandons the service during war, but also he who deserts during a truce, or goes over to a nation between which and us no friendship exists, and enters into an agreement with its representatives. 9If anyone who has purchased a captive from the enemy assigns to another, for a larger sum, the right of pledge which he himself is entitled to for having ransomed him, the person who has been ransomed should not pay this amount, but the former one; and the purchaser will be entitled to an action on purchase against the party who made the sale. 10The right of postliminium applies to persons of both sexes, and all conditions. Nor does it make any difference whether they are freemen or slaves; for not only those are recovered by this privilege who are able to fight, but all human beings, because they are of such a character that they can be of use, either by giving advice, or in other ways.
20 Pomponius libro trigensimo sexto ad Sabinum. Si captivus, de quo in pace cautum fuerat ut rediret, sua voluntate apud hostes mansit, non est ei postea postliminium. 1Verum est expulsis hostibus ex agris quos ceperint dominia eorum ad priores dominos redire nec aut publicari aut praedae loco cedere: publicatur enim ille ager qui ex hostibus captus sit. 2Redemptio facultatem redeundi praebet, non ius postliminii mutat.
20 Pomponius, On Sabinus, Book XXXVI. If a captive, for whom security has been given that he will return voluntarily, remains with the enemy, he will not afterwards be entitled to the right of postliminium. 1It is true that when the enemy have been driven from the territory which they have taken, this territory will revert to its former owners, and it will neither become the property of the State, nor be considered as booty; for land becomes the property of the State which is captured from the enemy. 2Ransom confers the power of returning to one’s country, and does not change the right of postliminium.
21 Ulpianus libro quinto opinionum. Si quis ingenuam ab hostibus redemptam eo animo secum habuerit, ut ex ea susciperet liberos, et postea ex se natum sub titulo naturalis filii cum matre manumiserit: ignorantia mariti eiusdemque patris neque statui eorum, quos manumisisse visus est, officere debet, et exinde intellegi oportet remissum matri pignoris vinculum, ex quo de ea suscipere liberos optaverat: ideoque eam, quae postliminio reversa erat libera et ingenua, ingenuum peperisse constat. quod si publice praeda virtute militum reciperata nulli pretium matris pater numeraverit, protinus postliminio reversa non cum domino, sed cum marito fuisse declaratur. 1In civilibus dissensionibus quamvis saepe per eas res publica laedatur, non tamen in exitium rei publicae contenditur: qui in alterutras partes discedent, vice hostium non sunt eorum, inter quos iura captivitatium aut postliminiorum fuerint. et ideo captos et venumdatos posteaque manumissos placuit supervacuo repetere a principe ingenuitatem, quam nulla captivitate amiserant.
21 Ulpianus, Opinions, Book V. If anyone, after having ransomed a freeborn woman from the enemy, should keep her with him with the intention of having children by her, and afterwards manumits a child born from her, together with its mother, giving it the title of his natural son, the ignorance of the husband and father ought not to affect the condition of those whom he has appeared to manumit; and it should be understood that from the time that he made up his mind to have children by the mother, that the obligation of pledge to which she was liable is extinguished; and therefore it is established that she who returned under the right of postliminium was free and freeborn, and brought forth a freeborn child. Where, however, she was publicly taken as booty by the bravery of a soldier, and the father did not pay anyone money as her ransom, she is said, at the time of her return under the right of postliminium, not to have been with her master, but with her husband. 1Although the State is frequently injured by civil dissensions, still its destruction is not the object of the contest. Those who divide into different factions do not occupy the position of enemies between whom the rights of captivity and postliminium exist, and therefore persons who have been captured and sold, and afterwards manumitted, have been held to have fruitlessly demanded from the Emperor the right of free birth which they do not lose by captivity.
22 Iulianus libro sexagensimo secundo digestorum. Bona eorum, qui in hostium potestatem pervenerint atque ibi decesserint, sive testamenti factionem habuerint sive non habuerint, ad eos pertinent, ad quos pertinerent, si in potestatem hostium non pervenissent: idemque ius in eadem causa omnium rerum iubetur esse lege Cornelia, quae futura esset, si hi, de quorum hereditatibus et tutelis constituebatur, in hostium potestatem non pervenissent. 1Apparet ergo eadem omnia pertinere ad heredem eius, quae ipse, qui hostium potitus est, habiturus esset, si postliminio revertisset. porro quaecumque servi captivorum stipulantur vel accipient, adquiri dominis intelleguntur, cum postliminio redierint: quare necesse est etiam ad eos pertineant, qui ex lege Cornelia hereditatem adierint. quod si nemo ex lege Cornelia heres extiterit, bona publica fient. legata quoque servis eorum praesenti die vel sub condicione ad heredes pertinebunt. item si servus ab extero heres institutus fuerit, iussu heredis captivi adire poterit. 2Quod si filius eius, qui in hostium potestate est, accipit aut stipulatur, id patre priusquam postliminio rediret mortuo ipsi adquisitum intellegitur, etsi vivo patre decesserit, ad heredem patris pertinebit. nam status hominum, quorum patres in hostium potestate sunt, in pendenti est, et reverso quidem patre existimatur nunquam suae potestatis fuisse, mortuo tunc pater familias fuisse, cum pater eius in hostium potestate perveniret. 2aPater familias qui habebat filios in potestate duos et <ed. minor in bonis> viginti milia, ab hostibus captus est: alter ex filiis acceptis decem milibus alia decem milia adquisivit: quaeritur patre apud hostes defuncto quid filii habituri sint. respondit, si reversus esset pater, etiam postea adquisita decem milia eius futura fuisse: at cum in captivitate mortuus sit, communia non fore, sed eius qui adquisivit. viginti autem milia aequaliter dividenda. 3Quae peculiari nomine servi captivorum possident, in suspenso sunt: nam si domini postliminio redierint, eorum facta intelleguntur, si ibi decesserint, per legem Corneliam ad heredes eorum pertinebunt. 4Si quis, cum praegnatem uxorem haberet, in hostium potestatem pervenerit, nato deinde filio et mortuo, ibi decesserit, eius testamentum nullum est, quia et eorum, qui in civitate manserunt, hoc casu testamenta rumpuntur.
22 Julianus, Digest, Book LXII. The property of those who have fallen into the hands of the enemy, or have died there, whether they had testamentary capacity or not, belongs to those to whom it would have belonged, if they had not been captured. The same rule is laid down by the Cornelian Law with reference to everything which may take place in cases where those interested in inheritances and guardianships would have been concerned, if they had not fallen into the hands of the enemy. 1Hence it is evident that everything will belong to the heir of him who has been taken by the enemy, which the latter would have been entitled to if he had returned under the right of postliminium. Moreover, whatever the slaves of captives stipulate for, or obtain, is understood to be acquired by their masters, when they return under the right of postliminium; wherefore it will also necessarily belong to those who enter upon an estate under the Cornelian Law. If, however, no heir should appear under the Cornelian Law, the property will belong to the State. Any legacies bequeathed to their slaves, either absolutely or conditionally, will belong to their heirs. Likewise, if a slave is appointed an heir by a stranger, he can accept an estate by order of the heir of the captive. 2Where, however, the son of him who is in the power of the enemy, accepts or stipulates for anything, it is understood to be acquired for him, if his father should die before returning under the law of postliminium; and it will belong to the heir of his father, if the son should die during the lifetime of the latter, for the condition of men whose fathers are in the power of the enemy is uncertain. When, however, the father returns, the son is never considered to have been his own master; but where the father dies a prisoner of war, then his son becomes independent for the entire time that his father remained in captivity. 3The ownership of any property which the slaves of captives possess as peculium remains in abeyance; for if their masters return with the right of postliminium it will be understood to belong to them; and if they die in captivity, it will belong to their heirs under the Cornelian Law. 4If anyone, having a wife who is pregnant, falls into the hands of the enemy, and dies there, and a son is afterwards born to him, and it dies, his will is void; for the reason that the wills of those who remain in their own country are invalidated under such circumstances.
23 Idem libro sexagensimo nono digestorum. Si quis praegnate uxore relicta in hostium potestatem pervenerit, mox natus filius eius uxore ducta filium vel filiam procreaverit ac tunc postliminio avus reversus fuerit: omnia iura nepotis nomine perinde capiet, ac si filius natus in civitate fuisset.
23 The Same, Digest, Book LXIX. Where anyone, having left his wife pregnant, falls into the power of the enemy, and a son is born to him soon afterwards, who ultimately marries and has a son or a daughter, and then the grandfather returns under the law of postliminium, he will be entitled to all the rights over his grandchildren which he would have had if his son had been born in his own country.
24 Ulpianus libro primo institutionum. Hostes sunt, quibus bellum publice populus Romanus decrevit vel ipsi populo Romano: ceteri latrunculi vel praedones appellantur. et ideo qui a latronibus captus est, servus latronum non est, nec postliminium illi necessarium est: ab hostibus autem captus, ut puta a Germanis et Parthis, et servus est hostium et postliminio statum pristinum recuperat.
24 Ulpianus, Institutes, Book I. Enemies are those against whom the Roman people have publicly declared war, or who themselves have declared war against the Roman people; others are called robbers, or brigands. Therefore, anyone who is captured by robbers, does not become their slave, nor has he any need of the right of postliminium. He, however, who has been taken by the enemy, for instance, by the Germans or Parthians, becomes their slave, and recovers his former condition by the right of postliminium.
25 Marcianus libro quarto decimo institutionum. Divi Severus et Antoninus rescripserunt, si uxor cum marito ab hostibus capta fuerit et ibidem ex marito enixa sit: si reversi fuerint, iustos esse et parentes et liberos et filium in potestate patris, quemadmodum iure postliminii reversus sit: quod si cum matre sola revertatur, quasi sine marito natus, spurius habebitur.
25 Marcianus, Institutes, Book XIV. The Divine Severus and Antoninus stated in a Rescript that if a wife was captured with her husband, and had a child by him while in the hands of the enemy, and both of them should return, the parents and child are legitimate, and the son will be under the control of his father, just as if he had returned under the right of postliminium. If, however, he should return with his mother alone, he will be considered illegitimate, as having been born without a husband.
26 Florentinus libro sexto institutionum. Nihil interest, quomodo captivus reversus est, utrum dimissus an vi vel fallacia potestatem hostium evaserit, ita tamen, si ea mente venerit, ut non illo reverteretur: nec enim satis est corpore domum quem redisse, si mente alienus est. sed et qui victis hostibus recuperantur, postliminio redisse existimantur.
26 Florentinus, Institutes, Book VI. It makes no difference in what way a captive returns, whether he has been sent back, or has escaped from the power of the enemy by force, or strategy; provided that he conies with the intention of not returning thither; for it is not sufficient for anyone merely to return bodily, when his intention is otherwise. Those, however, who are recovered from defeated enemies, are considered to have returned with the right of postliminium.
27 Iavolenus libro nono ex posterioribus Labeonis. Latrones tibi servum eripuerant: postea is servus ad Germanos pervenerat: inde in bello victis Germanis servus venierat. negant posse usucapi eum ab emptore Labeo Ofilius Trebatius, quia verum esset eum subreptum esse, nec quod hostium fuisset aut postliminio redisset, ei rei impedimento esse.
27 Javolenus, On the Last Works of Labeo, Book IX. Robbers stole your slave from you, and afterwards the said slave fell into the hands of the Germans, and then, the Germans having been defeated in battle, the slave was sold. Labeo, Ofilius, and Trebatius deny that the slave can be acquired through usucaption by the purchaser, because it was true that he had been stolen, and although he belonged to the enemy, and returned with the right of postliminium, this would be an obstacle.
28 Labeo libro quarto pithanon a Paulo epitomatorum. Si quid bello captum est, in praeda est, non postliminio redit. Paulus: immo si in bello captus pace facta domum refugit, deinde renovato bello capitur, postliminio redit ad eum, a quo priore bello captus erat, si modo non convenerit in pace, ut captivi redderentur.
28 Labeo, Epitomes of Probabilities by Paulus, Book IV. If anything captured in war forms part of the booty, it does not return by the right of postliminium. Paulus: But if a prisoner taken in war flees to his home, after peace has been declared, and then the war having been renewed he again is captured, he returns by the right of postliminium, to which he was entitled when taken during the first war; provided that it was not agreed in the treaty of peace that captives should be returned.
29 Idem libro sexto pithanon a Paulo epitomatorum. Si postliminio redisti, nihil, dum in hostium potestate fuisti, usucapere potuisti. Paulus: immo si quid servus tuus peculii nomine, dum in eo statu esses, possederit, id eo quoque tempore usucapere poteris, quoniam eas res etiam inscientes usucapere solemus et eo modo etiam hereditas nondum nato postumo aut nondum adita augeri per servum hereditarium solet.
29 The Same, Epitomes of Probabilities by Paulus, Book VI. If you should return under the right of postliminium, you have not been able to acquire any property by usucaption while you were in the power of the enemy. Paulus: But if your slave should have obtained anything as peculium, while you were in that condition, you can acquire it by usucaption during that time, as we are accustomed to acquire by usucaption property of this kind, even without our knowledge; and in this manner an estate can be increased by a slave forming part of the same, although a posthumous child may not yet have been born, or the estate have been entered upon.
30 Idem libro octavo pithanon a Paulo epitomatorum. Si id, quod nostrum hostes ceperunt, eius generis est, ut postliminio redire possit: simul atque ad nos redeundi causa profugit ab hostibus et intra fines imperii nostri esse coepit, postliminio redisse existimandum est. Paulus: immo cum servus civis nostri ab hostibus captus inde aufugit et vel in urbe Roma ita est, ut neque in domini sui potestate sit neque ulli serviat, nondum postliminio redisse existimandum est.
30 The Same, Epitomes of Probabilities by Paulus, Book VIII. If anything which our enemies have taken from us is of such a nature that it can return by the law of postliminium, as soon as it escapes from the enemy for the purpose of returning to us and comes within the boundaries of our empire, it should be considered to have returned under the law of postliminium. Paulus: But when a slave of one of our citizens, after having been captured by the enemy, escapes from them, and remains at Rome without either being under the control of his master, or in the service of anyone else, it should be held that he has not yet returned under the law of postliminium.