DOI Page / Citation link:
https://doi.org/10.11588/diglit.51387#0033
TREASURE-TROVE 31
Whatever view we take as to the discrepancy in detail
between the constitutions of Hadrian and the Divi Fratres,
there can be little doubt that the latter, for the time at least,
superseded the former. Both are recorded by Justinian,
presumably for historical reasons. Since he does not say
which he approves, we can only choose that which we think
to be more in accordance with Roman-Justinianean Law,
and then the view expressed in the constitution of Hadrian
is without doubt to be preferred.1
In the legislation of the Divi Fratres nothing is said of
what happens when it is by deliberate search, and not
fortuitously, that the treasure is found in religious (sacred)
places, monuments or public property. Presumably the old
rule was retained, by which it would all go to the fiscus.
Severus Alexander, if his biographer in the Augustan
History is to be trusted,2 also left treasures to the finder. The
writer, however, adds that if the treasures were numerous
(large?) he added to the finder (as participators in the
benefit) those whom he had in his own offices. The practice
of Severus Alexander may mark the beginning of the break-
ing down of the ‘naturally equitable’ system of Hadrian.3
It has been argued that the law of Constantine, to which
1 Braun (p. 42) and the majority of writers on the subject. ‘Treasure
found in a locus religiosus or sacer is given entire to the finder, because
there can be no question of an owner of the thing in which the treasure
is found.’ This, he says, is the sounder decision from the stand-point of
Justinianean law. Cp. Ghaffak, Fundsache und Schatz, Leipzig Diss., 1903.
But see Buckland, Text-Book2, p. 220.
2 Lampridius (Scr. Hist. Aug.), Alexander Severus c. 46: ‘Thesauros
reppertos is, qui reppererant, donavit et, si multi essent, addidit his eos,
quos in suis habebat officiis.’ Pampaloni (p. no) restricts the scope of
this provision of Severus Alexander to finds made in the provinces,
which strictly would go half to the fiscus. He gives no authority for this
view, which he also holds with regard to the alleged legislation under
Carus and Carinus; that, as we have seen, is probably misdated.
3 Gothofredus gives no ground for his conjecture that the complete
fiscalization of treasure took place under Elagabalus. The supposed
reform in the direction of ‘natural equity’ under Carus and Carinus did
not, as we have seen above (p. 25, n. 2), actually take place.
Whatever view we take as to the discrepancy in detail
between the constitutions of Hadrian and the Divi Fratres,
there can be little doubt that the latter, for the time at least,
superseded the former. Both are recorded by Justinian,
presumably for historical reasons. Since he does not say
which he approves, we can only choose that which we think
to be more in accordance with Roman-Justinianean Law,
and then the view expressed in the constitution of Hadrian
is without doubt to be preferred.1
In the legislation of the Divi Fratres nothing is said of
what happens when it is by deliberate search, and not
fortuitously, that the treasure is found in religious (sacred)
places, monuments or public property. Presumably the old
rule was retained, by which it would all go to the fiscus.
Severus Alexander, if his biographer in the Augustan
History is to be trusted,2 also left treasures to the finder. The
writer, however, adds that if the treasures were numerous
(large?) he added to the finder (as participators in the
benefit) those whom he had in his own offices. The practice
of Severus Alexander may mark the beginning of the break-
ing down of the ‘naturally equitable’ system of Hadrian.3
It has been argued that the law of Constantine, to which
1 Braun (p. 42) and the majority of writers on the subject. ‘Treasure
found in a locus religiosus or sacer is given entire to the finder, because
there can be no question of an owner of the thing in which the treasure
is found.’ This, he says, is the sounder decision from the stand-point of
Justinianean law. Cp. Ghaffak, Fundsache und Schatz, Leipzig Diss., 1903.
But see Buckland, Text-Book2, p. 220.
2 Lampridius (Scr. Hist. Aug.), Alexander Severus c. 46: ‘Thesauros
reppertos is, qui reppererant, donavit et, si multi essent, addidit his eos,
quos in suis habebat officiis.’ Pampaloni (p. no) restricts the scope of
this provision of Severus Alexander to finds made in the provinces,
which strictly would go half to the fiscus. He gives no authority for this
view, which he also holds with regard to the alleged legislation under
Carus and Carinus; that, as we have seen, is probably misdated.
3 Gothofredus gives no ground for his conjecture that the complete
fiscalization of treasure took place under Elagabalus. The supposed
reform in the direction of ‘natural equity’ under Carus and Carinus did
not, as we have seen above (p. 25, n. 2), actually take place.