Labeo left in public law, Capito was an
advocate
of the New;
400 behind him.
400 behind him.
William Smith - 1844 - Dictionary of Greek and Roman Antiquities - a
s.
2.
§ 47.
) We cannot agree with the commenta-
iv. 7. vol. xii. p. 731) and Actius (ii. 3. 77, p. 332). tors who attempt to reconcile the statement of
He may perhaps be the same person as Artemidorus Pomponius with the inference that would naturally
Capito (ARTEMIDORUS), but this is quite un- be drawn from the antithesis of Tacitus : “ Jlli
certain.
(W. A. G. ) [Labeoni), quod praeturam intra stetit, commen-
CAPITO, C. ATEIUS, was tribune of the peo- datio ex injuria, huic (Capitoni] quod consulatum
ple in B. c. 55, and with his colleagie, Aquillius adeptus est, odium ex invidia oricbatur. ”
Gallus, opposed Pompey and Crassus, who were In A. d. 13, Capito was appointed to succeed
consuls that year. Capito in icular opposed a Messalla in the important office of “ curator aqua-
bill, which the tribune Trebonius brought forward, rum publicarum," and this office he held to the
concerning the distribution of the provinces, but in time of his death. (Frontinus, de Aquacd. 102, ed
vain. Capito and Gallus afterwards endeavoured Diederich. )
to stop the lery of the troops and to render the Capito continued in favour under Tiberius. In
campaigns, which the consuls wished to undertake, A. D. 15, after a formidable and mischievous inun-
impossible ; and when Crassus, nevertheless, con- dation of the Tiber, he and Arruntius were in-
tinued to make preparations for an expedition trusted with the task of keeping the river within
against the Parthians, Capito announced awful its banks. They submitted to the senate whether
prodigies which were disregarded by Crassus. it would not be expedient to divert the course of
Appius, the censor, afterwards punished Capito the tributary streams and lakes. Deputies from
with a nota censoria, as he was charged with hav- the coloniae and municipal towns, whose interests
ing fabricated the prodigies by which he had would have been affected by the change, were heard
attempted to deter Crassus from his undertaking. against the plan. Piso led the opposition, and the
Dion Cassius (xxxix. 34) says, that Capito, as tri- measure was rejected. (Tac. Ann. i. 76, 79. )
bune, also counteracted the measures adopted by The grammarian, Ateius Philologus, who was a
the consuls in favour of Caesar ; but some time freedman, was probably (if we may conjecture
afterwards Cicero (ad Famil. xiii. 29), who speaks from his name and from some other circumstances)
of him as his friend, says that he favoured the the freedman of Capito. [ATEius, p. 392, b. )
party of Caesar, though it may be inferred The few recorded incidents of Capito's life tend
from the whole tone of the letter of Cicero to justify the imputation of servility which has
just referred to, that Capito had made no public been attached to his name ; while Labeo, as if
declaration in favour of Caesar, as Cicero is at so for the sake of contrast, appears to have fallen into
much pains to induce Plancus to interfere with the opposite extreme of superfinous incivility. Ti-
Caesar on behalf of Capito. It is not improbable berius, in an edict relating to new years' giſts
that our Capito, whom Tacitus (Ann. iii. 45) calls (Dict. of Ant. s. v. Strena) had employed a word,
a praetorian, is the same as the one whom Appian which recurred to his memory at night, and struck
(B. C. v. 33, 50) mentions as a legate of Antony. him as of doubtful Latinity. In the morning he
(Comp. Dion Cass. xxxi. 42, xxxix. 33–39; summoned a meeting of the most celebrated verbal
Appian, B. C. ü. 18; Plut. Crass. 19; Cic. de critics and grammarians in Rome, among whom
Divinat. i. 16. )
(L. S. ]
Capito was included, to decide upon the credit of
CA'PITO, C. ATEʻIUS, an eminent Roman the word. It was condemned by M. Pomponius
jurist, was the son of the preceding. He be- Marcellus, a rigid purist, but Capito pronounced
came a disciple of the jurist Ofilius, who is said that “it was good Latin, or if not, that it would
by Pomponius to have been more learned than become so. ” Capito does not speak the truth,"
Trebatius. Labeo, too, his elder contemporary rejoined the inflexible Marcellus, " You have the
and subsequent rival, had studied under Ohlius, power, Caesar, to confer a citizenship on men but
but had received his elementary education from not on words. " (Suet. de IU. Gram. 22 ; Dion.
Trebatius, and had listened to all the other Cass. lvii. 17. ) We agree with Van Eck in holding
eminent jurists of the day. Labeo and Ca- that in Capito's conduct on this occasion there is
pito became the highest legal authorities at nothing that deserves blame. There was a faint
Rome, and were reckoned the ornaments of their condemnation lurking in his prophecy as to the
profession. Differing in opinion on many impor- future, and, peradventure he spoke the truth, for
tant points, they were the founders of two legal the authority of an emperor so fastidious in his
schools, analogous to the sects of philosophers. diction as Tiberius, might fairly be expected to
They were men of very opposite dispositions and confer on a word, if not full citizenship, at least a
political principles-Labeo, a sturdy and heredi- limited jus Latii.
tary republican ; Capito, a time-serving adherent In the story of the (unknown) word, we dis-
## p. 600 (#620) ############################################
600
CAPITO.
CAPITO.
cern the spirit of a courtier, without anything to 10) under the name De Jure Sacrificiorum. 3. A
call for serious blame, but Tacitus relates an inci- treatise, De Officio Senatorio. (Geil
. iv. 10. )
dent which exhibits Capito in the shameful cha- Frontinus (De Aquacduct. 97) cites Capito on
racter of a hypocrite playing the game of a hypo- the law of the public waters of Rome, and it is
crite--of a lawyer perverting his high authority, very likely that he wrote specially on a subject
and using the pretence of adherence to constitu- with which his official duties connected him.
tional freedom in order to encourage cruel tyranny. We have already seen Capito in the character of
L. Ennius, a Roman knight, was accused by some a verbal critic. The meaning and proper usage of
informer of treason, for having melted down a words constitute a branch of study of considerable
small silver statue of the emperor, and converted it importance to a jurist, who has to interpret wills
into common plate. Tiberius employed his right and other private dispositions of property, and to
of intercession to stop the accusation. Capito construe law's. There is a title de Significatione
complained of such an interference with the juris- Verborum in the Digest. The subject engaged the
diction of the senate, and deprecated the impunity attention of Labeo, and we are strongly disposed
of such an atrocious delinquent as L. Ennius. to believe that it was treated of by Capito. In
“Let the emperor," said he, “be as slow as he Pliny (H. N. xiv. 15), Capito is cited as agreeing
likes in avenging his merely private griefs, but let with the jurist Scaevola, and with Laelius (Aelius :)
his generosity have some limits- let it stop short in holding (as Plautus, Pseud. ii. 4. 51, seems to
of giving away the wrongs of the state. ” The have held), that the word myrrhina comprehended
men understood each other. The mock magnani- sweets (dulcia), as well as wines. In another
mity of the emperor was proof against the mock passage of Pliny (H. N. xviii. 28), we find Capito
remonstrance of the lawyer. (Tac. Ann. iii. 70. ) tracing the variations in meaning of the words
Shortly after this disgraceful scene Capito died, coquus and pistor. In Servius (ad Virg. Aen. v.
A. D. 22.
45), Varro and Ateius are cited as holding a pe-
It is remarkable that, notwithstanding the great culiar opinion on the distinction between Divus
legal reputation of Capito, not a single pure extract and Deus. We take Ateius here to be the jurist
from any of his works occurs in the Digest, though Capito, for Ateius is the name by which he is ge-
there are a few quotations from him at second hand. nerally denoted in the Digest ; but it is not im-
His works may have perished before the time possible that the freedman Ateius Philologus may
of Justinian, though some of them must have ex- be meant.
isted in the fifth century, as they are cited by Ayınarus Rivallius, one of the earliest writers
Macrobius. It may be that he treated but little on the history of Roman law (v. 2) says, that
of private law, and that his public law soon be Capito wrote commentaries on the 12'Tables, but
came superannuated.
no authority is produced for this assertion, wbich,
Capito is quoted in the Digest by his contempo- however, is followed by Val. Forster (in i. Zileti
rary Labeo : Dig. 23, tit. 3, s. 79, § 1; 32, s. 30,1 Tractatus Tractatuum p. 48), and Rutilius. (De
§ 6 ; by Proculus, 8, tit. 2, s. 13, $1 by Javole Jurisp. c. 48. )
nus, 31. tit. 2, s. 39, § 32 ; by Ulpian, 23, tit. 2, Gellius (xiii. 12) cites a certain epistle of
8. 29 (where mention is made of Capito's consul. Capito, the authenticity of which has been called
ship), by Paulus, 39, tit. 3, s. 2, $ 4; 39, tit. 3, s. in question. It speaks in the past tense of Labeo,
14; though, in this last-mentioned passage, the who died in the beginning of the reign of Tiberins.
Florentine manuscript has Antaeus, but there is no It commends the great legal learning of Labeo,
where else the slightest record of a jurist named while it charges him with a love of liberty so ex-
Antaeus. In Dig. 23, tit. 2, s. 79, § 1, and 34, cessive, that he set no value upon anything“ nisi
tit. 2, s. 39, § 2, Capito is quoted as himself quo quod justum sanctumque esse in Romanis antiqui-
ting Servius Sulpicius, who thus appears at third tatibus legisset. ” It then relates an instance of
hand. There are judicial fragments of Capito Labeo's refusing to obey the summons of a tribune,
preserved in other authors (Gellius, Festus, Nonius, while he admitted the right of a tribune to arrest.
Macrobius). A collection of such fragments is Gellius thereupon takes occasion to shew, very
given by Dirksen in his Bruchstücke aus der clearly and satisfactorily, from Varro, why it was
Schriften der Römischen Juristen, pp. 83–92. that tribunes, having power to arrest, had not the
Capito was learned in every department of law, apparently minor and consequential power of sum-
public, private, and sacred. He wrote 1. Conjectanea, mons. That Capito should charge Labeo with ad-
which must have been exceedingly voluminous, herence to the strict letter of constitutional law
as the 259th book is cited by Gellius. (xiv. 8. ) seems to be at variance with the character of the
Each book seems to have had a separate title. At two jurists as drawn by Pomponius: “ Capito kept
least, the 9th book is said by Gellius (iv. 14) to to that which he received from his instructors ;
have been inscribed de judiciis publicis, and it is Labeo, who possessed an intellect of a different
undoubtedly the same book which is cited (x 6), ) order, and had diligently cultivated other depart-
as if it were a separate treatise, by the name ments of human knowledge besides law, introduced
Commentarius de Judiciis Publicis. Possibly the many innovations. ” (Dig. 1. tit. 2, s. 2. § 47. )
Conjectaneorum libri were composed of all the se- For the purpose of reconciling these apparently
parate works of Capito, collected and arranged conflicting testimonies, it has been supposed that
under proper heads and subdivisions. The books Capito was a follower of the Old in private law,
of the ancient jurists, so far as we can judge by and Labeo in public law ; while, on the contrary,
remaining specimens, were not long.
Labeo left in public law, Capito was an advocate of the New;
400 behind him. 2. A treatise De Pontificio Jure, in private law, Labeo.
of which the 5th book is quoted by Gellius (iv. 6), Capito and Labeo became the founders of two
and the 6th by Festus (s. v. Mundus). It is celebrated schools of Roman law, to which most of
probably the same treatise, or a part of the same the distinguished jurists belonged. Their respec-
treatise, which is cited by Macrobius (Saturn. iii. , tive followers, mentioned by Pomponius, are-
## p. 601 (#621) ############################################
CAPITO.
601
CAPITO.
Of Antislius Labeo. Of C. Aleius Capito. general principles, or whether they consisted in
M. Cocceius Nerva Masurius Sabinus. discordant opinions upon isolated particular points,
pater.
C. Cassius Longinus. it is clear that the political opposition between
Sempronius Proculus. Longinus.
Capito and Labeo had not long any important in-
Nerva filius.
Caelius Sabinus. fluence on their respective schools, for Cocceius
Pegasus.
Priscus Javolenus. Nerva, the immediate successor of Labeo, did not
P. Jurentius Celsus Aburnus Valens. adopt the political opinions of his master, which,
pater,
Tuscianus.
as the empire became consolidated, must have soon
Celsus filius.
Salvius Julianus. grown out of fashion, the more especially, since
Neratius Priscus.
jurists now began to receive their authorization
To the list of Capito's followers may be added from the prince. Proculus was a still stronger im-
with certainty, Gaius ; with the highest probability, perialist than Nerva. Even in private law, the
Pomponius ; and, with more or less plausible con- subsequent leaders on either side modified, per-
jecture, a few others, as T. Aristo.
haps considerably, the original differences, and
The schools, of which Capito and Labeo were the introduced new matters of discussion. The dis-
founders, took their respective names from distin- tinction of the schools is strongly manifested in
guished disciples of those jurists. The followers Gaius, who wrote under Antoninus Pius, but soon
of Capito were called from Masurius Sabi- | after that time it seems to have worn out from the
nus, Sabiniani ; and afterwards, from Cassius influence of independent eclecticism. Even in
Longinus, Cassiani. The followers of Labeo took earlier times, a jurist was not necessarily a bigoted
from Proculus (not Proculeius), the ill-formed supporter of every dogma of his school. Thus,
name Proculejani (so spelt, not Proculiani, in all we find a case in Gaius (iii. 140) where Cassius
old manuscripts wherever it occurs). From a mis- approves the opinion Labeo, while Proculus
understanding of the phrase Pegasianum jus, follows that of Ofilius, the master of Capito. Not
(meaning, the legal writings of Pegasus,) in the every question, on which the opinions of Roman
scholiast on Juvenal (iv. 77), some have supposed jurists were divided, was a school question.
that the followers of Labeo were also called from When Justinian found it necessary to settle fifty
Pegasus, Pegasiani. (Dict. of Ant. s. v. Jurisconsulti. ) disputed questions in the interval between the first
The controversy as to the characteristic differ- and second editions of his Constitutionum Codex,
ences between these schools has been endless, and he was obliged to look back to ancient contro-
most writers on the subject have endeavoured to versies, and sometimes to annul by express sanc-
refer those differences to some general principle. tion that which was already antiquated in practice.
When continental jurists were disputing about the The consideration of this fact alone shews that,
relative importance of equity, as compared with from his L. Decisiones, it would be wrong to infer,
strict law, the Roman schools were supposed to be as some have done, that the old separation of the
based upon a disagreement between the admirers of schools existed in his time; but further, there is
equity and the admirers of strictness. Those who no proof that any of the questions he settled were
thought Labeo the better man were anxious to en- ever party questions of the schools.
list him upon their side of the question. Accord- Though the distinctions of the schools gradually
ing to Mascovius and Hommel, Labeo was the ad- wore out, as eminent and original men arose, who
vocate of sound and strict interpretation ; accor- thought for themselves, there is no proof that there
ding to Bach and Tydemann, Capito was an oppo- was ever a distinct middle school. A school of
nent of that enlightened equity which seeks to Miscelliones has been imagined in consequence of a
penetrate beyond the literal husky rind. When passage of Festus, which, however, has nothing to
modern jurists were divided into the philosophical do with the profession of the law: “ Miscellioncs
(dyslogistically, unhistorical), and the historical appellantur, qui non certae sunt sententiae, sed
(dyslogistically, unphilosophical), schools, Capito variorum mixtorumque judiciorum. ” Cujas, from
and Labeo were made to belong to one or other of a false reading of Servius (ad Virg. Aen. iii. 68),
these parties. Dirksen (Beiträge zur Kentniss des imagined the existence of an eclectic sect of Her-
Römischen Rechts, pp. 1-159) and Zimmern (R. R. G. ciscundi. Servius, speaking of the opinions of the
1. 66) think, that the schools differ chiefly in ancients concerning the soul, says that some be-
their mode of handling legal questions ; that the lieved that consciousness ceased with death ; others,
votaries of Sabinus look for something external to that the soul was immortal ; while the Stoics, pur-
hang their reasoning upon, whether it be ancient suing a middle course, held that it was buried in
practice, or the text of a law, or the words of a the earth, and lived as long as the body endured.
private disposition, or analogy to a positive rule, * Stoici vero, terris condi, i. e. medium secuti, tam
and only at last, in default of all these, resort to diu durare dicunt, quamdiu durat et corpus. '
the general principles of right and the natural Cujas, for terris condi, deciphered, as he thought,
feelings of equity : whereas the votaries of Procu- in his nearly illegible copy, kerciscundi, a technical
lus on the other hand, looking, in the first instance, word, which appears in the Familiae herciscundae
more freely to the inner essence of rules and insti- causa. (Dig. 10. tit. 2. ) The error of Cujas, in
tutions, and anxious to construct law on the un- referring a name so strangely gotten to an eclectic
changing basis of morality, sometimes by an appa- sect of Roman jurists, gained general reception
rent deviation from the letter, arrive at results among the civilians of his day, on account of his
more correspondent with the nature of the subject. great learning and authority.
Puchta (Inst. 1. $ 98) refers the original divergence Though Capito is little quoted—not once by his
to the personal characters of the founders, the ac- own follower, Gaius--though there are many (60)
quiescence of Capito in received doctrines, the more citations bearing the name of Labeo in the
liberal and comprehensive intellect of Labeo, urging Digest, and a vast number of citations of Labeo in
philosophical progress and scientific developement. fragments bearing the name of other jurists-the
Whether the original differences rested on conclusions of Capito's school seem, in a majority of
:
## p. 602 (#622) ############################################
602
CAPITO.
CAPITO.
cases, to have prevailed in practice. This proceeded | command in Hispania Ulterior, which was left to
partly, perhaps, from the great authority acquired him also for the year following, with the title of
by Masurius Sabinus, and from the numerous com- proconsul. (Liv. xl. 59, xli. 2, 19. )
mentators who wrote libri ad Sabinum. Among 2. P. Fontelus Capito, was praetor in B. C.
these, indeed, were some of the opposite party. 169, and obtained Sardinia as his province. (Liv.
According to Blume's celebrated hypothesis, first xliii
. 13, 17. )
suggested by Jac. Godefroi, one of the great 3. C. FONTEIUS CAPITO, a friend of M. Antony,
divisions in most of the titles of the Digest con- accompanied Maecenas, in B. c. 37, when he was
sisted of extracts from the writings of annotations sent by Octavianus to Antony to restore friend-
on Sabinus. Some Sabinian influence may also ship between Octavianus and Antony. Capito
have been exerted upon Roman jurisprudence remained with Antony, and was soon after sent
through the labour of the Sabinian Salvius Ju- by him to Egypt, to fetch Cleopatra to Syria. He
lianus in recasting the praetor's edict. But there is probably the same person as the C. Fonteius
never was any general determination in favour of Capito who was appointed consul suffectus, in B. C.
either school. In some points, Proculus and his 33, together with M'. Acilius. There is a coin of
party were preferred. For example, Gaius (ii. 21) his extant with the heads of Antony and Cleopa-
mentions a rescript of Hadrian, and (ii. 195)another tra, and on which Capito is called propraetor, and
of Antoninus Pius, against certain theoretical con- bears the praenomen Caius. (Horat. Sat. i. 5.
clusions of the Sabinians ( nostri praeceptores') 32 ; Plut. Anton. 36 ; Eckhel, Doctr. Num. v.
and in favour of the “diversae scholae auctores. " p. 219. )
The agreement of the majority of the jurists autho 4. C. FONTEIUS CAPITO, a son of C. Fonteius
• rized by the emperor jura condere, rather than Capito, the friend of M. Antony. [No. 3. ) He
the creed of this or that sect, became under the was consul in A. D. 12, together with Germanicus,
empire the test of legal orthodoxy. (Plin. H. N. and afterwards had, as proconsul, the administra-
xiv. 15; Rutilius, c. 48, in Franckii Vitae Tripar- tion of the province of Asia. Many years later,
titae JCtorum, contains several questionable state in A. D. 25, he was accused by Vibius Serenus,
ments, without giving his authorities. He enters apparently on account of his conduct in Asia ; but,
into conjectures as to the family of the jurist, and as no sufficient evidence was adduced, he was ac-
treats of several Romans of the name of Capito. quitted. (Fasti Cap. ; Suet. Cal. 8; Tac. Ann. iv. 36. )
Bertrand, ii. 51. 3; Guil. Grot. i. 12. 6; Ant. 5. C. FONTEIUS CAPITO, consul in A. D. 59 tá
Augustinus, de Nominibus Propriis Pandectarum, gether with C. Vipsanius. (Tac. Ann. xiv. 1;
in Otto's Thesaurus, i. 226; Chr. Thomasii, Com- Plin. H. N. ii. 72, vii. 20; Solin. 6. )
paratio Antistii Labeonis et Ateii Capitonis, 4to. 6. L. FONTEIUS CAPITO, consul in A. D. 67 to-
Lips. 1683; Corn. Van Eck, de Vita, Moribus, et gether with C. Julius Rufus, as we learn from the
Studiis M. Antistii Labeonis et C. Ateü Capitonis, Fasti Siculi and the Chronicon of Cassiodorus ; but
ed.
iv. 7. vol. xii. p. 731) and Actius (ii. 3. 77, p. 332). tors who attempt to reconcile the statement of
He may perhaps be the same person as Artemidorus Pomponius with the inference that would naturally
Capito (ARTEMIDORUS), but this is quite un- be drawn from the antithesis of Tacitus : “ Jlli
certain.
(W. A. G. ) [Labeoni), quod praeturam intra stetit, commen-
CAPITO, C. ATEIUS, was tribune of the peo- datio ex injuria, huic (Capitoni] quod consulatum
ple in B. c. 55, and with his colleagie, Aquillius adeptus est, odium ex invidia oricbatur. ”
Gallus, opposed Pompey and Crassus, who were In A. d. 13, Capito was appointed to succeed
consuls that year. Capito in icular opposed a Messalla in the important office of “ curator aqua-
bill, which the tribune Trebonius brought forward, rum publicarum," and this office he held to the
concerning the distribution of the provinces, but in time of his death. (Frontinus, de Aquacd. 102, ed
vain. Capito and Gallus afterwards endeavoured Diederich. )
to stop the lery of the troops and to render the Capito continued in favour under Tiberius. In
campaigns, which the consuls wished to undertake, A. D. 15, after a formidable and mischievous inun-
impossible ; and when Crassus, nevertheless, con- dation of the Tiber, he and Arruntius were in-
tinued to make preparations for an expedition trusted with the task of keeping the river within
against the Parthians, Capito announced awful its banks. They submitted to the senate whether
prodigies which were disregarded by Crassus. it would not be expedient to divert the course of
Appius, the censor, afterwards punished Capito the tributary streams and lakes. Deputies from
with a nota censoria, as he was charged with hav- the coloniae and municipal towns, whose interests
ing fabricated the prodigies by which he had would have been affected by the change, were heard
attempted to deter Crassus from his undertaking. against the plan. Piso led the opposition, and the
Dion Cassius (xxxix. 34) says, that Capito, as tri- measure was rejected. (Tac. Ann. i. 76, 79. )
bune, also counteracted the measures adopted by The grammarian, Ateius Philologus, who was a
the consuls in favour of Caesar ; but some time freedman, was probably (if we may conjecture
afterwards Cicero (ad Famil. xiii. 29), who speaks from his name and from some other circumstances)
of him as his friend, says that he favoured the the freedman of Capito. [ATEius, p. 392, b. )
party of Caesar, though it may be inferred The few recorded incidents of Capito's life tend
from the whole tone of the letter of Cicero to justify the imputation of servility which has
just referred to, that Capito had made no public been attached to his name ; while Labeo, as if
declaration in favour of Caesar, as Cicero is at so for the sake of contrast, appears to have fallen into
much pains to induce Plancus to interfere with the opposite extreme of superfinous incivility. Ti-
Caesar on behalf of Capito. It is not improbable berius, in an edict relating to new years' giſts
that our Capito, whom Tacitus (Ann. iii. 45) calls (Dict. of Ant. s. v. Strena) had employed a word,
a praetorian, is the same as the one whom Appian which recurred to his memory at night, and struck
(B. C. v. 33, 50) mentions as a legate of Antony. him as of doubtful Latinity. In the morning he
(Comp. Dion Cass. xxxi. 42, xxxix. 33–39; summoned a meeting of the most celebrated verbal
Appian, B. C. ü. 18; Plut. Crass. 19; Cic. de critics and grammarians in Rome, among whom
Divinat. i. 16. )
(L. S. ]
Capito was included, to decide upon the credit of
CA'PITO, C. ATEʻIUS, an eminent Roman the word. It was condemned by M. Pomponius
jurist, was the son of the preceding. He be- Marcellus, a rigid purist, but Capito pronounced
came a disciple of the jurist Ofilius, who is said that “it was good Latin, or if not, that it would
by Pomponius to have been more learned than become so. ” Capito does not speak the truth,"
Trebatius. Labeo, too, his elder contemporary rejoined the inflexible Marcellus, " You have the
and subsequent rival, had studied under Ohlius, power, Caesar, to confer a citizenship on men but
but had received his elementary education from not on words. " (Suet. de IU. Gram. 22 ; Dion.
Trebatius, and had listened to all the other Cass. lvii. 17. ) We agree with Van Eck in holding
eminent jurists of the day. Labeo and Ca- that in Capito's conduct on this occasion there is
pito became the highest legal authorities at nothing that deserves blame. There was a faint
Rome, and were reckoned the ornaments of their condemnation lurking in his prophecy as to the
profession. Differing in opinion on many impor- future, and, peradventure he spoke the truth, for
tant points, they were the founders of two legal the authority of an emperor so fastidious in his
schools, analogous to the sects of philosophers. diction as Tiberius, might fairly be expected to
They were men of very opposite dispositions and confer on a word, if not full citizenship, at least a
political principles-Labeo, a sturdy and heredi- limited jus Latii.
tary republican ; Capito, a time-serving adherent In the story of the (unknown) word, we dis-
## p. 600 (#620) ############################################
600
CAPITO.
CAPITO.
cern the spirit of a courtier, without anything to 10) under the name De Jure Sacrificiorum. 3. A
call for serious blame, but Tacitus relates an inci- treatise, De Officio Senatorio. (Geil
. iv. 10. )
dent which exhibits Capito in the shameful cha- Frontinus (De Aquacduct. 97) cites Capito on
racter of a hypocrite playing the game of a hypo- the law of the public waters of Rome, and it is
crite--of a lawyer perverting his high authority, very likely that he wrote specially on a subject
and using the pretence of adherence to constitu- with which his official duties connected him.
tional freedom in order to encourage cruel tyranny. We have already seen Capito in the character of
L. Ennius, a Roman knight, was accused by some a verbal critic. The meaning and proper usage of
informer of treason, for having melted down a words constitute a branch of study of considerable
small silver statue of the emperor, and converted it importance to a jurist, who has to interpret wills
into common plate. Tiberius employed his right and other private dispositions of property, and to
of intercession to stop the accusation. Capito construe law's. There is a title de Significatione
complained of such an interference with the juris- Verborum in the Digest. The subject engaged the
diction of the senate, and deprecated the impunity attention of Labeo, and we are strongly disposed
of such an atrocious delinquent as L. Ennius. to believe that it was treated of by Capito. In
“Let the emperor," said he, “be as slow as he Pliny (H. N. xiv. 15), Capito is cited as agreeing
likes in avenging his merely private griefs, but let with the jurist Scaevola, and with Laelius (Aelius :)
his generosity have some limits- let it stop short in holding (as Plautus, Pseud. ii. 4. 51, seems to
of giving away the wrongs of the state. ” The have held), that the word myrrhina comprehended
men understood each other. The mock magnani- sweets (dulcia), as well as wines. In another
mity of the emperor was proof against the mock passage of Pliny (H. N. xviii. 28), we find Capito
remonstrance of the lawyer. (Tac. Ann. iii. 70. ) tracing the variations in meaning of the words
Shortly after this disgraceful scene Capito died, coquus and pistor. In Servius (ad Virg. Aen. v.
A. D. 22.
45), Varro and Ateius are cited as holding a pe-
It is remarkable that, notwithstanding the great culiar opinion on the distinction between Divus
legal reputation of Capito, not a single pure extract and Deus. We take Ateius here to be the jurist
from any of his works occurs in the Digest, though Capito, for Ateius is the name by which he is ge-
there are a few quotations from him at second hand. nerally denoted in the Digest ; but it is not im-
His works may have perished before the time possible that the freedman Ateius Philologus may
of Justinian, though some of them must have ex- be meant.
isted in the fifth century, as they are cited by Ayınarus Rivallius, one of the earliest writers
Macrobius. It may be that he treated but little on the history of Roman law (v. 2) says, that
of private law, and that his public law soon be Capito wrote commentaries on the 12'Tables, but
came superannuated.
no authority is produced for this assertion, wbich,
Capito is quoted in the Digest by his contempo- however, is followed by Val. Forster (in i. Zileti
rary Labeo : Dig. 23, tit. 3, s. 79, § 1; 32, s. 30,1 Tractatus Tractatuum p. 48), and Rutilius. (De
§ 6 ; by Proculus, 8, tit. 2, s. 13, $1 by Javole Jurisp. c. 48. )
nus, 31. tit. 2, s. 39, § 32 ; by Ulpian, 23, tit. 2, Gellius (xiii. 12) cites a certain epistle of
8. 29 (where mention is made of Capito's consul. Capito, the authenticity of which has been called
ship), by Paulus, 39, tit. 3, s. 2, $ 4; 39, tit. 3, s. in question. It speaks in the past tense of Labeo,
14; though, in this last-mentioned passage, the who died in the beginning of the reign of Tiberins.
Florentine manuscript has Antaeus, but there is no It commends the great legal learning of Labeo,
where else the slightest record of a jurist named while it charges him with a love of liberty so ex-
Antaeus. In Dig. 23, tit. 2, s. 79, § 1, and 34, cessive, that he set no value upon anything“ nisi
tit. 2, s. 39, § 2, Capito is quoted as himself quo quod justum sanctumque esse in Romanis antiqui-
ting Servius Sulpicius, who thus appears at third tatibus legisset. ” It then relates an instance of
hand. There are judicial fragments of Capito Labeo's refusing to obey the summons of a tribune,
preserved in other authors (Gellius, Festus, Nonius, while he admitted the right of a tribune to arrest.
Macrobius). A collection of such fragments is Gellius thereupon takes occasion to shew, very
given by Dirksen in his Bruchstücke aus der clearly and satisfactorily, from Varro, why it was
Schriften der Römischen Juristen, pp. 83–92. that tribunes, having power to arrest, had not the
Capito was learned in every department of law, apparently minor and consequential power of sum-
public, private, and sacred. He wrote 1. Conjectanea, mons. That Capito should charge Labeo with ad-
which must have been exceedingly voluminous, herence to the strict letter of constitutional law
as the 259th book is cited by Gellius. (xiv. 8. ) seems to be at variance with the character of the
Each book seems to have had a separate title. At two jurists as drawn by Pomponius: “ Capito kept
least, the 9th book is said by Gellius (iv. 14) to to that which he received from his instructors ;
have been inscribed de judiciis publicis, and it is Labeo, who possessed an intellect of a different
undoubtedly the same book which is cited (x 6), ) order, and had diligently cultivated other depart-
as if it were a separate treatise, by the name ments of human knowledge besides law, introduced
Commentarius de Judiciis Publicis. Possibly the many innovations. ” (Dig. 1. tit. 2, s. 2. § 47. )
Conjectaneorum libri were composed of all the se- For the purpose of reconciling these apparently
parate works of Capito, collected and arranged conflicting testimonies, it has been supposed that
under proper heads and subdivisions. The books Capito was a follower of the Old in private law,
of the ancient jurists, so far as we can judge by and Labeo in public law ; while, on the contrary,
remaining specimens, were not long.
Labeo left in public law, Capito was an advocate of the New;
400 behind him. 2. A treatise De Pontificio Jure, in private law, Labeo.
of which the 5th book is quoted by Gellius (iv. 6), Capito and Labeo became the founders of two
and the 6th by Festus (s. v. Mundus). It is celebrated schools of Roman law, to which most of
probably the same treatise, or a part of the same the distinguished jurists belonged. Their respec-
treatise, which is cited by Macrobius (Saturn. iii. , tive followers, mentioned by Pomponius, are-
## p. 601 (#621) ############################################
CAPITO.
601
CAPITO.
Of Antislius Labeo. Of C. Aleius Capito. general principles, or whether they consisted in
M. Cocceius Nerva Masurius Sabinus. discordant opinions upon isolated particular points,
pater.
C. Cassius Longinus. it is clear that the political opposition between
Sempronius Proculus. Longinus.
Capito and Labeo had not long any important in-
Nerva filius.
Caelius Sabinus. fluence on their respective schools, for Cocceius
Pegasus.
Priscus Javolenus. Nerva, the immediate successor of Labeo, did not
P. Jurentius Celsus Aburnus Valens. adopt the political opinions of his master, which,
pater,
Tuscianus.
as the empire became consolidated, must have soon
Celsus filius.
Salvius Julianus. grown out of fashion, the more especially, since
Neratius Priscus.
jurists now began to receive their authorization
To the list of Capito's followers may be added from the prince. Proculus was a still stronger im-
with certainty, Gaius ; with the highest probability, perialist than Nerva. Even in private law, the
Pomponius ; and, with more or less plausible con- subsequent leaders on either side modified, per-
jecture, a few others, as T. Aristo.
haps considerably, the original differences, and
The schools, of which Capito and Labeo were the introduced new matters of discussion. The dis-
founders, took their respective names from distin- tinction of the schools is strongly manifested in
guished disciples of those jurists. The followers Gaius, who wrote under Antoninus Pius, but soon
of Capito were called from Masurius Sabi- | after that time it seems to have worn out from the
nus, Sabiniani ; and afterwards, from Cassius influence of independent eclecticism. Even in
Longinus, Cassiani. The followers of Labeo took earlier times, a jurist was not necessarily a bigoted
from Proculus (not Proculeius), the ill-formed supporter of every dogma of his school. Thus,
name Proculejani (so spelt, not Proculiani, in all we find a case in Gaius (iii. 140) where Cassius
old manuscripts wherever it occurs). From a mis- approves the opinion Labeo, while Proculus
understanding of the phrase Pegasianum jus, follows that of Ofilius, the master of Capito. Not
(meaning, the legal writings of Pegasus,) in the every question, on which the opinions of Roman
scholiast on Juvenal (iv. 77), some have supposed jurists were divided, was a school question.
that the followers of Labeo were also called from When Justinian found it necessary to settle fifty
Pegasus, Pegasiani. (Dict. of Ant. s. v. Jurisconsulti. ) disputed questions in the interval between the first
The controversy as to the characteristic differ- and second editions of his Constitutionum Codex,
ences between these schools has been endless, and he was obliged to look back to ancient contro-
most writers on the subject have endeavoured to versies, and sometimes to annul by express sanc-
refer those differences to some general principle. tion that which was already antiquated in practice.
When continental jurists were disputing about the The consideration of this fact alone shews that,
relative importance of equity, as compared with from his L. Decisiones, it would be wrong to infer,
strict law, the Roman schools were supposed to be as some have done, that the old separation of the
based upon a disagreement between the admirers of schools existed in his time; but further, there is
equity and the admirers of strictness. Those who no proof that any of the questions he settled were
thought Labeo the better man were anxious to en- ever party questions of the schools.
list him upon their side of the question. Accord- Though the distinctions of the schools gradually
ing to Mascovius and Hommel, Labeo was the ad- wore out, as eminent and original men arose, who
vocate of sound and strict interpretation ; accor- thought for themselves, there is no proof that there
ding to Bach and Tydemann, Capito was an oppo- was ever a distinct middle school. A school of
nent of that enlightened equity which seeks to Miscelliones has been imagined in consequence of a
penetrate beyond the literal husky rind. When passage of Festus, which, however, has nothing to
modern jurists were divided into the philosophical do with the profession of the law: “ Miscellioncs
(dyslogistically, unhistorical), and the historical appellantur, qui non certae sunt sententiae, sed
(dyslogistically, unphilosophical), schools, Capito variorum mixtorumque judiciorum. ” Cujas, from
and Labeo were made to belong to one or other of a false reading of Servius (ad Virg. Aen. iii. 68),
these parties. Dirksen (Beiträge zur Kentniss des imagined the existence of an eclectic sect of Her-
Römischen Rechts, pp. 1-159) and Zimmern (R. R. G. ciscundi. Servius, speaking of the opinions of the
1. 66) think, that the schools differ chiefly in ancients concerning the soul, says that some be-
their mode of handling legal questions ; that the lieved that consciousness ceased with death ; others,
votaries of Sabinus look for something external to that the soul was immortal ; while the Stoics, pur-
hang their reasoning upon, whether it be ancient suing a middle course, held that it was buried in
practice, or the text of a law, or the words of a the earth, and lived as long as the body endured.
private disposition, or analogy to a positive rule, * Stoici vero, terris condi, i. e. medium secuti, tam
and only at last, in default of all these, resort to diu durare dicunt, quamdiu durat et corpus. '
the general principles of right and the natural Cujas, for terris condi, deciphered, as he thought,
feelings of equity : whereas the votaries of Procu- in his nearly illegible copy, kerciscundi, a technical
lus on the other hand, looking, in the first instance, word, which appears in the Familiae herciscundae
more freely to the inner essence of rules and insti- causa. (Dig. 10. tit. 2. ) The error of Cujas, in
tutions, and anxious to construct law on the un- referring a name so strangely gotten to an eclectic
changing basis of morality, sometimes by an appa- sect of Roman jurists, gained general reception
rent deviation from the letter, arrive at results among the civilians of his day, on account of his
more correspondent with the nature of the subject. great learning and authority.
Puchta (Inst. 1. $ 98) refers the original divergence Though Capito is little quoted—not once by his
to the personal characters of the founders, the ac- own follower, Gaius--though there are many (60)
quiescence of Capito in received doctrines, the more citations bearing the name of Labeo in the
liberal and comprehensive intellect of Labeo, urging Digest, and a vast number of citations of Labeo in
philosophical progress and scientific developement. fragments bearing the name of other jurists-the
Whether the original differences rested on conclusions of Capito's school seem, in a majority of
:
## p. 602 (#622) ############################################
602
CAPITO.
CAPITO.
cases, to have prevailed in practice. This proceeded | command in Hispania Ulterior, which was left to
partly, perhaps, from the great authority acquired him also for the year following, with the title of
by Masurius Sabinus, and from the numerous com- proconsul. (Liv. xl. 59, xli. 2, 19. )
mentators who wrote libri ad Sabinum. Among 2. P. Fontelus Capito, was praetor in B. C.
these, indeed, were some of the opposite party. 169, and obtained Sardinia as his province. (Liv.
According to Blume's celebrated hypothesis, first xliii
. 13, 17. )
suggested by Jac. Godefroi, one of the great 3. C. FONTEIUS CAPITO, a friend of M. Antony,
divisions in most of the titles of the Digest con- accompanied Maecenas, in B. c. 37, when he was
sisted of extracts from the writings of annotations sent by Octavianus to Antony to restore friend-
on Sabinus. Some Sabinian influence may also ship between Octavianus and Antony. Capito
have been exerted upon Roman jurisprudence remained with Antony, and was soon after sent
through the labour of the Sabinian Salvius Ju- by him to Egypt, to fetch Cleopatra to Syria. He
lianus in recasting the praetor's edict. But there is probably the same person as the C. Fonteius
never was any general determination in favour of Capito who was appointed consul suffectus, in B. C.
either school. In some points, Proculus and his 33, together with M'. Acilius. There is a coin of
party were preferred. For example, Gaius (ii. 21) his extant with the heads of Antony and Cleopa-
mentions a rescript of Hadrian, and (ii. 195)another tra, and on which Capito is called propraetor, and
of Antoninus Pius, against certain theoretical con- bears the praenomen Caius. (Horat. Sat. i. 5.
clusions of the Sabinians ( nostri praeceptores') 32 ; Plut. Anton. 36 ; Eckhel, Doctr. Num. v.
and in favour of the “diversae scholae auctores. " p. 219. )
The agreement of the majority of the jurists autho 4. C. FONTEIUS CAPITO, a son of C. Fonteius
• rized by the emperor jura condere, rather than Capito, the friend of M. Antony. [No. 3. ) He
the creed of this or that sect, became under the was consul in A. D. 12, together with Germanicus,
empire the test of legal orthodoxy. (Plin. H. N. and afterwards had, as proconsul, the administra-
xiv. 15; Rutilius, c. 48, in Franckii Vitae Tripar- tion of the province of Asia. Many years later,
titae JCtorum, contains several questionable state in A. D. 25, he was accused by Vibius Serenus,
ments, without giving his authorities. He enters apparently on account of his conduct in Asia ; but,
into conjectures as to the family of the jurist, and as no sufficient evidence was adduced, he was ac-
treats of several Romans of the name of Capito. quitted. (Fasti Cap. ; Suet. Cal. 8; Tac. Ann. iv. 36. )
Bertrand, ii. 51. 3; Guil. Grot. i. 12. 6; Ant. 5. C. FONTEIUS CAPITO, consul in A. D. 59 tá
Augustinus, de Nominibus Propriis Pandectarum, gether with C. Vipsanius. (Tac. Ann. xiv. 1;
in Otto's Thesaurus, i. 226; Chr. Thomasii, Com- Plin. H. N. ii. 72, vii. 20; Solin. 6. )
paratio Antistii Labeonis et Ateii Capitonis, 4to. 6. L. FONTEIUS CAPITO, consul in A. D. 67 to-
Lips. 1683; Corn. Van Eck, de Vita, Moribus, et gether with C. Julius Rufus, as we learn from the
Studiis M. Antistii Labeonis et C. Ateü Capitonis, Fasti Siculi and the Chronicon of Cassiodorus ; but
ed.
