an eminent Roman jurist, was the son of the preceding. He became a disciple of the jurist
Ofilius, who is said by Pomponius to have been more learned than Trebatius. Labeo, too, his
elder contemporary and subsequent rival, had studied under Ofilius, but had received his
elementary education from Trebatius, and had listened to all the other eminent jurists of the
day. Labeo and Capito became the highest legal authorities at Rome, and were reckoned the
ornaments of their profession. Differing in opinion on many important points, they were the
founders of two legal schools, analogous to the sects of philosophers. They were men of very
opposite dispositions and political principles--Labeo, a sturdy and hereditary republican;
Capito, a time-serving adherent to the new order of things. The complaisance of Capito found
favour with Augustus, who accelerated his promotion to the consulship, in order, says Tacitus
(
Pomponius says (as we interpret his words), that Labeo refused the offer of Augustus to make
him the colleague of Capito. Ex his Ateius consul fuit : Labeo noluit,
quum offerretur ei ab Augusto consulatus,
(et honorem suscipere.Illi [Labeoni]. quod praeturam
intra stetit, commendatio ex injuria, huic [Capitoni] quod consulatum adeptus est, odium ex
invidia oriebatur.
In de Aquaed. 102, ed Diederich.)
Capito continued in favour under Tiberius. In
The grammarian, Ateius Philologus, who was a freedman, was probably (if we may conjecture
from his name and from some other circumstances) the freedman of Capito. [ATEIUS, p. 392b.]
The few recorded incidents of Capito's life tend to justify the imputation of servility
which has been attached to his name; while Labeo, as if for the sake of contrast, appears to
have fallen into the opposite extreme of superfluous incivility. Tiberius, in an edict
relating to new years' gifts (Dict. of Ant. s. v. Strena) had employed a
word, which recurred to his memory at night, and struck him as of doubtful Latinity. In the
morning he summoned a meeting of the most celebrated verbal critics and grammarians in Rome,
among whom Capito was included, to decide upon the credit of the word. It was condemned by M.
Pomponius Marcellus, a rigid purist, but Capito pronounced that " it was good Latin, or if
not, that it would become so." " Capito does not speak the truth," rejoined the inflexible
Marcellus, " You have the power, Caesar, to confer a citizenship on men but not on words."
(Suet. de Ill. Gram. 22; Dion. Cass. 57.17.) We agree with Van Eck in
holding that in Capito's conduct on this occasion there is nothing that deserves blame. There
was a faint condemnation lurking in his prophecy as to the future, and, peradventure he spoke
the truth, for the authority of an emperor so fastidious in his diction as Tiberius, might
fairly be expected to confer on a word, if not full citizenship, at least a limited jus Latii.
In the story of the (unknown) word, we discern
Shortly after this disgraceful scene Capito died,
It is remarkable that, notwithstanding the great legal reputation of Capito, not a single
pure extract from any of his works occurs in the Digest, though there
are a few quotations from him at second hand. His works may have perished before the time of
Justinian, though some of them must have existed in the fifth century, as they are cited by
Macrobius. It may be that he treated but little of private law, and that his public law soon
became superannuated.
Capito is quoted in the Digest by his contemporary Labeo:
Capito was learned in every department of law, public, private, and sacred. He wrote 1. Conjectanea, which must have been exceedingly voluminous, as the 259th book
is cited by Gellius. (14.8.) Each book seems to have had a separate title. At least, the 9th
book is said by Gellius (De
Pontificio Jure, of which the 5th book is quoted by Gellius (s. v. Mundus). It is probably the
same treatise, or a part of the same treatise, which is cited by Macrobius (Saturn, 3.10) under the name De Jure Sacrificiorum. 3. A
treatise, De Officio Senatorio. (
Frontinus (De Aquaeduct. 97) cites Capito on the law of the public
waters of Rome, and it is very likely that he wrote specially on a subject with which his
official duties connected him.
We have already seen Capito in the character of a verbal critic. The meaning and proper usage of words constitute a branch of study of considerable importance to a jurist, who has to interpret wills and other private dispositions of property, and to construe laws. There is a title
Aymarus Rivallius, one of the earliest writers on the history of Roman law (5.2) says, that
Capito wrote commentaries on the 12 Tables, but no authority is produced for this assertion,
which, however, is followed by Val. Forster (in i. Zileti Tractatus
Tractatuum p. 48), and Rutilius. (
Gellius (arrest. Gellius thereupon takes occasion to
shew, very clearly and satisfactorily, from Varro, why it was that tribunes, having power to
arrest, had not the apparently minor and consequential power of summons. That Capito should
charge Labco with adherence to the strict letter of constitutional law seems to be at
variance with the character of the two jurists as drawn by Pomponius : " Capito kept to that
which he received from his instructors ; Labeo, who possessed an intellect of a different
order, and had diligently cultivated other departments of human knowledge besides law,
introduced many innovations." (
Capito and Labeo became the founders of two celebrated schools of Roman law, to which most
of the distinguished jurists belonged. Their respective followers, mentioned by Pomponius,
are--
To the list of Capito's followers may be added with certainty, Gaius; with the highest probability, Pomponius; and, with more or less plausible conjecture, a few others, as T. Aristo.
The schools, of which Capito and Labeo were the founders, took their respective names from
distinguished disciples of those jurists. The followers of Capito were called from Masurius
Sabinus, Sabiniani; and afterwards, from Cassius Longinus, Cassiani. The followers of Labeo
took from Proculus (not Proculeius), the ill-formed name Proculeiani (so spelt, not
Proculiani, in all old manuscripts wherever it occurs). From a misunderstanding of the phrase
Pegasianum jus, (meaning, the legal writings of Pegasus,) in the scholiast on Juvenal (4.77),
some have supposed that the followers of Labeo were also called from Pegasus, Pegasiani. (Dict. of Ant. s. v. Jurisconsulti.)
The controversy as to the characteristic differences between these schools has been
endless, and most writers on the subject have endeavoured to refer those differences to some
general principle. When continental jurists were disputing about the relative importance of
equity, as compared with strict law, the Roman schools were supposed to be based upon a
disagreement between the admirers of equity and the admirers of strictness. Those who thought
Labeo the better man were anxious to enlist him upon their side of the question. According to
Mascovius and Hommel, Labeo was the advocate of sound and strict interpretation; according to
Bach and Tydemann, Capito was an opponent of that enlightened equity which seeks to penetrate
beyond the literal husky rind. When modern jurists were divided into the philosophical
(dyslogistically, unhistorical), and the historical (dyslogistically, unphilosophical),
schools, Capito and Labeo were made to belong to one or other of these parties. Dirksen (Beiträge zur Kentniss des Römischen Rechts, pp. 1-159) and
Zimmern (R. R. G. 1.66) think, that the schools differ chiefly in their
mode of handling legal questions; that the votaries of Sabinus look for something external to hang their reasoning upon, whether it be ancient practice, or
the text of a law, or the words of a private disposition, or analogy to a positive rule, and
only at last, in default of all these, resort to the general principles of right and the
natural feelings of equity: whereas the votaries of Proculus on the other hand, looking, in
the first instance, more freely to the inner essence of rules and
institutions, and anxious to construct law on the unchanging basis of morality, sometimes by
an apparent deviation from the letter, arrive at results more correspondent with the nature
of the subject. Puchta (Inst. 1.98) refers the original divergence to
the personal characters of the founders, the acquiescence of Capito in received doctrines,
the liberal and comprehensive intellect of Labeo, urging philosophical progress and
scientific developement.
Whether the original differences rested on general principles, or whether they consisted in
discordant opinions upon isolated particular points, it is clear that the political opposition between Capito and Labeo had not long any important influence on
their respective schools, for Cocceius Nerva, the immediate successor of Labeo, did not adopt
the political opinions of his master, which, as the empire became consolidated, must have
soon grown out of fashion, the more especially, since jurists now began to receive their
authorization from the prince. Proculus was a still stronger imperialist than Nerva. Even in
private law, the subsequent leaders on either side modified, perhaps considerably, the
original differences, and introduced new matters of discussion. The distinction of the
schools is strongly manifested in Gaius, who wrote under Antoninus Pius, but soon after that
time it seems to have worn out from the influence of independent eclecticism. Even in earlier
times, a jurist was not necessarily a bigoted supporter of every dogma of his school. Thus,
we find a case in Gaius (3.140) where Cassius approves the opinion of Labeo, while Proculus
follows that of Ofilius, the master of Capito. Not every question, on which the opinions of
Roman jurists were divided, was a school question. When Justinian found it necessary to
settle fifty disputed questions in the interval between the first and second editions of his
Constitutionum Codex, he was obliged to look back to ancient controversies, and sometimes to
annul by express sanction that which was already antiquated in practice. The consideration of
this fact alone shews that, from his L. Decisiones, it would be wrong to infer, as some have
done, that the old separation of the schools existed in his time; but further, there is no
proof that any of the questions he settled were ever party questions of
the schools.
Though the distinctions of the schools gradually wore out, as eminent and original men
arose, who thought for themselves, there is no proof that there was ever a distinct middle
school. A school of Miscelliones has been imagined in consequence of a passage of Festus,
which, however, has nothing to do with the profession of the law : " Miscelliones
appellantur, qui non certae sunt sententiae, sed variorum mixtorumque judiciorum." Cujas,
from a false reading of Servius (ad Virg. Aen. 3.68), imagined the
existence of an eclectic sect of Herciscundi. Servius, speaking of the opinions of the
ancients concerning the soul, says that some believed that consciousness ceased with death;
others, that the soul was immortal; while the Stoics, pursuing a middle course, held that it
was buried in the earth, and lived as long as the body endured. " Stoici
vero, terris condi, i. e. medium secuti, tam diu durae dicunt, quamdiu
durat et corpus." Cujas, for terris condi, deciphered, as he thought, in
his nearly illegible copy, herciscundi, a technical word, which appears
in the Familiae herciscundae causa. (
Though Capito is little quoted--not once by his own follower, Gaius--though there are many
(60) more citations bearing the name of Labeo in the Digest, and a vast number of citations
of Labeo in fragments bearing the name of other jurists--the conclusions of Capito's school
seem, in a majority of
Vitae Tripartitae JCtorum, contains several questionable statements,
without giving his authorities. He enters into conjectures as to the family of the jurist,
and treats of several Romans of the name of Capito. Bertrand, 2.51. 3; Guil. Grot. 1.12. 6;
Ant. Augustinus, de Nominibus Propriis Pandectarum, in Otto's Thesaurus,
1.226; Chr. Thomasii, Comparatio Antistii Labeonis et Ateii Capitonis,
4to. Lips. 1683; Corn. Van Eck, de Vita, Moribus, et Studiis M. Antistii
Labeonis et C. Ateii Capitonis, ed. Oelrichs, Thes. Nov. Diss. 1.825-856 ; And. M.
Molleri, Selecta quaedam, &c., ib. vol. ii. tom. ii. pp. 111-126;
Maiansius, ad XXX JCtos, 2.167-186; Zimmern. R. R. G. 1. §§
82, 83.)