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Ca'pito, C. Ate'ius

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 (Tac. Ann. 3.75),that he might obtain precedence over Labeo. It may be that Capito was made consul before the proper age, that is, before his 43rd year. He was consul suffectus with C. Vibius Postumus in A. D. 5. Several writers erroneously confound the jurist with C. Fonteius Capito, who was consul with Germanicus in A. D. 12.

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.” (Dig. 1. tit. 2. s. 2.47.) We cannot agree with the commentators who attempt to reconcile the statement of Pomponius with the inference that would naturally be drawn from the antithesis of Tacitus : “Illi [Labeoni]. quod praeturam intra stetit, commendatio ex injuria, huic [Capitoni] quod consulatum adeptus est, odium ex invidia oriebatur.

In A. D. 13, Capito was appointed to succeed Messalla in the important office of "curator aquarum publicarum," and this office he held to the time of his death. (Frontinus, de Aquaed. 102, ed Diederich.)

Capito continued in favour under Tiberius. In A. D. 15, after a formidable and mischievous inundation of the Tiber, he and Arruntius were intrusted with the task of keeping the river within its banks. They submitted to the senate whether it would not be expedient to divert the course of the tributary streams and lakes. Deputies from the coloniae and municipal towns, whose interests would have been affected by the change, were heard against the plan. Piso led the opposition, and the measure was rejected. (Tac. Ann. 1.76, 79.)

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 the spirit of a courtier, without anything to call for serious blame, but Tacitus relates an incident which exhibits Capito in the shameful character of a hypocrite playing the game of a hypocrite--of a lawyer perverting his high authority, and using the pretence of adherence to constitutional freedom in order to encourage cruel tyranny. L. Ennius, a Roman knight, was accused by some informer of treason, for having melted down a small silver statue of the emperor, and converted it into common plate. Tiberius employed his right of intercession to stop the accusation. Capito complained of such an interference with the jurisdiction of the senate, and deprecated the impunity of such an atrocious delinquent as L. Ennius. " Let the emperor," said he, " be as slow as he likes in avenging his merely private griefs, but let his generosity have some limits--let it stop short of giving away the wrongs of the state." The men understood each other. The mock magnanimity of the emperor was proof against the mock remonstrance of the lawyer. (Tac. Ann. 3.70.)

Shortly after this disgraceful scene Capito died, A. D. 22.


Fragments

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: Dig. 23, tit. 3, s. 79.1; 32, s. 30.6; by Proculus, 8, tit. 2, s. 13.1; by Javolenus, 34. tit. 2, s. 39.32; by Ulpian, 23, tit. 2, s. 29 (where mention is made of Capito's consulship), by Paulus, 39, tit. 3, s. 2.4; 39, tit. 3, s. 14; though, in this last-mentioned passage, the Florentine manuscript has Antaeus, but there is no where else the slightest record of a jurist named Antaeus. In Dig. 23, tit. 2, s. 79.1, and 34, tit. 2, s. 39.2, Capito is quoted as himself quoting Servius Sulpicius, who thus appears at third hand. There are judicial fragments of Capito preserved in other authors (Gellius, Festus, Nonius, Macrobius). A collection of such fragments is given by Dirksen in his Bruchstücke aus der Schriften der Römischen Juristen, pp. 83-92.

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 (4.14) to have been inscribed de judiciis publicis, and it is undoubtedly the same book which is cited (x 6), as if it were a separate treatise, by the name Commentarius de Judiciis Publicis. Possibly the Conjectaneorum libri were composed of all the separate works of Capito, collected and arranged under proper heads and subdivisions. The books of the ancient jurists, so far as we can judge by remaining specimens, were not long. Labeo left 400 behind him. 2. A treatise De Pontificio Jure, of which the 5th book is quoted by Gellius (4.6), and the 6th by Festus (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. (Gel. 4.10.)

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 de Significatione Verborum in the Digest. The subject engaged the attention of Labeo, and we are strongly disposed to believe that it was treated of by Capito. In Pliny (Plin. Nat. 14.15), Capito is cited as agreeing with the jurist Scaevola, and with Laelius (Aelius ?) in holding (as Plautus, Pseud. 2.4. 51, seems to have held), that the word myrrhina comprehended sweets (dulcia), as well as wines. In another passage of Pliny (Plin. Nat. 18.28), we find Capito tracing the variations in meaning of the words coquus and pistor. In Servius (ad Virg. Aen. 5.45), Varro and Ateius are cited as holding a peculiar opinion on the distinction between Dicus and Deus. We take Ateius here to be the jurist Capito, for Ateius is the name by which he is generally denoted in the Digest; but it is not impossible that the freedman Ateius Philologus may be meant.

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. (De Jurisp. 100.48).)

Gellius (13.12) cites a certain epistle of Capito, the authenticity of which has been called in question. It speaks in the past tense of Labeo, who died in the beginning of the reign of Tiberius. It commends the great legal learning of Labeo, while it charges him with a love of liberty so excessive, that he set no value upon anything " nisi quod justum sanctumque csse in Romanis antiquitatibus legisset." It then relates an instance of Labeo's refusing to obey the summons of a tribune, while he admitted the right of a tribune to 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." (Dig. 1. tit. 2, s. 2.47.) For the purpose of reconciling these apparently conflicting testimonies, it has been supposed that Capito was a follower of the Old in private law, and Labeo in public law; while, on the contrary, in public law, Capito was an advocate of the New ; in private law, Labeo.


Influence

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--

  Of Antistius Labeo. Of C. Ateius Capito.
M. Cocceius Nerva Masurius Sabinus.
  pater. C. Cassius Longinus.
Sempronius Proculus. Longinus.
Nerva filius. Caelius Sabinus.
Pegasus. Priscus Javolenus.
P. Juventius Celsus Aburnus Valens.
  pater. Tuscianus.
Celsus filius. Salvius Julianus.
Neratius Priscus.  

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. (Dig. 10. tit. 2.) The error of Cujas, in referring a name so strangely gotten to an eclectic sect of Roman jurists, gained general reception among the civilians of his day, on account of his great learning and authority.

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 cases, to have prevailed in practice. This proceeded partly, perhaps, from the great authority acquired by Masurius Sabinus, and from the numerous commentators who wrote libri ad Sabinum. Among these, indeed, were some of the opposite party. According to Blume's celebrated hypothesis, first suggested by Jac. Godefroi, one of the great divisions in most of the titles of the Digest consisted of extracts from the writings of annotations on Sabinus. Some Sabinian influence may also have been exerted upon Roman jurisprudence through the labour of the Sabinian Salvius Julianus in recasting the praetor's edict. But there never was any general determination in favour of either school. In some points, Proculus and his party were preferred. For example, Gaius (2.21) mentions a rescript of Hadrian, and (2.195) another of Antoninus Pius, against certain theoretical conclusions of the Sabinians (` nostri praeceptores') and in favour of the " diversae scholae auctores." The agreement of the majority of the jurists authorized by the emperor jura condere, rather than the creed of this or that sect, became under the empire the test of legal orthodoxy.


Further Information

Plin. Nat. 14.15; Rutilius, 100.48, in Franckii 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.)

[J.T.G]

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