600 CAPITO. cem the spirit of a courtier, without anything to call for serious blame, but Tacitus relates an inci- dent which exhibits Capito in the shameful cha- racter of a hypocrite playing the game of a hypo- crite — of a lawyer perverting his high authority, and using the pretence of adherence to constitu- tional 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 juris- diction 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 magnani- mity of the emperor was proof against the mock remonstrance of the lawyer. (Tac. Ann. iii. 70.) Shortly after this disgraceful scene Capito died, A. D. 22. It is remarkable that, notwithstanding the great legal reputation of Capito, not a single ;9Mre 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 ex- isted 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 be- came superaimuated. Capito is quoted in the Digest by his contempo- rary Labeo : Dig. 23, tit. 3, s. 79, % 1 ; 32, s. 30, § 6 ; by Proculus, 8, tit. 2, s. 13, 5 I ; by Javole- nus, 34. tit. 2, s. 39, ^ 32 ; by Ulpian, 23, tit. 2, s. 29 (where mention is made of Capito 's consul- ship), by Paulus, 39, tit. 3, s. 2, § 4 ; 39, tit. 3, s. ] 4 ; 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 quo- ting 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 Bruchstuckc aus dtr Schriflen der Roinisclien Juriste7i, 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. (xiv. 8.) Each book seems to have had a separate title. At least, the 9th book is said by Gellius (iv. 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 Coiymentarius de Judiciis Publicis. Possibly the Conjectaneorum libri were composed of all the se- parate 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 Fontijicio Jure, of which the 5th book is quoted by Gellius (iv. 6), and the 6th by Festus (s. v. Mundm). It is probably the same treatise, or a part of the same treatise, which is cited by Macrobius {Satuni. iii. CAPITO. 10) under the name De Jure Sacrlfiiiorum. 3. A treatise, De Officio Senaiorio. (Gell. iv. 10.) Frontinus {De Aquacduct. 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 ^vas treated of by Capito. In Pliny {H. N. xiv. 15), Capito is cited as agreeing with the jurist Scaevola, and with Laelius (Aelius ?) in holding (as Plautus, Pseud, ii, 4. 51, seems to have held), that the word myrrhina comprehended sweets {dulcia as well as wines. In another passage of Pliny {H. N. xviii. 28), we find Capito tracing the variations in meaning of the words coquus luid pisior. In Servius {ad Virg. Aen. v. 45), Varro and Ateius are cited as holding a pe- culiar opinion on the distinction between Divus and Deus. We take Ateius here to be the jurist Capito, for Ateius is the name by which he is ge- nerally denoted in the Digest ; but it is not im- possible that the freedman Ateius Philologus may be meant. AymaiTis Rivallius, one of the earliest writers on the history of Roman law (v. 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 Traciatus TrackUuum p. 48), and Rutilius. {De Jurisp. c. 48.) Gellius (xiii. 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 ex- cessive, that he set no value upon anything " nisi quod justum sanctumque esse in Romanis antiqui- tatibus 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 sum- mons. That Capito should charge Labeo with ad- herence 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 depart- ments 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. Capito and Labeo became the founders of two celebrated schools of Roman law, to which most of the distinguished jurists belonged. Their respec- tive followers, mentioned by Pomponius, are —
