A Dictionary of Greek and Roman biography and mythology. By various writers. Ed. by William Smith. Illustrated by numerous engravings on wood.

60(A CAPITO.
cern 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. 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 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
nMacrobius. 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; byJavolenus, 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 Bruchstilcke aus der
Schriften der R6mnisclen 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. (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
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 (iv. 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 (Saturns. iii.

CAPITO.
10) under the name De Jure SacriJciorum. 3. A
treatise, De Officio Senatorio. (Gell. iv. 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 (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
coquuzs and pistor. In Servius (ad Virg. Aen. v.
45), Varro and Ateius are cited as holding a peculiar 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 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 (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
Tractatus Tractatuum 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 ivith a love of liberty so excessive, that he set no value upon anything " nisi
quod justum sanctumque esse 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 Labeo 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.
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