Scanned text contains errors.
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 (iv. 77), some have supposed that the followers of Labeo were also called from Pegasus, Pegasiani. (Diet. ofAnLs.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 (Beitr'dge zur Kenlniss des Romischen RecJits^^. 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 (iii. 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. iii. 68), imagined the existence of an eclectic sect of Her-ciscundi. 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 eart^ and lived as long as the body endured. " Stoici vero, terris condi,, i. e. medium secuti, tarn diu durare 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