CAPERE - The Law Mind Legal Dictionary

CAPEREAuthored

The Law Mind • 770 words

Definition

A Latin term from Roman law meaning "to take" — specifically, to take with effect, with intent to hold or retain. Capere carries a stronger sense than mere receipt or passive acceptance. In classical Roman jurisprudence, to *capere* was to take effectually, with the purpose of keeping the thing taken, as opposed to simply receiving it temporarily or under an obligation of return.

The distinction embedded in the word is doctrinal: *capere* implied finality of possession, whereas *accipere* (to accept or receive) was the appropriate term when the taking was provisional, transactional, or subject to redelivery. A person who received goods on deposit or loan *accepit*; a person who took and retained with ownership intent *cepit*.

Common Confusion

Capere is frequently confused — or conflated — with *accipere* in translated Roman law texts and in secondary sources that treat both as equivalent to "to receive." They are not equivalent. The Roman jurists drew a deliberate line: *aliud est capere, aliud accipere* ("to take is one thing, to receive is another"). This distinction matters when reading texts about legacy, inheritance, and the capacity to take under a will — a beneficiary who lacked legal capacity might be said to lack the ability to *capere*, meaning the taking would have no legal effect regardless of physical receipt. Researchers who overlook this distinction may misread Roman-law-based passages in early common law treatises and civil law commentaries.

Why It Matters in Research

Researchers encounter *capere* most often in three contexts in the Law Mind corpus:

First, in Latin maxims and broadsides drawn from the Digest and Institutes of Justinian. The Digest citation preserved in Burrill (Dig. 50.16.71) sits within the title *De verborum significatione* — a definitional title — which is the Roman law equivalent of a legal dictionary entry. Researchers reading glosses and commentaries derived from that title should understand that *capere* is a term of precision, not a generic synonym for possession or receipt.

Second, in discussions of testamentary capacity and the Roman law concept of *capacitas* — the legal ability to take under a will. The verb *capere* anchors those discussions. An *incapax* was one who could not *capere*; the incapacity was not merely physical but legal. This usage threads directly into later civil law and ecclesiastical law treatments of inheritance that appear throughout medieval English and Continental sources.

Third, in writs and early common law pleading where Latin roots appear in procedural formulas. The verb *capere* underlies words like *capias* (that you take) — the class of writs commanding arrest or seizure — and *caption* in its legal sense. Understanding the root helps researchers trace the conceptual family of seizure-based remedies.

A practical trap: Anderson's Dictionary entry for the headword in the source material drifts into a discussion of the judge's black cap at capital sentencing, which shares no doctrinal connection to *capere* beyond the coincidence of the Latin root *caput* (head) in "capital." The source material appears to have suffered a page-alignment or indexing error. Researchers should not treat that passage as definitional content for *capere* itself.

Historical Dictionary Support

Burrill is the only source here that directly engages the term. His treatment is precise and faithful to the Roman law sources: he isolates the *capere/accipere* distinction and grounds it in the Digest, which is the correct locus for this definition. The Digest passage at 50.16.71 is part of Ulpian's jurisprudential vocabulary work, and Burrill's summary accurately reflects that usage.

Anderson's entry, as received, does not address *capere* in any doctrinal sense. The text concerns the black cap worn at capital sentencing — a usage deriving from *caput* rather than from *capere* as a verb of taking. No synthesis between the two sources is possible on the merits; this appears to be a source-collection artifact rather than a genuine secondary definition.

What historical dictionaries collectively miss is the downstream significance of *capere* for common law writ practice. Neither Burrill nor Anderson traces the verb forward into the *capias* family of writs, leaving that connection to be made by researchers independently.

Jurisdictional Note

Capere is a Roman law term with no jurisdiction-specific modern application in common law systems. Its doctrinal relevance is highest in civil law jurisdictions and in historical research involving Roman law, canon law, or early modern Continental legal texts. In Anglo-American research, its primary importance is etymological and structural — as the root of procedural terms still in technical use.

CAPEREmain

Burrill's Law Dictionary • 1867

Lat. In the Roman law. To take; to take with effect, (cum effectu). Dig. 50. 16. 71. pr. To take effectually; to take with the intention of holding or keeping; to accept, as distinguished from receive. A distinction was made between this word, and accipere, (aliud est capere, aliud accipere); it not being properly applicable to cases where a restitution or redelivery of the thing taken was contemplated or required; (non videtur quis capere quod erit restiturus). Dig. 50. 16. 71. Non videtur quisquam id capere quod ei necesse est alii restituere. Id. 50. 17. 51. Lat. In old English law and practice. To take; to seize or arrest. See Capias. To take or receive judicially; to receive the verdict of an assise or jury; to hold courts at which such verdicts were given. Qui cum militibus comitatuum, capiant in comitatibus assisas prædictas; who, together with the knights of the shires, shall take in the counties the assises aforesaid. Mag. Cart. 9 Hen. III. c. 12. Capiatur veredictum juratorum; the verdict of the jurors shall be taken. Fleta, lib. 1, c. 41, § 6.

CAPEREmain

Anderson's Dictionary of Law • 1890

wears a "black cap." Some writers trace the practice to the ancient custom by which rulers covered the head on eccasions of great solemnity; while other writers find its origin in a prohibition against persons in holy orders (from which class the judges were largely selected) imposing the death penalty - as officials of the church. Since it was obligatory that such sentences should be pronounced, the judges, on such occasions, were supposed to lay aside their ecclesiastical character by "covering the clerical tonsure" with the black cap which all judges in early days wore as a part of their official dress.1 CAPACITY: Ability to take, do, act: competency, qualification, fitness, power. See CAPAX. 1. Power or fitness to perform a particular legal act; mental qualification: as, capacity to enter into a contract, disposing or testamentary capacity. Capacity for guilt: will joined with an act.2 The test of capacity to make an agreement or a conveyance is, that a man shall have the ability to understand the nature and effect of the act in which he is engaged. See INFLUENCE. 2. Character or function, relation or office, invested or conferred by law: as, capacity to act as an executor, administrator, guardian, trustee, referee, judge, sheriff, or other officer. Whence also fiduciary, judicial, ministerial capacity; professional capacity; men in public capacity - see LIBEL, 5; DESCRIPTIO, Personæ. L. To take, seize; to arrest. Capias. That you take. A common-law writ commanding the sheriff to take a defendant into custody. Named from the emphatic word in the writ when expressed in Latin. Has come to designate the whole class of writs by which arrests are made by a constable, sheriff, or marshal. The species are: Capias ad respondendum. That you take for answering: arrest (and imprison) the defendant so that you have him in person before the court on a certain day to answer the plaintiff's complaint. 1 See 22 Am. Law Rev. 121 (1883). 24 Bl. Com. 20. • Eaton v. Eaton, 37 N. J. L. 113 (1874); 2 Bl. Com. 200. Serves the purpose of compelling an appearance in court, on the part of a defendant, in actions of tort, in which damages are claimed, as, in actions for slander, libel, false arrest, malicious prosecution, and other trespasses. Being the species of the writ most frequently issued, is often designated as a or the "capias." 1 See PROCESS, 1. Capias ad satisfaciendum. That you take for satisfying: arrest (and imprison) the defendant so that you may have him in court on a given day, in order that he may then and there pay the plaintiff such debt, damages, and costs as he may recover. Abbreviated ca. sa. At common law, after this writ no other process could be issued against a debtor's property. The early use of the writ has been restricted by statutes abolishing imprisonment for debt or facilitating the discharge of debtors, in cases in which no fraud is shown to have been practiced.2 Capias in withernam.3 That you take in reprisal; that you distrain for a distress. A writ for seizing property of a distrainor on account of property concealed, eloigned, or otherwise withheld by him so that it could not be replevied. See See In the law of marine insurance, any unlawful taking by force, including a piratical taking as well as such as is made jure belli.6 Synonymous with prize (q. v.), as used in Europe. The popular use of a taking by force or violence from without, to which a vessel in the course of a maritime adventure might be exposed, corresponds with the use in marine insurance.d A taking by the enemy of a vessel or its cargo as prize, in time of open war, or by 1 Bailey v. Clark, 21 Wall. 286-87 (1874), Field, J. 2 Sanger v. Upton, 91 U. S. 60, 47 (1875), Swayne, J. 3 [3 Bl. Com. 4. ◄ Harris v. Lester, 80 111. 311 (1875). * People v. Bennett, 37 N. Y. 122 (1867); Exp. Bain, 121 U. S. 7 (1887): Starkie, Cr. Pl. p. 287. • Dole v. New England Mut. Mar. Ins. Co., 6 Allen, 386-90 (1863), Bigelow, C. J. See Fifield v. Ins Co. of Penn., 47 Pa. 176-77, 189 (1864), cases.

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