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CUSTO´DIA

CUSTO´DIA signifies a watching, guard or care of anything; hence it comes to mean (1) custody, confinement or restraint of a person; (2) persons set as a guard or watch; (3) the place where a guard is kept; (4) a prison or place where a person is guarded; (5) persons in confinement or subject to any restraint.

The jus prensionis or right of taking a person into custody belonged to all superior magistrates, as being a necessary means of maintaining their supreme executive authority, but the exercise of this right was checked under the republic by the appellatio and by custom. In respect to persons accused of a crime, it was the ordinary rule, that they were not to be committed to prison while waiting their trial, if they could find bail (vades, sponsores, fidejussores) for their appearance (Liv. 3.13; Gel. 7.19). But for open and flagrant crimes the triumviri capitales imprisoned offenders at once (Liv. 29.19, 39.17; V. Max. 6.1., 10; Cic. in Cat. 2.1. 2; Suet. Nero 26). So, too, those who confessed crimes were imprisoned before trial (Cic. Att. 2.2. 4; Dig. 48, 3, 5). In cases of crimes committed against the state, persons of rank were put under surveillance in their own houses or in the house of a magistrate, a form of restraint termed libera custodia (Liv. 24.45; Sall Cat. 47; Tac. Ann. 6.3; D. C. 58.3). A prisoner committed to the custody of a guard of soldiers was said to be subject to militaris custodia (Dig. 48, 3, 1). Only provincials and slaves could be lawfully put in chains when under arrest.

After the establishment of the empire, the security afforded by the appellatio against arbitrary imprisonment was taken away. Administrative officers of government, such as the irenarchae, abused their powers by keeping persons in prison for bailable offences. Hence it was provided by a rescript of the Emperor Antoninus Pius that a person should not be thrown into chains who was prepared to find sureties for his appearance, unless it was clear that he had committed some very grave crime (Dig. 48, 3, 3). The Emperor Constantine expressly provided that accused persons should in all cases be tried at once, and that those imprisoned should not be subject to various specified kinds of cruelty (Cod. 9, 4, 1). Other emperors passed laws with a similar object.

Custodia rei is a technical term for the charge which a person undertakes of a thing intrusted to him by another, on account of which he is liable for any loss due to his dolus or culpa [CULPA]. (Dig. 48, 3; Cod. 9.3, 4; Walter, Gesch. des röm. Rechts, 3rd ed., Nos. 848, 856, 857; C. T. Zumpt, Ueber die persönliche Freiheit des röm. Bürgers; Madvig, Verf. und Verw. ii. p. 208; Lange, Röm. Alterth. ii. p. 208; G. Humbert in D. and S.)

[E.A.W]

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