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]
