Legal Definitions - divinatio

Divinatio refers to a specific procedural step in ancient Roman law. It was a preliminary process used when more than one individual came forward, each claiming the right to act as the prosecutor in a criminal case against an accused person. The purpose of *divinatio* was to determine which of these applicants had the strongest justification, the most legitimate standing, or the most compelling reasons to bring the charges and lead the prosecution.

Here are some examples to illustrate this concept:

• Imagine a prominent Roman official, Senator Valerius, is accused of embezzling public funds. Two different citizens, Lucius and Gaius, both step forward, each asserting they have the strongest case and the most compelling reasons to prosecute Valerius. Lucius claims he has direct evidence of Valerius's wrongdoing and represents a group of affected merchants, while Gaius argues he is a respected public figure with a duty to uphold justice and has access to key witnesses. Before the actual trial against Valerius could begin, a divinatio proceeding would be held to decide whether Lucius or Gaius would be granted the authority to lead the prosecution.

• Consider a situation where a wealthy Roman matron, Octavia, is suspected of poisoning her husband. Her husband's estranged brother, Quintus, and a close family friend, Brutus, both present themselves to the authorities, each demanding the right to prosecute Octavia. Quintus believes he has a familial duty and access to private family information that could prove her guilt, while Brutus claims he was a witness to suspicious behavior and has a moral obligation to seek justice for his friend. A divinatio would be necessary to determine which of these two men had the more legitimate or compelling claim to act as the prosecutor in the case against Octavia.

• Suppose a group of soldiers is accused of desertion during a military campaign. Two different tribunes, Aulus and Publius, both volunteer to prosecute the soldiers, each believing they are best suited to represent the state's interests and uphold military discipline. Aulus might argue he has a deeper understanding of military law and can present the case more effectively to a military court, while Publius might claim he has a better rapport with the common soldiers and can gather more effective testimony from their peers. A divinatio would be employed to decide which tribune would be given the responsibility to conduct the criminal prosecution against the accused soldiers.