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WHEN inquiry is made about the choice of a prosecutor, and judgment is rendered on the question to which of two or more persons the prosecution of a defendant, or a share in the prosecution, is to be entrusted, this process and examination by jurors is called divinatio. 1 The reason for the use of this term is a matter of frequent inquiry. Gavius Bassus, in the third book of his work On the Origin of Terms, says: 2 “This kind of trial is called divinatio because the juror ought in a sense to divine what verdict it is proper for him to give.” The explanation offered in these words of Gavius Bassus is far from complete, or rather, it is inadequate and meagre. But at least he seems to be trying to show that divinatio is used because in [p. 133] other trials it is the habit of the juror to be influenced by what he has heard and by what has been shown by evidence or by witnesses; but in this instance, when a prosecutor is to be selected, the considerations which can influence a juror are very few and slight, and therefore he must, so to speak, “divine” what man is the better fitted to make the accusation. Thus Bassus. But some others think that the divinatio is so called because, while prosecutor and defendant are two things that are, as it were, related and connected, so that neither can exist without the other, yet in this form of trial, while there is already a defendant, there is as yet no prosecutor, and therefore the factor which is still lacking and unknown—namely, what man is to be the prosecutor—must be supplied by divination.
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