The history of the development of these diverse theories of criminal procedure is too involved to be discussed here at any length, but inasmuch as the most natural way of ascertaining whether or not a person has been guilty of a crime is to question him about it, the leading feature of the Continental system is the “question,” or inquisitorial nature of the proceedings, whereby the police authorities, who are burdened with the discovery and prosecution of crime, initiate the whole matter and bring the defendant and their witnesses before an examining magistrate in the first instance. The _procureur_ (district attorney) in France and the _procuratore del re_ in Italy represent the government and _are part of the magistracy_. They are actually quasi-judicial in their character, and their powers are infinitely greater than those of our own prosecutors, who occupy a rather anomalous position, akin in some ways to that of a _procureur_, and at the same time, under our controversial practice, acting as partisan attorneys for the people or the complainant.
The fundamental proposition under the inquisitorial system is that the proceeding is _the government’s business_, to be conducted by its officers by means of such investigations and interrogations as will most likely get at the truth. Obviously, the quickest and surest means of determining the guilt of a defendant is to put him through an exhaustive examination as soon as possible after the crime, under such surroundings that, while his rights will be safeguarded, the information at his disposal will be elicited for the benefit of the public. The fact that in the past the Spanish Inquisition made use of the rack and wheel, or that to-day the “third degree” is freely availed of by the American police, argues nothing against the desirability of a public oral examination of a defendant in a criminal case. If he be given, under our law, the _right_ to testify, why should he be _privileged_ to remain silent?
The Anglo-Saxon procedure, growing up at a time when death was the punishment for almost every sort of offence, and when torture was freely used to extort confessions of guilt, developed an extraordinary tenderness for accused persons, which has to-day been so refined and extended by legislation in America that there is a strong feeling among lawyers (including President Taft) that there is much in our practice which has outlived its usefulness, and that some elements of Latin procedure, including the compulsory interrogation of defendants in criminal cases, have a good deal to recommend them.