right of self-defence combined with the
public office of punishment, and therefore not only a privilege but an
obligation. The whole family is bound to avenge the injury; but the duty
rests first of all with the heir. Precedency in the office of avenger is
naturally connected with a first claim in inheritance; and the
succession to property is determined by the law of revenge. This leads
both to primogeniture, because the eldest son is most likely to be
capable of punishing the culprit; and, for the same reason, to
modifications of primogeniture, by the preference of the brother before
the grandson, and of the male line before the female. A practice which
appears barbarous is, therefore, one of the foundations of civilisation,
and the origin of some of the refinements of law. In this state of
society there is no distinction between civil and criminal law; an
injury is looked upon as a private wrong, not, as religion considers it,
a sin, or, as the State considers it, a crime.

Something very similar occurs in feudal society. Here all the barons
were virtually equal to each other, and without any superior to punish
their crimes or to avenge their wrongs. They were, therefore, compelled
to obtain safety or reparation, like sovereigns, by force of arms. What
war is among States, the feud is in feudal society, and the vengeance of
blood in societies not yet matured into States--a substitute for the
fixed administration of justice.

The assumption of this duty by the State begins with the recognisance of
acts done against the State itself. At first, political crimes alone are
visited with a public penalty; private injuries demand no public
expiation, but only satisfaction of the injured party. This appears in
its most rudimentary form in the _lex talionis_. Society requires that
punishment should be inflicted by the State, in order to prevent
continual disorders. If the injured party could be satisfied, and his
duty fulfilled without inflicting on the criminal an injury
corresponding to that which he had done, society was obviously the
gainer. At first it was optional to accept or to refuse satisfaction;
afterwards it was made obligatory.

Where property was so valuable that its loss was visited on the life or
limb of the robber, and injuries against property were made a question
of life and death, it soon followed that injury to life could be made a
question of payment. To expiate robbery by death, and to expiate murder