But, such a presumption is false.  The right of capture was the only argument, that the ancients adduced in their defence.  Hence Polybius; “What must they, (the Mantinenses) suffer, to receive the punishment they deserve?  Perhaps it will be said, that they must be sold, when they are taken, with their wives and children into slavery:  But this is not to be considered as a punishment, since even those suffer it, by the laws of war, who have done nothing that is base.”  The truth is, that both the offending and the offended parties, whenever they were victorious, inflicted slavery alike.  But if the offending party inflicted slavery on the persons of the vanquished, by what right did they inflict it?  It must be answered from the presumption before-mentioned, “by the right of reparation, or of punishment:” an answer plainly absurd and contradictory, as it supposes the aggressor to have a right, which the injured only could possess.

Neither is the argument less fallacious than the presumption, in applying these principles, which in a publick war could belong to the publick only, to the persons of the individuals that were taken.  This calls us again to the history of the ancients, and, as the rights of reparation and punishment could extend to those only, who had been injured, to select a particular instance for the consideration of the case.

As the Romans had been injured without a previous provocation by the conduct of Hannibal at Saguntum, we may take the treaty into consideration, which they made with the Carthaginians, when the latter, defeated at Zama, sued for peace.  It consisted of three articles[047].  By the first, the Carthaginians were to be free, and to enjoy their own constitution and laws.  By the second, they were to pay a considerable sum of money, as a reparation for the damages and expence of war:  and, by the third, they were to deliver up their elephants and ships of war, and to be subject to various restrictions, as a punishment.  With these terms they complied, and the war was finished.

Thus then did the Romans make that distinction between private and publick war, which was necessary to be made, and which the argument is fallacious in not supposing.  The treasury of the vanquished was marked as the means of reparation; and as this treasury was supplied, in a great measure, by the imposition of taxes, and was, wholly, the property of the publick, so the publick made the reparation that was due.  The elephants also, and ships of war, which were marked as the means of punishment, were publick property; and as they were considerable instruments of security and defence to their possessors, and of annoyance to an enemy, so their loss, added to the restrictions of the treaty, operated as a great and publick punishment.  But with respect to