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