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 the Carthaginian prisoners, who had been taken in the war, they were retained in _servitude:_ not upon the principles of _reparation_ and _punishment_, because the Romans had already received, by their own confession in the treaty, a sufficient satisfaction: not upon these principles, because they were inapplicable to _individuals:_ the legionary soldier in the service of the injured, who took his prisoner, was not the person, to whom the _injury had been done_, any more than the soldier in the service of the aggressors, who was taken, was the person, who had _committed the offence:_ but they were retained in servitude by the _right of capture_; because, when both parties had sent their military into the field to determine the dispute, it was at the _private_ choice of the legionary soldier before-mentioned, whether he would spare the life of his conquered opponent, when he was thought to be entitled to take it, if he had chosen, by the laws of war.