Of these three prominent jurists, Publius Scaevola was consul in B.C.; Manius Manilius was consul in B.C.; and Marcus Brutus was praetor in B.C. Why should there be any doubt on this point of law? It seems difficult to find a logical reason for holding that the child was not fructus. A reason is given by a Digest text of Ulpian, D... pr: It is not clear from the Latin whether the reason given in the text for the decision is to be attributed to Ulpian or to Brutus. Some light may be shed on the meaning of “for a human being cannot be included in the fruits of a human being” by a text of the earlier jurist Gaius, D.....: “For it seemed absurd &c,”absurdum enim videbatur, shows that Gaius thinks that this was the original reason for the decision. Indeed, I suggest, the reason for the rule would have to be along such philosophical lines. Otherwise it is difficult to imagine how the Republican jurists could ever have reached the decision - which seems contrary to principle - that a child was not among the fruits of a slave-woman. We must accept, I think, that it was on the basis of the noble idea that a human being could not be treated as fruit for the benefit of other humans that this decision was reached. But before we give the jurists There was a discussion among the leaders of the state, Publius Mucius Scaevola and Manius Manilius whether a child should be included among the fruits. Marcus Brutus disagreed with them. There was an old question whether a child belonged to the usufructuary. But the opinion of Brutus prevailed, that the usufructuary had no right to the child; for a human being cannot be included in the fruits of a human being. On this account, the usufructuary will not have even a usufruct in him.... But the child of a slave-woman is not included in fruits and so it belongs to the owner of the property: for it seemed absurd to include human beings among fruits since nature procured the fruits of all things for the sake of human beings.
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