who was prepared - on account of the later profits - to buy him and bring him up. If it had just been accepted without question that the child was fructus, there would still have been a question of separation of mother and child when the usufruct came to an end, when the mother would return to her owner and the child would not. But under this rule the separation might not occur for many years, the usufruct in the slave-woman would frequently end only with the death of the slave-woman herself, and the chances of the slave-child being reared would be considerably enhanced. The conclusion to be drawn from these three points, and particularly from the second and third, is that the jurists’ decision was based on abstract philosophical principle and did not take into account the practical moral questions of the welfare and happiness of the slavemother and child. Incidentally, the decision which holds in an artificial way that children of slave-women are not fruit is in itself an example of the freedom which the Republican jurists had to develop the law. But then we have to notice that the philosophic argument is deplorably weak. The slave woman was part of the usufruct just as animals were, hence in this regard was treated as property. So there can be a usufruct in a human being. Nor can one find by looking at a standard extensive Latin dictionary a discussion of the uses of the word fructus that would exclude a slave child.112 The rationale for the aberrant ruling is weak in the extreme but that does not seem to have troubled the jurists much. For whatever reason, they were content not to search for a reason for the rule. One must point out the contrast in this respect with modern scholars who seem fascinated with the issue. Modern explanations are instructive. J.M. Kelly (as reported by David Daube) suggests that commonly a man would die leaving a son as his heir, with a usufruct 112 See, e.g. Oxford Latin Dictionary, (Oxford, 1992), pp. 738 f.
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