of the estate to the widow. A slave woman who was part of the estate would give birth. Regularly, in Kelly’s view, the son would be the biological father of the slave’s child. Certainly, the widow would have no direct biological connection with the baby. Notice, the argument goes, was taken of this common pattern of events, and it was held that the owner of the slave woman became owner of her offspring. I find Kelly’s hypothesis attractive, but the point that is important for us now is that there is no textual evidence for it. A second approach, that Daube inclines to call the academic, is that in effect fructus meant for the jurists a regularly recurring return from another thing as a result of husbandry; a slave child, the suggestion would be, does not fit this definition.113 Though it is perfectly appropriate for modern scholars to reach a definition of fructus from an examination of the instances denominated as such, still we have no textual evidence that the jurists based their decision about a slave child on that account. A third explanation, by P. Birks, is “founded in the socio-moral assumptions evident in the [Roman] agriculturalist”: it was unacceptable, he says, that slaves were used like animals for planned breeding.114 Apart from the difficulty that the Romans, including the jurists, certainly regarded the offspring of slave mothers as a fruitful source of slaves, there is no evidence in our sources for Birks’ notion that the jurists anywhere drew a line at the callous exploitation of human sexuality. The fourth explanation is my own, expressly based on Gaius’ own reason given in D. ...: “for it seemed absurd to include human beings among fruits since nature procured the fruits of all things for the sake of human beings.” Whether I am right in giving credence to Gaius’ idealistic, philosophical explanation is here beside the point. 113 ‘Fashions and Idiosyncracies in the Exposition of Roman Law of Property,’ Collected Studies2, pp. 1327 ff. 114 ‘An Unacceptable Face of Human Property’ inNew Perspectives in the Roman Law of Property, ed. P. Birks (Oxford, 1989), pp. 61 ff. For more detail on modern views of the rationale see Alan Watson, ‘Morality, Slavery and the Jurists in the Later Roman Republic,’ Tulane Law Review (1968), pp. 289 ff., at p. 292 n. 19.
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