rated from his gens?" (Pages 9-11.)

Here Mommsen asserts that the Roman women belonging to a certain gens
were originally free to marry only within their gens; the Roman gens,
according to him, was therefore endogamous, not exogamous. This opinion
which contradicts the evidence of all other nations, is principally, if
not exclusively, founded on a single much disputed passage of Livy (Book
xxxix, c. 19). According to this passage, the senate decreed in the year
568 of the city, i. e., 186 B. C., (uti Feceniae Hispallae datio,
deminutio, gentis enuptio, tutoris optio idem esset quasi ei vir
testamento dedisset; utique ei ingenuo nubere liceret, neu quid ei qui
eam duxisset, ob id fraudi ignominiaeve esset)--that Fecenia Hispalla
shall have the right to dispose of her property, to diminish it, to
marry outside of the gens, to choose a guardian, just as if her (late)
husband had conferred this right on her by testament; that she shall be
permitted to marry a freeman and that for the man who marries her this
shall not constitute a misdemeanor or a shame.

Without a doubt Fecenia, a freed slave, here obtains permission to marry
outside of the gens. And equally doubtless the husband here has the
right to confer on his wife by testament the right to marry outside of
the gens after his death. But outside of which gens?

If a woman had to intermarry in the gens, as Mommsen assumes, then she
remained in this gens after her marriage. But in the first place, this
assertion of an endogamous gens must be proven. And in the second
place, if the women had to intermarry in the gens, then the men had to
do the same, otherwise there could be no marriage. Then we arrive at the
conclusion that the man could bequeath a right to his wife, which he did
not have for himself. This is a legal impossibility. Mommsen feels this
very well, and hence he supposes: "The marriage outside of the gens most
probably required not only the consent of the testator, but of all
gentiles." (Page 10, footnote.) This is not only a very daring
assertion, but contradicts also the clear wording of the passage. The
senate gives her this right as a proxy of her husband; they expressly
give her no more and no less than her husband could have given her, but
what they do give is an absolute right, independent of all limitations,
so that, if she should make use of it, her new husband shall not suffer
in consequence. The senate even instructs the present and future consul