Page:The Origin of the Family, Private Property and the State.djvu/155

149 was completely adopted into the legal and sacramental group of her husband and divorced from her own. Who does not know that the married woman releases her active and passive right of inheritance in favor of her gentiles, but enters the legal group of her husband, her children and his gentiles? And if her husband adopts her as his child into his family, how can she remain separated 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