Page:The Origin of the Family, Private Property and the State.djvu/156

150 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 consuls and praetors to see that no inconvenience arise to her from the use of this right. Mommsen's supposition is therefore absolutely inadmissible.

Then again: suppose a woman married a man from another gens, but remained in her own gens. According to the passage quoted above, her husband would then have had the right to permit his wife to marry outside of her own gens. That is, he would have had the right to make provisions in regard to the affairs of a gens to which he did not belong at all. The thing is so utterly unreasonable that we need not lose any words about it.

Nothing remains but to assume that the woman in her first marriage wedded a man from another gens and thereby became a member of her husband's gens. Mommsen admits this for such cases. Then the whole matter at once explains itself. The women, torn away from her old gens by her marriage and adopted into the gentile group of her husband, occupies a peculiar