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 datió, 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