CITES BY TOPIC:  consent

PDF Requirement for Consent, Form #05.003 (OFFSITE LINK) -memorandum of law


Black's Law Dictionary, Sixth Edition, p. 305:

consent.  "A concurrence of wills.  Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith.  Agreement; approval; permission; the act or result of coming into harmony or accord.  Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side.  It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another.  It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers.  Consent is implied in every agreement.  It is an act unclouded by fraud, duress, or sometimes even mistake.

Willingness in fact that an act or an invasion of an interest shall take place.  Restatement, Second, Torts 10A.

As used in the law of rape "consent" means consent of the will, and submission under the influence of fear or terror cannot amount to real consent.  There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.  And if a woman resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not "consent".

See also Acquiescence; Age of consent; Assent; Connivance; Informed consent;" voluntary.

[Black's Law Dictionary, Sixth Edition, p. 305]


Abe Lincoln's Speech, Peoria, Illinois, Oct 16, 1854

"No man is good enough to govern another man without that others consent."

[Abe Lincoln's Speech, Peoria, Illinois, Oct 16, 1854]


Black's Law Dictionary, Fourth Edition, p. 1593

SUB SILENTIO. Under silence; without any notice being taken. Passing a thing sub silentio may be evidence of consent.

[Black's Law Dictionary, Fourth Edition, p. 1593]


How does the government apply duress and what is the remedy for it?


Cruden v. Neale, 2 N.C. (1796) 2 S.E. 70: Subjection to laws must be by consent.

"When a change of government takes place, from a monarchial to a republican government, the old form is dissolved. Those who lived under it, and did not choose to become members of the new, had a right to refuse their allegiance to it, and to retire elsewhere. By being a part of the society subject to the old government, they had not entered into any engagement to become subject to any new form the majority might think proper to adopt. That the majority shall prevail is a rule posterior to the formation of government, and results from it. It is not a rule upon mankind in their natural state.  There, every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowmen without his consent

[Cruden v. Neale, 2 N.C. (1796) 2 S.E. 70: Subjection to laws must be by consent]


Bouvier's Maxims of Law, 1856

Consensus facit legem.
Consent makes the law. A contract is a law between the parties, which can acquire force only by consent.

Consensus tollit errorem.
Consent removes or obviates a mistake. Co. Litt. 126.

Ejus est non nolle, qui potest velle.
He who may consent tacitly, may consent expressly. Dig. 50, 17, 8.

Id quod nostrum est, sine facto nostro ad alium transferi non potest.
What belongs to us cannot be transferred to another without our consent. Dig. 50, 17, 11. But this must be understood with this qualification, that the government may take property for public use, paying the owner its value. The title to property may also be acquired, with the consent of the owner, by a judgment of a competent tribunal.

Invito beneficium non datur.
No one is obliged to accept a benefit against his consent. Dig. 50, 17, 69. But if he does not dissent he will be considered as assenting. Vide Assent.

Melius est omnia mala pati quam malo concentire.
It is better to suffer every wrong or ill, than to consent to it. 3 Co. Inst. 23.

Nemo videtur fraudare eos qui sciunt, et consentiunt.
One cannot complain of having been deceived when he knew the fact and gave his consent. Dig. 50, 17, 145.

Non consentit qui errat.
He who errs does not consent. 1 Bouv. Inst. n. 581.

Non videntur qui errant consentire. He who errs is not considered as consenting. Dig. 50, 17, 116.

Non videtur consensum retinuisse si quis ex praescripto minantis aliquid immutavit.
He does not appear to have retained his consent, if he have changed anything through the means of a party threatening. Bacon's Max. Reg. 33.

Re, verbis, scripto, consensu, traditione, junctura vestes, sumere pacta solent.
Compacts are accustomed to be clothed by thing itself, by words, by writing, by consent, by delivery. Plow. 161.

Volunti non fit injuria.
He who consents cannot receive an injury. 2 Bouv. Inst. n. 2279, 2327; 4 T. R. 657; Shelf. on mar. & Div. 449.

Omnis ratihabitio retro trahitur et mandato aequiparatur.
Every consent given to what has already been done, has a retrospective effect and equals a command. Co. Litt. 207.

Qui tacet consentire videtur.
He who is silent appears to consent. Jenk. Cent. 32.

Quod meum est sine me auferri non potest.
What is mine cannot be taken away without my consent. Jenk. Cent. 251. Sed vide Eminent Domain.

[Bouvier's Maxims of Law, 1856]


California Civil Code, Section 1589

California Civil Code

1589.  A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.

[California Civil Code, Section 1589]


DECLARATION OF INDEPENDENCE, 1776

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,"

[DECLARATION OF INDEPENDENCE, 1776]


Chisholm v. Georgia, 2 Dall. (U.S.) 419 (Dall.) (1794):

A State does not owe its origin to the Government of the United States, in the highest or in any of its branches.  It was in existence before it.  It derives its authority from the same pure and sacred source as itself: The voluntary and deliberate choice [consent] of the people…A State is altogether exempt from the jurisdiction of the Courts of the United States, or from any other exterior authority, unless in the special instances when the general Government has power derived from the Constitution itself.” 

[Chisholm v. Georgia, 2 Dall. (U.S.) 419 (Dall.) (1794)]


United States v. Cruikshank, 92 U.S. 542 (1875):

“The citizen cannot complain, because he has voluntarily submitted himself [consented] to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

[United States v. Cruikshank, 92 U.S. 542 (1875), emphasis added]