consensus

reliance upon the "margins" by which state legislatures have enacted bans on execution of the retarded.

NON CONCUBITUS, FACIT inatrlmonium. Consent, not coition, constitutes marriage. Co. Litt. 33a; Dig. 50. 17. 30. See 10 Clark & F. 534; 1 Bouv. Inst. 103; Broom, Leg. Max. (3d London Ed.) 129.

I. Consent Consensus est voluntas mnltorum ad quos res pertinet, siinul juncta: consent is the united will of many to whom a thing belongs. Consensus facit jus, or facit legem: consent makes the law. Consensus facitmatrimoninm: consent constitutes marriage. Consensus non concubitus facit matrinioninm: consent, not lying together, constitutes marriage. Consensus to Uit errorem: consent removes error [i. e. the acquiescence of a party who might take advantage of an error, obviates its eflfectj; v. Non videtur, etc.; Nuptids, etc.

Perceiving or feeling alike: agi-eement; consent. Consensus facit legem. Consent makes the law: the terms of a contract, lawful in 1 Brown v. Commonwealth, T8 Pa. 128 (1876). 2 Watt V. Starke, 101 U. S. £52 (1879). » See 3 Bl. Com. 81. • Commonwealth ■.. Lesher, 17 S. & E. 160 (1827), its purposes, constitute the law as between the parties. Consensus, non concutaitus, faeit matrimonium. Consent, not intercourse, creates marriage. Consensus tollit errorem. Consent removes error: the effect of a mistake is obviated or waived by concurrence. Applies to an irregularity or a matter of mere form in procedure. A defect in substance, pleaded over, is still demurrable. 1 Also applies to volimtary payments of illegal exactions, where recovery could have been prevented.^ Qui tacet consentire videtur. He who is silent is regarded as consenting: silence gives consent. A man who is fully aware of what is being done against his interest cannot remain passive and afterward resist the disadvantage his silence has caused. ^ Nor can a person complain of the effect of words uttered in his presence, when he sliould have denied their truth. 4 The maxim is to be construed as applying only to those cases where the circumstances are such that a party is fairly called upon to deny or to admit his liability. But if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak.* See E.STOPPEI,; Silence.

Lat. [from consentire, to think together, to be of the same mind.] Consent. Bract, fol. 15 b, 16. Consensus est voluntas multorum ad quos res pertinet, simul juncta^ Consent is the united will of many to whom a thing belongs. J)av, M, 48. The words simul juncta, in this sentence, are treated and translated in Branches Principia and Wharton's Lexicon as referring to res, instead of voluntas, which has led in the latter work to the following singular translation; — " Consent is the will of the many, to whom the thing joined at the sam£ time belongs.'* €•■■«■■■■ ■•■ c«BC«l»ita« fk Mit Btatria Bi«Biam (noptias.j Consent, not lying together, constitutes marriage. 6 Co. 22. Co, Litt, 33 a. The consent of the contracting parties [that is, their mutual agreement to live together as husband and wife], and not carnal intercourse, forms the essence of the marriage contract. Shelf, Marr, <t Div, 7. A contract to marry per verba de prcesenti, though not followed by cohabitation, amounts to a valid marriage. 2 Kent's Com, 87. 1 Dow's P. Rep. 148. 7 Wendel Vs R, 47. Broom's Max. 218. This maxim is in substance, and almost m words, the same with that of the civil law. Noptias BOB cvBCobila Sy sed caaamsva facit. Dig, 60. 17. 80. Id, 36. 1. 15. c«Bscasa« t«iiit err«re Bi. Consent removes error, [i. e. obviates its eflfect.] Co. Litt, 126 a. 2 Inst, 123. The acquiescence of a party who might take advantage of an error, obviates its effect. Broom's Max. 58. Thus, though a venue be wrongly laid, or a writ erroneously directed, if it be done or followed by the consent of the parties, and so entered of record, it shall stand; and no objection can afterwards be taken to it. Cro, Miz, 664. Co. Litt. 126 a, and Hargr. note. 1 Bing. N, C, 68. On this maxim rests the doctrine of toaiver. See Waiver. N«B Tidctar caaseasa Bt ntf bd Ium, at «Bte ex prw Bcripta miBBBtifl ali^aid iBUBBtarit* A person [under duress,] does not seem [is not considered,] to have retained his consent, though he may have made some change in the terms imposed on him by the party threatening.* Although choice and election be a badge of consent, yet if the first ground of the act be duress, the law will not construe that the duress doth determine, if the party duressed do make any motion or ofl Fer. Bacon's Max, 89, regula, 22. Therefore, if a party menace me, except I make unto him a bond of 40/. and I tell him that I will not do it, but I will make unto him a bond of 20/. the law shall not expound this bond to be voluntary, but shall rather make construction that my mind and courage is not to enter into the greater bond for any menace, and yet that I enter by compulsion, notwithstanding, into the lesser. But if I will draw any consideration to myself, as if I had said, I will enter into your bond of 40l. if you will deliver me that piece of plate, now the duress is discharged; and yet if it had been moved from the duressor, who had said at the first, jou shall take this piece of plate and make me a bond of 40^, now the gift of the plate had been good, and yet the bond shall be avoided by duress. Id, ibid. The meaning of this maxim is made perfectly clear by the exposition of Lord Bacon. Its fundamental idea obviously is variation by the party duressed /rom the terms imposed by the duressor, which is wholly lost sight of in the following translations: ** Ho does not appear to have consented, who changed any thinc^ through the menaces of a party threatening." Branch's Princ. " He does not appear to have retained consent, if he have changed any thing through the menaces of a party threatening." Whar Um's Lex.