Consent (law)

“ I accept that consent cannot be said simply to be a defence to any act which one person does to another. A line has to be drawn as to what can and as to what cannot be the subject of consent. In this regard it is relevant to recall what was said by Stephen J in R v Coney (1882) 8 QBD 534 at 549. Even though he was referring to the position at common law, his words seem to me to be of relevance to a consideration of the statute in question. ”

“ A father may represent his son in Court [31] and sue and defend in his name, but if he does so without leave from the Court he will be personally answerable for costs, if the suit proves unsuccessful. [32]
3. Consent to marriage of minor children; 3. Consent to marriage of minor children. The consent of parents is necessary to the marriage of minor children, [33] and without it the marriage is null and void. [34] Consent may be either express or implied. It is implied if the father knows that the marriage of the minor is about to take place and does not forbid it. ”

“ Status is used by some writers to signify a man’s personal legal condition, so far only as it is imposed upon him by the law without his own consent, as opposed to the condition which he has acquired for himself by agreement. The position of a slave is a matter of status, the position of a free servant is a matter of contract. Marriage creates a status in this sense, for although it is entered into by way of consent, it cannot be dissolved in that way, and the legal condition created by it is determined by the law, and cannot be modified by the agreement of the parties. ”

“ Certain classes of persons are wholly or partially destitute of the power of determining their rights and liabilities by way of consent. They cannot, at least to the same extent as other persons, supersede or supplement the common law by subjecting themselves to conventional law of their own making. In the case of minors, lunatics, and convicts, for example, the common law is peremptory, and not to be derogated from or added to by their agreement. ”

“ Now as a law directed against the mass of the nation has not the nature of a reasonable institution, so neither has it the authority: for in all forms of government the people is the true legislator; and whether the immediate and instrumental cause of the law be a single person or many, the remote and efficient cause is the consent of the people, either actual or implied; and such consent is absolutely essential to its validity. ”

“ To conclude, we hold that the Swift "grievous wrong" standard does not apply to requests to modify consent decrees stemming from institutional reform litigation. Under the flexible standard we adopt today, a party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance. ”

“ For the purposes of sections 3, 4, 5 (1) , 6, 7, 8 (1) , 8 (2) , 8 (3) , 9, 10, 12, 17 (1) , 17 (2) , 17 (3) (a) , 19, 20 (1) , 21 (1) , 21 (2) , 21 (3) and 22, “consent” means voluntary or uncoerced agreement. ”

“ Again: 'The suability of a state without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. ”

“ There is no such tribunal of the United States as a court of general jurisdiction, in the sense in which that phrase is applied to the superior courts under the common law, and even with respect to the courts existing under that system, it is a well settled principle that consent can never give jurisdiction. ”

“ For as the remove of the old laws and customs are by the people's consent, which is proved by their frequent petitioning and requests of such a thing: so the enacting of new laws must be by the people's consent and knowledge likewise. ”

“ Lex Loci Contractus.—It is a well-established rule that the law of the place where the contract of marriage was concluded, that is, the lex loci contractus, or, as it is sometimes termed, the lex loci celebrationis (law of the place of celebration) , alone governs the court in ascertaining whether or not the marriage is regular. All the formal preliminaries, such as publication of banns, or license, and consent of the parties entitled to give or withhold consent according to the lex loci contractus, must be complied with. ”

“ In the words of a writer who believes the courts are historically and logically justified in this view, "they affirm that when from a comparative study of the whole course of legislation as well as of the terms of the various statutes, it is the plain intent to make conformity to any statutory formality indispensable to the constitution of marriage, such common law is ipso facto repealed, and a marriage celebrated by mere consent, without this formality, has no validity whatever in law. ”

“ Permit me then to enquire, whether the people of any district, county or town, in their local meetings, are competent to judge of this general good? A law, which is, in its operation general, must be founded on the best general information: The people themselves have no right to consent to a law, without this general information: They have no right to consent to a law, on a view of a local interest ”

“ And yet, it is generally accepted as the law, on principle, notwithstanding the marriage is celebrated without license, and the ceremony performed by an unauthorized person, that if the parties simply by mutual consent agree to marry, and live together as man and wife, such consent and cohabitation are valid and binding between the parties, and the issue thereof are entitled to all the rights of legitimate children. To reverse this common-law doctrine by general statutory provisions might work hardship in some individual cases ”

“ This right of the law of nations is very different from that established in impunity alone, or depending upon the external force of judicial authority. For as by our private consent the person with whom we contract acquires not only an external and legal right over our property, but an internal right, proceeding from conscience, so he acquires the same right by a kind of common consent, which virtually comprehends the consent of individuals, in which sense the law is called the common compact or covenant of the state. ”

“ It may be shown by what is called habit or repute. Referring to marriage at common law, Kent says: 'The consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation and reputation as husband and wife, except in cases of civil actions for adultery, or in public prosecutions for bigamy or adultery, when actual proof of the marriage is required.' 2 Kent, Com. ”

“ A municipal ordinance which vests in supervisory authorities a naked and arbitrary power to grant or withhold consent to the operation of laundries in wooden buildings, without consideration of the circumstances of individual cases, constitutes a denial of equal protection of the law when consent is withheld from certain persons solely on the basis of nationality. ”

“ If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may: for in contracts the obligation must be mutual; both must be bound, or neither: and so it is, vice versa, when the wife is of years of discretion, and the husband under [12] .
3. Another incapacity arises from want of consent of parents or guardians. By the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. ”

“ Bishop, in his treatise on Criminal Law, says that the proposition as to the element of consent, deducible from the authorities, is that, although the crime is completed where the connection takes place without the consent of the female, yet, in the ordinary case where the woman is awake, of mature years, of sound mind, and not in fear, a failure to oppose the carnal act is consent; and, though she object verbally, if she make no outcry and no resistance, she, by her conduct, consents, and the act is not rape in the man. ”

“ The law has recognised cases where consent, expressed or implied, can be a defence to what would otherwise be an assault and cases where consent cannot be a defence. The former include surgical operations, sports, the chastisement of children, jostling in a crowd, but all subject to a reasonable degree of force being used, tattooing and ear-piercing ”

“ As they are their own legislators and make their common laws by express or tacit consent, they attest explicitly and implicitly their conviction that its principles are binding upon them, as judicial principles, as law. ”

“ This presumption of consent by the general owner is entertained by the law from the actual circumstances of the case, and from considerations of the convenience and necessities of the commercial world. ”

“ Between cousins of whom the father of the one is brother of the mother of the other and at the same time the mother of the one is sister of the father of the other by birth legitimate or illegitimate. Sec. 2. No marriage shall be deemed unlawful by reason only that the persons contracting such marriage are related to one another in any B. Consent of parents.
B. Consent of parents. In the oldest Germanic law the consent not alone of parents but also of other near relatives, was a necessary, or at all events usual, preliminary of marriage. ”

“ No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law. ”

“ All ER Rep 207 and the editor of later editions of Stephen's Digest of the Criminal Law has abandoned the distinguished author's proposition.
In R v Donovan the appellant had been convicted on two counts, indecent assault and common assault. The only issue of fact was whether the victim consented. The chairman of quarter sessions rightly told the jury that the case depended on the issue of consent. ”

“ It requires but a very small glance of thought to perceive that although laws made in one generation often continue in force through succeeding generations, yet they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed; and the non-repealing passes for consent. ”

“ The proposition, therefore, that such a law cannot operate upon the subject-matter of its enactment, without the express consent of the people of the new state where it may happen to be, contains its own refutation, and requires no farther examination. ”

“ For whatsoever action is against reason, though it be reiterated never so often, or that there be never so many precedents thereof, is still against reason, and therefore not a law of nature, but contrary to it. But consent and covenant may so alter the cases, which in the law of nature may be put, by changing the circumstances, that that which was reason before, may afterwards be against it ”

“ Lastly if their consent be such, that the will of one man, whom they name, shall stand for the wills of them all, then is their government or union called a MONARCHY; and that one man the sovereign, and every of the rest a subject. ”

“ With regard to the ascending and descending lines of affinity no such doubt arose, a man being by universal consent prohibited from marrying his stepmother or mother-in-law, step-daughter or daughter-in-law ”

“ Notwithstanding anything in paragraph 1 above, it shall not be necessary for one of the parties to be present when the competent authority is satisfied that the circumstances are exceptional and that the party has, before a competent authority and in such manner as may be prescribed by law, expressed and not withdrawn consent. ”

“ Such is the opinion of Voet,^ which Van der Keessel accepts.* But only very pecuUar circumstances would justify overriding the parental authority.* An insane parent, so far as concerns consent, is treated as non-existent, and the same consent, if any, is required and sufficient as would be sufficient if he or she were already dead.* A minor who has married with consent, and who becomes widowed before reaching the usual limit of full age, may remarry without consent. ”

“ But what if both parents are dead? The Political Ordinance (Art. 3) does not require the consent of relatives.'^ Inasmuch, however, as Art. 17 saves the operation of the penal clauses of the Perpetual Edict, it has been thought that a marriage of minors whose parents are both dead, if contracted without the consent of friends and relations, or, if these disagree amongst themselves or unreasonably withhold their consent, of the Court, though not void, is nevertheless penahzed. This is the view of Grotius,^ whose opinion seems to have prevailed. ”

“ It consists in a general supervision of the maintenance and education of their children and in the administration of their property. It gives the parents the right of demanding from their children due reverence and obedience to their orders, and also in case of improper behaviour to inflict such moderate chastisement as may tend to improvement. Parents may not be sued by their children without leave of the Court, termed venia agendi. [16] No marriage can be contracted by children without the consent of their parents. ”

“ As administrator of his wife's property the husband may aKenate and encumber it as he pleases without her consent.^ This applies even to property which she has kept out of community. The wife, on the other hand, may not alienate or encumber her property without his consent,^ unless in due course of trade.* . The husband is not compellable to render an account of his marital administration,® nor to indemnify the wife or her heirs for his negligence.* . The husband may contract in his wife's name, and render her liable or entitled * under contracts so made. ”