CONSCIENCE. The moral sense, or that capacity of our mental constitution, by which we irresistibly¹ feel the difference between right and wrong.

2. The constitution of the United States wisely provides that "no religious test shall ever be required." No man, then, or body of men, have a right to control a man's belief or opinion in religious matters, or to forbid the most perfect freedom of inquiry² in relation to them, by force or threats, or by any other motives³ than arguments or persuasion⁴. Vide Story, Const. 1841-1843.

CONSENSUAL, civil law. This word is applied⁵ to designate one species of contract known in the civil laws; these contracts derive⁶ their name from the consent of the parties which is required in their formation, as they cannot exist without such consent.

2. The contract of sale, among the civilians⁷, is an example of a consensual contract, because the moment there is an agreement between the seller and the buyer as to the thing and the price, the vendor⁸ and the purchaser have reciprocal actions On the contrary, on a loan, there is no action by the lender or borrower, although there may have been consent, until the thing is delivered or the money counted. This is a real contract in the sense of the civil law. Lec. El. Dr: Rom. 895; Poth. Ob. pt. 1, c. 1, s. 1, art. 2; 1 Bell's Com. (5th ed.) 435. Vide Contract.

CONSENT. An agreement to something proposed, and differs from assent⁹. (q. v.) Wolff, Ins. Nat. part 1, SSSS 27-30; Pard. Dr. Com. part 2, tit. 1, n. 1, 38 to 178. Consent supposes, 1. a physical power to act; 2. a moral power of acting¹⁰; 3. a serious, determined¹¹, and free use of these powers. Fonb. Eq. B; 1, c. 2, s. 1; Grot. de Jure Belli et Pacis, lib. 2, c. 11, s. 6.

2. Consent is either express or implied. Express, when it is given viva voce, or in writing; implied, when it is manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption¹² that the consent has been given.

3. - 1. When a legacy¹³ is given with a condition annexed¹⁴ to the bequest¹⁵, requiring the consent of executors to the marriage of the legatee, and under such consent being given, a mutual¹⁶ attachment¹⁷ has been suffered to grow up, it would be rather late to state terms and conditions on which a marriage between the parties should take place;. 2 Ves. & Beames, 234; Ambl. 264; 2 Freem. 201; unless such consent was obtained by deceit or fraud. 1 Eden, 6; 1 Phillim. 200; 12 Ves. 19.

4. - 2. Such a condition does not apply to a second marriage. 3 Bro. C. C. 145; 3 Ves. 239.

5. - 3. If the consent has been substantially given, though not modo et forma, the legatee will be held duly entitled to the legacy. 1 Sim. & Stu. 172; 1 Meriv. 187; 2 Atk. 265.

6. - 4. When trustees under a marriage settlement are empowered to sell "with the consent of the husband and, wife," a sale made by the trustees without the distinct consent of the wife, cannot be a due execution of their power. 10 Ves. 378.

7. - 5. Where a power of sale requires that the sale should be with the consent of certain specified¹⁸ individuals, the fact of such consent having been given, ought to be evinced in the manner pointed¹⁹ out by the creator of the power, or such power will not be considered as properly executed. 10 Ves. 308. Vide, generally, 2 Supp. to Ves. jr. 161, 165, 169; Ayliffe's Pand. 117; 1 Rob. Leg.. 345, 539.

8. - 6. Courts of equity²⁰ have established the rule, that when the true owner of property stands by, and knowingly suffers a stranger to sell the same as his own, without objection, this will be such implied consent as to render the sale valid²¹ against the true owner. Story on Ag. 91 Story on Eq. Jur. 385 to 390. And courts of law, unless restrained by technical formalities, act upon the principles of justice; as, for example, when a man permitted, without objection, the sale of his goods under an execution against another person. 6 Adolph. & El 11. 469 9 Barn. & Cr. 586; 3 Barn. & Adolph. 318, note.

9. The consent which is implied in every agreement is excluded, 1. By error in the essentials of the contract; ,is, if Paul, in the city of Philadelphia, buy the horse of Peter, which is in Boston, and promise to pay one hundred dollars for him, the horse at the time of the sale, unknown to either party, being dead. This decision is founded on the rule that he who consents through error does not consent at all; non consentiunt qui errant. Dig. 2, 1, 15; Dig. lib. 1, tit. ult. 1. 116, 2. 2. Consent is excluded by duress²² of the party making the agreement.

3. Consent is never given so as to bind²³ the parties, when it is obtained by fraud. 4. It cannot be given by a person who has no understanding, as an idiot, nor by one who, though possessed²⁴ of understanding, is not in law capable of making a contract, as a feme covert²⁵. See Bouv. Inst. Index, h. t.