Silence Means Consent

Chances are, you’ve heard the phrase “silence means consent”. However, such a line of thinking has little bearing when it comes to American law. After all, we value the right to remain silent and the ability to avoid self-incrimination to such an extent, that it can be found in our Fifth Amendment and in the Miranda warning. So, from where then does the saying arise? As I recall from my high school days in Latin class, in ancient Rome a person offering their silence regarding a particular charge or action was often taken the same as agreement. Fortunately, such a line of thinking has no bearing in our society…or does it?

Regrettably, when it comes to the realm of politics, far too often is consent assumed when no answer or uproar comes forth. For example, if a politician wishes to increase our taxes or create some sort of new spending program, what besides the votes of his fellow representatives can stop him or her? How about the loud outrage of his or her constituents! If the public remains silent, far too often the politician takes that to mean that the people either support the proposal, or simply don’t care. I suppose that such an attitude is one of the defining marks of a politician versus a statesman. A politician does not really seek to represent any particular ideology or particular constituents. Rather, he or she looks to maximize his or her own wealth or fame, and to aid his or her friends and supporters with kickbacks, pet projects, and the like. Ultimately, principles take a back seat to power. Therefore, only the threat of unpopularity, the loss of donors, and the potential to be removed from office motivate the politician.

So what’s the take-home message for you, the reader? You’ve heard it before and you’ll hear it again. Get involved! Our political system is not meant to be a spectator sport. Is your Representative or Delegate shredding the Constitution? Does your Senator spend more of your money in a day than you make in a year? What are you going to do about it? Do you research and then write your legislators, call them on the phone or visit their offices. Don’t be too negative, however. You should you praise the ones who advocate your values…but as for the rest, let them know you’ve had enough of their outlandish schemes and you won’t remain quiet or inactive anymore. Otherwise, the politicians will continue to think your silence means consent.

6 Replies to “Silence Means Consent”

  1. “In silencio, consentum est.” The dictum Sir Thomas More gave in defense of his original silence in condeming Henry the VIII’s divorce of Catherine Aragorn.

    At least thats what Paul Schofield gave in A Man for All Seasons.
    Course eventually he (More) lost his head fighting the Star Chamber.

    1. Ah yes, Thomas More. Can one promote virtue in defiance of one’s ruler and still live? Not when that ruler is King Henry VIII. For shame that I did not mention him.

  2. Silence gives consent or silence confesses guilt are two phrases that were common in roman law and later on became the the part of common law. Silence confesses guilt was totally eradicated and never became the part of American law. Fifth Amendment overrules any such concept of common law. Generally if some one accuses you of any charge you are supposed to react against such charge if you are wrongly accused. If you do not react, the other end would logically conclude that you do not controvert the accusation. To apply this doctrine to criminal proceedings is against the very rule of law that says you are innocent unless proved guilty. Silence behavior varies from person to person. Some people are shy, slow, timid, passive,non-courageous, non spontaneous or non- proactive who could not respond for that reason, could not be deemed to confessed the guilt or consented thereto. In civil field you could presume that silence gives consent. If you communicated your assertion of certain facts to other side and other side either failed to controvert that assertion or kept mum relating to that assertion that led you to deduct that assumption of deeming that assertion by acts and omissions of other side admitted, and you furthered upon such deemed admission, then the rule of estopple crops up to help you. Even in pre litigation communication between the parties if any party does not respond or controvert any assertion of the other party served upon [t, the serving party is at liberty to presume that its assertion are liable to be admitted in the circumstances.

  3. Divorce is under civil law not criminal law.

    “In silencio, consentum est.” the dictum Sir Thomas More gave in defense of his original silence in condemning Henry the VIII’s divorce of Catherine Aragorn
    is true within that context of evaluating if there was felony perpetrated in his conduct of a civil matter.
    Silence regarding a criminal charge is denial that gives no thing for the prosecutor to work with or have his authority affirmed by. The prosecutor has the obligation of making an adjudicateable criminal charge evidenced beyond a reasonable doubt.

  4. Regarding all witness of things criminal, Va1-200 embraces English common law (the law of the Angles & the Saxons that their Creator had commonly written on their hearts). The old civil duty to raise ‘Hue & Cry’ against any witnessed crime still stands as the law of Virginia.
    Yet “In silencio, consentum est.” establishes probable cause that the reprobate silent witness acted as an accessory to the witnessed crime. More’s trap was that if he was accused of crime by virtue of his silent witness then the King’s thing that he witnessed must have been a crime.

    That interaction between witnessing civil and criminal matters still stands.

    With respect to VA18.2-481(5) statutory treason of “resisting the execution of the laws under the color of its authority” there is an explicit ‘hue & cry’ duty established in Va18.2-482 “Misprision of Treason”. The same is true regarding all federal felonies – see 18USC4 “Misprision of Felony”.

  5. The trappings and conceits of authority make many quiet and non-combative citizens blind to the perpetration of felony even when the felony is perpetrated on them. If those citizen raise no hue & cry it is no crime because they had no criminal intent – but they do forfeit their rights and remedies under the law.

    But lawyers, being deemed to have taken notice of the law by Virginia statute, have no such exemption.
    I will refer you to the code later if you ask for it.
    If they see another officer of the court, “resist the execution of the law under the color of its authority” which is Va18.2-481(5) statutory treason, they both are under the presumption of law that they have taken notice of the law and both have evidenced probable cause that any perpetration was done with criminal intent. The ‘any’ includes both Va18.2-481(5) statutory treason and Va18.2-482 “Misprision of Treason”.

    The fruit that these two felonies bear is now ripe for remedy. See “The Journal of Constitutional Reset from Virginia” at http://teapartyconstitutionalists.ning.com/forum/categories/journal-of-constitutional-reset-from-virginia/listForCategory

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