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considered any such natural subjection that they were born in, to one or to the other, that tied them, without their own consents, to a subjection to them and their heirs.
For there are no examples so frequent in history, both sacred and profane, as those of men withdrawing themselves and their obedience from the jurisdiction they were born under, and the family or community they were bred up in, and setting up new governments in other places, from whence sprang all that number of petty commonwealths in the beginning of ages, and which always multiplied as long as there was room enough, till the stronger, or more fortunate, swallowed the weaker ; and those great ones again breaking to pieces, dissolved into lesser dominions. All which are so many testimonies against paternal sovereignty, and plainly prove that it was not the natural right of the father descending to his heirs that made governments in the beginning, since it was impossible, upon that ground, there should have been so many little kingdoms; all must have been but only one universal monarchy, if men had not been at liberty to separate themselves from their families, and the government, be it what it will, that was set up in it, and go and make distinct commonwealths and other governments, as they thought fit.
This has been the practice of the world from its first beginning to this day; nor is it now any more hinderance to the freedom of mankind, that they are born under constituted and ancient polities, that have established laws and set forms of government, than if they were born in the woods, amongst the unconfined inhabitants that run loose in them : for those who would persuade us that, “ by being born under any government, we are naturally subjects to it,” and have no more any title or pretence to the freedom of the state of nature, have no other reason (bating that of paternal power, which we have already answered) to produce for it, but only because our fathers or progenitors passed away their natural liberty, and thereby bound up themselves and their posterity to a perpetual subjection to the government which they themselves submitted to. It is true, that whatever engagement or promises any one has made for himself, he is under the obligation of them, but cannot, by any compact what
soever, bind his children or posterity : for his son, when a man, being altogether as free as the father, any “act of the father can no more give away the liberty of the son” than it can of anybody else : he may, indeed, annex such conditions to the land he enjoyed, as a subject of any commonwealth, as may oblige his son to be of that community, if he will enjoy those possessions which were his father's ; because that estate being his father's property, he may dispose or settle it as he pleases.
And this has generally given the occasion to mistake in this matter; because commonwealths not permitting any part of their dominions to be dismembered, nor to be enjoyed by any but those of their community, the son cannot ordinarily enjoy the possessions of his father but under the same terms his father did, by becoming a member of the society ; whereby he puts himself presently under the government he finds there established, as much as any other subject of that commonwealth. And thus "the consent of freemen, born under government, which only makes them members of it,” being given separately in their turns, as each comes to be of age, and not in a multitude together, people take no notice of it; and thinking it not done at all, or not necessary, conclude they are naturally subjects as they are men.
But, it is plain, governments themselves understand it otherwise : they claim “no power over the son, because of that they had over the father ;' nor look on children as being their subjects, by their fathers being so. If a subject of England have a child by an Englishwoman in France, whose subject is he? Not the King of England's; for he must have leave to be admitted to the privileges of it: nor the King of France's ; for how then has his father a liberty to bring him away, and breed him as he pleases ? and who ever was judged as a traitor or deserter, if he left, or warred against a country, for being barely born in it of parents that were aliens there? It is plain, then, by the practice of governments themselves, as well as by the law of right reason, that “a child is born a subject of no country or government.” He is under his father's tuition and authority, till he comes to age of discretion; and then he is a freeman, at liberty what
government he will put himself under, what body politic he will unite himself to : for if an Englishman's son, born in France, be at liberty, and may do so, it is evident there is no tie upon him by his father's being a subject of this kingdom ; nor is he bound up by any compact of his ancestors. And why then hath not his son, by the same reason, the same liberty, though he be born anywhere else, since the power that a father hath naturally over his children is the same, wherever they be born, and the ties of natural obligations are not bounded by the positive limits of kingdoms and commonwealths?
Every man being, as has been showed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent; it is to be considered, what shall be understood to be a sufficient declaration of a man's consent, to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent, which will concern our present case. Nobody doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a subject of that government. The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds; i.e., how far any one shall be looked upon to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man that hath any possessions, or enjoyment of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and, in effect, it reaches as far as the very being of any one within the territories of that government.
To understand this the better, it is fit to consider, that every man, when he at first incorporates himself into any commonwealth, She, by his uniting himself thereunto, annexes also, and submits to the community, those possessions which he has, or shall acquire, that do not (147)
already belong to any other government : for it would be a direct contradiction, for any one to enter into society with others for the securing and regulating of property, and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government to which he himself, the proprietor of the land, is a subject. By the same act, therefore, whereby any one unites his person, which was before free, to any commonwealth, by the same ne unites his possessions, which were before free, to it also ; and they become, both of them, person and possession, subject to the government and dominion of that commonwealth, as long as it hath a being. Whoever, therefore, from thenceforth, by inheritance, purchase, permission, or otherways, enjoys any part of the land so annexed to, and under the government of that commonwealth, must take it with the condition it is under ; that is, of submitting to the government of the commonwealth under whose jurisdiction it is, as far forth as any subject of it.
But since the government has a direct jurisdiction only over the land, and reaches the possessor of it (before he has actually incorporated himself in the society,) only as he dwells upon, and enjoys that, the obligation any one is under, by virtue of such enjoyment, to“ submit to the government, begins and ends with the enjoyment:” so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other commonwealth ; or to agree with others to begin a new one in vacuis locis, in any part of the world they can find free and unpossessed : whereas he that has once, by actual agreement, and any express declaration, given his consent to be of any commonwealth, is perpetually and indispensably obliged to be and remain unalterably a subject to it, and can never be again in the liberty of the state of nature ; unless, by any calamity, the government he was under comes to be dissolved, or else by some public act cuts him off from being any longer a member of it.
But submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man a member of that society : this is only a local protection and homage due to and from all those who, not being in a state of war, come within the territories belonging to any government, to all parts whereof the force of its laws extends. But this no more makes a man a member of that society, a perpetual subject of that commonwealth, than it would make a man a subject to another, in whose family he found it convenient to abide for some time, though, whilst he continued in it, he were obliged to comply with the laws and submit to the government he found there. And thus we see that foreigners, by living all their lives under another government, and enjoying the privileges and protection of it, though they are bound, even in conscience, to submit to its administration, as far forth as any denison, yet do not thereby come to be subjects or members of that commonwealth. Nothing can make any man so, but his actually entering into it by positive engagement, and express promise and compact. This is that which I think concerning the beginning of political societies, and that consent which makes any one a member of any commonwealth.