Sparks Commentary: What are “auxiliary subordinate rights”? (Answer: Rights intended to protect other rights)

“In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.”

– Sir William Blackstone's “Commentaries on the Laws of England” (1765), Book 1, Chapter 1

Sir William Blackstone once said that the most basic rights of human beings were personal security, personal liberty, and private property. (More about this in another post.) Blackstone said much about this in his “Commentaries on the Laws of England,” a major legal work from the eighteenth century. But he also said that “in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment.” (Source: Book 1, Chapter 1) Therefore, Blackstone argued that the British Constitution had established “certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” (Source: Book 1, Chapter 1)

Sir William Blackstone

Blackstone believed that these “auxiliary subordinate rights” were vital to the protection of basic rights. They are subordinate unto the other rights, because their primary purpose is to sustain and protect these rights. And they are auxiliary rights, because they exist as backup plans in case of emergency, where the government tries to infringe on these other rights. Thus, it might be appropriate to examine these rights for a moment, and show what Blackstone believed to be necessary in this endeavor. (All quotations from his “Commentaries” in this particular blog post will be from Book 1, Chapter 1. This volume was first published in 1765.)

Coat of arms of Great Britain, 1714-1800

Blackstone actually names a number of “auxiliary subordinate rights” …

First, Blackstone mentioned “The constitution, powers, and privileges of parliament, of which I shall treat at large in the ensuing chapter.” (Source: Blackstone's “Commentaries”) Second, Blackstone mentioned “The limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people.” (Source: Blackstone's “Commentaries”) Third, Blackstone mentioned “applying to the courts of justice for redress of injuries.” (Source: Blackstone's “Commentaries”) He noted that since the law was in England the “supreme arbiter” of every man's life, liberty, and property, the courts of justice “must at all times be open to the subject, and the law be duly administered therein.” (Source: Blackstone's “Commentaries”) Fourth, Blackstone said that “If there should happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances.” (Source: Blackstone's “Commentaries”) Thus did the United States Bill of Rights declare that “Congress shall make no law” abridging the right of the people to “petition the Government for a redress of grievances.” (Source: First Amendment to the United States Constitution)

Parliament of Great Britain

… including a right to have arms

Finally, Blackstone said that “The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.” (Source: Blackstone's “Commentaries”) Blackstone said that this was “indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” (Source: Blackstone's “Commentaries”) This agrees with James Madison’s interpretation of gun rights in the Federalist Papers, in which he said that “Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes.” (Source: Federalist No. 46) The use of the double negative is key here. If it is "not" certain that they would "not" be able to do this, then it is possible that they would be able to "shake off their yokes" with this aid alone - namely, with the aid of arms and weapons. Thus James Madison did believe it possible that people could “shake off their yokes” (of tyranny) with the aid of arms and weapons. This influenced the broader protections of the United States Bill of Rights (written by James Madison), which said that “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” (Source: Second Amendment to the United States Constitution)

James Madison

These rights can protect our personal security, personal liberty, and private property

“In these several articles consist the rights,” Blackstone said, “or, as they are frequently termed, the liberties of Englishmen, liberties more generally talked of, than thoroughly understood ; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other.” (Source: Blackstone's “Commentaries”) “And we have seen,” Blackstone continued, “that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate,” he continued, “the subject is perfectly free ; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed.” (Source: Blackstone's “Commentaries”)

Sir William Blackstone

We are restrained from nothing, but what would be “pernicious” to ourselves or others

“To preserve these from violation,” Blackstone asserted, “it is necessary that the constitution of parliaments be supported in it's full vigor ; and limits certainly known, be set to the royal prerogative. And, lastly,” he said, “to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law ; next to the right of petitioning the king and parliament for redress of grievances ; and lastly to the right of having and using arms for self-preservation and defence.” (Source: Blackstone's “Commentaries”) “And all these rights and liberties,” Blackstone added, “it is our birthright to enjoy entire ; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, [footnote] will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do ; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens.” (Source: Blackstone's “Commentaries”)

Statue of Sir William Blackstone

England is the only nation with “political or civil liberty” as the goal of its constitution

Thus, Blackstone concluded, “this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom [footnote to ‘Montesq. Sp. L. 11. 5.’]; and who hath not scrupled to profess, even in the very bosom of his native [country, that the English] is the only nation in the world, where political or civil liberty is the direct end of it's constitution. Recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country … ‘ESTO PERPETUA !’ ” (Source: Blackstone's “Commentaries”) Thus did Blackstone cite the French philosopher Montesquieu, to show that the British Constitution protected political and civil liberties. This view influenced those who framed the United States Constitution.