During
all this time the local government made unremitting efforts to obtain
relief, and seems to have used pecuniary as well as legal arguments to
effect its purpose; at all events, it finally secured a majority in the
Privy Council, who reversed Winthrop v. Lechmere, in Clark v. Tousey. The
same question was raised in Massachusetts in 1737, in Phillips v. Savage,
but enough influence was brought to bear to prevent an adverse decision.
[Footnote: _Conn. Coll. Rec._ vii. 191, note; _Proc. Mass. Hist. Soc._
1860-62, pp. 64-80, 165-171.] A possible distinction between the two cases
also lay in the fact that the Massachusetts act had received the royal
assent.
The history of this litigation is interesting, not only as illustrating
the defects in provincial justice, but as showing the process by which the
conception of constitutional limitations became rooted in the minds of the
first generation of lawyers; and in point of fact, they were so thoroughly
impregnated with the theory as to incline to carry it to unwarrantable
lengths. For example, so justly eminent a counsel as James Otis, in his
great argument on the Writs of Assistance in 1761, solemnly maintained the
utterly untenable proposition that an act of Parliament "against the
Constitution is void: an act against natural equity is void: and if an act
of Parliament should be made, in the very words of this petition, it would
be void.
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