41. See James Otis, The Rights of the British Colonies Asserted and Proved
72–73 (Boston, 1764), reprinted with the original pagination in Bernard Bailyn, Pamphlets of the American Revolution,
1:419–482 (Cambridge, Mass., 1965):
“Tis hoped it will not be considered as a new doctrine that even the authority of the Parliament of Great Britain is circumscribed by certain bounds which if exceeded their acts become those of mere power without right, and consequently void. The judges of England have declared in favor of these sentiments when they expressly declare that acts of Parliament against natural equity are void. That acts against the fundamental principles of the British constitution are void. This doctrine is agreeable to the law of nature and nations, and to the divine dictates of natural and revealed religion.”
(See also id.
.) In a footnote at the dagger Otis quoted a long passage on legislative power from Emmerich de Vattel, Law of Nations,
bk. 1, c. 3, §34 (London, 1760), to the effect that the legislature could not change “the constitution of the state.” The footnote also cited Bonham's Case; Day v. Savadge, Hobart 85, 80 Eng. Rep.
1615) (possibly cited in argument; see note
below); Thornby v. Fleetwood, 10 Mod.
113, 88 Eng. Rep.
1713); and City of London v. Wood, 12 Mod.
669, 88 Eng. Rep.
1701). The last three were all cases which repeated the Bonham
principle. For Otis' reliance on Locke, see, for example, Rights of the British Colonies
22–23; see also Corwin, “Higher Law,” 42
Harv. L. Rev.
399. JA, years later, asserted that Rights of the British Colonies
did contain the authorities cited in the writs argument. JA to Tudor, 21 Aug. 1818, 10 JA, Works