“Friends! Brethren! Countrymen! That worst of plagues, the detested tea, shipped for this port by the East India Company, is now arrived in the harbor; the hour of destruction, or manly opposition to the machinations of tyranny, stares you in the face. Every friend to his country, to himself and to posterity, is now called upon to meet at Faneuil Hall, at nine o’clock THIS DAY (at which time the bells will ring), to make united and successful resistance to this last, worst, and most destructive measure of administration.”i
These words were posted all throughout Boston on November 29, 1773 and set in motion the events which would come to be known as the Boston Tea Party which semiquincentennial is commemorated this December 16, 2023. Meeting at Faneuil Hall that November 29, American Patriots resolved that the tea should not be landed, that no duty should be paid, and that the tea should be sent back to England.ii Directives were sent to the owner and captain of the Dartmouth, the vessel containing the tea, that no tea should be landed at their peril, and the ship was to be moored at Griffin’s Wharf, under armed guard of a group of Patriots.iii
From the moment the Dartmouth anchored in Boston harbor on November 26, a countdown was begun. The Tea Act allowed customs officials to seize the tea, land it, and sell it, within twenty days. Patriots who opposed the Crown’s right to tax the import of tea were therefore in a predicament; they could not protest the tax by not buying the tea or refusing to unload it. It was a case of “Tax if you do, tax if you don’t.”
Massachusetts Governor Thomas Hutchinson was prepared. He had given orders that the Dartmouth would not be allowed to leave port without landing all the tea. Once the tea was landed and the custom duties paid, a precedent would be set. Parliament could clearly tax the tea solely upon its own authority. If it could tax the tea, it could tax stamps, glass, lead, paint, paper, and anything else. The colonists would eventually give up their resistance to additional measures similar to the Tea Act, which actually reduced the tax on tea to combat Dutch smugglers. And, so, Hutchinson left Boston for his country house in Milton, confident he had won this battle and, therefore, the war. Little did he understand how wrong he was, and how the events of that day would make a literal war between the British Parliament and the American colonies inevitable.
It is appropriate to interrupt the narrative here to stress that what is now called the Boston Tea Party was seen to be a violent act to be sure, but a violent act of rebellion against an unconstitutional exertion by the British government. Parliament believed it alone had the right to determine the extent of its powers; American Patriots believed Parliament was constrained by the customs, prescriptions and precedents that made up the English constitution.iv
It was for this reason that participants of the prerevolutionary controversies on both sides of the Atlantic placed such value in actions that could come to be seen as legal precedents. That is why colonists found it necessary to form committees of correspondence and call a “Stamp Act Congress” to protest the Stamp Act in 1765. It is also why Parliament believed it necessary to pass the Declaratory Act in 1766 proclaiming it had the “full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America … in all cases whatsoever”v before repealing the Stamp Act. Both sides sought to establish a precedent that could be used against the other in the future and finalize the controversy for good.
The Stamp Act of 1765 was the British Parliament’s first attempt to tax the American colonies directly by requiring several printed materials in the colonies be produced on stamped paper. After its repeal in 1766, Parliament tried a new tack in 1767. Parliament would impose custom duties on glass, lead, paint, paper, and tea. Parliament believed it was operating on good precedent in this regard – Britain had imposed a duty on molasses imported into the American colonies from non-British colonies since 1733. The colonists then did what any good lawyer does when confronted with controlling precedent which is against one’s argument – they distinguished it. The Molasses Act of 1733 was not a tax, in the Patriot’s view, but regulation of imperial commerce. The Revenue Act of 1767, on the other hand, had the primary purpose of raising revenue. Consequently, it was a tax, and the British Parliament could not tax the colonies without their consent.
The colonies’ response successfully made the Revenue Act of 1767 unworkable. Failing to raise the anticipated revenue, Parliament repealed most of the duties contained in the act. But, always mindful of precedent and notwithstanding the Declaratory Act of 1766, Parliament left in effect the duties on tea. The colonists continued to ignore the tea duties by boycotting British tea and smuggling Dutch tea.
Part of Parliament’s original scheme to enforce the Revenue Act of 1767 included the Indemnity Act of 1767. This legislation refunded in part the taxes the British East India Company had to pay on tea imported into England before being exported to the American colonies. This was intended to make British tea more attractive to the colonists than smuggled Dutch tea. The Indemnity Act of 1767 expired in 1772, and its replacement reduced the refund provided. The timing could not be more unpropitious for the East India Company. It was facing financial ruin, and the cost of tea rose to such an extent that Dutch tea became more attractive still to English tea.vi
Parliament responded with the Tea Act of 1773. Rather than repeal the tax on tea, which would have dangerous precedential implications for Parliament’s authority to tax the American colonies, the Tea Act provided as follows:
[U]pon all teas, which shall be sold at any of the East India Company’s public sales, or be imported under license, after the 10th day of May, 1773 and shall be exported to any of the British plantations in America, a drawback [shall be granted] of all the duties and customs paid upon the importation of such teas.vii
The British East India Company also had the ability to sell tea directly to the American colonies, rather than having to import it first into Britain and then export out to the colonies. Thus, the stage was set for confrontation.
The morning of December 16, 1773 arrived. There was just one day before customs officials could seize the tea, obligating the East India Company to pay duties under the Tea Act. Five thousand Bostonians and two thousand people from neighboring towns gathered at the Old South Meeting House.viii The crowd demanded that Francis Rotch, the son of one of the Dartmouth’s owners, protest the governor’s action and request permission to sail the Dartmouth without disembarking the tea. Mr. Rotch went off to seek Governor Hutchinson, and the town hall meeting adjourned.
Rotch arrived well after dark. Hutchinson refused to allow the Dartmouth to depart without landing the tea. Rotch addressed the packed Old South Meeting House, resolving to make no effort to unload the tea unless the authorities compelled him to do so.ix Samuel Adams stood up and proclaimed that there was no more any man could do to save his country. At that moment, the sound of an Indian war whoop resounded through the hall. Men dressed as Indians appeared at the doorway, and the crowd heard someone cry, “Boston harbor a teapot to-night! Hurrah for Griffin’s Wharf!”x The disguised men lead a parade, guarded by armed Patriots, down the streets of Boston from the Old South Meeting House to Griffin’s Wharf. They subsequently spend three hours ensuring that the tea would never land. Ultimately, three hundred and forty chests of tea worth nearly nine thousand pounds were thrown into Boston Harbor.xi
The Boston Tea Party made the American War for Independence inevitable when the British overreacted and passed the Intolerable Acts, closing the port of Boston and suspending the colonial assembly. The British Parliament and American Patriots had spent over a decade battling over what was, in essence, a legal and constitutional proposition. They each sought to establish precedents for their legal claims and deny the other side precedential authority for their claims. The Boston Tea Party was the moment of inflection. Neither side at that point could establish a precedent or deny the other side a precedent without resorting to violence. The resolution of this legal and constitutional dilemma could only be solved on the battlefield.
i “The Full Description of the Events” Boston Tea Party Historical Society available at http://www.boston-tea-party.org/in-depth.html (last visited December 11, 2023).
ii Id.
iii Id.
iv See John Phillip Reid, “Another Origin of Judicial Review: The Constitutional Crisis of 1776 and the Need for a Dernier Judge,” 64 N.Y.U.L. Rev. 963 (1989).
v 6 Geo. 3. c. 12
vi John W. Tyler, Smugglers and Patriots: Boston Merchants and the Advent of the American Revolution at 192 (2019).
vii 13 Geo. 3. c. 44
viii Boston Tea Party Historical Society, supra.
ix Tyler, supra at 205.
x Boston Tea Party Historical Society, supra.
xi Tyler, supra at 205.