Failure of the Massachusetts Courts

The first way to remedy the Tea Party was to prosecute offenders. Fearing this, Boston committee of correspondence members discussed plans for defending one another from arrest. But arrests proved difficult. The most plausible eyewitnesses—the commanders and crew working the Dartmouth, Beaver, and Eleanor when those vessels were attacked—proceeded to a notary public the day after the Tea Party and swore affidavits that “solemnly Protest[ed]” the attack but claimed not to recognize any attackers. Radicals had a mafia-like extrajudicial control over Boston. They terrorized Boston’s streets, prevented arrests, and intimidated witnesses. The crew thus protected the rioters to protect themselves: the documents would impeach crew testimony that subsequently identified tea partiers; this kept the crew safe from Patriot mobs. Seamen were part of the Boston crowd, and the Dartmouth, Beaver, and Eleanor crews had to survive daily life in Boston Harbor and make their next sailing with these men.

Individual tea partiers might also be witnesses. But their identities were unknown to authorities: out-of-towners might have already left, and Bostonians had been disguised. Governor Hutchinson’s government operated without modern innovations like police or racketeering statutes. The government had no civilian force to maintain order, no detectives to investigate crime, and no way to guarantee witness safety. It struggled to link Patriot leaders to what was a highly organized crime, particularly since some of the most prominent leaders of the movement, including Samuel Adams, John Hancock, and Joseph Warren, made sure they were seen lingering in the Old South Meeting House and not at the wharves while the tea was destroyed. Such men would remain free unless the Massachusetts attorney general could “flip” street-level rioters on their leaders. And flipping was impossible as long as the master, mate, and boatswain of the Eleanor all said the attackers were “unknown” to them. Putting the mob out on the street, meting out violence to their enemies, and protecting their own kept Patriot leaders out of jail and allowed the Boston committee to portray the destruction of the tea as a spontaneous act of “the People.”³

Demonstrating their power on the night of January 25, 1774, a 1,200-strong Boston mob tarred and feathered John Malcom. No one was ever prosecuted for this crime. The alleged catalyst for the attack was the claim that Malcom had assaulted George Robert Twelves Hewes, a Boston shoemaker. But there are several reasons to think the attack sent a larger message. First, were the goal to avenge a comrade, a few punches would have sufficed. But they publicly tortured and brutalized Malcom for hours. Second, Hewes and Malcom were on opposite sides of the Tea Party. Hewes probably helped destroy the tea; Malcom had worked for His Majesty’s Customs. Third, customs workers like Malcom were potential witnesses in any court case about the destruction of the tea. Two customs officers were on each of the three tea ships when the crowd arrived to destroy the tea. The crowd set them onshore before beginning their work. These men had not signed affidavits failing to identify the tea partiers, and they presented a legal risk for Patriots. Making an example of Malcom, one of the more energetic customs officers, shut up other officers who might identify members of the crowd. Fourth, Malcom himself indicated a link between his beating and the tea. He asked the Company for compensation for the “hardships he underwent in consequence of the Company’s’ exporting Tea” to Boston. Finally, the January assault was the second attack on Malcom; he had already been tarred and feathered earlier that winter in Maine for seizing a vessel guilty of smuggling tea, which suggests the real reason for the attacks was not the fight with Hewes but that Malcom was a customs officer who did his job as imperial authorities expected, rather than negotiating with colonists, as others expected.⁴

Boston Patriots were done negotiating—a concept that implies give and take. After the Tea Party, they dominated Massachusetts with political violence and silenced their opponents. The mob dragged Malcom from his house in the night, beat him, and brought him to the customs house, demonstrating customs agents were unsafe at home and work. They stripped him to his waist and warmed him with hot tar and “comic” feathers. They carted him around town in humiliation: from the customs house to the “Liberty Tree,” where they freely beat him when he would not curse the governor and resign his commission, to Copp’s Hill, to the Charlestown ferry, and the customs house again, flogging him when he refused their demands. At the gallows they threw a noose around his neck and threatened to hang him unless he recanted his commission. When he would not, they beat him half to death with clubs, flogged him some more, and then threatened to cut off his ears. During the night, the mob made Malcom toast each member of the royal family with a bowl of tea until he vomited. After three bowlfuls, they thrust a “drenching Horn” in his mouth and forced another nine down—a nice touch for a customs officer who had failed to stop the Tea Party. The ordeal lasted four hours, at the end of which Malcom, stripped naked in a winter so cold Boston Harbor had frozen over, was frostbitten and nearly frozen stiff. Doctors did not think he would live. It took him three days to warm up again. The tar and the cold had stripped his skin, which came off “in Stakes.” He brought the pieces to England to prove his endurance for the Crown.⁵

This was a dominance ritual. Malcom was harassed, debased, and expected to shut up and take it. Customs Commissioner Henry Hulton was “pelted by the Mob” in the summer of 1773 and told not to complain. “I took it quietly, and said nothing,” he wrote. “And I am told they now say I am such a patient, quiet Gentleman, they will trouble me no more.” Malcom’s beating was worse because he did not take it quietly. Malcom’s debasement complete, Hutchinson reported to London that “there is no spirit in those who used to be friends of government.” The consignees had fled to the harbor-island Castle William before the Tea Party. Colonel Leslie thought them “likely to remain” in the castle, “for the Mob threatens them much if they go to Town.” Protected by a regiment from angry crowds but not from this “very cold place,” they stayed for much of the winter. Some escaped to the countryside, but Governor Hutchinson thought “not one of them dare to appear in Town though their business suffers greatly.” The William’s tea’s arrival increased their opprobrium, the Patriotic Boston Gazette suggesting that the consignees would have been better off with a “Mill-Stone tied round their Necks, than suffer’d the Tea” to come to the castle. The concern they might bring some of this tea with them may have made it even harder for the consignees to go to town. Visiting his in-laws in Plymouth, Elisha Hutchinson suffered “base treatment.” “My friends [had] advised me to go to Court,” which entailed going to Boston, Thomas Hutchinson Jr. wrote. Fortunately for him, in the days before the attack on Malcom, his friends “generally advised me the contrary.”⁶

In early March, a series of near-daily events underscored Patriot street power. On Friday, March 4, John Hancock gave the annual Boston Massacre oration, whipping up the populace. On Sunday, March 6, the Fortune arrived from London with a private shipment of tea, which “Indians” destroyed the next day. “The owner of the Tea” on the Fortune was “very silent” about this, wrote Hutchinson. “I think if they could find out who were the immediate actors they would not venture at present to bring any Action in the Law against them,” lest the crowd chase them to Castle William, too. That evening, exhibits for the Boston Massacre memorial were illuminated, showing the bodies and severed heads of Henry VII’s tax collectors in a pool of blood, axe nearby, with portraits of Governor Hutchinson and Chief Justice Oliver adjacent.

Lieutenant Governor Andrew Oliver’s funeral came the next day. The mobs following the funeral train were so abusive Peter Oliver thought it unsafe to attend his brother’s burial. None of the Company’s consignees had yet been able to return to Boston. When General Gage arrived in Boston in May 1774 he found Hutchinson, Oliver, the customs commissioners, and the consignees either in the castle or dispersed to the countryside. Oliver explained that the radicals’ philosophy, inter arma enim silent leges (in times of war, the law falls silent), worked.⁷

Radical power in government complemented radical power on the streets. Radicals dominated the Massachusetts Assembly (which chose the governor’s council), the Boston town meeting, and its committee of correspondence. The town meeting, in turn, elected grand jurors. The governor and his attorney general, Jonathan Sewall, sought criminal charges for the Tea Party, but grand jurors elected for their politics had to approve these charges. Past grand jurors had been celebrated for refusing to indict Patriots. In the summer of 1774, grand jurors elected to serve in the Suffolk County Superior Court included Patriot Paul Revere and John Hancock’s brother, Ebenezer. Hutchinson hoped to prosecute tea rioters on charges of breaking open a shop or ship (punishable by branding), but the prosecution failed. He tried to offer a reward for information and, when his Patriot-selected council rejected this, asked Sewall to investigate and present the matter to a grand jury. But, as Hutchinson explained, “Grand Jurors for that town … were among the principal promoters of the meetings which occasioned the destruction of the tea, and were undoubtedly selected to prevent any prosecutions.”⁸

Patriots intimidated witnesses. The presence of active radicals on the grand jury was a form of witness tampering, for a witness could expect grand jurors to point him out to the mob later. Informers, especially customs informers, were targets for angry mobs. So witnesses forget what they saw, and grand juries did not indict. Criminal charges, while technically available, were practically impossible.⁹

As agents of the East India Company, the Boston tea consignees could have filed a civil suit for damages. Rumors the Company would file reached Hancock’s ears in February. The Company sent out a “Letter of Attorney” in April, empowering consignees to recover damages, but no record of any suit survives. A civil suit faced similarly hostile juries and frightened witnesses, as well as plaintiffs afraid to come to Boston.¹⁰

The best solution was the Vice-Admiralty Court, which provided for a trial by judge (and was assailed by Patriot writers because of this). The Vice-Admiralty Court was a civil court. Tea consignees could have sued on behalf of the Company, and customs officers could have sued for violation of trade laws. But both scenarios required plaintiffs to be in Boston.¹¹ One of the most important reasons to continue frightening the consignees was to keep them from the courthouse. There is no evidence any case was filed.

Patriots further undermined the courts by attacking judges, especially Chief Justice Oliver. Patriots escalated an old issue—Oliver’s decision to take a salary from the Crown rather than the colony—after the Tea Party. Thomas Hutchinson Jr. thought attention on Oliver would “Screen the poor Consignees” from Patriot ire, but his father noted the attacks on judges were meant to “prevent a trial of those concerned in the tea riots.” Certainly, pressure on Oliver made it harder for such a case to proceed. Jurors used the salary issue to prevent Oliver from presiding over the Suffolk County Superior Court in February 1774. Patriots in the colonial legislature impeached him. Others threatened murder. The “flame is kindling fast against” judges, Thomas Hutchinson Jr. wrote, “it is thought it will not be safe for them to come to Court unless they comply with every demand made of them.”¹²

The inability to produce witnesses had stopped criminal prosecution for the destruction of the government schooner Gaspée in Rhode Island in 1772. That had been a more-direct affront to parliamentary power than the destruction of private property in Boston Harbor.¹³ Despite rewards for information, investigators could not definitively name anyone involved in the Gaspée attack. An investigation into the destruction of the tea was unlikely to fare better. This was a change from earlier days when the court system had worked, most notably in the Boston Massacre trial. But now grand jury nullification would also stop prosecution in Greenwich, New Jersey, in 1775 as well. Failure to prosecute demonstrated the weakness of the customs administration, the courts, and the empire.

But perhaps the central weakness, in the ministry’s eyes, was Massachusetts. A criminal conspiracy threatened the colony. It lacked rule of law. Judges could not preside in court; grand jurors voted politically; the governor’s council refused to offer rewards for information about plainly criminal acts; and public beatings of crown officials intimidated plaintiffs and witnesses from appearing in court. Patriots, for their part, saw this as the democratic elements of the colony’s constitution (town meetings, governor’s councils, and grand jurors) constraining imperial power. But is there either law or democracy in organizing a crime and then voting yourself innocent?

The Ministry’s First Response: Tea Party as Treason

As news of the Boston Tea Party reached London, the ministry formulated a response to secure the “Dependence of the Colonies upon this Kingdom.” Demanding Bostonians pay for the tea was an early and important goal, but not payment merely for payment’s sake. Payment was punishment and, more importantly, a way of “reducing [Massachusetts] to a state of obedience to lawful authority.” Reports of Massachusetts lawlessness—especially the attack on Malcom—underscored the view that Patriot rioters needed to be brought to heel. Combined with a sense that this lawlessness was not merely the selfish acts of smugglers (as it was in England) but organized in deliberate rejection of parliamentary authority, the ministry came round to the idea that Boston had to pay monetarily because, punitively, Boston had to pay.¹⁴

The ministry initially focused on criminal prosecution. Massachusetts courts had jurisdiction and were unlikely to indict. But one crime could be prosecuted in England: treason. The Treason Act of 1543 allowed for treason committed outside England to be tried in England. If the Tea Partiers could be charged with treason, the problems of Massachusetts courts might be avoided.¹⁵ And perhaps, with Patriot leaders in England, Boston would calm down.

The charge of treason was a political and legal escalation. The destruction of the tea was a property crime, for which treason was not a straightforward charge. When Hutchinson had wanted to bring treason charges, his council stood him down, focusing Massachusetts prosecutorial interest on the Tea Party as a property offense. Treason charges validated the Patriots’ claim that the Company’s tea shipments were not simply commercial ventures but political ones. Elsewhere, friends of government had tried to de-escalate the politics of the Company’s tea shipments. John Penn of Pennsylvania never even reported the tea ship Polly being turned around there. Dartmouth, alarmed at being kept in the dark, explained that what happened to the Polly was an “insult that has been offered to this kingdom by the inhabitants of Philadelphia.” Penn replied that he had understood the Company’s tea was a “private adventure of their own in which the government had no immediate concern.” This point was made about the Company’s tea in Charleston in service of getting the tea landed. Now the ministry pushed in the opposite direction as its friends, validating Patriot efforts to turn questions of private property and local crime into questions of imperial authority, legitimacy, and power.¹⁶

To stretch legal reasoning far enough to allow treason charges, Attorney General Edward Thurlow and Solicitor General Alexander Wedderburn argued that the Tea Party could be considered treason because it was “an attempt, concerted with much deliberation and made with open force … to obstruct the execution of an Act of Parliament imposing a duty on tea” and to restrain trade, which amounted to “the levying of war against His Majesty.” After examining testimony and evidence in February 1774, they listed several Patriots leaders as chargeable for calling on one of the tea consignees to give up his role, for their role in the Boston town meeting of November 29 (which resolved to block the tea’s landing and set a watch on the ships to ensure no tea was brought ashore), and for the watch itself. These acts “were of such a nature & criminality as to have fixed a deep degree of Guilt upon those who were the principal Ring-leaders,” Dartmouth explained. All members of the Boston committee of correspondence were chargeable. If the town selectmen or the Massachusetts Assembly authorized these acts in their official capacity, they were chargeable too.¹⁷

Charging treason required proving intent. Destruction of private property was not prima facie treason. Prosecutors would have to prove that the Tea Party was not an anti-tea riot, a mob organized by one merchant to impoverish another, common criminality, or even a political protest but, according to Thurlow and Wedderburn’s reasoning, an organized effort to stop effective enforcement of the law equivalent to “War against His Majesty.” The November and December town meetings were certainly part of an organized effort to subvert the Tea Act. But connecting those meetings to the Tea Party proved impossible. Thurlow and Wedderburn could find no evidence any meeting authorized the Tea Party. Rather, according to witnesses interviewed in England, the November 29 meeting was specifically concerned that the “Tea would not be destroyed.” One reason the Patriots put a guard on the ships had been to prevent such precipitous action, pending the tea’s hoped-for return to England. The meeting on December 16 ended not with a determination about the tea, but with Samuel Adams’s lament that he did not know “what more they could do to save their Country.” Perhaps this was a signal to destroy the tea. But it was impossible to prove this or to connect any of the meetings to the destruction of the tea in court.¹⁸

To bring a charge of treason amounted to over-charging for political reasons. Treason would have been more plausibly charged had the Tea Partiers attacked the King’s officers. But they had not even broken into the His Majesty’s Customs House. They attacked privately owned tea on privately owned ships. And why charge the Boston committee but not the committees in New York, Philadelphia, and Charleston, which had also stopped the implementation of the Tea Act? Singling out Boston was a political choice intended, as Lord Apsley noted, to “mark out Boston and separate that Town from the rest of the Delinquents.” It was not a choice based on legal reasoning.¹⁹ Meanwhile, according to Thurlow and Wedderburn’s logic, the tea smuggling gangs that roamed the English countryside were committing worse treason than the Bostonians, yet remained ignored.

More basically, if destroying the tea obstructed the Tea Act, then perhaps it was a violation of the Tea Act, or of the Navigation Acts generally, not treason. Thurlow and Wedderburn’s description of the Tea Party made it sound like smuggling. But it is hard to see how destroying the tea violated even the Tea Act, which did not mandate tea be imported or forbid attacks on private property. The Patriots worked around British mercantile law. They destroyed the tea because of the otherwise successful functioning of the Tea Act. The destruction of the tea in Boston fulfilled the conditions of the Tea Act by leaving no tea to be landed. The problem, of course, was the destruction of the tea. The attorney general was well to be worried about the rule of law in Boston, but spurious, excessive, and political charges hardly ameliorated this.

Even Thurlow and Wedderburn warned at the end of February that testimony available in England was insufficient to sustain a treason charge. After interviewing ten witnesses in the Privy Council, Dartmouth and the attorney general gave up on treason for the time being. Most “witnesses” had seen nothing. The attorney general had queried travelers from Boston—had they had seen anything? Of the ten queried, only seven were in Boston on the day of the Tea Party; of those, only one saw the destruction of the tea. This “eyewitness,” Hugh Williamson, was a doctor who had walked down to the water’s edge to watch. He (wisely) did this from a fifty-yard distance and could identify no one: he was too far off, the actors were disguised, and, hailing from Bristol, Rhode Island, he would not have recognized them anyway. Francis Rotch and James Hall, owner and master of the Dartmouth, respectively, also traveled to England. But they were not with the vessel when it was attacked. Captain Scott of the Hayley had been in Boston but had not witnessed the event. It is not clear if the Privy Council even tried to interview crewmen. Thurlow and Wedderburn utterly failed to connect the actions of the Boston Patriot leadership to the destruction of the tea.²⁰

Punishment: The Boston Port Act

Believing Boston had in its official capacity aided treason, but unable to charge treason, the ministry brought in the Boston Port Bill. The bill punished Boston as though the town had committed treason. Parliament’s collective punishment of Bostonians was somewhat logical since the town was operating under a sort of omertà about the Tea Party. The Port Act shut Boston’s port until the tea was paid for. This bill converted payment for the tea from restitution to submission, a goal supported by the King, driven by North, adopted by Parliament, and pursued by General Gage, who was sent out to replace Hutchinson as governor.²¹

The Port Act was vague. It stated that Boston could re-opened only when “full satisfaction” had been made to the Company, a know-it-when-you-see-it concept that was not specified further. Perhaps this was left to Gage, but he did not explain it. In their farewell address to Hutchinson, Massachusettans offering to pay for the tea asked, a mere three days before the act took effect, when “the sum and manner of [paying] it can be ascertained.”²² Would the charge for the tea be limited to the real loss to the Company (booked at £7,521 and change), or would it include the lost duty and commission charges as well (which raised the price to £9,659 and change)? Should they pay in specie, in Massachusetts currency, or sterling? In barter, notes, or bills of exchange? Should they pay in Boston or London? Should the East India Company be paid directly? The consignees? Gage? Would Gage open the port immediately, or should townsfolk, who needed to know where their livelihood would come from, expect him to wait for approval from London? The bill demanded “reasonable satisfaction” to the customs and other officers harassed in the winter of 1773–1774. This included Malcom, but who else? How much money for them? Who would decide? How would these payments be made? Gage and the ministry held Boston for ransom but refused to say what the ransom was because they were waiting for the Town of Boston to ask.²³

A second, vital, and unstated part of this was the William’s tea now stored in Castle William. The Port Act stipulated that re-opening Boston required “peace and obedience to the laws” such that “the trade of Great Britain may safely be carried on there, and his Majesty’s customs duly collected.” This meant that Patriots would have to allow the William’s tea to be landed and taxed after Boston was re-opened and dutied tea to be landed as a matter of course. There would be no more tea parties on vessels like the Fortune, either. And with the Company’s tea safely landed in Boston, Collector Halliday could sell off the much larger supply of Company tea in the Charleston Exchange. This in turn would likely kill much of the opposition to Company tea and the Tea Act generally. Why reject Company tea in New York and Philadelphia if it was coming in by the tens, perhaps hundreds, of thousands of pounds in other ports? Paying for the tea could quickly grow into an existential defeat for the Patriot movement.²⁴

It is unclear whether all this was planned. The sale of the William’s tea went unmentioned in parliamentary debates about the Port Bill. Treasury, Dartmouth, and the East India Company were informed separately about the tea’s survival. The implications of that survival may also have been unclear since, while Parliament debated the Port Bill, Dartmouth urged repeal of the Tea Act. Repeal could have allowed the William’s tea to be returned to Britain (it was only through the Tea Act that the Company could ship un-auctioned tea directly to the Americas). The possibility of repeal may explain why the Port Act did not mention the William’s tea directly.²⁵ Yet requiring the sale of the William’s tea fit perfectly in the Port Act’s larger aim: to defeat the Patriot movement by forcing the continent’s most vociferous Patriots into a humiliating stand-down.

Vagueness—in an otherwise specific act—belied the idea the Port Act was about making the Tea Party’s victims whole (its official justification) instead of punishing Boston. Repayment was a pretext for the long-overdue (in North’s mind) chastisement of Boston. The town’s unruliness included the Stamp Act riots of 1765, the Liberty riots of 1768, the Boston “Massacre” of 1770, and the destruction of the tea. The Port Act was deliberately not proportional to the crime. If payment were not made, it did not re-open the port after a set time, meaning the harm to Boston would far outstrip the harm done to the Company. For North, the goal was submission.²⁶

The brief period between news of the act reaching Boston (May 10) and port closure (June 1) made it impossible to pay quickly enough to keep the port open. As the Loyalist addressors of Governor Hutchinson lamented, even if payment were possible, there was no time: the townspeople had to “suffer” together before any relief. If payment, not punishment, were the priority, the threat of punishment could have been left dangling over Boston for some months, and Parliament (or Gage) could have specified how much money was required. As Patriotic South Carolinian John Lewis Gervais explained: “If your political engineers had been skillful, a reimbursement for damages would have been first demanded, and punishment held, in Terrorem, in case of refusal.”²⁷

Instead, the town was held ransom in a situation seemingly analogous to the debtor’s prison: imprisonment kept the inmate from earning money for his release, but his suffering forced friends or family to pay on his behalf. Closing the port put much of Boston out of work and hobbled the town’s and colony’s ability to pay. But, unlike the analogy of debtor’s prison, North would not take just anyone’s money. He turned down the offer of Robert Murray, a New York merchant then in London, to help pay for the tea. Hayley and Hopkins and other British firms trading with North America offered partial payment to delay the Port Act. North rejected it. Other reports suggest British merchants trading to Boston offered a £16,000 security. They would pay the Company on Boston’s behalf and collect from Boston later. The Lord Mayor of London offered £20,000 security, provided the Port Act was not introduced. These offers made some economic sense—it was not uncommon for one merchant to act as “security” for another, and the East India Company had asked various merchants in Britain to act as security for the North American consignees. That promise may not have extended to insuring the cargo against a riot, but merchants trading to Boston seem to have thought some sort of shared guarantee was in their self-interest. Yet North would only take the money if the merchants would guarantee “the future peaceable conduct & entire acquiescence” of Massachusettsans in taking British tea and obeying British laws, a knowingly impossible demand.²⁸ The ministry was choosy about who paid because money coming from official bodies—the town of Boston or the colony of Massachusetts—would mean those bodies had been cowed and could, as institutions, be expected to help enforce the law and secure residents’ good conduct.

Gage was similarly choosy. Bostonians offered to ransom the city at the end of May and again on June 8. When they asked Gage how much money was needed, he sent them away without an answer because they had no official or personal responsibility for the tea’s destruction. Gage would tell the Assembly or the town of Boston—but only if either body asked. When Gage urged Bostonians to raise funds “to pay for the tea” in October (a point he also raised with the Continental Congress), he was not so much seeking funds as seeking a collective acknowledgment of guilt (or a collective agreement by these bodies to punish the guilty).²⁹

One unintended consequence of collectively punishing Boston was that the ministry made the position of conservative merchants, some of its most important allies in Boston, untenable. The Port Act “has had every evil consequence that was anticipated,” lamented Joshua Winslow to a friend in London. Among “persons chiefly punished are the very ones who should have been excluded from the operation of the act”—friends of government, who, he thought, should have been allowed the use of the port while it remained shut to others. Merchants like Winslow were attacked from both sides. The ministry impoverished them by closing the port, while Patriots harassed them for speaking up for the ministry, which Winslow came to regret. He should “have been silent and at the least have fallen in with the many,” because if he could not escape the Port Act, he could have at least escaped the Patriots.³⁰

The Company hardly needed the money. The Company asked Parliament in February 1774 to reimburse its loss of £9,659 6s 4d in Boston. In comparison, it had received a £1.4 million bailout loan from Parliament in 1773. It also had considerable surplus tea, meaning any tea that was returned would be hard to sell. The merchants who offered a £16,000 security explained that the Boston tea was “of a bad Quality”; much of it was “ ‘Out of Time, that is Tea, which has been repeatedly offer’d for Sale” at the Company’s auctions in London, “and so often refused” it “could not be again ever offer’d for Sale.” Other reports suggested the tea was “Damagd tea not fit for merchants,” some of it three years old, some moldy and “not merchantable.” “Many of the off[ic]ers in the Company Service Say the tea was Extream Bad.” The Pennsylvania Gazette picked up on allegations the tea was “three Years old,” “mouldy and unwholesome.” Reimbursement for unsellable tea was a neat trick.³¹

Yet these claims served an agenda and must be taken with a grain of salt. While it is easy to imagine the Company kept its newest and best teas back in London, it is hard to imagine the Company paid to ship half a million pounds of tea with no reasonable prospect of sale. The teas from the William and London were ultimately drunk with no complaint—but in wartime conditions when consumers had little choice. It is difficult to assess the tea’s quality in part because eighteenth- and twenty-first-century tastes, and even grades of tea, are so different. If the tea was truly spoiled, the irony worked twice. First, the Company, presented with an opportunity to expand, had sabotaged itself by sending bad product. Second, the Boston Patriots did not have to be so exercised about it. The ministry saw no urgency in the Company’s demand and made no payment. Refunding the Company was a cudgel against Boston; it did not matter to the Company’s finances.³²

Treatment of Boston as a unit punished the innocent with the guilty. This was contested in Parliament. Edmund Burke spoke out against collective punishment. Hutchinson, he pointed out, had not called out soldiers or ships, so why should citizens who had not participated in the destruction of the tea suffer for it? It was unclear that so many Bostonians were involved as to implicate the whole town, or even how many participants were Bostonians.

Nor are these points clear today. Benjamin Labaree’s Boston Tea Party claims that “most” participants were Bostonians but provides little evidence. We know that men from neighboring towns joined, and some participants were seamen who subsequently went to sea. A crowd gathered to watch the destruction of the tea, but it would be a mistake to assume, as Labaree did, that watchers granted “silent approval”—some mix of shock, horror, and approval probably informed them.³³ Reliable estimates of crowd size for the Boston Tea Party are hard to come by, but even the 1,200 souls who tarred and feathered John Malcom were not a large enough gathering to indicate, on its own, that the event was broadly approved of. Twelve hundred people comprised only 8 percent of the whole city. In assessing the popularity of street politics, one needs to be wary of conflating “popular,” as in involving the lower orders, with “popular,” as in more liked than not. However Bostonians felt about destruction of the tea, we cannot derive approval from workingmen’s participation or crowd size alone.

For precedent to the Port Bill, North pointed to the collective punishments of Glasgow, Edinburgh, and London, all of which were fined (not shuttered) for failing to apprehend criminals. So Rose Fuller, Jamaica plantation owner, West India lobbyist, and MP for Rye, recommended fining Boston £20,000 to pay for the Tea Party. But North dismissed fines—his own precedent—as “lenity.” Fuller’s fine would have covered the Company’s damages, compensated Malcom and others, and capped the hardship to Boston. It was significantly larger than the £2,000 levied on Edinburgh during the Porteous riots, where someone died. Certainly, the cost would have been a serious punishment for the town. William Dowdeswell, who led the Rockingham Whig opposition in Parliament, pointed out that any policy that punished Boston should have been extended to New York and Philadelphia, where the Company had incurred losses in the form of shipping costs, and to Charleston, where he thought the tea was rendered “rotten and useless” by being placed in a “damp cellar.” He, too, was ignored. So, to get repayment for a Company that did not need it, and to make sure the guilty paid, North punished the innocent and the guilty together. Even attempts to make the Port Act more palatable by pairing it with a repeal of the Tea Act—a pairing suggested by MPs disposed to make peace with the colonies rather than punish them—failed.³⁴

The Boston Port Act was punitive, but the rest of the Coercive Acts were not primarily meant to punish or even confront but to remedy perceived defects in colonial governance. The Massachusetts Government Act made the Massachusetts Council appointed by the Crown rather than elected by the lower house and restricted town meetings, which were seen as a source of disorder. These provisions reflected a sense that Massachusetts was overly democratic and have been the focus of scholarly attention. Yet twenty-one of the act’s twenty-four provisions focused on the courts, which the ministry also saw as overly democratic. The act empowered the governor to appoint the attorney general, judges, sheriffs, and other court officers unilaterally. Most of the act’s provisions focused on juries. Grand juries were to be chosen by governor-appointed sheriffs, not elected by town meetings, preventing Patriot interference in criminal prosecutions. General Thomas Gage would go out as civilian governor and military commander with four regiments of reinforcements in support of these changes. The Administration of Justice Act allowed officials charged with capital crimes committed in the course of their duties to be tried outside the colony if the governor felt they would not receive a fair trial in Massachusetts. It did not provide for the trial of suspected tea partiers outside of Massachusetts. Such a possibility, though discussed, was dropped.³⁵ Other acts, such as the Quartering Act and the Quebec Act (sometimes lumped with the others), were similarly reformatory.

The core flaw in the ministry’s reasoning was not understanding the key theater for quelling colonial unrest was the colonies. Colonists’ protests against taxation without representation argued that the colonies were important polities. And voices from these polities suggested alternative paths. The few remaining colonial agents in London, along with colonists like Henry Laurens, lobbied against the Port Bill. Dartmouth maintained correspondence with Joseph Reed and Thomas McKean, both of whom served on revolutionary committees.³⁶ But Dartmouth and North were in a Westminster bubble—they did what sounded good to other MPs, not what played well in North America.

North and Gage missed key avenues to advance the ministry’s cause in colonial politics by embarrassing Patriots. Patriots practiced victimhood politics—portraying the ministry and its taxes as oppressive and the colonists as victims. The destruction of the tea made Patriots aggressors, but North and Gage could not embarrass Patriots by decrying Patriot aggression—perhaps because these men were nobody’s victims. In the Revolution, conservatives struggled to match Patriot rhetoric. And so, rather than pursuing a more lenient course (to portray the Patriots as aggressors), or pursuing measures that might set Patriots against each other (like fines), North’s harsh, collective punishment returned Patriots to their role as victims at the hands of an evil ministry. North saw himself as a rationalizer eliminating the barriers to effective government. But he reacted to the wrong target: the destruction of the tea rather than the discord among Patriots that destruction created. And in ignoring concerns about the Coercive Acts, North united colonists across North America, who wondered what colony would be next.

Despite the punishment of Boston, efforts to charge individual tea partiers continued. Dartmouth explained in March that the ministry wanted to suspend Boston’s trading privileges and also to see the “ringleaders in destruction of tea to be punished.” After it proved impossible to try people in England, Dartmouth hoped Gage could bring prosecutions in Massachusetts. The “one thing I much wish” is “punishment of those individuals who have been the ringleaders,” he told Parliament in April. He gave Gage copies of all available information. It was “difficult … to establish such a connection between the Acts of the body of the People [in town meetings, etc.] and the destruction of the Tea” to charge treason in England. However, lesser charges might still be brought in Massachusetts. Gage should go ahead “in the ordinary Courts of Justice within the Colony” if “there is a probability of their being brought to punishment.” This was “a very necessary and essential Example to others.” Dartmouth listed the men known to have led attacks on the consignees when the Company’s tea first arrived: Joseph Warren, Samuel Adams, Benjamin Church, William Mollineux, Thomas Young, and others. This was an obvious place for Gage to start his own investigations. However, Dartmouth cautioned Gage not to bother bringing a case unless he was confident of victory. If the “prejudices of the people” made conviction impossible, it was better to avoid a trial than risk “disgraceful” defeat, and Warren and Adams had already alibied themselves for the Tea Party itself.³⁷

Gage provided Peter Oliver with all the testimony gathered in London. In late June Oliver thought the time “not yet favorable” for prosecutions and recommended delays. Attempts to gather evidence continued, but in early July Gage reported that he could not gather enough to prosecute: “tho’ I hear of many Things against this and that Person, yet when I descend to particular Points, and want People to stand forth in order to bring Crimes home to individuals by clear and full Evidence, I am at a Loss.” The problem, Gage continued, was “the usurpation and Tyranny established here, by Edicts of Town Meetings enforced by Mobs, by assuming the sole use and Power of the Press, and influencing the Pulpits. By nominating and intimidating of Juries, and in some Instances threatening the Judges.” These would be difficult to stop, and they prevented a “free and impartial course of Justice whereby Delinquents can be brought to Punishment,” which was “the chief thing wanting.” Despite “thousands” of people involved in the Tea Party or “spectators of it,” Gage lamented that “only one witness could be procured to give testimony against them, and that one conditionally that the delinquents should be tried in England”—far from the madding crowd. Oliver also hoped Gage would send men to England for trial. But English courts had no jurisdiction. Gage was as powerless to round up tea partiers as Hutchinson had been.³⁸

Despite the Massachusetts Government Act, Gage’s writ extended no farther than his troops, making the act pointless. Parliament expected “obedience and due submission to legal authority.” But Patriots responded to the Massachusetts Government Act by shutting down the courts. Patriots forced sheriffs and deputies who issued writs under the new colonial government to renounce that government’s authority. They forbade jurors from participating in the new courts. Mobs attacked or shut courts in Worcester, Taunton, Springfield, and Berkshire, Massachusetts, attacked the attorney general’s home in Cambridge, and surrounded the lieutenant governor’s home, forcing him to sign a letter of resignation. Gage wrote Dartmouth in September, “Civil government is near its end, the courts of justice expiring one after another.” Three days later, Benjamin Hallowell lamented that the “civil authority in this country being now quite at an end, no courts of justice to be held, juries refusing to serve, and … rebellion has at last taken place.” Four days later, the Suffolk Resolves demanded “no Obedience” to the new Massachusetts government. Massachusettsans, Dartmouth noted, “refuse obedience to the law.” Boston Patriots of all classes resisted. Patriot William Tudor asked an out-of-work ship carpenter at the end of September, “This is very discouraging, pray don’t you think it almost Time to submit, pay for the Tea, & get the Harbour opened?”

“Submit! NO,” the carpenter replied.³⁹

To Pay or Not to Pay

Efforts to prosecute tea partiers ended by September, but efforts to pay for the tea had been ongoing since May. Boston held a town meeting on May 13, the day Gage arrived. Harrison Gray, in attendance, thought “the general sense of the town was in favour of paying for the tea.” But stalling was easy: Should the town or colony pay? Did the town need colonial authorization? Should the town borrow? The matter went to a committee. Merchant John Rowe sat on the committee and recommended payment. Rowe felt “the revenge of the ministry was too severe,” but that Boston had little choice. Rowe, who served on revolutionary committees, joined merchants’ meetings, and called on Governor Gage, was positioned to bring a moderate solution. He disliked the radicals’ violence and the ministry’s response. But the committee proved a bust: two other members who might have supported moderation, merchants Nathaniel Appleton and Thomas Boylston, avoided the meetings, leaving radicals dominant, as they dominated the town meeting as a whole.⁴⁰

On May 18, Boston merchants and others circulated a proposal to pay for the tea. Loyalist George Erving offered £2,000 if others would contribute, offering to call on Governor Gage to find out how much the total would be. There are “many among us, who are for compromising,” merchant John Andrews noted. Merchant John Amory recommended at the town meeting that Boston follow Erving’s lead, but the suggestion was rejected and omitted from the town records “though he urged the matter much.”⁴¹

Radicals delayed the committee’s report. As Gervais had suggested, the brief lag between the Port Act’s announcement and its implementation was the Patriots’ weakest spot. The longer Patriots delayed consideration of payment, the more damage the act caused and the more blame accrued to the ministry. In the short term, implementation of the act also made it harder for the consignees to land the tea from Castle William, as that tea would have to be shuttled to another port of doubtful security elsewhere along the Massachusetts coast. Nothing was done at the May 18 meeting or at the next meeting on May 30. This was the last chance for Boston to pay before the Port Act took effect. Merchants and tradesmen pushed for repayment. But, as Bostonians filed in the door, Whigs told them not to mention payment. Instead, according to Gray, the radicals, “whose importance and political salvation depend upon the province being kept in a continual flame,” urged waiting several months to form a congress.⁴² There Patriots’ martyrdom of Boston could rally the continent.

Conservatives lacked a ground-level organization outside of government capable of organizing payment. Erving’s offer stood. Signers of the address presented to Hutchinson seconded it. They “disavowed” the “lawless” “outrage” of the Boston Tea Party, “yet, considering ourselves as members of the same community,” offered to pay their share. Conservatives exhorted “all the Colonies on the Continent (the infant Settlements of Georgia and Nova-Scotia excepted) [to] join in paying for it.”⁴³ But they did nothing to accomplish this. Hierarchically minded, they waited on Gage to name a price. Gage, in turn, waited on the Patriot-controlled town meeting, which left conservatives holding back their own actions on behalf of Patriots.

Of the 124 signatories to the farewell address presented to Hutchinson, about half were merchants. Some sold or advertised tea. One, Joshua Winslow, had been involved in the Company’s tea now at the bottom of Boston Harbor. Boston’s merchants wanted to pay for the Company’s losses so they could stem their own. But the signers were a small minority—not even 15 percent—of Boston’s import-export merchants (who would be hardest hit by the closure of the port) and a smaller minority of the town. The Patriots struck back with a broadside listing the names of Hutchinson’s addressors and, helpfully for the mob, where their shops were.⁴⁴

On June 2 some Tories and moderate Whigs agreed to pay for the tea. Like the May 18 petitioners, they were neither representative of nor accountable to the town. In response, the Boston committee of correspondence sent out its Solemn League and Covenant, calling for a boycott without the town meeting’s approval either. “We have found from experience, that no dependence can be had upon merchants,” wrote Charles Chauncy. They stand not for liberty and serve only “their own private separate interest. Our dependence, under God, is upon the landed interest.” By farmers “not buying of the merchants what they may as well do without,” merchants could be made to boycott England. Boycotts, explained John Andrews, make merchants less willing to pay for the tea. Why pay to open the port to trade if a boycott were coming?⁴⁵

Moderates still wanted the town to pay for the tea. At the June 17 town meeting, one radical lamented that Bostonians “wanting to pay for the Tea … are too formidable.” Arguing payment would legitimate the Port Act, radicals defeated the proposal. Writing in the press, Patriots claimed “not one” person had supported payment at this meeting and boasted of their “unanimity.” Moderates tried again in the June 27–28 meeting, which rejected the Solemn League and Covenant and investigated the committee of correspondence for sending it out without meeting approval, but failed. The colonial legislature, moved by Gage to Salem, likewise refused to consider payment, and Gage’s dissolution of that body on June 27 precluded future efforts. In the end, neither Boston nor Massachusetts paid.⁴⁶

Here, the Company’s tea in Castle William served as a one-way ratchet for escalation. In their letter to the Company in July 1774, the Boston consignees advised “that the Inhabitants did not at that time appear disposed to pay for the Tea,” and that consignees were unable “to sell any of the Teas which had been deposited in the Castle.”⁴⁷ (The consignees had not quit trying to advance and protect the Company’s interests.) Closure of the port made it impossible to land the tea in Boston, impoverishment of the city made it hard to find buyers, and political odium made it worse. All this was good for Patriots. Though the Port Act might secure the tea’s eventual sale, ironically, by shutting Boston’s port, the Act prevented the tea’s landing for the time being. Boston Patriots had an all-or-nothing choice: oppose the Tea and Coercive Acts, leave the port closed, keep the William’s tea out, boycott, and rally Congress. Or, accept the Tea and Coercive Acts, pay to open the port, receive the William’s tea, drop the boycott, and not bother with Congress.

Paying for the tea outside of government was ”silly.” A subscription solved nothing since radicals would refuse to contribute, leaving conservatives and moderates to bail out extremists, who would bear no cost for their actions. What would stop them from sticking moderates with the bill again? Individuals could afford to pay once, but the town or colony would have to start enforcing order afterwards, and this was best confirmed by the town or colony paying in the first place. This was why Gage wanted the town or colony, as institutions, to pay.⁴⁸

Some colonists elsewhere encouraged Boston to pay. Members of the Philadelphia committee of nineteen did, even after the Coercive Acts, if it could end the “controversy” and preserve “constitutional liberty.” Wealthy Quaker merchants in Philadelphia agreed, as did some New Yorkers. Abel James and Henry Drinker, consignees for the Company in Philadelphia, reported the “weighty and serious part of the [Philadelphia] Community”—that is, conservatives—thought “it would … have been for the best” had the Polly’s tea been landed. James Pemberton, a conservative Quaker merchant, thought it was “agreed by most” that “Restitution” for Philadelphia sending away its tea “ought to be made,” and that the town’s radical newspapers mispresented public opinion on this.⁴⁹ It is difficult to know how much to credit conservatives’ conceit of their own silent popularity.

On July 18, the Fairfax, Virginia County Resolves offered to help pay for the tea. If its destruction was “an Invasion of private Property, we shall be willing to contribute towards paying the East India Company.” Fairfax also resolved to boycott the Company. The Fairfax Resolves, written by George Mason and endorsed at a meeting chaired by George Washington, were radical and influential, serving as a framework for the Virginia Association. They called for non-importation of British goods, a congress, and ending the slave trade. Fairfax Patriots paired this with paying for the tea. South Carolinian Henry Laurens likewise supported inter-colonial payment. “I truly hope, that payment will be made by the Colonies in general for the Tea which was destroyed in Boston. It will be of no consequence that the respective contributions are Small, provided they are general.” Laurens suggested opening a subscription across South Carolina to share Bostonians’ burdens, making payment “an American cause.” He offered “from five to Fifty pounds Sterling” himself. Laurens, in London, was influenced by English outrage against the destruction of the tea. From London, payment seemed reasonable: the destruction was “at most a trespass” which could be “healed by paying for the Damages.” The tea “must be paid for,” he wrote. “I say must, not because an Act of Parliament enjoins it, but upon principles of honesty we ought not to impose Losses & hardships upon our fellow Subjects in the course of our Struggles for maintaining our Liberty.”⁵⁰

“A PHILAELPHIAN” made a strong case for payment in the Massachusetts Gazette. Paying was fair play. It was also “what every REAL friend to the cause of America must think [Boston’s] indispensable duty. While we contend for liberty, let us not destroy the idea of justice. A trespass has been committed on private property in consequence of the Resolves of your town. Restore to the sufferers the most ample compensation.” Convince your enemies “that you regard honesty as much as liberty, and that you detest libertinism and licentiousness.” “[P]ay for the tea; it is but justice” and “ought to have been effected” already out of “virtue and TRUE patriotism.” The “hint given you” by the Philadelphia committee should “have induced you to comply,” and Boston’s reasons otherwise “are indeed futile and puerile.”⁵¹ Then, with the tea paid for, Whigs could focus on parliamentary taxation without the taint of hooliganism.

The Patriot Response

Instead, radical Patriots urged a continent-wide boycott of Britain and tea, with a congress coordinating it. Patriots knew that payment meant submission. They worried that if “conscientious Americans” paid, it would justify the Port Act and tacitly accept the Massachusetts Government Act.⁵² Patriots contested the constitutionality of these acts. The acts were legal according to the doctrine of parliamentary supremacy, but that doctrine seemed a dangerous imposition in colonies with charters and local legislatures that predated it.

Colonists outside of Massachusetts who disliked both the Tea Party and the Port Act chose sides, often against Parliament. The “chastisement of Boston,” Penn explained to Dartmouth, was seen as “intimidation to all America,” leaving Boston “suffering in the common cause. Their delinquency in destroying the East India Company’s tea is lost in the attention given to what is here called the too severe punishment.” Writing back to Virginia from London, William Lee opposed payment. One Middletown, Connecticut, resident noted that “even the old Farmers”—the Yankee skinflints “who were So sorry that So much Tea” has been “wasted” in Boston Harbor—“now Say they will Stand by the Bostonians.” Parliament’s destruction of constitutional order, collective punishment, and imposition of a military governor were troubling. While “it should be granted that the Bostonians did wrong in destroying the tea,” Virginian Edmund Pendleton wrote, the Port Act and the Massachusetts Government Act were greater wrongs. Whether the Boston Tea Party was “warranted,” explained residents in Hanover, Virginia, “we know not; but this we know, that the Parliament” by the Coercive Acts “have made us and all North America parties in the present dispute.” What colony might be next? “[W]e shall not suffer ourselves to be sacrificed by piecemeal,” but unite, George Washington wrote. Because of Parliament’s “despotick Measures,” the “cause of Boston … now is and ever will be considered as the cause of America.” “UNITED WE STAND, DIVIDED WE FALL,” wrote residents of Hanover, Virginia.⁵³

Patriots objected to the collective punishment of Boston. As Charles Chauncy explained in one pamphlet, there were over 10,000 Bostonians who depended on the port for a living. Parliament had thrown them all out of work, loyal and rebellious alike, without evidence any had “more an hand in the destruction of the East-India company’s tea [than] Lord North himself.”⁵⁴

The severity of the Port Act, which lacked a time limit, convinced others. “I was of your opinion formerly,” John Lewis Gervais explained to Henry Laurens,

that the tea which was destroyed at Boston should be valued and paid for; but that motion now requires reconsideration, since the heavy punishment inflicted upon that devoted town.… [F]ifty times the amount of the tea would fall short of the damage already sustained in consequence of the port bill; here is infinite distress brought upon a City, in which very few, if any, of the inhabitants are guilty,

and with no benefit to the Company for it. Either forgetting or unaware of the difficulty in getting Boston to pay, Gervais thought Parliament should have “called upon the people who were accused, to answer for themselves before they had either made such demand, or denounced vengeance … all the provinces upon the continent would, in such case, have united in this one voice, ‘pay the damages;’ now their voices are united” against Parliament.⁵⁵

The anonymous author of “An Address to the People of Boston” (June 1774) took advantage of North’s misstep to reposition Boston Patriots—who had destroyed thousands of pounds sterling in property—into defenders of property rights. Some colonists said of the tea, it was “but an act of justice we should pay for it.” But if payment meant Parliament could pass acts like the Boston Port Act, then “An American’s property and liberty are become matters of indulgence, rather than right” and colonists “become slaves.” The Port Act included specific provisions forbidding the loading or unloading of goods on Boston’s private wharves. The Port Act damaged those assets and was the real attack on property. “We hear not a word of any private company appearing in this whole transaction [in Parliament], not a mention of private property, but Government takes the matter up, and chastises us by an Act of Parliament. Ships and troops are sent out on Government expense, and the whole plan of resentment is Governmental.”⁵⁶ Private property was, in the author’s view, just an excuse.

Practical considerations also facilitated the Patriot position. The tea was difficult to pay for. As Franklin explained, “1. Because of the Uncertainty of the Act which gives them no Surety that the Port shall be opened on their making that Payment. 2. No specific Sum is demanded. 3. No one knows what will satisfy the Custom house Officers; nor who the “others” are that must be satisfied, nor what will satisfy them; and 4. After all, they are in the King’s Power how much of the Port shall be opened.”⁵⁷

Other pragmatic concerns inhibited payment. The Boston committee had the organizing capacity to raise funds but did not want to, and there was no other organ to step in. Moderates had neither the initiative nor the organization to act in this way. Fundraising efforts like what Laurens proposed never even began. After five months, which should have been enough time, there were still no parties anywhere in North America willing and able to send payment. Their lack of cross-colonial organizing was one of the reasons many moderates supported the creation of a Continental Congress in 1774; they mistakenly hoped that the gathering would become the moderate organization they lacked. But by blocking compromise, revolutionaries made moderation impossible.

Boston Relief

Patriots refused to pay for the tea but paid to support Boston. The committee of donations distributed that relief to people put out of work by the Port Act, while the town’s overseers of the poor cared for the infirm and traditionally needy. The committee created jobs through a public works program and carefully thanked each donor. Encouraged in Patriot newspapers—the South Carolina Gazette solicited donations on its front page—and by Patriot committees up and down the coast, news of other towns’ donations (and of the thank-you notes they received, commonly printed in local newspapers) drove further giving. Boston relief was a propaganda stunt and a serious project, a showy contrast between Patriot charity and Ministerial cruelty, allowing distant colonists to participate in Boston’s cause. General Gage thought relief would die out, then Bostonians would pay. He was wrong. Collecting for Boston created a common cause in a way collecting for the East India Company could not. “We will no[t] think so basely of you as to Imagine you will pay for One Ounce of the Tea,” South Carolina firebrand Christopher Gadsden wrote Samuel Adams in early June. When he sent rice for Boston relief at the end of the month, Gadsden reiterated: do “not pay for an ounce of that damn’d Tea.”⁵⁸ The common cause of 1774 was Congress, the boycott, and, most of all, Boston relief.

Donations came from across the continent. Norfolk, Virginia’s committee sent 715 bushels of corn, 33 barrels of pork, 58 barrels of bread, and ten barrels of flour. Bethlehem, Pennsylvania Moravians donated, as did the Bucks County committee of safety. Portsmouth, New Hampshire voted £200. “Their bountiful donations from one part of the country and another are daily flowing in upon us,” wrote Charles Chauncy. “Waggons, loaded with grain, and sheep, hundreds in a drove, are sent to us … Two hundred and fifteen teirces of rice, part of a thousand devoted to our service, are arrived at Salem from South-Carolina.” He added, “The cause for which we in this town are suffering, they look upon us as the common cause of all north-America, their cause as truly ours.” A survey of ninety-eight provincial and local resolutions responding to the Port Act in 1774 could find only two that urged payment for the tea. Forty-seven raised subscriptions for Boston.⁵⁹

Yet by the spring of 1775, Patriots faced a daunting prospect. Some 7,000 Bostonians depended on donations for their “daily bread,” and the number of the poor grew.⁶⁰ Perpetual relief was neither intended nor practical, but it was necessary for the foreseeable future. Patriots expected the Association would force Parliament to re-open Boston but did not know when. The Association impaired the colonies’ trade more than Britain’s. The ministry felt little from non-importation in the spring of 1775 and expected it would collapse from cheating, as the last boycott had. How much longer could Boston relief last? The fighting at Lexington and Concord saved Patriots from this problem: the need for Boston relief ended when, after news of the battles, Patriots fled Boston. Meanwhile, fighting re-energized the common cause.

Paying for the tea was far cheaper than supporting Boston—reimbursement could have been paid from the £13,000 in cash received by March 1775—let alone the value of what colonists sent in kind, and Boston Harbor would probably have re-opened.⁶¹ But colonists gave (and voted substantial sums to support their congressmen) because they trusted Boston not to pay for the tea.

Congress Considers Repaying the Tea

Congress did consider payment. The Pennsylvania provincial convention instructed congressional delegates to pay for the tea in exchange for ending the Coercive Acts and lifting duties. Fairfax County, Virginia supported a continental subscription to pay for the tea. Middlesex County, Virginia resolved similarly. New Jersey delegates were nearly sent with instructions not to pay for the tea, but the option for payment was ultimately kept. Virginian Thomas Adams thought “Americans” (perhaps the upcoming Continental Congress) would “undoubtedly tender the E India Co Payment for their Tea.”⁶²

Some thought Congress would get Boston to pay. While the Massachusetts delegation was in New York, the committee of fifty-one urged New York congressional delegates to see Boston make payment. Gage thought Boston would follow Congress’s advice and took it as the “opinion of most of the other colonies” that Boston should pay. Massachusetts conservatives hoped Congress “might prevail on the Bostonians to make restitution to the East India Company.” Payment would be a first step toward “accommodation,” Gage wrote in October, adding, “without Such a Complyance I don’t see what can be done,” in lieu of war.⁶³

The Continental Congress debated payment. John Jay made the proposal, seconded by Isaac Low and Edmund Pendleton. Pendleton recommended Congress “expressly justify” Boston in destroying tea, then pay on the condition that the Port Act be instantly lifted. The colonies would then boycott East Indian commodities until the Company refunded the money. Pendleton sought to break the repayment-versus-boycott dichotomy by doing both at once, as the Virginia convention and the New York committee of fifty-one had recommended. Low added that, were Boston port not re-opened after payment, it would afford Congress a victory over Parliament in public opinion.⁶⁴

But the measure lost. Just why is unclear. Beverley Robinson, who was not present, explained that the “proposal to pay for the tea was defeated by [Samuel?] Adams.—He said it was proper the other colonies should pay for it, but, that Boston doing this, would confess a crime, where they should glory in a merit.” But there were other explanations. One reason, never stated openly, was the survival of Company tea in Boston and Charleston. The Massachusetts and South Carolina delegations strongly opposed repayment, which would expose them to the threat of Company tea from the William and London being landed. Sales of this tea would bust any boycott of the Company. This was why Gadsden opposed paying for that “damn’d Tea.” Whether other congressmen understood the importance of these cargoes is unclear, though Congress was aware of Bostonians’ past consumption of dutied tea.⁶⁵

Finally, since repayment would not end the other Coercive Acts, boycott and resistance seemed the only ways to get all offensive acts repealed. This was especially true with the Tea Act, which might generate meaningful revenue without a boycott. Thus, Pendleton adopted Congress’s opinion. If examined “abstractedly” the tea “ought” to be paid for. “Merchants sent their property … where they had a legal right to send it and it was destroyed[.] [N]o one could speak of its being wrong … to pay for it.” But in the Port Act “thousands” of “innocent are condemned for the supposed Fault” of others. And since boycotts might provide an excuse to keep Boston closed (as the port was to be opened when “the Trade of Great Britain may be carried on there”), they could not reimburse and boycott.⁶⁶

In its draft address to the people of Great Britain, Congress re-wrote the tea story, noting that Tea Party was a mere “trespass” “committed on some merchandise.” Parliament’s response was disproportionate. “Even supposing a trespass was thereby committed, and the Proprietors of the tea entitled to damages.—The Courts of Law were open, and Judges appointed by the Crown presided in them.—The East India Company however did not think proper to commence any suits, nor did they even demand satisfaction, either from individuals or from the community in general.” The Massachusetts delegation knew it had been impossible for the Company to bring suit; whether Congress knew is unclear. The claim that restitution was a matter for a court, not a legislature, ignored Boston Patriots’ organized criminal activity: their intimidation of witnesses, plaintiffs, and judges, their corruption of juries, and their closure of courts. Congress was similarly right that Parliament heard “unauthenticated ex parte evidence” without the “persons who destroyed the Tea, or the people of Boston” being able to respond, while omitting that the destroyers of the tea were secret and chose not to respond.⁶⁷ Patriot propagandists often massaged the truth, and readers without first-hand knowledge and living hundreds of miles away were left with half-lies.

The End of Reconciliation

Yet the idea of payment as a step toward reconciliation limped on. In January 1775, Gage still hoped Boston might pay. Between December 1774 and February 1775, payment was the starting point for discussions between Dartmouth and colonial agents in London, not because tea was the largest item under dispute, but because the Tea Party was the chronological starting point for what followed, and so it repeatedly crept into negotiations properly focused elsewhere. In December, Benjamin Franklin agreed that Boston should pay, but by early 1775 he pointed out the injustice of charging Boston for the tea after the city had already endured impoverishment. Britain might extract reparations or injure Boston; it could not have both. Britain kept asking, anyway. Only repeal of the Tea and Coercive Acts and a settlement of constitutional principles would satisfy Patriots, without which payment was unacceptable. Stragglers, like Reverend John Murray, representative from Boothbay in the Massachusetts provincial congress, still pressed that congress to pay for the tea. Murray argued, “they never could expect the smiles of Heaven on their resistance, till they had made compensation for that flagrant act of injustice.” But his words fell flat.⁶⁸