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Fake Whiskey Sold as the Real Thing

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HISTORY OF A CRIME AGAINST THE FOOD LAW

CHAPTER IV: WHAT IS WHISKY?

by Harvey W. Wiley, M.D., the very first commissioner

of the Food and Drug Administration (FDA), then known

as the “US Bureau of Chemistry.”

 

RECTIFIED WHISKY THE FIRST CAUSE OF PARALYZING THE

FOOD LAW

Whisky is a distillate, in a pot still, of the

fermented mash of a cereal

or mixtures of cereals, containing all the natural

elements of the grain and

the ethyl alcohol and its congeners, volatile at the

temperatures of

distillation. It contains also the coloring matters

and other soluble products

extracted from the wood (oak), in which it is stored

and any new compounds

arising during storage. Potable whisky is kept in

storage for four years.

--Definition by Bureau of Chemistry.

Whisky is used extensively as a medicine.

Physicians differ widely in regard

to its medicinal value. The greater number of

physicians think it has medicinal

value. A very respectable number look upon whisky as

unsuitable for any

medicinal purpose whatever.

The ethyl alcohol in whisky, when taken in

moderation, is oxidized and thus,

to that extent, becomes a food product. The damaging

effects of whisky, however,

are so great as to render it impractical for food

purposes. As a beverage whisky

was used extensively in this country before it was

prohibited by Constitutional

amendment and the Volstead Act was passed regulating

the enforcement of the

Constitutional provision. At the present time whisky

for beverage purposes can

only be obtained illegally. The sources of all illegal

alcoholic beverages are

shrouded in mystery, and severe and often fatal

results follow their illegal

use. The Volstead Act prescribes the conditions in

which they may be used for

medicinal purposes.

UNE CAUSE CELEBRE

In the fight for the food law the question " What is

Whisky? " cut quite a

figure. As early as 1898 the question of the character

of distilled alcoholic

beverages became quite acute. A heavy tax was laid on

manufactured alcohol, both

for beverage and industrial use. A great change had

been made in the method of

making pure alcohol. The continuous still, an

implement which was continuously

charged with a fermented mash and which continuously

produced a very pure spirit

revolutionized the process of distillation and made

pure untaxed alcohol

remarkably cheap. This method of making neutral spirit

was entirely different

from the manufacture of beverage whisky. The Congress

of the United States had

legalized the mixing of genuine whisky with this

neutral spirit, and coloring

and flavoring the mixture, by an Act defining

rectifying. The so-called

rectified product was placed on the market under the

name and appearance of the

genuine article. Existing law provided no penalties

for this fraud.

In order that consumers might be able to protect

themselves, certain

precautions were provided in the law. When a genuine

whisky was first made it

was always placed in oak barrels for aging purposes. A

stamp was placed on the

package, giving date produced, distillery making it,

and other data required for

revenue purposes. When the package was tax paid and

ready for consumption, an

additional stamp was affixed. The double stamp was the

consumer's evidence that

no rectifier had handled that package. This assurance

however, affected only the

first owner. When he decided to put the contents on

the retail market he was

under no further obligation. He sold it by the drink

at the bar or in small

packages to carry away.

For the protection of the individual consumer,

Congress, in 1898, passed the

bottled in bond act. This law permitted dividing the

product in fractions of a

gallon, each package having a United States little

green stamp pasted over each

cork, showing the distillery where made, the size of

the package, the date of

manufacture, and a guarantee of freedom from

rectification.

This guarantee followed a rigid investigation of

the wiles of the rectifier,

carried on in 1898, in which the Bureau of Chemistry

took an active part. It was

then learned that there was a radical difference

between a genuine whisky at

least four years old and the rectified product bearing

the same name. Under the

pending food bill the rectifiers clearly saw that the

products they were making

would have to bear labels showing just what they were.

Their whole business was

founded on fraud. They made heroic efforts to prevent

the passage of the Act.

After its passage they moved heaven and earth, or

better, hell and earth, to

nullify its provisions. In the following pages will be

found the high lights of

these efforts.

In the final hearings the rectifiers made every

possible endeavor to kill the

bill. Anticipating the probability of the passage of

the bill, it was deemed

advisable to study ab initio the whole question,

historical and technical, of

the manufacture of whisky in this and other countries.

The investigations made

by the Bureau of Chemistry covered fundamentally all

angles of the problem. The

results were collected in typewritten form and were

the basis of all the

testimony before the courts in the cases subsequent to

the passage of the law. A

witness to the sound conclusions drawn therefrom is

the universal approval given

by every Federal court before which the problem has

been presented. No further

publication of this brief has been made. I have, as

one of my most precious

documents, a copy, which, by the way, was the document

called for by Judge

Thompson of Cincinnati in the effort of the rectifiers

to have Food Inspection

No. 65 declared illegal.

In closing the discussion of the pending food bill

before the Interstate and

Foreign Commerce Committee in 1906, the following

reference to whisky (page 322)

was made:

Now we are ready, Mr. Chairman, for a short talk on

whisky, if my assistants

will bring the samples forward.

I will not call attention to the testimony of Mr.

Hough, because he was not

under oath; it is not expert testimony, but I want to

say just this in regard to

his contention: As you know, I was instructed last

year, with a view of

executing our food law respecting imported food

products, to visit the

manufacturers in Europe, as far as I could in the time

I had at my disposal;

and, especially, I was instructed by the Secretary to

visit the distilleries in

Scotland and Ireland, where Scotch and Irish whiskies

are made. I may say that

it was a very pleasant task to which I was assigned.

[Laughter.] I was also

instructed to visit the Charente to see how the real

French brandy is made, and

the Gironde to see how the real French wines are made,

and the Rhine and Mosel

to see how the real German wines are made. I spent

three months in this very

delightful task.

On my return I made a report to the Secretary of

Agriculture, which he gave,

in abstract, to the press, and which was published all

over this country and in

Europe. I stated that I had found that in Scotland

whisky was made solely from

pure barley malt, fermented in the proper way and

distilled in a pot still, and

that nothing else, in my opinion, was entitled to be

called Scotch whisky except

that product.

I stated also that in Glasgow and Edinburgh I found

distilleries importing

American maize, Indian corn--I was glad they were

doing it; it is a good market

for us--and making a spirit out of it, and that this

spirit was mixed with the

real Scotch whisky and sent to this country; and I

doubted if there was a

barrel--and that was about true, as events have

shown--of real Scotch whisky in

the United States.

I went to Ireland, and I found that whisky was made

there exactly as it is in

this country in Kentucky, just as Mr. Taylor (who is

the only expert called on

the question) has testified it was made. It is made

there of barley malt and

unmalted grain, just as in this country, the malt

being used to convert the rest

of the starch, and then it is fermented and distilled

in a pot still and placed

in the warehouse, just as it is in England and in

Scotland.

In this country, too, we have great distilleries of

spirits which make

immense quantities of alcohol, and our law permits the

mixing of different

spirits, under what is known as the rectifiers' clause

of the internal-revenue

law, which says that anyone who " mixes without

rectifying " these spirits and

makes a spurious whisky or gin or brandy shall be

deemed to be a rectifier and

must take out a rectifier's license. So that the law

specifically says in this

country that every mixed whisky is a spurious

imitation of whisky. That is the

act of Congress of the United States, a pretty good

authority when it comes to

definitions of that kind.

I said to the Secretary that in my opinion, if I

were enforcing the law about

whiskies coming to this country--I am not; I have

simply tried to get all the

information I could, and I did not want to begin to

enforce a law without

knowing what I was doing--I believed I could exclude

from this country, under

our law, any of these rectified whiskies which were

offered.

At that time, while I was in London, they were

about to begin a great trial,

which it was said would be the greatest trial that

ever took place in that city

in regard to a manufactured product, in which a

publican had been cited under

the English foods act for selling a bottle of whisky

which was not of the

character, quality, and kind demanded. That is the

language of the English food

act, and a very good one it is. That one sentence is

the whole essence of the

act.

This publican was cited to appear. He was defended

by the greatest lawyer in

England, Mr. Frederick Moulton, the leader of the

English bar; and I was told

that $50,000 (£10,000) had been raised simply to pay

the legal expenses of the

defense. This poor publican was worth nothing, but he

was the man who was

charged with this offense, and this great rectifying

industry was behind him.

They wanted to establish the fact that a rectified

whisky was a Scotch whisky;

and that was what this suit was brought for, to show

that it was not. I was

asked to go over there as a witness, and of course I

could not go; but they

introduced my report to the Court, which the judge

promptly ruled out unless

they produced me.

Yesterday, after I left the committee, I got this

cablegram from London:

" Wiley, Agricultural Department, Washington. Whisky

defendants convicted. " And

it is the best news I have had across the ocean in my

opinion, for a long time.

MR. MANN: Did you not see the account in the

newspapers?

DR. WILEY: Yes, this morning; but this came

yesterday.

Now, I want to say, Mr. Chairman, that I have not

the least opposition to

rectified whisky. I will admit, for the sake of

argument, that it is better than

the straight whisky. I. will admit it for the sake of

the argument; I do not

really think so, but I will say that it is better.

That is what the magistrate

said. I got the printed proceedings of the trial as

they came off every week;

they sent out a. bulletin, and they had expert

witnesses to testify that the

rectified whisky was less injurious, had less

poisonous matter in it than the

straight whisky, and the magistrate said: " Well,

perhaps that is true. If so,

why not say 'This is a rectified whisky'? because then

you will get the trade. "

MR. RYAN: But that was not the question at issue in

that case, was it?

DR. WILEY: That was not the question at issue. The

question was whether a

spirit that had any Indian corn spirit in it was a

Scotch whisky or an Irish

whisky.

MR. RYAN: That was it?

DR. WILEY: Yes, sir.

MR. BARTLETT: It was sold as Scotch or Irish

whisky?

DR. WILEY: It was sold as Scotch or Irish whisky.

MR. BARTLETT: And it turned out to be a rectified

whisky.

MR. RYAN: The extract of corn is what they objected

to?

DR. WILEY: Yes--spirit made from Indian corn. That

covers this whole

contention.

A STRANGE OBSESSION

When Lloyd Bowers reached the opinion that a

neutral spirit, even one made

from grain, was not entitled to the designation of

whisky, even if it should be

colored and flavored, it is difficult to understand

why he decided that this

article which was not a whisky could be added to real

whisky, and then the

mixture could be called whisky, provided the

characteristics of the real whisky

would not be too greatly diluted. Especially is this

true when he had before

him, not only the decisions of the Federal Courts, but

also the opinion of the

father of President Taft to the effect that neutral

spirit was an entirely

different article from whisky. He also had before him

the opinion of the English

Courts contained in Bureau of Chemistry Bulletin No.

102, issued Dec. 20, 1906.

1 give here a synopsis of the decision of the English

case:

A whisky claimed to be Irish on the one hand and a

second sample which

claimed to be Scotch on the other, was sold to a

customer as the best Irish and

the best Scotch whisky. On analysis it was determined

that it contained not less

than 90% of silent or neutral spirit made of maize. In

passing sentence the

magistrate said:

" The offence committed by both defendants is the

same, and the same

practically in degree. * * *

" It is time the fraud upon the public in the

matter of the sale of whisky

was stopped, and, though doubtless these

prosecutions are very costly to those

who engage in them, the information obtained and

published in the course of

the hearing of these two summonses is most valuable,

and the result of this

trial seems to me to afford ample justification for

the prosecutions.

" Great blame attaches, in my opinion, to the

'blenders' who supplied Wells

and Davidge with the articles they sold. I do not

think much moral blame

attaches to the defendants themselves, as I believe

they trusted to those who

sold the articles to them to supply them with that

which they might fairly and

honestly retail to the public as Irish and as Scotch

whisky, respectively; but

at the same time, in my judgment, it was careless of

the defendants to sell

what they, did as they did, and since they only are

before me they must pay

the penalty for their infringement of the law. * * *

The defendants, Thomas

Samuel Wells and James Davidge, will each pay a fine

of 20s and 100 pounds

costs or be imprisoned in default of distress for

two months in the second

division.

To continue the quotation from the final hearings:

" Now, I say that that is a business which is

perfectly legitimate in this

country. I am sorry that our laws are so hard on the

man who makes a straight

whisky, and so easy on those who make the mixed

whisky; because you can not

make or sell straight whisky except under a

Government stamp, under Government

supervision. You can add nothing whatever to it, not

even coloring matter,

except that when you take it out of bond and sell it

you are permitted to

reduce it with distilled water under the supervision

of Government officials,

to proof--that is, half alcohol and half water.

That is the only thing that can be done. Then, if

it is in a barrel, it has

the double stamp put on it to show that it is whisky

right out of the

distillery. It can be. sold in bottles; you can pay

the tax on it and take it

out of bond and put it up in any shape you please,

or you can, under the law,

if you want to, have it bottled in bond. Those are

the three forms in which

straight whisky can reach you. It can come in

barrels, or it can be put up in

any kind of a package you please after you pay your

tax on it, it makes no

difference what; or it can come bottled in bond, as

this is. If any of you

have never seen a bottle of whisky bottled in bond,

this is one.

MR. RYAN: The fact that it is bottled in bond is no

evidence of purity or

quality?

DR. WILEY: It is evidence of quality; it shows that

nothing has been added to

it except what nature put in the distillate.

MR. RYAN: Do you believe that when a blender or a

rectifier adds anything to

whisky he is doing something deleterious to health ?

DR. WILEY: I do not think he intends to. He may do

it unwittingly.

MR. RYAN: The blenders and the wholesale liquor

dealers and rectifiers in New

York, for instance, are very much disturbed about

this. I will state that I have

received some seventy or eighty telegrams since last

evening in connection with

this matter. They fear that this law will show to the

public, or attempt to show

to the public, or the public will assume, that whisky

bottled in bond is the

proper thing and will injuriously affect their

business, when, as a matter of

fact, it is no evidence of quality or purity that it

is bottled in bond, as you

state now yourself.

DR. WILEY: Oh, I do not think you have quite quoted

me, Mr. Ryan. I said it

was a guaranty of quality.

MR. RYAN: Of quality, yes.

DR. WILEY: But the word " purity " is used in two

senses, unfortunately.

With regard to foods, I never use the word " purity "

except in one sense. A

pure food is what it is represented to be. It has

nothing to do with its

wholesomeness at all. A pure food may be unwholesome,

as has been testified

here. You will see in my manuscript there that in

showing what things occur in

nature in foods I show that hydrocyanic acid, the most

violent poison, occurs in

a great many food products. They are pure foods, but

they contain poisonous

matter. "

TROUBLE BEGINS

The food bill became a law June 30, 1906.

Immediately activities were began

by the fake whisky interests to nullify its

requirements. Rectifiers appeared by

counsel or in person before the committee forming

rules and regulations to carry

the law into effect. They made no impression on that

body. They then began to

get in touch with the Secretary of Agriculture. These

rectifiers were deeply in

earnest. They wanted to know " just where they were

at. " They feared most of all

the decisions of the Bureau of Chemistry. Here is one

of the problems

propounded:

(FOOD INSPECTION DECISION 45.)

BLENDED WHISKIES

Many letters are received by the Department making

inquiries concerning the

proper method of labeling blended whisky.

Manufacturers are anxious to know the

construction placed by the Department upon this

particular part of the food and

drugs act of June 30, 1906 and to ascertain under what

conditions the words,

" blended whisky " or " whiskies " may be used. The

following quotation from one of

these letters presents a particular case of a definite

character:

" On account of the uncertainty prevailing in our

trade at the present time

as to how to proceed under the pure-food law and

regulations regarding what

will be considered a blend of whiskies, I am taking

the liberty of expressing

to you to-day two samples of whisky made up as

follows:

" Sample A contains 51 per cent of Bourbon whisky

and 49 per cent of neutral

spirits. In this sample a small amount of burnt

sugar is used for coloring,

and a small amount of prune juice is used for

flavoring, neither of which

increases the volume to any great extent.

" Sample B contains 51 per cent of neutral spirits

and 49 per cent of

Bourbon whisky. Burnt sugar is used for coloring,

and prune juice is used for

flavoring, neither of which increases the volume to

any great extent.

" I have marked these packages 'blended whiskies'

and want your ruling as

to whether it is proper to thus brand and label such

goods.

" My inquiry is for the purpose of guiding the

large manufacturing interests

in the trade that I represent. "

In a subsequent letter from the same writer the

following additional

statement is made:

" The reason for wanting your decision or ruling

in this matter is just

this: No house in the trade can afford to put out

goods and run the risk of

seizure and later litigation by the Government on

account of the odium that

would be attached. to fighting the food and drugs

act. "

To this a formal answer was prepared by the Bureau

of Chemistry, and signed

by the Secretary.

The question presented is whether neutral spirits

may be added to Bourbon

whisky in varying quantities, colored and flavored

and the resulting mixture

be labeled " blended whiskies. " To permit the use of

the word " whiskies " in the

described mixture is to admit that flavor and color

can be added to neutral

spirits and the resulting mixture be labeled

" whisky. " The Department is of

the opinion that the mixtures presented cannot

legally be labeled either

" blended whiskies " or " blended whisky. " The use of

the plural or the word

" whisky " in the first case is evidently improper for

the reason that there is

only one whisky in the mixture. If neutral spirit,

also known as cologne

spirit, silent spirit, or alcohol, be diluted with

water to a proper proof for

consumption and artificially colored and flavored,

it does not become a

whisky, but a " spurious imitation " thereof, not

entirely unlike that defined

in Section 3244, revised statutes. The mixture of

such an imitation with a

genuine article can not be regarded as a mixture of

like substances within the

letter and intent of the law.

(Signed) JAMES WILSON,

Secretary of Agriculture.

Washington, D. C.,

December 1, 1906.

Early in January, 1907, in the very first days of

the enforcement of the law

it was discovered that the Secretary of Agriculture

was very much perturbed in

regard to F. I. D. 45. At that time the star of the

Solicitor of the Department

was rapidly increasing in brilliancy. The time was

speedily approaching when the

head of the Department became only the vehicle to

carry the will of the

Solicitor into action. I was cited to appear in the

Secretary's office on the

22nd of February, 1907, for a conference on the whisky

question. The birthday of

Washington was used to perpetrate the first overt act

against the food law.

There were present at this conference the Secretary,

and the Assistant Secretary

of Agriculture, the Solicitor, Mr. George P. McCabe,

and the Chief of the Bureau

of Chemistry. The conference began by a statement by

the Secretary that this

conference should be behind closed doors and no report

of it should be made in

any way to the press.

I was first asked by the Secretary if the Bureau of

Chemistry still held to

the principles contained in F. I. D. 45. I replied in

the affirmative. He asked

the Assistant Secretary, Mr. Hayes, his opinion in the

matter. Mr. Hayes

promptly voted in favor of the Bureau's definition of

whisky. He then asked the

Solicitor his opinion. He replied, " Dr. Wiley's

definition of whisky is absurd.

Whisky is any alcoholic beverage made from grain,

properly colored and flavored,

according to the prevailing custom of the trade. " The

Secretary said, " I agree

with my Solicitor. " I immediately called his attention

to the fact that there

was only one body appointed by the Act to make an

initial decision as to what

constituted misbranding or adulteration of foods and

drugs, namely, the Bureau

of Chemistry. The only authority recognized by the Act

to review this decision

was a United States judge. I said, " The Bureau of

Chemistry decision will

therefore stand until over-ruled by a court of the

United States. " He replied,

" I will not take your construction of the law, but

that of my Solicitor; that is

what he is here for, to interpret the law to me. " This

act of the Secretary and

Solicitor constituted the first abrogation of the Food

Law by executive

authority and laid the foundation for a succession of

similar violations.

As a matter of history I may say that I obeyed the

Secretary's injunction to

make no report of this matter to the press.

Immediately on leaving his office I

went to the Cosmos Club and called up Mr. Loeb,

secretary to President

Roosevelt. I related to him what had happened in the

Secretary's office and

asked him if he could come over to the Club and take

luncheon with me. Loeb was

immediately and greatly interested in this decision. I

pointed out in detail all

the circumstances which led to it. I felt certain that

Secretary Wilson would go

to President Roosevelt with this illegal decision.

I asked Mr. Loeb to acquaint the President of what

had happened and to get a

promise from him, if possible, that he would not give

his approval to Secretary

Wilson's decision until I had an opportunity to lay

the whole matter before him.

Later in the day Mr. Loeb called me over the telephone

and said the President

had agreed to this delay. Meanwhile the papers were

full of this decision. It

had been given to the press by some one of the four

people who were present at

the conference. I was not the one who gave it to the

press.

A DAY OF JUBILATION

The following day was one of rejoicing by the

rectifiers all over the

country. They felt assured that F. I. D. 45 would be

repealed without carrying

the matter to the courts. There was a slight error in

their judgment. For two

weeks subsequent to this event the newspapers were

filled with accounts of

pilgrimages, under the leadership mostly of United

States Senators, of bodies of

rectifiers to the White House. Senator Foraker

conveyed the rectifiers from

Cincinnati. Senator Lodge accompanied those from

Boston. Senator Penrose led the

Philadelphia delegation. Meanwhile I was patiently

waiting word from President

Roosevelt. One day while I was taking lunch at

Harvey's a telephone message from

my office said the President would see me at two

o'clock. I had prepared a

movable laboratory with all the elements necessary to

manufacture ten year old

Bourbon or Scotch in a minute. I carried with me

samples of pure, refined

alcohol from half a dozen different sources, namely

from corn, barley, molasses,

and fruits, all alike in character, and all of equal

degree of purity. I carried

an assortment of colors and flavors used by the

rectifiers. When I drove up to

the White House with this peripatetic laboratory, I

encountered a dozen or more

newspaper men who were eager to know what it all

meant. I told them I had been

invited to give a lecture to the President of the

United States. One of the

well-informed correspondents said to me: " You may

think so, but you will find

that the President will do the lecturing. " I carried

my laboratory into the

President's office where I was politely received by

the attendant and told that

the President would soon be in. In five minutes my

audience appeared, the

President of the United States, and Mr. William Loeb,

his secretary. For two

hours I performed experiments showing the President

how all kinds of rectified

whisky, brandy and rum could be made in a minute. I

received his undivided

attention. If he interrupted me at all it was only to

ask for more definite

information on some points. At the close of this two

hour lecture he came around

to my side of the table and grasped my hand, saying to

me, " Dr. Wiley, I have

heard nothing but whisky for the last three weeks, and

you are the first person

who has ever given me a single idea that I can

comprehend. Then turning to Mr.

Loeb he said, " Send all these documents and samples,

together with Dr. Wiley's

brief to Mr. Bonaparte, and ask Mr. Bonaparte to

advise me on this question. " Mr

Bonaparte did advise him. He sustained every single

point that had been

presented by the Bureau as to what is really whisky.

President Roosevelt ordered

the Commissioner of Internal Revenue and the Secretary

of Agriculture, both of

whom were friends of the rectifiers, to publish

jointly a decision defining

whisky in the light of evidence which had been

presented. Thus ended the first

attempt to violate the Food Law by a complete triumph

of the law itself. The

Secretary was convicted but not convinced. The breach

thus made was never

closed. The Secretary was irrevocably allied with the

foes of the food law.

BONAPARTE'S DECISION

The decision of the Attorney-General was sent to

the White House on April 10,

1907. President Roosevelt wrote a letter to Secretary

Wilson in the following

terms:

The White House,

Washington, April 10, 1907.

My Dear Mr. Secretary:

In accordance with your suggestion,* I have

submitted the matter concerning

the proper labeling of whisky under the pure-food

law to the Department of

Justice. I inclose the Attorney-General's opinion. I

agree with this opinion

and direct that action be taken in accordance with

it.

Straight whisky will be labeled as such.

A mixture of two or more straight whiskies will

be labeled 'Blended whisky'

or 'whiskies.'

A mixture of straight whisky and ethyl alcohol,

provided that there is a

sufficient amount of straight whisky to make it

genuinely a 'mixture,' will be

labeled as a compound of, or compounded with, pure

grain distillate.

Imitation whisky will be labeled as such.

Sincerely yours,

(Signed) THEODORE ROOSEVELT.

Hon. James Wilson,

Secretary of Agriculture. "

*The President sent this problem to Bonaparte at his

own suggestion as I have

already stated, not by request of Secretary Wilson.

The full opinion of Attorney-General Bonaparte is

printed as an appendix to

Food Inspection Decision 65, issued April 12th, 1907.

The Attorney-General's

opinion is a blend of legal learning and charming

sarcasm. Those who are

interested in documents of this kind will do well to

read the opinion in full.

As an illustration of the keen satire used by

Attorney-General Bonaparte I

quote the following closing paragraphs of his

decision:

" The following seem to me appropriate specimen

brands or labels for (1)

" straight " whisky, (2) a mixture of two or more

" straight " whiskies, (3) a

mixture of " straight " whisky and ethyl alcohol, and

(4) ethyl alcohol flavored

and colored so as to taste, smell, and look like

whisky:

(1) Semper Idem Whisky: A pure, straight whisky

mellowed by age.

(2) E Pluribus Unum Whisky: A blend of pure,

straight whiskies with all the

merits of each.

(3) Modern Improved Whisky: A compound of pure

grain distillates, mellow

and free from harmful impurities.

(4) Something Better than Whisky: An imitation

under the pure food law,

free from fusel oil and other impurities.

In the third definition it is assumed that both

the whisky and the alcohol

are distilled from grain. "

THE RECTIFIERS REFUSED

It is hardly necessary to add that the rectifiers

who had been engaged for

many years under Government license in the manufacture

of compounded and

imitation whiskeys failed to avail themselves of the

method of labeling

suggested by the Attorney-General. After having

secured the support of Secretary

Wilson for continuing their frauds upon the consumers

of whisky, they were

dumbfounded by their failure to have F. I. D. 45

repealed. They were still more

greatly disturbed by having F. I. D. 65 substituted in

its place. They were

defeated and discouraged, but not eliminated.

They immediately took steps to secure Court

decisions for the purpose of

declaring both F. I. D. 45 and F. I. D. 65 illegal and

void. To this end they

were wise in selecting the courts before which they

proposed to bring their

petition.

They filed their first petition before the Federal

District Court, sitting at

Cincinnati, Hon. A. C. Thompson being the presiding

judge. Cincinnati was the

great center of the rectifying industry. For years the

rectifiers had been

making in that city compounded and imitation whiskies

designated by

high-sounding names and sold under claims of great

age. This product was

derisively known locally as " Nigger whisky. " The

income from these spurious

whiskies was too large to be given up without a

struggle. Some of the most

influential citizens of Cincinnati were engaged in the

rectifying industry. They

were also supporters of the dominant political party.

For this reason the court

of Cincinnati was considered the most favorable one in

which to secure a

judgment declaring these standards of whisky illegal.

The filing of this suit

was not made known to me until the Saturday previous

to the hearing of the case

on the following Monday. I received an S. 0. S.

telegram from the United States

District Attorney asking for my immediate presence in

Cincinnati. I had only

time to secure a copy of the brief which I had left

with President Roosevelt,

and which he had forwarded to Attorney-General

Bonaparte, and take the train on

Sunday afternoon. The train was late and I did not

reach the District Attorney's

office until 15 minutes before ten o'clock on Monday

morning. The District

Attorney was utterly helpless in this matter. He knew

nothing of the case and it

was impossible to instruct him in fifteen minutes. I

told him the only hope was

to obtain from the judge a postponement of the trial,

in order that we might

secure proper witnesses and that he should have

opportunity to understand the

case properly. When Court opened the District Attorney

promptly moved for a

postponement of two weeks. The attorney for the

rectifiers, Mr. Warwick M.

Hough, vigorously opposed any postponement. The Judge

also seemed reluctant to

grant the District Attorney's petition. Finally,

however, he consented to an

adjournment of one week. At the end of the week the

District Attorney was fully

acquainted with the nature of the proceeding and a

number of competent witnesses

were on hand to defend the Government's position.

Judge Thompson was

acknowledged to be one of the best District judges on

the Federal Bench. He was

held in high esteem, not only for his legal ability,

but as a citizen, always

interested in what was right and proper in regard to

civic duty. At the

beginning of the trial he announced that it must be

completed on that day,

including an hour granted to each side to make

arguments before the court. He

also declared that each side should have an equal time

for presenting the views

of witnesses. The matter for the state was forcibly

presented, particularly by

Dr. Joseph P. Remington of Philadelphia, and Dr. John

Uri Lloyd of Cincinnati.

Competent chemical testimony was also presented by the

Bureau of Chemistry

before the Court.

After the arguments were made and the trial was

over, all the witnesses for

the Government congregated in the office of the

District United States Attorney.

We were speculating as to what the verdict would be.

The Judge had taken the

matter under consideration and we knew there would not

be a decision on that

day. The District Attorney was very hopeful of

securing a favorable verdict and

based that hope largely on the testimony of Dr. John

Uri Lloyd, who was not only

a most eminent pharmaceutical chemist but a very

personal friend of the Judge

himself. We of course realized that the Judge's

opinion would not in any way be

influenced by personal friendship, and this was

particularly the case because

some of the most prominent rectifiers of Cincinnati

were also intimate friends

of the Judge.. While we were discussing these

probabilities a messenger came

from the Judge's chambers with a note to the District

Attorney asking that he be

furnished with a copy of the brief of Dr. Wiley which

had been offered in

evidence in the court. We all felt that this was an

important request, believing

that if the Judge would read this report in full he

would not be inclined to

support the contention of the rectifiers. Our fondest

hopes in this matter were

justified. When Judge Thompson issued his report in

about three weeks subsequent

to the trial, it was found to be a complete

vindication of F. I. D. 45 and F. I.

D. 65.

Not at all discouraged by their failure, the

rectifiers appealed to other

Federal Courts in other localities. Among these

localities were Springfield,

Illinois; Covington, Kentucky; Indianapolis, Indiana;

Buffalo, New York;

Baltimore, Maryland; and San Francisco, California. In

each case the opinions of

the Court were entirely in harmony with the original

opinion of Judge Thompson.

Meanwhile the Bureau of Chemistry, shackled by the

Board of Food and Drug

Inspection, deemed it inadvisable to bring any cases

against rectified spirits

masquerading as whisky as long as the matter was still

before the courts. It was

known that finally the decision would have to be made

by the courts anyway and

any punitory steps might prove to be entirely futile.

Mr. H. Parker Willis in an article published at

this time made the following

comment on this procedure under the heading, " The

Public Will Not Buy Whisky

Labeled 'Imitation.' "

" The new regulations, and the cases brought under

them, developed one

particularly interesting fact in the situation: the

distillers and rectifiers

could not dispose of their goods for drinking,

either as alcohol or as

'imitation whisky.' The actual name 'whisky,'

without modification, was

necessary to disposal of their product,

notwithstanding that it was precisely

the same article under another name. This was

clearly brought out when the

Western distilleries applied to Judge Van Fleet of

the Northern District of

California for an injunction restraining the marking

of alcohol as ordered by

the Bureau of Chemistry, alleging that they had been

obliged to shut down

their plant through inability to dispose of their

product when marked

'alcohol.'

" Because of the hostile attitude of the courts,

whisky manufacturers

resolved to turn their attention in other

directions. They had hoped to secure

an easy victory through the judicial machinery of

the Government; but having

been defeated there, and knowing that there was

nothing to expect from

Congress, they now turned again to the Executive.

The new rules, with the

requirement that whisky be branded as 'imitation'

when it consisted of neutral

spirits primarily, had gone into effect July 1,

1908, although prior to that

date the distilling interests had accumulated as

large stocks as possible

under the old regulations for marking in order that

they might continue to

send out their goods as 'rye,' 'Bourbon,' or 'copper

distilled' whisky,

instead of being compelled to use the term

'imitation.'

" Pressure upon the Roosevelt administration for

action designed to

'relieve' the rectifiers now became acute.

Congressman Longworth, son-in-law

of President Roosevelt, and friend of

representatives of the Cincinnati

distilling district, exerted himself in behalf of

the rectifiers, and a simlar

position was taken by numerous other members of

Congress. Representative

Perkins of New York, now chairman of the Foreign

Relations Committee of the

House and a historian of some reputation, had

already devoted himself to

securing a favorable ruling in the interest of

Duffy's Pure Malt Whisky. An

interesting correspondence passed between Mr.

Perkins and the Department of

Agriculture, in the course of which Mr. Perkins

noted for the benefit of

Secretary Wilson that 'the Duffy Malt Whisky Company

* * * is controlled by

our most prominent and leading citizens, and I trust

matters can be adjusted

in such a way as not to injure a long-established

industry.' Other statesmen

wrote that the Duffy Company 'controlled

considerable political influence.'

Not to be outdistanced in his efforts for the

rectifying interests was

Representative Sherman, now Vice-President.

APPOINTMENT OF THE 'WHISKY COMMISSION'

" During the winter a committee of rectifiers and

spirit distillers,

represented by A. J. Sunstein and others, visited

Washington, and sought to

persuade the administration of the great harm that

was being done to the

rectifying interests. The President finally harkened

to the representations of

the rectifiers, and appointed a 'Whisky Commission,'

consisting of Secretary

of Agriculture James Wilson, Dr. F. L. Dunlap,

Associate Chief of the Bureau

of Chemistry, and John G. Capers, head of the Bureau

of Internal Revenue of

the Treasury Department. Secretary Wilson and

Commissioner Capers were already

known as advocates of the views of the rectified

whisky interests, while Dr.

Dunlap had shown a strong disposition to dissent

from the existing rulings of

the Government. There was a good deal of mystery

about this Commission.

Although the Associated Press sent out a frank

statement by President

Roosevelt to the effect that such a Commission had

been appointed, Secretary

Wilson took occasion to assure newspaper men that

the Commission did not exist

as such, and that the President had merely asked for

a little advice.

Commissioner Capers admitted the existence of the

Commission, but Dr. Dunlap

said nothing.

" After several weeks of discussion and inquiry,

the three advisers reported

to the President in favor of allowing liquor made

from neutral spirits to be

designated as whisky. Mr. Sunstein and his committee

had said that they would

be satisfied if they could, be allowed to brand

their liquor as 'redistilled

whisky,' 'rectified whisky,' or 'neutral whisky.'

The three commissioners, or

conferees, now advised that some such plan be

followed, telling the President

that this was substantially the verdict that had

been arrived at by the Royal

Commission. on Whisky, which had been sitting in

England, and which, they

stated, had decided that any spirits made from grain

was whisky. In a letter

written on behalf of the Commission, Dr. Dunlap

said, 'It is my opinion that

the term 'whisky' should not be denied to neutral

spirits diluted with water

to a proper strength and colored with caramel,'

though he recommended the use

of some qualifying name, such as 'rectified whisky.'

 

The approval of President Roosevelt of

Attorney-General Bonaparte's

definitions of whisky created a curious environment in

the Bureau of Chemistry.

The Secretary of Agriculture, the associate chemist,

Dr. Dunlap, the solicitor,

Mr. George P. McCabe, together with the chief of the

Bureau of Internal Revenue,

Mr. John G. Capers, were all on the other side of the

question. The President,

Attorney-General Bonaparte, and the Chief of the

Bureau of Chemistry were all

agreed on the definitions.

It was hard, however, to get Court action.

Attorney-General Bonaparte was

very insistent that cases be brought in order to test

the accuracy of his

definitions. Cases could only be brought, under the

existing conditions, when a

majority of the Board of Food and Drug Inspection

would initial requests either

for criminal action or seizure of goods. There was

much hesitation on the part

of two members of the Board of Food and Drug

Inspection in regard to this

matter. It was not until the Secretary of Agriculture

ordered them to proceed

that they joined me in bringing actions before the

Court. All effort to bring a

criminal action, however, was negatived. We did bring

a number of cases of

seizure of goods; that is, action in rem. In every

ease of this kind which

reached the courts, unanimous approval of the

Attorney-General's opinion on

whisky was obtained. In all seven cases were finally

brought to the bar of

justice out of hundreds recommended by: the Bureau.

CASE 1. Notice of Judgment 15. The United States of

America, Libelant, vs. 93

Cases, containing 12 bottles each, of alleged Whisky,

C. Person's Sons,

Defendants, before the Western District Court of New

York, Case No. 79. Judge,

the Hon. John R. Hazel.

This Whisky was adjudged adulterated and misbranded

and, under the law, the

seized liquor was ordered to be destroyed or, after

proper branding, delivered

to the claimants under a bond of $2,000 that it would

not be sold in

contravention of the existing law. Date of judgment,

August 27, 1908.

CASE 2. Notice of Judgment 45. United States vs. 4

Barrels of Liquid

Purporting to be Whisky. This case was brought in the

District of Columbia, Case

No. 790. The libel alleged that the product was, 4

'colored and mixed by the

addition of coloring matter, in a manner whereby

inferiority is concealed and in

order to imitate old mature whisky and whereby the

said product does imitate and

appear to be old mature whisky. "

The Judge who issued the decree of condemnation was

the Hon. Thomas H.

Anderson. Date of the Judgment, March 13, 1909.

CASE 3. Notice of Judgment 68. United States of

America vs. Fifty Barrels of

Whisky, Labeled " Bourbon Whisky, " Manufactured in New

Orleans from fermented

molasses. The presiding Judge was the Hon. Thomas J.

Morris of Baltimore. The

decree of condemnation was in the same terms as those

already reported. In his

decision Judge Morris was particularly luminous. This

was a jury trial. After

the evidence had been given and the counsel for the

defense had addressed the

jury, Judge Morris said: " I will not call upon the

counsel for the United States

to reply. The case as it is presented to the jury is a

very clear one. I reject

the only prayer offered by the defense. Really, that

prayer concedes the

misbranding of the liquor, and asks me to say to the

jury that if they shall

find that this was done under the control- and by the

agents of the United

States, the United States is estopped from proceeding

to condemn these goods and

forfeit the goods from misbranding. " The examination

of this whisky by the

Bureau of Chemistry disclosed that it was distilled

from fermented molasses, and

was called Bourbon Whisky. Date of Judgment, May 14,

1909.

CASE 4. Notice of Judgment 112. United States vs.

10 Cases of Quinine-Whisky,

Case No. 10142, the Hon. Kenesaw M. Landis, United

States District Judge. The

goods were ordered destroyed or to be released on a

bond of $1,000. Not to be

sold contrary. to the Food and Drugs Act as is usual

in such cases. Date of

Judgment, November 20, 1909.

CASE 5. Notice of Judgment 349. United States vs.

H. A. Thierman & Co. of

Louisville, Ky. Seizure of five barrels of whisky

transported from Kentucky to

Indiana. The name of the Judge in this case is not

disclosed. The decision was

not rendered until after the advent of the

administration of President Taft, and

the notice of judgment carried this statement: " This

decree was rendered prior

to the issuing of Food Inspection Decision 113, which

revoked Food Inspection

Decisions 45, 65, 95. In other words, the Secretary of

Agriculture, under the

law, was forced to, regard the opinion of this Court

although it had

been-determined that the Bonaparte decision, which was

the one which had been

supported by all of these decisions, was soon to be

revoked by the action of the

United States itself, thus nullifying the Court's

decision to the effect that

the Bonaparte opinion was wholly legal. Date of

Judgment, May 17, 1910.

CASE 6. Notice of Judgment 353. United States vs.

the Hannis Distilling Co.

of Philadelphia, Pa. The usual course was followed and

the decision rendered,

but the name of the Judge is not given. The date of

the decision is May 17,

1910. It has the same notice in regard to decision 113

as carried by the former

case.

CASE 7. The final case is Notice of Judgment 361.

United States vs, Davis &

Atkins of Richmond, Va. The name of the Judge is not

given, but the whisky was

condemned in the same manner as those just preceding.

This also contains the

same notice in regard to decision No. 113 as the two

preceding cases.

This makes seven cases in the Federal Courts

supporting the validity of the

opinion of Attorney-General Bonaparte, and in not a

single instance did any

United States Court before which the matter was

presented, nullify that

decision. Nevertheless, in spite of all these Court

decisions the opinion of the

Attorney-General Bonaparte was revoked by executive

authority and a

diametrically different opinion supporting all the

contentions of the rectifiers

substituted in its place. Thereafter, no mention of

any case against whisky is

found in the Notices of Judgment. It was not necessary

because the United States

authorities, in plain violation of Court decisions,

had decided that the

Bonaparte opinion was all wrong.

I never was able, even in the two years that

intervened from the time of the

decision of Attorney-General Bonaparte to the close of

the Roosevelt

administration, to get the Board of Food and Drug

Inspection to approve of any

criminal case against any dealer who was an offender

of the law. I have all the

correspondence in which Attorney-General Bonaparte

urged that his decision be

taken before the Courts, and in every instance when it

did reach the Court he

was sustained. In all the attempts of rectifiers to

nullify his decision by

bringing Court cases themselves, and this they did in

eight separate cases, the

rulings of the Court were always against them.

To show the attitude of the Board of Food and Drug

Inspection in this matter,

I made determined efforts to bring a case against

Duffy's Pure Malt Whisky,

either to seize the whisky or to bring a criminal

action against the

manufacturers. Every move in this direction was

blocked by my collegues on the

board. Under date of October 3rd, 1908, the following

note in regard to this

matter was made:

" Doctor Dunlap states that he initialed the first

named seizure under a

misapprehension, thinking that the Duffy Malt Whisky

hearing was to be held

here instead of in Buffalo, although it had been

signed by the Secretary. I

understood from Doctor Dunlap that the matter was

held up by the Solicitor and

that it would not be sent to the District Attorney

until after the report of

the hearing at Buffalo had been received. In regard

to the seizure of October

3, he refused to initial the recommendation on the

ground that it would not be

proper to do so until the hearing of the Buffalo

case had been received. I

stated to him that the cases were entirely distinct,

the Buffalo case being a

criminal action recommended several weeks ago and

the seizures are actions to

be brought at the time mentioned, namely September

30 and October 3, 1908, a

and if not seized without delay the goods would

escape. I stated that Duffy's

Malt Whisky was one of the most gigantic frauds of

the age and a flagrant

violation of the law, and that there was no

necessity that we delay at all in

the matter. He still, however, refused to initial. "

This sufficiently illustrates the determined

efforts of my colleagues to

protect Duffy's Pure Malt Whisky from being molested

either by seizure or

bringing any criminal case against the maker. The few

cases that were brought

against rectified whisky were at the direct request of

the Attorney-General,

followed by the order of Secretary Wilson to proceed

as the Attorney-General

requested.

On the 3rd of October, 1907, 1 addressed the

Solicitor of the Department of

Agriculture, as follows:

" In a recent conversation with me the

Attorney-General urged that cases be

prepared as soon as possible in the whisky case.

Fortunately, acting under the

direction of the Secretary, we had already secured a

great many cases. I have

prepared three of these typical cases to be sent to

the Attorney-General

according to his request, with the least delay

possible. They represent types

of mixture which might well be seized under the law

for a test case. The

Attorney-General informed me that he believed Mr.

Hough was trifling with him

and it was not possible to secure any agreement and

that he proposed to go

ahead at once if such an agreement as dictated by

him should not be

acceptable. These cases are all ready for seizure

and I urge that they be sent

to the Attorney-General as requested without delay. "

 

Following this, I cited to the Solicitor fifteen

localities in the City of

Washington where illegal whisky was on sale,

describing each one minutely.

On November 6, 1907, the Attorney-General addressed

a letter to the Secretary

of Agriculture, in which he informed him that he bad

been unable to come to any

agreement on a statement of facts, and, therefore-- " it

will be appropriate for

you to proceed with the enforcement of the law

relating to the subject of

labeling whisky in accordance with the procedure

prescribed by law. "

In the midst of these discussions the Secretary of

Agriculture received a

letter from John G. Capers, Commissioner of Internal

Revenue, looking to a

reopening of the questions decided by Attorney-General

Bonaparte which it

appears was due to the express desire of President

Roosevelt. The letter dated

Dec. 17, 1907, is as follows:

" I have the honor to acknowledge receipt of your

letter of December 13,

written following the conference between you, Mr.

McCabe of your Department,

and Assistant Secretary Winthrop and myself of this

Department. In conformity

with the suggestions made by you at that time and

the suggestion made in your

letter of December 2, the Secretary of the Treasury

has referred the matter to

the Attorney-General for an opinion upon the matter

of labeling whisky, etc.,

under the pure food law in its application to

internal revenue laws, as well

as to the Department of Agriculture as set out in

his opinion approved by the

President and addressed to you April 10 last.

" This action by the Secretary is also taken in

view of the expressed desire

of the President in a communication addressed to the

Secretary December 8,

that the matter be taken up by the Treasury

Department. The Attorney-General

has been requested to render an opinion as early as

possible. "

I referred to this movement on the part of the

President in a letter which I

wrote to Dr. James H. Shepard of Brookings, S. D.,

Jan. 4, 1908, which I quote:

" I cannot tell you much about the present status

of the whisky case except

this: The rectifiers, through Senator Hopkins and

other influential senators,

made a proposal to the President that they would

withdraw all suits to set

aside the present regulations if the present

regulations could be modified so

as to suit their views, or in so far as this could

be. I understand the

President appointed a commission consisting of

Commissioner Capers, the

Secretary of Agriculture, and Dr. Dunlap, to make

the necessary revision of

the regulations. In so far as I know the revision is

to be made on a brief

submitted by the rectifiers. I do not think that

anyone who is in favor of

maintaining the present regulations requiring

imitation and compound whiskies

to be so marked has been invited to appear before

the Commission. Commissioner

Capers has said in at least two printed interviews

that he was going as far as

he could to meet the requests of the rectifiers,

even if possible to open up

the question of like substances. I don't know what

attitude either the

Secretary or Dr. Dunlap will take in this matter but

I would like to wager you

a peanut that I could guess.

ASK FOR A REHEARING

President Roosevelt communicated to

Attorney-General Bonaparte the protests

that had been made against his decision, and their

plea for a rehearing. On May

29, 1907, Attorney-General Bonaparte filed with the

President his reasons for

not re-opening the case in which he made the following

statements:

" The President,

The White House.

SIR: In accordance with your instructions, I gave a

hearing on Wednesday, May

15, to persons desiring to submit to the Department

criticism or other comment

on my opinion of April 10 last past, as to the

construction of section 8 of

the act approved June 30, 1906, and generally known

as the Pure-Food Law.

About thirty persons appeared on this occasion and a

number of oral arguments

were presented; some critical and some approbatory

of the opinion in question.

At the conclusion of this argument I announced my

willingness to receive and

consider any matters in writing which might be

submitted to me touching its

subject-matter, and, in response to several requests

for a further hearing,

stated that I would give these requests due

consideration and announce later

whether I saw any sufficient reason to comply with

them. As heretofore stated

to you verbally, I do not think any useful purpose

would be served by another

oral argument, and, with your approval, I have,

therefore, announced that, in

this respect, the matter must be considered closed.

I received a large number

of written communications from various persons

commenting on the opinion in

question, and I have carefully considered all of

them. I find no reason to

withdraw the said opinion, or to modify it in any

respect, and I respectfully

report that, in my judgment, this opinion correctly

states the law on the

subject to which it relates. "

(Signed) Charles J. Bonaparte.

 

CHARLES JOSEPH BONAPARTE

Attorney-General, who wrote the answer to " What Is

Whisky? "

while Roosevelt was President

 

BONAPARTE'S STATE PAPERS

Attorney-General Bonaparte issued three short state

papers on the subject

" What is Whisky? " The first of these papers bears the

date April 10, 1907. In

this paper the question of what is whisky was answered

in harmony with the

provisions of the food and drugs act. The points

covered in this paper were so

distasteful to the rectifying interests as to call for

numerous requests for

rehearing. The Attorney-General granted them a

rehearing. On May 29th, 1907, he

gave his new opinion in which he stated that he found

no reason to modify in any

respect the opinion of April 10th. Toward the close of

the Roosevelt

Administration, the rectifiers made a last desperate

effort to have the

Attorney-General's opinion changed. This has been

thoroughly set out in the

quotations from the article of H. Parker Willis. The

new effort was evidently

inaugurated by the President who often referred to Dr.

Dunlap, Associate Chemist

of the Bureau of Chemistry, as " my chemist. " In the

light of Dr. Dunlap's career

in the Bureau no one will likely dispute Roosevelt's

often repeated claim to

proprietorship. The Committee having in charge this

matter was thoroughly

devoted to the rectifying interests. It is only

natural therefore that the

report they brought in, which was written by Dr.

Dunlap, would be favorable

thereto. The gist of Dr. Dunlap's report is as

follows:

" Under the Pure Food Law as administered now,

neutral spirits, diluted to

proper strength and colored with caramel, must be

marked 'imitation whisky.'

The spirit distillers request that this name be not

forced upon them, but that

they may use in its place one of the three names,

'neutral whisky,' 'rectified

whisky,' or 'redistilled whisky.' * * * It is my

opinion that the term

'whisky' should not be denied to neutral spirits

diluted with water to a

proper strength and colored with caramel. I believe

that the use of the term

'whisky' on such a product should be qualified by

some term which will carry

notice to the consumer of the nature of the product.

For this purpose the term

'neutral whisky,' 'redistilled whisky,' and

'rectified whisky,' have been

suggested. "

Mr. Bonaparte proceeds to comment on this

suggestion of Dr. Dunlap's with

rare sarcasm for which lie was distinguished. He says:

" It seems obvious, from the juxtaposition of

these extracts from my two

opinions and those from Dr. Dunlap's letter, that

the Associate Chemist of the

Department of Agriculture suggests that, on the

question of the construction

of a statute, a very carefully considered and

reconsidered opinion of the

Attorney-General should be disregarded. He bases

this recommendation upon

certain conclusions which he says have been reached

by the English 'Royal

Commission on whisky and other potable spirits,' in

what is described as an

'interim report.'

" He describes this Commission as composed of

'eminent scientific men,' but

it does not appear from his letter that the said

Commission consists of

lawyers, or that they have had under consideration

the construction of the Act

of Congress generally known as the Pure Food Law. I

am, therefore, unable to

recognize their conclusions as entitled to weight in

determining the above

mentioned question of statutory construction, and I

may add that I am unable

to see how these conclusions, in so far as stated by

Dr. Dunlap, have any

bearing upon the question considered in my two

opinions.

" It appears to me that these 'eminent scientific

men,' in these

conclusions, made suggestions as to what legislation

on the subject should

contain. They do not assume to construe legislation

already enacted.

Especially they do not express any opinions as to

the construction of an

American law dealing with American conditions.

" Inasmuch, however, as I cannot fail to recognize

in Dr. Dunlap's

recommendation a challenge of the correctness of my

conclusions as announced

in the two opinions heretofore rendered you, I think

it is but proper that I

should call your attention to certain judicial

decisions rendered upon the

questions discussed in his letter subsequently to

the date of the said two

opinions. In the case of Levy vs. Uri, the Court of

Appeals of the District of

Columbia, speaking by Mr. Justice Robb, says on this

question:

'Each kind of whisky mentioned has its own

peculiar flavor and character

and is sought after as a beverage because of that

flavor and character.

Neutral spirits, on the contrary, as the term

suggests, is a colorless

liquid, has neither flavor nor character, and is

not a beverage at all. It

may be produced from any fermented substance, such

as corn, potatoes, and

sugar beets.

'Formerly it was used exclusively in the arts,

but with the advent of

cheaper methods of production it has been palmed

off on the public as a

beverage by mixing it with something to give it

flavor and character. Since

it costs far less to produce than rye whisky, it

is apparent that its use by

the distiller increases his profits in proportion

as the public is deceived.

* * *

'As before stated, neutral spirits is not a

beverage, has none of the

distinguishing characteristics of rye whisky, and

is, therefore, matter of

another kind. "

Mr. Bonaparte then proceeds to quote the decision

of Judge Thompson of the

Southern District of Ohio and also the opinion of the

District Court of the

Southern District of Illinois, and refers to other

Court decisions in which his

definitions of whisky had been unanimously supported.

He then says:

" It thus appears that the correctness of the

conclusions reached by this

Department in the two opinions to which I have

referred has been tested in at

least four decisions by competent courts upon the

precise question discussed

in Dr. Dunlap's letter; and the decision in every

instance has been that what

he advises is forbidden by the true construction of

the Pure Food Law. So far

as I am aware, there has been no decision by any

court to the contrary. * * *

At present, however, in so far as informed by the

decisions heretofore made on

this question, I can only advise you that the

conclusions announced in the

opinions of April 10th and May 29th, 1907, are

sound, and that to give effect

to Dr. Dunlap's suggestions would be to violate the

Pure Food Law. "

The action of President Roosevelt in again

sustaining the Attorney-General

received universal press support. Mr. Louis Ludlow,

then President of the

National Press Club and now member of Congress elect

described the event in the

Indianapolis Star under date of February 23rd, 1909.

He says:

" The President indorses and makes public an

order of Attorney-General

Bonaparte, which declares the position of the

rectifiers and the conclusions

of the commission to be in error. Dr. Wiley's views

on whisky are thus

upheld. "

In the same publication under date of Feb. 24,

1909, is an editorial, " A

Victory for Wiley, " from which I quote the following:

" For the third time Attorney-General Bonaparte

has decided that neutral

spirits diluted with water to a proper strength and

colored with caramel is

not whisky, but 'imitation whisky' and must be

labeled as such. This was the

ruling of Dr. Wiley. * * * It is evident that the

authorities have no

intention of weakening the Pure Food Law any further

at the present time. The

benzoate of soda ruling is enough for the present

time. It is realized, of

course, that there will always be pressure to have

the law construed favorably

to those who want to evade it. Probably it will

gradually be much weakened.

One concession will be made, and then another. The

people will be less

watchful, and at last we may find that we have

virtually no law at all. "

This prophetic disaster has long since been

realized.

ADDITIONAL COMMENTS

In view of the positive character of Mr. Roosevelt

to stand by his own

decisions, at first it was thought that this

investigation was not at his

suggestion. A letter written by H. Parker Willis,

published in Collier's Weekly

of April 6, 1912, throws additional light upon this

matter. Mr. Willis says in

his letter:

Secretary Wilson was now in a position of

peculiar strength. He had full

charge of the Food and Drugs Act; he understood the

precedents that had been

established during the past four years; the matter

had been referred to the

Department of Justice by his own assent; he had

nothing to do but apply the

law vigorously. But it was well known that neither

he nor his Solicitor

approved the decision in the whisky case. The

politicians were more and more

active. Mr. Perkins of New York brought strenuous

pressure to bear upon the

Department of Agriculture in behalf of Duffy's Pure

Malt Whisky, which would

have to be labeled 'imitation' under the new rules.

He was strongly seconded

by Vice President Sherman. President Roosevelt

finally designated Secretary

Wilson, Dr. P. L. Dunlap, and John G. Capers, the

head of the Bureau of

Internal Revenue, as a Whisky Commission. Secretary

Wilson was thus given full

power to shape the decision as he pleased. A report

from him would have

settled the situation once for all. No such report

was forthcoming. Secretary

Wilson even denied in conversation that any such

commission existed, and

finally the three men rendered a report in favor of

allowing liquor made from

alcohol to be branded as 'rectified whisky,' thus

giving the use of the word

whisky to the interests that had been demanding it. "

 

There is no longer any doubt that the new committee

to inquire into the

accuracy of the opinions of Attorney-General Bonaparte

was appointed by the

President. Dr. Dunlap, in submitting the report of

this committee under date of

February 19, 1909, says:

" In accordance with the request of the President,

I have continued the

consideration of the labeling propositions submitted

to him by the spirit

distillers. "

The Secretary of Agriculture in a letter to the

Hon. W. W. Armstrong, member

of the State Senate of New York, under date of

December 17, 1908, says:

" Pursuant to my conversation with you of

yesterday in regard to a proposed

hearing on the 21st instant concerning 'Duffy's Pure

Malt Whisky,' I beg to

inform you that this hearing will be postponed

pending the report of the

gentlemen appointed by the President to take up

questions in connection with

the labeling of products such as you manufacture. "

On December 13, four days prior to the writing of

this letter by the

Secretary of Agriculture, the Washington Post carried

this editorial under the

caption " Keep the Ginger in the Pure Food Law! "

" It is good to read a direct denial of the report

that the President has

reopened the whole subject of what is whisky. The

story was that he has

selected the Commissioner of Internal Revenue and

one of the officers of the

Agricultural Department to take up the existing

regulations and revise them

with the Secretary of Agriculture. * * *

" Above everything, the President has not reopened

the main question. * * *

At the instance of Dr. Wiley that query has been

answered with a loud 'NO.'

Any other answer would have jeopardized the whole *

* * regulations governing

'compounded' and 'imitation' whisky. To the outsider

those regulations would

seem to be already sufficiently considerate.

A few days before the Washington Post had carried

the story of the

appointment of the above commission. It printed

another news story as follows:

" The uncertainty caused some of the large

distilleries of the country to

present the matter to the President to-day. They were

introduced to him by

Senator Hopkins and Representative Graff, of Illinois.

Secretary Wilson and Mr.

Capers were present. "

Although the President repudiated the report of his

own commission and again

sustained the opinion of Attorney-General Bonaparte,

the activities of the Board

of Food and Drug Inspection in protecting the

interests of Duffy's Malt Whisky

and Canadian Club Whisky were continued right along

just as if nothing had

happened.

On June 12, 1908, after a large number of shipments

of Canadian Club whisky

had been seized by the officials of the pure-food law,

the following order was

issued:

" By direction of the Secretary, no more seizures

of imported whiskys are to

be made until further orders. There have been

twenty-one cases reported and,

in the Secretary's opinion, that number is

sufficient for the present. Please

cause the necessary instructions to be sent to the

Inspectors.

Very respectfully,

(Signed) G. P. McCabe

Acting Chairman,

Board of Food and Drug Inspection. "

The reason for suspension of seizures is probably

the following incident

which occured at the hearing accorded Duffy's Malt

Whisky representative. I

quote from this hearing:

" Senator Armstrong urged that the Bill of Libel

against carloads of goods

shipped to Boston be dismissed, stating that the

Company had stopped shipment.

Dr. Wiley suggested that if they would stop

interstate shipments of this

material, it would be very proper to grant them

additional time until after

election. Mr. Perkins, Mr. Armstrong and Mr. Duffy

raised vigorous objections,

stating that the firm had been in business for fifty

years, had spent millions

of dollars in advertising, had built up a trade, and

that it ought not to be

interfered with. "

Following this hearing came the order of suspension

of further seizures.

These official data show that the President

appointed this commission, that

the commission considered the subjects referred to it,

that it made its report

through Dr. Dunlap on the 19th of February, 1909, and

that the Attorney-General

most decidedly and emphatically repudiated the

findings of this commission and

the President thereupon approved the

Attorney-General's report.

An unconfirmed rumor current at the time was the

effect that Bonaparte told

the President that would immediately resign if his

report did not again receive

approval.

MR. BONAPARTE REFUSES TO ACCEPT THE

" WHISKY COMMISSION'S " DECISION

Mr. H. Parker Willis says:

" Attorney-General Bonaparte was now in an

embarrassing position. He had

already rendered his opinion with reference to the

nature of whisky, and the

proper methods of branding it under the existing law

of the United States.

President Roosevelt had sent Mr. Bonaparte the

report of the Whisky

Commission, which had just been transmitted to the

White House, with a request

for the Attorney-General's opinion.

" Two questions presented themselves to Mr.

Bonaparte--whether he should

reverse himself and accept the findings of Messrs.

Wilson, Capers, and Dunlap,

or whether he should stand neutral and idle, in case

President Roosevelt

should see fit to put into effect his Commission's

recommendations. Mr.

Bonaparte decided both of these points negatively.

In a rather scathing letter

to President Roosevelt, he pointed out that the

Whisky Commission had based

its suggestions almost entirely upon work that had

been done in England by a

body not known to American law,--the British Royal

Commission,--while he had

found it his duty to guide himself by the laws of

the United States. He could

not, therefore, as a matter of law, consent to the

proposal now made. Noting

that 'the assistant chemist of the Department of

Agriculture suggests that on

the question of the construction of a statute (the

Pure Food Law) a very

carefully considered and reconsidered opinion of the

Attorney-General should

be disregarded,' he went on to say that he could not

'fail to recognize in Dr.

Dunlap's recommendation a challenge of the

correctness of' his conclusions. He

therefore called attention to the interpretations of

the Food Law, in line

with the views of the Department of Justice that had

lately been handed down

by the courts. It was stated by officers of the

Government that he had

privately conveyed to the President the intimation

that although only about a

week remained before his termination of office as

Attorney-General, he should

feel compelled to resign, in the event that the

President saw fit to overrule

his decision in the whisky matter. The President had

been largely animated by

his own sense of fair play in giving the rectifiers

every opportunity to set

forth their ideas; and he now made his own stand

evident by approving Mr.

Bonaparte's views, and continuing the existing

methods of marking and branding

liquors. "

In the Washington Herald of Feb. 27, 1909, is an

editorial from which I

quote:

" VICTORIOUS MR. BONAPARTE

Our good right hand, palm up, to Mr. Charles

Joseph Bonaparte in warm

congratulation extended! 'Whisky is whisky, and

nothing else is whisky,' says

the Attorney-General; and so sayeth his Chief, the

President of the United

States! * * *

" We regard this as -a great victory for the

common people, and we trust

they appreciate fully its momentous significance.

Heretofore every old thing

that could assume the most remote whisky-like

disguise has labeled itself

whisky, and posed in the open market as the real,

genuine, simon-pure article.

* * *

" Mr. Bonaparte need not fear that it is not the

people's tremendous

applause he hears ringing in his ears! It is just

that very thing. Pat with

him they stand. 'Whisky is whisky, and nothing else

is whisky.' "

If the rectifiers had only been endowed with

prophetic vision, they would not

have made a continuous fight for two long years

against the Attorney-General and

the President and the Food Law. They would not have

commenced numerous actions

in Federal Courts, all of which they lost with

monotonous regularity. They would

not have spent hundreds of thousands of dollars in

retaining great advocates

like Mr. Choate, and others of the same character as

mentioned in the article by

H. Parker Willis. They would simply have waited. This

final rebuff by President

Roosevelt occurred on the 19th of February, 1909,

thirteen days. before the

advent of the new administration. On the morning of

the 5th of March the storm

clouds which had darkened the sky of the rectifiers

for two long weary years

broke asunder. The rays of victory shot through the

rift, and the full sunlight

of triumph shone forth. The principles which had

guided the Roosevelt

administration were eternal and just. The law was not

altered, but its

interpretation was radically changed in the interest

of the rectifiers of whisky

and other alcoholic distilled beverages.

ADVENT OF PRESIDENT TAFT

When the last of these cases was finally decided in

the District Courts,

President Taft came into the White House. A very

remarkable event is now to be

recorded. He ordered a rehearing of the whisky

problem. A classmate of President

Taft, Mr. Lloyd Bowers, had been made Solicitor of the

Department of Justice.

President Taft first requested Mr. Capers to conduct

the new hearings on whisky.

This was equivalent to instructing the jury to bring

in a verdict. Owing to the

protests of the straight whisky interests President

Taft finally appointed his

Solicitor-General, Lloyd Bowers, to hold these

hearings. They have been printed

under the title " Proceedings Before and By Direction

of the President Concerning

the Meaning of Whisky. " They cover 1328 printed pages.

Following is the order of

the President constituting this tribunal:

In the Office of the Solicitor-General,

Thursday, April 8, 1909.

These proceeding are had pursuant to an order of

the President of the

United States, reading as follows:

EXECUTIVE ORDER

A number of distillers and importers of spirits

and whisky, represented by

Lawrence Maxwell, Esq., Hon. Joseph H. Choate,

Alfred Lucking, Warwick M.

Hough, and Hon. W. W. Armstrong, having appealed to

the President for a

hearing with respect to the order issued by the

Commissioner of Internal

Revenue, known as Order No. 723, pursuant to the

rules and regulations for the

enforcement of the food and drugs act and food and

inspection decision No. 65,

promulgated and made by the Secretary of Agriculture

under date of May 14,

1908, claiming that the provisions of said order are

in violation of the terms

of the said act in that they require to be branded

as imitations or compounds,

or otherwise, whiskies which have well-settled names

in the trade, and which

it was not the intention of Congress by the said

food and drugs act to require

to be described by any other designation; and

certain distillers of whisky

having appeared by Edmund W. Taylor and the Hon.

John G. Carlisle, after

consideration the matter is hereby referred to Hon.

Lloyd W. Bowers,

Solicitor-General of the United States, to take

testimony and report to the

President his opinion upon the following points,

namely:

 

I.

What was the article called whisky as known (1)

to the manufacturers, (2)

to the trade, and (3) to the consumers at and prior

to the date of the passage

of the pure food law?

 

II.

What did the term whisky include?

 

III.

Was there included in the term whisky any maximum

or minimum of congeneric

substances as necessary in order that distilled

spirits should be properly

designated whisky?

 

IV.

Was there any abuse in the application of the

term whisky to articles not

properly falling within the definition of that term

at and prior to the

passage of the pure food law, which it was the

intention of Congress to

correct by the provisions of that act?

 

V.

Is the term whisky as a drug applicable to a

different product than whisky

as a beverage? If so, in what particulars?

 

The Solicitor-General will from time to time

determine the extent and

character of the hearing and will report with his

opinion the evidence taken

by him pursuant hereto.

(No. 1061, Apr. 8, 1909.)

(Signed) WM. H. TAFT.

 

PRESIDENT TAFT DRAWN INTO THE WHISKY CONTROVERSY

Quoting further from the article by H. Parker Willis:

" When President Taft entered the White House, on

the 4th of March, 1909,

the rectifying interests were by no means inclined

to let the whisky question

rest. They knew that, while Secretary of War, he had

been decidedly friendly

to their views at the time when the subject had

originally come up before the

Cabinet for settlement. It was determined to make a

fresh and vigorous effort

to secure a reversal of the Roosevelt rulings that

would permit the rectifiers

to continue placing their neutral spirits on the

market under the name of

whisky. Consequently, shortly after the President

took office, he was

approached by all the original interests that had

urged a change in the

methods of marking whisky and, yielding to their

pressure, he consented to

reopen the question and to hear argument in person.

" Early in April a distinguished array of counsel

appeared at the White

House. Straight whisky interests had employed

ex-Secretary John G. Carlisle to

coöperate with Edmund W. Taylor, the original

representative of the straight

whisky distilleries, while for the rectifying

interests appeared Joseph H.

Choate, former ambassador to England, Senator

Armstrong of New York, Lawrence

Maxwell, Esq., and Warwick M. Hough, the high-priced

lawyer who had been sent

to Washington as a representative of rectified

interests and of the wholesale

liquor trade. Mr. Alfred Lucking also appeared in

behalf of the Canadian Club

whisky interests, which had found themselves

hampered by the rulings of the

Government, and in whose interest the powerful

offices of Ambassador James

Bryce had been enlisted with President Roosevelt to

secure the admission of

the Canadian product without the imitation label.

" President Taft listened to the arguments on both

sides, and showed a

strong disposition to refer the matter directly to

Commissioner Capers, the

head of the Bureau of Internal Revenue. Mr. Capers,

however, had long been

associated with the work of the Bureau of Internal

Revenue, under the old

regulations which permitted the marking of rectified

spirits as whisky; and he

was known to be favorable to the retention of the

old system of markings,

having shown this feeling when, in conjunction with

Secretary Wilson and Dr.

Dunlap, he had recommended the changes demanded by

the rectifying and blending

interests. The President's disposition to throw the

question back into adverse

hands at once called forth a protest from the

straight whisky men, based upon

the ground that Mr. Capers was somewhat prejudiced,

and President Taft.

necessarily recognizing the justice of this claim,

directed Solicitor-General

Bowers to serve in place of Mr. Capers.

" The points that Mr. Bowers was to take up

included an inquiry as to the

true definition of the term 'whisky' at the time of

the passage of the Pure

Food Law, and an inquiry into the chemical

constituents whose presence

necessarily designated a liquor as being

unmistakably whisky. He was further

called upon to determine whether, as urged by the

'Duffy's Pure Malt Whisky'

interests, whisky as a drug was a different product

from whisky as a beverage.

The old controversy burst forth afresh, and,

beginning April 8, (1909), Mr.

Bowers conducted almost continuous hearings, lasting

nearly a month. More than

twelve hundred pages of printed testimony were

taken. At times the room in

which the meetings were held resembled a chemical

laboratory more than it did

a courtroom, while at others, as the witnesses sat

about a table, freely

tasting the various samples that had been submitted

for examination, it was

strongly reminiscent of a German drinking club.

At the completion of the testimony and the

arguments of the attorneys the

Solicitor-General made his report to the President on

May 24, 1909. This report

is found in the Whisky hearing above referred to

beginning on page 1243. Mr.,

Bowers' opinion, summarized is as follows:

" 1. A neutral spirit derived by distillation from

any thing else than grain

has not been known to the consumer as whisky,

whether or not it was colored or

flavored or both colored and flavored; and a neutral

spirit derived by

distillation from grain, but lacking a substantial

amount of by-products

(other than alcohol) which are derived by

distillation from grain and give

distinctive flavor and properties, has not been

known to the consumer as

whisky, whether or not it was colored or flavored or

both colored and

flavored.

2. A neutral spirit derived by distillation from

grain, but lacking a

substantial amount of by-products derived by

distillation from grain and

giving distinctive flavor and properties, was not at

or prior to the passage

of the Pure Food law, and has not since been,

whisky.

3. There was included in the term whisky a

minimum of congeneric substances

as necessary in order that the distilled spirit

should be properly designated

as whisky, viz., such substantial amount of those

congeneric substances as is

requisite to give to whisky distinctive flavor and

properties, differing from

the flavor and properties of alcohol and of other

distilled spirits. There was

no maximum of such congeneric substances, however,

except as potability might

demand.

4. There were many abuses in the trade. The

evidence, however, has not been

such as to make possible, or to justify an attempt

at, enumeration of the

particular abuses, beyond saying that they included

the application of the

term 'whisky' to spirits distilled from other

substances than grain, or to

mixtures of such spirits with whisky, or to neutral

spirits derived from grain

but not whisky within the description of it given in

answer to question II, or

to such mixtures of neutral spirits and whisky as do

not fall within the

description of whisky given in answer to question

II.

5. The term whisky as a drug is not applicable to

a different product than

whisky as a beverage. "

 

:

LLOYD BOWERS

Solicitor-General, who conducted the re-hearing of

" What Is Whisky? "

On page 404 of my brief on whisky (unprinted) I

draw the following

conclusions:

" FIRST: The principle enunciated in Food

Inspection Decision No. 45 is

correct, and no modification of this decision should

be made.

" SECOND: When Neutral spirits are diluted with

water and artificially

colored and flavored, the resulting product should

not be called whisky. Under

the ruling of the Internal Revenue such a product

may be called imitation

whisky if not sold as a genuine whisky, or spurious

if it be sold as a genuine

whisky.

" THIRD: If whisky be mixed with neutral spirits

and colored and flavored,

it forms that well-known class of bodies called

compounds, and should be

marked 'Compound of whisky and neutral spirits' or

some similar appellation.

" FOURTH: If two or more whiskies be mixed

together, the resulting mixture

should be marked 'blend,' 'A mixture of two or more

whiskies' or some similar

appellation.

UNIVERSAL CRITICISM OF BOWERS' REPORT

Perhaps no public decision ever issued received

such unanimous condemnation

as Bowers' report. Everybody was dissatisfied. Warwick

M. Hough and Lawrence

Maxwell objected to it because it denied to neutral

spirit the name of whisky.

Joseph H. Choate and Alfred Lueking objected on behalf

of Canadian Club whiskies

for the same reasons. John G. Carlisle and Edmund W.

Taylor objected on behalf

of the straight whisky producers because it permitted

the addition of alcohol to

whisky provided the congeners which gave the whisky

its character were not too

greatly diluted. Wm. W. Armstrong objected to it on

behalf of Duffy's Malt

Whisky. J. D. Rouse objected to it because it denied

alcohol made from molasses

to be called whisky. The Columbus Distilling Company

objected to it for the same

reason. The Michigan Chemical Company objected to it

because alcohol to be mixed

with other whisky must be made out of grain. All

appealed to the President of

the United States for help. The President appointed a

hearing which was held in

the Executive Mansion on June 28, 1909. There were

present the President of the

United States, presiding; Hon. George W. Wickersham,

Attorney-General of the

United States; Hon. James Wilson, Secretary of

Agriculture; Mr. Warwick M.

Hough, Mr. Lawrence Maxwell, Mr. Joseph H. Choate,

Hon. John G. Carlisle, Mr.

Edmund W. Taylor, Mr. William W. Armstrong, Mr. J. D.

Rouse, Mr. Bullitt, Mr.

Youngberg, Mr. Brangier, Mr. Smith, Mr. Thompson, and

others.

THE PRESIDENT: We are here this morning to hear the

exceptions to a report,

and I believe that the report has the first indication

of correctness in that

there are exceptions from every side.

MR. CARLISLE: Nobody satisfied.

THE PRESIDENT: Nobody satisfied.

President Taft, after considering the protests made

by the rectifiers in the

decision of the Solicitor-General on the whisky

question, disapproved the most

important of these findings of his own

Solicitor-General and adopted in toto

many of the principles presented to him by the

rectifiers. However, he suggested

a method of labelling which was in some respects

distasteful to the rectifiers.

DECISION OF PRESIDENT TAFT OVERRULING

ATTORNEY-GENERAL BONAPARTE AND THE

HONORABLE LLOYD BOWERS

" It is undoubtedly true that the liquor trade has

been disgracefully full

of frauds upon the public by false labels; but these

frauds did not consist in

palming off something which was not whisky as

whisky, but in palming one kind

of whisky as another and better kind of whisky.

Whisky made of rectified or

redistilled or neutral spirits and given a color and

flavor by burnt sugar,

made in a few days, was often branded as Bourbon or

Rye straight whisky. The

way to remedy this evil is not to attempt to change

the meaning and scope of

the term 'whisky,' accorded to it for one hundred

years, and narrow it to

include only straight whisky; and there is nothing

in the Pure Food Law that

warrants the inference of such an intention by

Congress. The way to do it is

to require a branding in connection with the use of

the term 'whisky' which

will indicate just what kind of whisky the package

contains. Thus, straight

whiskies may be branded as such and may be

accompanied by the legend 'aged in

wood.' Whisky made from rectified, redistilled, or

neutral spirits may be

branded as whisky made from rectified, redistilled,

or neutral spirits, as the

case may be.

" With this result, the question arises what ought

the order to be so that

the purpose of the Pure Food Law can be carried out.

The term 'straight

whisky' is well understood in the trade and well

understood by consumers.

There is no reason, therefore, why those who make

straight whisky may not have

the brand upon their barrels of straight whisky with

further descriptive terms

as 'Bourbon' or 'Rye' whisky, as the composition of

the grain used may

justify, and they may properly add, if they choose,

that it is aged in the

wood.

" Those who make whisky of 'rectified,'

'redistilled,' or 'neutral' spirits

can not complain if, in order to prevent further

frauds, they are required to

use a brand which shall show exactly the kind of

whisky they are selling. For

that reason it seems to me fair to require them to

brand their product as

'whisky made from rectified spirits,' or 'whisky

made from redistilled

spirits,' or 'whisky made from neutral spirits,' as

the case may be; and if

aged in the wood, as sometimes is the case with this

class of whiskies, they

may add this fact. * * *

" This opinion will be certified to the Secretary

of the Treasury, the

Secretary of Agriculture, and the Secretary of

Commerce and Labor to prepare

the regulation in accordance herewith, under the

Pure Food Law; and to the

Secretary of the Treasury and the Commissioner of

Internal Revenue to prepare

the proper regulation under the Internal Revenue

Law.

(Signed) WILLIAM H. TAFT.

The White House,

December 27, 1909.

President Taft in revising the opinion of his

Solicitor-General that neutral

spirits or alcohol, even when carrying flavor, were

not entitled to be defined

as whisky, also revised the opinion of his

distinguished father, Alphonso Taft,

who rendered an opinion, as Attorney-General, on the

21st of August, 1876, as

follows:

" I agree with my predecessor's opinion that the

shipment of alcohol under

the name of whisky (the offense charged), is a

violation of section 3449,

Revised Statutes, notwithstanding 'the trade,'

generally may have fallen into

such a practice. Alcohol and whisky are,

unquestionably, different articles,

in contemplation of law, as they are in fact, having

different qualities and

different values. It appears, also, that they are

placed by common carriers

under different rates in their freighting schedules;

* * *

" When the act prescribes how spirits may be

stored or bonded, it must be

presumed that it means spirits that have been

lawfully distilled.

" This being patent, it is obviously important

that there should be an

absolute agreement in character of all the acts

which together go to make up

the act of shipping; and I must believe that the law

intends to secure this. *

* * This would be difficult or impossible if

shippers, carriers, consignees,

etc., were permitted to use one name for another, at

their pleasure, or for

any purpose. "

Very respectfully,

(Signed) Alphonso Taft,

Attorney-General.

Accordingly the three Secretaries, who under the

authority of the law were

empowered to make rules and regulations for carrying

the law into effect,

prepared the definitions which did not, however,

follow President Taft's

directions above.

Food Inspection Decision No. 113 is as follows:

" Under the Food and Drugs Act of June 30, 1906,

all unmixed distilled

spirits from grain, colored and flavored with

harmless color and flavor, in

the customary ways, either by the charred barrel

process, or by the addition

of caramel and harmless flavor, if of potable

strength and not less than 80°

proof, are entitled to the name whisky without

qualification.* If the proof be

less than 80°, i.e., if more water be added, the

actual proof must be stated

upon the label and this requirement applies as well

to blends and compounds of

whisky.

" Whiskies of the same or different kinds, i.e.,

straight whisky, rectified

whisky, redistilled whisky and neutral spirits

whisky are like substances* and

mixtures of such whiskies, with or without harmless

color or flavor used for

purposes of coloring and flavoring only, are blends

under the law and must be

so labeled. In labeling blends the Act requires two

things to be stated upon

the label to bring the blended product within the

exception provided by the

statute: First, the blend must be labeled, branded

or tagged so as to plainly

indicate that it is a blend, in other words that it

is composed of two or more

like substances, which in the case of whisky must

each be of itself a whisky

and Second, the word 'blend' must be plainly stated

upon the package in which

the mixture is offered for sale. A mixture of

whiskies, therefore, with or

without harmless coloring or flavoring, used for

coloring and flavoring only,

is correctly labeled 'Kerwan Whisky. A Blend of

Whiskies.'*

*All three of these statements are not in harmony

with Taft's decision.

" Since the term whisky is restricted to

distillates from grain, and

distillates from other sources are unlike substances

to distillates from

grain, such distillates from other sources without

admixture with grain

distillates are misbranded if labeled whisky without

qualification, or as a

blend of whiskies. However, mixtures of whisky, with

a potable alcoholic

distillate from sources other than grain, such as

cane, fruit or vegetables,

are not misbranded if labeled compound whisky,

provided the following

requirements of the law are complied with: First,

that the product shall be

labeled, branded or tagged so as to plainly indicate

that it is a compound,

i.e., not a mixture of like substances, in this case

whiskies; and, Second,

that the word 'Compound' is plainly stated upon the

package in which the

mixture is offered for sale. For example, a mixture

of whisky, in quantity

sufficient to dominate the character of the mixture,

with a potable alcoholic

distillate from sources other than grain and

including harmless color and

flavor is correctly labeled 'Kerwan Whisky. A

compound of whisky and cane

distillate.' Unmixed potable alcoholic distillates

from sources other than

grain and including harmless color or flavor, are

not misbranded if labeled

'Imitation Whisky.'

" When an essence or oil is added to a distillate

of grain, which without

such addition is entitled to the name whisky, and

the effect of such addition

is to produce a product which simulates a whisky of

another kind different

from the kind of whisky to which the essence is

added, the mixture is an

imitation of the particular kind of whisky which is

simulated, e.g., if rye

essence be added to a highly rectified distillate of

corn, the mixture is

misbranded if labeled rye whisky. Such a mixture is

not misbranded if labeled

'Whisky--Imitation Rye.'

" Nothing in the Food and Drugs Act inhibits any

truthful statement upon the

label of any product subject to its terms, such as

the particular kind or

kinds of whisky, vended as whisky or as blends or

compounds thereof, but when

descriptive matter, qualifying the name whisky, is

placed upon the label, it

must be strictly true, and not misleading in any

particular. The law makes no

allowance for seller's praise upon the label, if

false or misleading, and the

product is misbranded if a false or misleading

statement be made upon one part

of the label and the truth about the product be

stated upon another part.

Similarly a product is misbranded if the label is

false or misleading through

the use of a trade-marked statement, design or

device. The fact that a phrase,

design or device is registered in the U. S. Patent

Office gives no license for

its deceptive use. All descriptive matter qualifying

or particularizing the

kind of whisky, whether volunteered or required by

the law to be stated, as in

the case of blends and compounds, must be given due

prominence as compared

with the size of type and the background in which

the name whisky appears, so

that the label as a whole shall not be misleading in

any particular.

Food Inspection Decisions 45, 65, 95 and 98 and

all rulings in conflict

herewith, are hereby revoked.

(Signed) Franklin MacVeagh,

Secretary of the Treasury.

James Wilson,

Secretary of Agriculture.

Charles Nagel,

Secretary of Commerce and Labor.

Washington, D. C., February 16, 1910. "

This decision directly contrary to the findings of

many Federal Courts,

promulgated by the three Secretaries charged with the

duty of making rules and

regulations for carrying the law into effect, is the

most astonishing exhibition

of illegality ever perpetrated. No higher flight of

open contempt of judicial

findings has ever been made by any one whose duty it

is to follow the courts'

decisions. It would have been bad enough as an attempt

at construing the meaning

of a law prior to judicial opinions. In the face of

the facts it is a flagrant

contempt of Court.

The regulations made by the three Secretaries are

most remarkable. In the

first place they attempt to decide what is an

adulteration or misbranding, a

function which was never committed to them but was

specifically given to the

Bureau of Chemistry.

In the second place, they utterly failed to include

the fundamental

principles of branding laid down by President Taft in

the above extract from his

letter. There is absolutely no trace in this decision

of requiring whisky to be

labeled neutral spirit whisky, or a blend of that

whisky and a whisky made from

neutral spirits. Those were the fundamental principles

which President Taft laid

down for correct labeling. These two phrases were

highly objectionable to the

rectifiers. Under the very nose of the President the

rectifiers so controlled

the action of the three Secretaries that neither one

of these phrases was

incorporated into the necessary labeling of whiskies

made from neutral spirits.

Not only was every decision of the courts violated by

this order, but President

Taft's specific directions for labeling were also

disregarded. It is very

strange that the President himself did not make a

protest against the utter

disregard of the fundamental principles upon which his

labeling order was based.

RECTIFIERS GAINED EVERY POINT

On publication of this food inspection decision in

which the rectifiers

gained everything they had lost in the decisions of

the Federal Courts, their

petitions of appeal to the Circuit Courts were in all

cases withdrawn. By

executive proclamation they had obtained what the

courts had denied them. All

the interests which were engaged in adulterating and

misbranding foods were

greatly heartened by this victory of the rectifiers.

If one class of misbranders

and adulterators could receive immunity by executive

order, why not apply the

same principle to all forms of adulteration and

misbranding?

BECOMING A PROHIBITIONIST

I am very strongly of the opinion that this

approval of neutral spirits

colored and flavored as whisky and this, of course,

would apply to gin and rum,

and all other distilled spirits, including brandy, and

by implication also, to

adulterated and misbranded beer and wine, was one of

the principal causes which

enabled the doctrine of prohibition to achieve such a

sweeping victory a few

years afterward under the stress of promoting the

public welfare during the

period of the world war. At least in so far as I was

concerned I had spent many

years of hard labor in trying to have all kinds of

distilled spirits as well as

fermented beverages comply with ethical requirements

and pure food laws. The

dikes that held the swelling floods of adulterations

and misbranding of our

beverages were broken down and waves of food

adulterations swept over and

devastated the country.

THE LAST WORDS OF LLOYD BOWERS

On the morning after the President issued his

proclamation Mr. Lloyd Bowers

called me over the telephone. He said: " Have you read

the President's decision? "

I said, " I have, with great astonishment. " He asked,

" What do you think about

it? " I replied, " I feel as if I had been spanked, " to

which he replied, " So do

I. " This was the last time I heard Lloyd Bowers'

voice. The next morning the

newspapers carried the notice that the

Solicitor-General had left Washington for

a few weeks' rest. About three weeks after that I saw,

with great regret, a

notice of his death. Thus passed a great lawyer and a

great jurist. I think I

was right in thinking that probably his premature

death was due to a broken

heart. Nobody was satisfied with the laborious effort

which he had made. Upon

the whole my deep sympathy was with Lloyd Bowers. I

was impressed with the

conviction that he was earnestly seeking the truth.

Three-fourths of his,

decision was in harmony with my own views, so that I

believe that he was at

least three-fourths right.

JUSTICE HARLAN SPEAKS

On the evening after the President Is decision was

published Mr. Charles H.

Butler, reporter of the Supreme Court, entertained the

Supreme Court at his

residence, 1535 Eye St., N. W. I was one of the

invited guests at this function.

Among other members of the Supreme Court who were

there was Justice Harlan of

Kentucky. Accosting me he said, " Come over here, my

boy, where there are not so

many people. I would like to talk to you. " Retiring to

a secluded spot somewhat

distant from the punch bowl we sat down upon a sofa.

Justice Harlan said to me,

" What is this I hear about holding Supreme Court in

the White House? " I replied,

" You know as much about it as I do, Mr. Justice, you

have read the newspapers. "

To which he replied, " Things are coming to a pretty

pass in this country. The

question of 'What is whisky?' was on its way to my

Court and now it will never

reach there. "

What a pathetic void in classic Supreme Court

decisions was caused when

Justice Harlan was denied this opportunity of writing

the opinion of the Supreme

Court on this case!

Fortunately the rectifiers did not have many years

to enjoy the fruits of

their great victory. The enactment of the Prohibition

Amendment and the Volstead

Act placed all dealings in beverage alcoholic drinks

outside of the law. The

question now is not " What is whisky? " but " Where is

whisky? " The adulterations

of the bootleg brand are now more deadly than were the

combinations of the

rectifiers in the old days. These illegal decisions

that permit alcohol to

masquerade as whisky have never been repealed. They

remain sonorous witnesses of

the triumph of the unholy.

DISASTERS PREVENTED

All of these disasters would have been prevented if

the food law had been

administered as Congress enacted it. One of the most

amazing events in the

recital I have just made is to see the three

Secretaries who were authorized to

make rules and regulations for carrying out the food

law attaching their

signatures to a decision which clearly prevented the

law from being enforced.

This misconception of the law has continued until the

present day and has been

the cause of all the crimes committed against it.