WHAT IS WHISKY?
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. Physiciansdiffer widely in regard to its medicinal value. The greater number of physiciansthink it has medicinal value. A very respectable number look upon whisky as unsuitablefor 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 effectsof whisky, however, are so great as to render it impractical for food purposes. Asa beverage whisky was used extensively in this country before it was prohibited byConstitutional amendment and the Volstead Act was passed regulating the enforcementof the Constitutional provision. At the present time whisky for beverage purposescan only be obtained illegally. The sources of all illegal alcoholic beverages areshrouded 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 medicinalpurposes.
UNE CAUSE CELEBRE
In the fight for the food law the question "Whatis Whisky?" cut quite a figure. As early as 1898 the question of the characterof distilled alcoholic beverages became quite acute. A heavy tax was laid on manufacturedalcohol, both for beverage and industrial use. A great change had been made in themethod of making pure alcohol. The continuous still, an implement which was continuouslycharged with a fermented mash and which continuously produced a very pure spiritrevolutionized the process of distillation and made pure untaxed alcohol remarkablycheap. This method of making neutral spirit was entirely different from the manufactureof beverage whisky. The Congress of the United States had legalized the mixing ofgenuine whisky with this neutral spirit, and coloring and flavoring the mixture,by an Act defining rectifying. The so-called rectified product was placed on themarket under the name and appearance of the genuine article. Existing law providedno penalties for this fraud.
In order that consumers might be able to protectthemselves, certain precautions were provided in the law. When a genuine whisky wasfirst made it was always placed in oak barrels for aging purposes. A stamp was placedon the package, giving date produced, distillery making it, and other data requiredfor revenue purposes. When the package was tax paid and ready for consumption, anadditional stamp was affixed. The double stamp was the consumer's evidence that norectifier had handled that package. This assurance however, affected only the firstowner. When he decided to put the contents on the retail market he was under no furtherobligation. 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 theproduct in fractions of a gallon, each package having a United States little greenstamp 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 investigationof the wiles of the rectifier, carried on in 1898, in which the Bureau of Chemistrytook an active part. It was then learned that there was a radical difference betweena genuine whisky at least four years old and the rectified product bearing the samename. Under the pending food bill the rectifiers clearly saw that the products theywere making would have to bear labels showing just what they were. Their whole businesswas 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 nullifyits provisions. In the following pages will be found the high lights of these efforts.
In the final hearings the rectifiers made everypossible endeavor to kill the bill. Anticipating the probability of the passage ofthe bill, it was deemed advisable to study ab initio the whole question, historicaland technical, of the manufacture of whisky in this and other countries. The investigationsmade 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 testimonybefore the courts in the cases subsequent to the passage of the law. A witness tothe sound conclusions drawn therefrom is the universal approval given by every Federalcourt before which the problem has been presented. No further publication of thisbrief 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 effortof the rectifiers to have Food Inspection No. 65 declared illegal.
In closing the discussion of the pending foodbill before the Interstate and Foreign Commerce Committee in 1906, the followingreference 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, becausehe was not under oath; it is not expert testimony, but I want to say just this inregard to his contention: As you know, I was instructed last year, with a view ofexecuting our food law respecting imported food products, to visit the manufacturersin Europe, as far as I could in the time I had at my disposal; and, especially, Iwas 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 taskto which I was assigned. [Laughter.] I was also instructed to visit the Charenteto see how the real French brandy is made, and the Gironde to see how the real Frenchwines 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 countryand in Europe. I stated that I had found that in Scotland whisky was made solelyfrom 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 exceptthat product.
I stated also that in Glasgow and Edinburgh I found distilleriesimporting American maize, Indian corn--I was glad they were doing it; it is a goodmarket for us--and making a spirit out of it, and that this spirit was mixed withthe real Scotch whisky and sent to this country; and I doubted if there was a barrel--andthat 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 exactlyas it is in this country in Kentucky, just as Mr. Taylor (who is the only expertcalled on the question) has testified it was made. It is made there of barley maltand unmalted grain, just as in this country, the malt being used to convert the restof the starch, and then it is fermented and distilled in a pot still and placed inthe warehouse, just as it is in England and in Scotland.
In this country, too, we have great distilleries of spiritswhich make immense quantities of alcohol, and our law permits the mixing of differentspirits, under what is known as the rectifiers' clause of the internal-revenue law,which says that anyone who "mixes without rectifying" these spirits andmakes a spurious whisky or gin or brandy shall be deemed to be a rectifier and musttake out a rectifier's license. So that the law specifically says in this countrythat every mixed whisky is a spurious imitation of whisky. That is the act of Congressof the United States, a pretty good authority when it comes to definitions of thatkind.
I said to the Secretary that in my opinion, if I were enforcingthe law about whiskies coming to this country--I am not; I have simply tried to getall the information I could, and I did not want to begin to enforce a law withoutknowing what I was doing--I believed I could exclude from this country, under ourlaw, any of these rectified whiskies which were offered.
At that time, while I was in London, they were about to begina great trial, which it was said would be the greatest trial that ever took placein that city in regard to a manufactured product, in which a publican had been citedunder 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 verygood one it is. That one sentence is the whole essence of the act.
This publican was cited to appear. He was defended by the greatestlawyer in England, Mr. Frederick Moulton, the leader of the English bar; and I wastold that $50,000 (£10,000) had been raised simply to pay the legal expensesof the defense. This poor publican was worth nothing, but he was the man who wascharged with this offense, and this great rectifying industry was behind him. Theywanted to establish the fact that a rectified whisky was a Scotch whisky; and thatwas what this suit was brought for, to show that it was not. I was asked to go overthere as a witness, and of course I could not go; but they introduced my report tothe Court, which the judge promptly ruled out unless they produced me.
Yesterday, after I left the committee, I got this cablegramfrom London: "Wiley, Agricultural Department, Washington. Whisky defendantsconvicted." 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 leastopposition to rectified whisky. I will admit, for the sake of argument, that it isbetter than the straight whisky. I. will admit it for the sake of the argument; Ido not really think so, but I will say that it is better. That is what the magistratesaid. I got the printed proceedings of the trial as they came off every week; theysent out a. bulletin, and they had expert witnesses to testify that the rectifiedwhisky 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 'Thisis 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 questionwas whether a spirit that had any Indian corn spirit in it was a Scotch whisky oran 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 thiswhole contention.
A STRANGE OBSESSION
When Lloyd Bowers reached the opinion that aneutral spirit, even one made from grain, was not entitled to the designation ofwhisky, even if it should be colored and flavored, it is difficult to understandwhy 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 thereal whisky would not be too greatly diluted. Especially is this true when he hadbefore him, not only the decisions of the Federal Courts, but also the opinion ofthe father of President Taft to the effect that neutral spirit was an entirely differentarticle from whisky. He also had before him the opinion of the English Courts containedin Bureau of Chemistry Bulletin No. 102, issued Dec. 20, 1906. 1 give here a synopsisof the decision of the English case:
A whisky claimed to be Irish on the one hand and a second samplewhich claimed to be Scotch on the other, was sold to a customer as the best Irishand the best Scotch whisky. On analysis it was determined that it contained not lessthan 90% of silent or neutral spirit made of maize. In passing sentence the magistratesaid:
"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 evidenceof purity or quality?
DR. WILEY: It is evidence of quality; it shows that nothinghas been added to it except what nature put in the distillate.
MR. RYAN: Do you believe that when a blender or a rectifieradds 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 andrectifiers in New York, for instance, are very much disturbed about this. I willstate that I have received some seventy or eighty telegrams since last evening inconnection with this matter. They fear that this law will show to the public, orattempt to show to the public, or the public will assume, that whisky bottled inbond is the proper thing and will injuriously affect their business, when, as a matterof fact, it is no evidence of quality or purity that it is bottled in bond, as youstate 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 nothingto do with its wholesomeness at all. A pure food may be unwholesome, as has beentestified here. You will see in my manuscript there that in showing what things occurin nature in foods I show that hydrocyanic acid, the most violent poison, occursin a great many food products. They are pure foods, but they contain poisonous matter."
The food bill became a law June 30, 1906. Immediatelyactivities were began by the fake whisky interests to nullify its requirements. Rectifiersappeared by counsel or in person before the committee forming rules and regulationsto carry the law into effect. They made no impression on that body. They then beganto get in touch with the Secretary of Agriculture. These rectifiers were deeply inearnest. They wanted to know "just where they were at." They feared mostof all the decisions of the Bureau of Chemistry. Here is one of the problems propounded:
(FOOD INSPECTION DECISION 45.)
Many letters are received by the Department makinginquiries concerning the proper method of labeling blended whisky. Manufacturersare anxious to know the construction placed by the Department upon this particularpart of the food and drugs act of June 30, 1906 and to ascertain under what conditionsthe words, "blended whisky" or "whiskies" may be used. The followingquotation 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 thefollowing 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 Bureauof 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 daysof the enforcement of the law it was discovered that the Secretary of Agriculturewas very much perturbed in regard to F. I. D. 45. At that time the star of the Solicitorof the Department was rapidly increasing in brilliancy. The time was speedily approachingwhen the head of the Department became only the vehicle to carry the will of theSolicitor into action. I was cited to appear in the Secretary's office on the 22ndof February, 1907, for a conference on the whisky question. The birthday of Washingtonwas used to perpetrate the first overt act against the food law. There were presentat this conference the Secretary, and the Assistant Secretary of Agriculture, theSolicitor, Mr. George P. McCabe, and the Chief of the Bureau of Chemistry. The conferencebegan by a statement by the Secretary that this conference should be behind closeddoors and no report of it should be made in any way to the press.
I was first asked by the Secretary if the Bureauof Chemistry still held to the principles contained in F. I. D. 45. I replied inthe affirmative. He asked the Assistant Secretary, Mr. Hayes, his opinion in thematter. Mr. Hayes promptly voted in favor of the Bureau's definition of whisky. Hethen asked the Solicitor his opinion. He replied, "Dr. Wiley's definition ofwhisky is absurd. Whisky is any alcoholic beverage made from grain, properly coloredand flavored, according to the prevailing custom of the trade." The Secretarysaid, "I agree with my Solicitor." I immediately called his attention tothe fact that there was only one body appointed by the Act to make an initial decisionas to what constituted misbranding or adulteration of foods and drugs, namely, theBureau of Chemistry. The only authority recognized by the Act to review this decisionwas a United States judge. I said, "The Bureau of Chemistry decision will thereforestand until over-ruled by a court of the United States." He replied, "Iwill not take your construction of the law, but that of my Solicitor; that is whathe is here for, to interpret the law to me." This act of the Secretary and Solicitorconstituted the first abrogation of the Food Law by executive authority and laidthe foundation for a succession of similar violations.
As a matter of history I may say that I obeyedthe Secretary's injunction to make no report of this matter to the press. Immediatelyon leaving his office I went to the Cosmos Club and called up Mr. Loeb, secretaryto President Roosevelt. I related to him what had happened in the Secretary's officeand asked him if he could come over to the Club and take luncheon with me. Loeb wasimmediately and greatly interested in this decision. I pointed out in detail allthe circumstances which led to it. I felt certain that Secretary Wilson would goto President Roosevelt with this illegal decision.
I asked Mr. Loeb to acquaint the President ofwhat had happened and to get a promise from him, if possible, that he would not givehis approval to Secretary Wilson's decision until I had an opportunity to lay thewhole matter before him. Later in the day Mr. Loeb called me over the telephone andsaid the President had agreed to this delay. Meanwhile the papers were full of thisdecision. It had been given to the press by some one of the four people who werepresent 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 therectifiers all over the country. They felt assured that F. I. D. 45 would be repealedwithout 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 ofpilgrimages, under the leadership mostly of United States Senators, of bodies ofrectifiers to the White House. Senator Foraker conveyed the rectifiers from Cincinnati.Senator Lodge accompanied those from Boston. Senator Penrose led the Philadelphiadelegation. Meanwhile I was patiently waiting word from President Roosevelt. Oneday while I was taking lunch at Harvey's a telephone message from my office saidthe President would see me at two o'clock. I had prepared a movable laboratory withall 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 ofequal degree of purity. I carried an assortment of colors and flavors used by therectifiers. 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 youwill find that the President will do the lecturing." I carried my laboratoryinto the President's office where I was politely received by the attendant and toldthat the President would soon be in. In five minutes my audience appeared, the Presidentof the United States, and Mr. William Loeb, his secretary. For two hours I performedexperiments showing the President how all kinds of rectified whisky, brandy and rumcould be made in a minute. I received his undivided attention. If he interruptedme at all it was only to ask for more definite information on some points. At theclose of this two hour lecture he came around to my side of the table and graspedmy hand, saying to me, "Dr. Wiley, I have heard nothing but whisky for the lastthree weeks, and you are the first person who has ever given me a single idea thatI can comprehend. Then turning to Mr. Loeb he said, "Send all these documentsand samples, together with Dr. Wiley's brief to Mr. Bonaparte, and ask Mr. Bonaparteto advise me on this question." Mr Bonaparte did advise him. He sustained everysingle point that had been presented by the Bureau as to what is really whisky. PresidentRoosevelt ordered the Commissioner of Internal Revenue and the Secretary of Agriculture,both of whom were friends of the rectifiers, to publish jointly a decision definingwhisky in the light of evidence which had been presented. Thus ended the first attemptto violate the Food Law by a complete triumph of the law itself. The Secretary wasconvicted but not convinced. The breach thus made was never closed. The Secretarywas irrevocably allied with the foes of the food law.
The decision of the Attorney-General was sentto the White House on April 10, 1907. President Roosevelt wrote a letter to SecretaryWilson 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.
(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 Bonaparteis 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 opinionin full.
As an illustration of the keen satire used byAttorney-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 rectifierswho had been engaged for many years under Government license in the manufacture ofcompounded and imitation whiskeys failed to avail themselves of the method of labelingsuggested by the Attorney-General. After having secured the support of SecretaryWilson for continuing their frauds upon the consumers of whisky, they were dumbfoundedby their failure to have F. I. D. 45 repealed. They were still more greatly disturbedby having F. I. D. 65 substituted in its place. They were defeated and discouraged,but not eliminated.
They immediately took steps to secure Court decisionsfor the purpose of declaring both F. I. D. 45 and F. I. D. 65 illegal and void. Tothis end they were wise in selecting the courts before which they proposed to bringtheir petition.
They filed their first petition before the FederalDistrict Court, sitting at Cincinnati, Hon. A. C. Thompson being the presiding judge.Cincinnati was the great center of the rectifying industry. For years the rectifiershad been making in that city compounded and imitation whiskies designated by high-soundingnames and sold under claims of great age. This product was derisively known locallyas "Nigger whisky." The income from these spurious whiskies was too largeto be given up without a struggle. Some of the most influential citizens of Cincinnatiwere engaged in the rectifying industry. They were also supporters of the dominantpolitical party. For this reason the court of Cincinnati was considered the mostfavorable 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 thehearing of the case on the following Monday. I received an S. 0. S. telegram fromthe 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 Sundayafternoon. The train was late and I did not reach the District Attorney's officeuntil 15 minutes before ten o'clock on Monday morning. The District Attorney wasutterly helpless in this matter. He knew nothing of the case and it was impossibleto instruct him in fifteen minutes. I told him the only hope was to obtain from thejudge a postponement of the trial, in order that we might secure proper witnessesand that he should have opportunity to understand the case properly. When Court openedthe District Attorney promptly moved for a postponement of two weeks. The attorneyfor the rectifiers, Mr. Warwick M. Hough, vigorously opposed any postponement. TheJudge 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 Attorneywas fully acquainted with the nature of the proceeding and a number of competentwitnesses were on hand to defend the Government's position. Judge Thompson was acknowledgedto 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 rightand proper in regard to civic duty. At the beginning of the trial he announced thatit must be completed on that day, including an hour granted to each side to makearguments before the court. He also declared that each side should have an equaltime for presenting the views of witnesses. The matter for the state was forciblypresented, particularly by Dr. Joseph P. Remington of Philadelphia, and Dr. JohnUri Lloyd of Cincinnati. Competent chemical testimony was also presented by the Bureauof Chemistry before the Court.
After the arguments were made and the trial wasover, all the witnesses for the Government congregated in the office of the DistrictUnited States Attorney. We were speculating as to what the verdict would be. TheJudge had taken the matter under consideration and we knew there would not be a decisionon that day. The District Attorney was very hopeful of securing a favorable verdictand based that hope largely on the testimony of Dr. John Uri Lloyd, who was not onlya 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 influencedby personal friendship, and this was particularly the case because some of the mostprominent rectifiers of Cincinnati were also intimate friends of the Judge.. Whilewe were discussing these probabilities a messenger came from the Judge's chamberswith a note to the District Attorney asking that he be furnished with a copy of thebrief of Dr. Wiley which had been offered in evidence in the court. We all felt thatthis was an important request, believing that if the Judge would read this reportin full he would not be inclined to support the contention of the rectifiers. Ourfondest hopes in this matter were justified. When Judge Thompson issued his reportin about three weeks subsequent to the trial, it was found to be a complete vindicationof F. I. D. 45 and F. I. D. 65.
Not at all discouraged by their failure, therectifiers appealed to other Federal Courts in other localities. Among these localitieswere Springfield, Illinois; Covington, Kentucky; Indianapolis, Indiana; Buffalo,New York; Baltimore, Maryland; and San Francisco, California. In each case the opinionsof 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 aswhisky as long as the matter was still before the courts. It was known that finallythe decision would have to be made by the courts anyway and any punitory steps mightprove to be entirely futile.
Mr. H. Parker Willis in an article publishedat this time made the following comment on this procedure under the heading, "ThePublic 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-GeneralBonaparte's definitions of whisky created a curious environment in the Bureau ofChemistry. 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-GeneralBonaparte, and the Chief of the Bureau of Chemistry were all agreed on the definitions.
It was hard, however, to get Court action. Attorney-GeneralBonaparte was very insistent that cases be brought in order to test the accuracyof his definitions. Cases could only be brought, under the existing conditions, whena majority of the Board of Food and Drug Inspection would initial requests eitherfor criminal action or seizure of goods. There was much hesitation on the part oftwo members of the Board of Food and Drug Inspection in regard to this matter. Itwas not until the Secretary of Agriculture ordered them to proceed that they joinedme 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, actionin rem. In every ease of this kind which reached the courts, unanimous approvalof the Attorney-General's opinion on whisky was obtained. In all seven cases werefinally brought to the bar of justice out of hundreds recommended by: the Bureau.
CASE 1. Notice of Judgment 15. The UnitedStates of America, Libelant, vs. 93 Cases, containing 12 bottles each, of allegedWhisky, 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 misbrandedand, under the law, the seized liquor was ordered to be destroyed or, after properbranding, delivered to the claimants under a bond of $2,000 that it would not besold in contravention of the existing law. Date of judgment, August 27, 1908.
CASE 2. Notice of Judgment 45. UnitedStates vs. 4 Barrels of Liquid Purporting to be Whisky. This case was brought inthe 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 inferiorityis concealed and in order to imitate old mature whisky and whereby the said productdoes imitate and appear to be old mature whisky."
The Judge who issued the decree of condemnationwas the Hon. Thomas H. Anderson. Date of the Judgment, March 13, 1909.
CASE 3. Notice of Judgment 68. UnitedStates of America vs. Fifty Barrels of Whisky, Labeled "Bourbon Whisky,"Manufactured in New Orleans from fermented molasses. The presiding Judge was theHon. Thomas J. Morris of Baltimore. The decree of condemnation was in the same termsas 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 thedefense had addressed the jury, Judge Morris said: "I will not call upon thecounsel for the United States to reply. The case as it is presented to the jury isa very clear one. I reject the only prayer offered by the defense. Really, that prayerconcedes the misbranding of the liquor, and asks me to say to the jury that if theyshall find that this was done under the control- and by the agents of the UnitedStates, the United States is estopped from proceeding to condemn these goods andforfeit the goods from misbranding." The examination of this whisky by the Bureauof Chemistry disclosed that it was distilled from fermented molasses, and was calledBourbon Whisky. Date of Judgment, May 14, 1909.
CASE 4. Notice of Judgment 112. UnitedStates 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 releasedon a bond of $1,000. Not to be sold contrary. to the Food and Drugs Act as is usualin such cases. Date of Judgment, November 20, 1909.
CASE 5. Notice of Judgment 349. UnitedStates vs. H. A. Thierman & Co. of Louisville, Ky. Seizure of five barrels ofwhisky transported from Kentucky to Indiana. The name of the Judge in this case isnot disclosed. The decision was not rendered until after the advent of the administrationof President Taft, and the notice of judgment carried this statement: "Thisdecree was rendered prior to the issuing of Food Inspection Decision 113, which revokedFood 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-determinedthat the Bonaparte decision, which was the one which had been supported by all ofthese 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 waswholly legal. Date of Judgment, May 17, 1910.
CASE 6. Notice of Judgment 353. UnitedStates vs. the Hannis Distilling Co. of Philadelphia, Pa. The usual course was followedand the decision rendered, but the name of the Judge is not given. The date of thedecision is May 17, 1910. It has the same notice in regard to decision 113 as carriedby the former case.
CASE 7. The final case is Notice of Judgment361. United States vs, Davis & Atkins of Richmond, Va. The name of the Judgeis 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 precedingcases.
This makes seven cases in the Federal Courtssupporting the validity of the opinion of Attorney-General Bonaparte, and in nota 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 opinionof the Attorney-General Bonaparte was revoked by executive authority and a diametricallydifferent opinion supporting all the contentions of the rectifiers substituted inits place. Thereafter, no mention of any case against whisky is found in the Noticesof Judgment. It was not necessary because the United States authorities, in plainviolation of Court decisions, had decided that the Bonaparte opinion was all wrong.
I never was able, even in the two years thatintervened from the time of the decision of Attorney-General Bonaparte to the closeof the Roosevelt administration, to get the Board of Food and Drug Inspection toapprove of any criminal case against any dealer who was an offender of the law. Ihave all the correspondence in which Attorney-General Bonaparte urged that his decisionbe taken before the Courts, and in every instance when it did reach the Court hewas sustained. In all the attempts of rectifiers to nullify his decision by bringingCourt cases themselves, and this they did in eight separate cases, the rulings ofthe Court were always against them.
To show the attitude of the Board of Food andDrug Inspection in this matter, I made determined efforts to bring a case againstDuffy's Pure Malt Whisky, either to seize the whisky or to bring a criminal actionagainst the manufacturers. Every move in this direction was blocked by my collegueson the board. Under date of October 3rd, 1908, the following note in regard to thismatter 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 determinedefforts of my colleagues to protect Duffy's Pure Malt Whisky from being molestedeither by seizure or bringing any criminal case against the maker. The few casesthat 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 theSolicitor 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 fifteenlocalities in the City of Washington where illegal whisky was on sale, describingeach one minutely.
On November 6, 1907, the Attorney-General addresseda letter to the Secretary of Agriculture, in which he informed him that he bad beenunable to come to any agreement on a statement of facts, and, therefore--"itwill be appropriate for you to proceed with the enforcement of the law relating tothe subject of labeling whisky in accordance with the procedure prescribed by law."
In the midst of these discussions the Secretaryof Agriculture received a letter from John G. Capers, Commissioner of Internal Revenue,looking to a reopening of the questions decided by Attorney-General Bonaparte whichit appears was due to the express desire of President Roosevelt. The letter datedDec. 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 thePresident 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-GeneralBonaparte the protests that had been made against his decision, and their plea fora rehearing. On May 29, 1907, Attorney-General Bonaparte filed with the Presidenthis reasons for not re-opening the case in which he made the following statements:
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 shortstate papers on the subject "What is Whisky?" The first of these papersbears the date April 10, 1907. In this paper the question of what is whisky was answeredin harmony with the provisions of the food and drugs act. The points covered in thispaper were so distasteful to the rectifying interests as to call for numerous requestsfor 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 anyrespect 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 opinionchanged. 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 oftenreferred to Dr. Dunlap, Associate Chemist of the Bureau of Chemistry, as "mychemist." In the light of Dr. Dunlap's career in the Bureau no one will likelydispute Roosevelt's often repeated claim to proprietorship. The Committee havingin charge this matter was thoroughly devoted to the rectifying interests. It is onlynatural 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 suggestionof 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 decisionof Judge Thompson of the Southern District of Ohio and also the opinion of the DistrictCourt of the Southern District of Illinois, and refers to other Court decisions inwhich 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 sustainingthe Attorney-General received universal press support. Mr. Louis Ludlow, then Presidentof the National Press Club and now member of Congress elect described the event inthe 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.
In view of the positive character of Mr. Rooseveltto stand by his own decisions, at first it was thought that this investigation wasnot at his suggestion. A letter written by H. Parker Willis, published in Collier'sWeekly of April 6, 1912, throws additional light upon this matter. Mr. Willis saysin 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 committeeto inquire into the accuracy of the opinions of Attorney-General Bonaparte was appointedby the President. Dr. Dunlap, in submitting the report of this committee under dateof 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 theHon. W. W. Armstrong, member of the State Senate of New York, under date of December17, 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 writingof this letter by the Secretary of Agriculture, the Washington Post carriedthis 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 carriedthe story of the appointment of the above commission. It printed another news storyas follows:
"The uncertainty caused some of the large distilleriesof the country to present the matter to the President to-day. They were introducedto him by Senator Hopkins and Representative Graff, of Illinois. Secretary Wilsonand Mr. Capers were present."
Although the President repudiated the reportof 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 interestsof Duffy's Malt Whisky and Canadian Club Whisky were continued right along just asif nothing had happened.
On June 12, 1908, after a large number of shipmentsof Canadian Club whisky had been seized by the officials of the pure-food law, thefollowing 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.
(Signed) G. P. McCabe
Board of Food and Drug Inspection."
The reason for suspension of seizures is probablythe following incident which occured at the hearing accorded Duffy's Malt Whiskyrepresentative. 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 suspensionof further seizures.
These official data show that the President appointedthis commission, that the commission considered the subjects referred to it, thatit made its report through Dr. Dunlap on the 19th of February, 1909, and that theAttorney-General most decidedly and emphatically repudiated the findings of thiscommission and the President thereupon approved the Attorney-General's report.
An unconfirmed rumor current at the time wasthe effect that Bonaparte told the President that would immediately resign if hisreport 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 withprophetic vision, they would not have made a continuous fight for two long yearsagainst the Attorney-General and the President and the Food Law. They would not havecommenced numerous actions in Federal Courts, all of which they lost with monotonousregularity. They would not have spent hundreds of thousands of dollars in retaininggreat advocates like Mr. Choate, and others of the same character as mentioned inthe article by H. Parker Willis. They would simply have waited. This final rebuffby President Roosevelt occurred on the 19th of February, 1909, thirteen days. beforethe advent of the new administration. On the morning of the 5th of March the stormclouds which had darkened the sky of the rectifiers for two long weary years brokeasunder. The rays of victory shot through the rift, and the full sunlight of triumphshone forth. The principles which had guided the Roosevelt administration were eternaland just. The law was not altered, but its interpretation was radically changed inthe interest of the rectifiers of whisky and other alcoholic distilled beverages.
ADVENT OF PRESIDENT TAFT
When the last of these cases was finally decidedin the District Courts, President Taft came into the White House. A very remarkableevent is now to be recorded. He ordered a rehearing of the whisky problem. A classmateof President Taft, Mr. Lloyd Bowers, had been made Solicitor of the Department ofJustice. President Taft first requested Mr. Capers to conduct the new hearings onwhisky. This was equivalent to instructing the jury to bring in a verdict. Owingto the protests of the straight whisky interests President Taft finally appointedhis Solicitor-General, Lloyd Bowers, to hold these hearings. They have been printedunder the title "Proceedings Before and By Direction of the President Concerningthe Meaning of Whisky." They cover 1328 printed pages. Following is the orderof 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:
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:
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?
What did the term whisky include?
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?
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?
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 argumentsof 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 page1243. 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."
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 receivedsuch unanimous condemnation as Bowers' report. Everybody was dissatisfied. WarwickM. Hough and Lawrence Maxwell objected to it because it denied to neutral spiritthe name of whisky. Joseph H. Choate and Alfred Lueking objected on behalf of CanadianClub whiskies for the same reasons. John G. Carlisle and Edmund W. Taylor objectedon behalf of the straight whisky producers because it permitted the addition of alcoholto whisky provided the congeners which gave the whisky its character were not toogreatly 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 calledwhisky. The Columbus Distilling Company objected to it for the same reason. The MichiganChemical Company objected to it because alcohol to be mixed with other whisky mustbe 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 June28, 1909. There were present the President of the United States, presiding; Hon.George W. Wickersham, Attorney-General of the United States; Hon. James Wilson, Secretaryof 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 exceptionsto a report, and I believe that the report has the first indication of correctnessin that there are exceptions from every side.
MR. CARLISLE: Nobody satisfied.
THE PRESIDENT: Nobody satisfied.
President Taft, after considering the protestsmade 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 andadopted in toto many of the principles presented to him by the rectifiers.However, he suggested a method of labelling which was in some respects distastefulto 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 hisSolicitor-General that neutral spirits or alcohol, even when carrying flavor, werenot entitled to be defined as whisky, also revised the opinion of his distinguishedfather, Alphonso Taft, who rendered an opinion, as Attorney-General, on the 21stof 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."
(Signed) Alphonso Taft,
Accordingly the three Secretaries, who underthe authority of the law were empowered to make rules and regulations for carryingthe law into effect, prepared the definitions which did not, however, follow PresidentTaft'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.
Secretary of Agriculture.
Secretary of Commerce and Labor.
Washington, D. C., February 16, 1910."
This decision directly contrary to the findingsof many Federal Courts, promulgated by the three Secretaries charged with the dutyof making rules and regulations for carrying the law into effect, is the most astonishingexhibition of illegality ever perpetrated. No higher flight of open contempt of judicialfindings 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 priorto judicial opinions. In the face of the facts it is a flagrant contempt of Court.
The regulations made by the three Secretariesare most remarkable. In the first place they attempt to decide what is an adulterationor misbranding, a function which was never committed to them but was specificallygiven to the Bureau of Chemistry.
In the second place, they utterly failed to includethe fundamental principles of branding laid down by President Taft in the above extractfrom his letter. There is absolutely no trace in this decision of requiring whiskyto be labeled neutral spirit whisky, or a blend of that whisky and a whisky madefrom neutral spirits. Those were the fundamental principles which President Taftlaid down for correct labeling. These two phrases were highly objectionable to therectifiers. Under the very nose of the President the rectifiers so controlled theaction of the three Secretaries that neither one of these phrases was incorporatedinto the necessary labeling of whiskies made from neutral spirits. Not only was everydecision of the courts violated by this order, but President Taft's specific directionsfor labeling were also disregarded. It is very strange that the President himselfdid not make a protest against the utter disregard of the fundamental principlesupon which his labeling order was based.
RECTIFIERS GAINED EVERY POINT
On publication of this food inspection decisionin which the rectifiers gained everything they had lost in the decisions of the FederalCourts, 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. Allthe interests which were engaged in adulterating and misbranding foods were greatlyheartened by this victory of the rectifiers. If one class of misbranders and adulteratorscould receive immunity by executive order, why not apply the same principle to allforms of adulteration and misbranding?
BECOMING A PROHIBITIONIST
I am very strongly of the opinion that this approvalof neutral spirits colored and flavored as whisky and this, of course, would applyto gin and rum, and all other distilled spirits, including brandy, and by implicationalso, to adulterated and misbranded beer and wine, was one of the principal causeswhich enabled the doctrine of prohibition to achieve such a sweeping victory a fewyears afterward under the stress of promoting the public welfare during the periodof the world war. At least in so far as I was concerned I had spent many years ofhard labor in trying to have all kinds of distilled spirits as well as fermentedbeverages comply with ethical requirements and pure food laws. The dikes that heldthe swelling floods of adulterations and misbranding of our beverages were brokendown and waves of food adulterations swept over and devastated the country.
THE LAST WORDS OF LLOYD BOWERS
On the morning after the President issued hisproclamation Mr. Lloyd Bowers called me over the telephone. He said: "Have youread 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 Ihad been spanked," to which he replied, "So do I." This was the lasttime I heard Lloyd Bowers' voice. The next morning the newspapers carried the noticethat the Solicitor-General had left Washington for a few weeks' rest. About threeweeks after that I saw, with great regret, a notice of his death. Thus passed a greatlawyer and a great jurist. I think I was right in thinking that probably his prematuredeath was due to a broken heart. Nobody was satisfied with the laborious effort whichhe had made. Upon the whole my deep sympathy was with Lloyd Bowers. I was impressedwith 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 leastthree-fourths right.
JUSTICE HARLAN SPEAKS
On the evening after the President Is decisionwas published Mr. Charles H. Butler, reporter of the Supreme Court, entertained theSupreme Court at his residence, 1535 Eye St., N. W. I was one of the invited guestsat this function. Among other members of the Supreme Court who were there was JusticeHarlan of Kentucky. Accosting me he said, "Come over here, my boy, where thereare not so many people. I would like to talk to you." Retiring to a secludedspot somewhat distant from the punch bowl we sat down upon a sofa. Justice Harlansaid 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 thenewspapers." To which he replied, "Things are coming to a pretty pass inthis country. The question of 'What is whisky?' was on its way to my Court and nowit will never reach there."
What a pathetic void in classic Supreme Courtdecisions was caused when Justice Harlan was denied this opportunity of writing theopinion of the Supreme Court on this case!
Fortunately the rectifiers did not have manyyears to enjoy the fruits of their great victory. The enactment of the ProhibitionAmendment and the Volstead Act placed all dealings in beverage alcoholic drinks outsideof the law. The question now is not "What is whisky?" but "Where iswhisky?" The adulterations of the bootleg brand are now more deadly than werethe combinations of the rectifiers in the old days. These illegal decisions thatpermit alcohol to masquerade as whisky have never been repealed. They remain sonorouswitnesses of the triumph of the unholy.
All of these disasters would have been preventedif the food law had been administered as Congress enacted it. One of the most amazingevents in the recital I have just made is to see the three Secretaries who were authorizedto make rules and regulations for carrying out the food law attaching their signaturesto a decision which clearly prevented the law from being enforced. This misconceptionof the law has continued until the present day and has been the cause of all thecrimes committed against it.