BONAPARTE'S STATE PAPERS

Attorney-General Bonaparte issued three short state papers on the subject "What is Whisky?" The first of these papers bears the date April 10, 1907. In this paper the question of what is whisky was answered in harmony with the provisions of the food and drugs act. The points covered in this paper were so distasteful to the rectifying interests as to call for numerous requests for rehearing. The Attorney-General granted them a rehearing. On May 29th, 1907, he gave his new opinion in which he stated that he found no reason to modify in any respect the opinion of April 10th. Toward the close of the Roosevelt Administration, the rectifiers made a last desperate effort to have the Attorney-General's opinion changed. This has been thoroughly set out in the quotations from the article of H. Parker Willis. The new effort was evidently inaugurated by the President who often referred to Dr. Dunlap, Associate Chemist of the Bureau of Chemistry, as "my chemist." In the light of Dr. Dunlap's career in the Bureau no one will likely dispute Roosevelt's often repeated claim to proprietorship. The Committee having in charge this matter was thoroughly devoted to the rectifying interests. It is only natural therefore that the report they brought in, which was written by Dr. Dunlap, would be favorable thereto. The gist of Dr. Dunlap's report is as follows:

"Under the Pure Food Law as administered now, neutral spirits, diluted to proper strength and colored with caramel, must be marked 'imitation whisky.' The spirit distillers request that this name be not forced upon them, but that they may use in its place one of the three names, 'neutral whisky,' 'rectified whisky,' or 'redistilled whisky.' * * * It is my opinion that the term 'whisky' should not be denied to neutral spirits diluted with water to a proper strength and colored with caramel. I believe that the use of the term 'whisky' on such a product should be qualified by some term which will carry notice to the consumer of the nature of the product. For this purpose the term 'neutral whisky,' 'redistilled whisky,' and 'rectified whisky,' have been suggested."

Mr. Bonaparte proceeds to comment on this suggestion of Dr. Dunlap's with rare sarcasm for which lie was distinguished. He says:

"It seems obvious, from the juxtaposition of these extracts from my two opinions and those from Dr. Dunlap's letter, that the Associate Chemist of the Department of Agriculture suggests that, on the question of the construction of a statute, a very carefully considered and reconsidered opinion of the Attorney-General should be disregarded. He bases this recommendation upon certain conclusions which he says have been reached by the English 'Royal Commission on whisky and other potable spirits,' in what is described as an 'interim report.'

"He describes this Commission as composed of 'eminent scientific men,' but it does not appear from his letter that the said Commission consists of lawyers, or that they have had under consideration the construction of the Act of Congress generally known as the Pure Food Law. I am, therefore, unable to recognize their conclusions as entitled to weight in determining the above mentioned question of statutory construction, and I may add that I am unable to see how these conclusions, in so far as stated by Dr. Dunlap, have any bearing upon the question considered in my two opinions.

"It appears to me that these 'eminent scientific men,' in these conclusions, made suggestions as to what legislation on the subject should contain. They do not assume to construe legislation already enacted. Especially they do not express any opinions as to the construction of an American law dealing with American conditions.

"Inasmuch, however, as I cannot fail to recognize in Dr. Dunlap's recommendation a challenge of the correctness of my conclusions as announced in the two opinions heretofore rendered you, I think it is but proper that I should call your attention to certain judicial decisions rendered upon the questions discussed in his letter subsequently to the date of the said two opinions. In the case of Levy vs. Uri, the Court of Appeals of the District of Columbia, speaking by Mr. Justice Robb, says on this question:

'Each kind of whisky mentioned has its own peculiar flavor and character and is sought after as a beverage because of that flavor and character. Neutral spirits, on the contrary, as the term suggests, is a colorless liquid, has neither flavor nor character, and is not a beverage at all. It may be produced from any fermented substance, such as corn, potatoes, and sugar beets.

'Formerly it was used exclusively in the arts, but with the advent of cheaper methods of production it has been palmed off on the public as a beverage by mixing it with something to give it flavor and character. Since it costs far less to produce than rye whisky, it is apparent that its use by the distiller increases his profits in proportion as the public is deceived. * * *

'As before stated, neutral spirits is not a beverage, has none of the distinguishing characteristics of rye whisky, and is, therefore, matter of another kind."

Mr. Bonaparte then proceeds to quote the decision of Judge Thompson of the Southern District of Ohio and also the opinion of the District Court of the Southern District of Illinois, and refers to other Court decisions in which his definitions of whisky had been unanimously supported. He then says:

"It thus appears that the correctness of the conclusions reached by this Department in the two opinions to which I have referred has been tested in at least four decisions by competent courts upon the precise question discussed in Dr. Dunlap's letter; and the decision in every instance has been that what he advises is forbidden by the true construction of the Pure Food Law. So far as I am aware, there has been no decision by any court to the contrary. * * * At present, however, in so far as informed by the decisions heretofore made on this question, I can only advise you that the conclusions announced in the opinions of April 10th and May 29th, 1907, are sound, and that to give effect to Dr. Dunlap's suggestions would be to violate the Pure Food Law."

The action of President Roosevelt in again sustaining the Attorney-General received universal press support. Mr. Louis Ludlow, then President of the National Press Club and now member of Congress elect described the event in the Indianapolis Star under date of February 23rd, 1909. He says:

" The President indorses and makes public an order of Attorney-General Bonaparte, which declares the position of the rectifiers and the conclusions of the commission to be in error. Dr. Wiley's views on whisky are thus upheld."

In the same publication under date of Feb. 24, 1909, is an editorial, "A Victory for Wiley," from which I quote the following:

"For the third time Attorney-General Bonaparte has decided that neutral spirits diluted with water to a proper strength and colored with caramel is not whisky, but 'imitation whisky' and must be labeled as such. This was the ruling of Dr. Wiley. * * * It is evident that the authorities have no intention of weakening the Pure Food Law any further at the present time. The benzoate of soda ruling is enough for the present time. It is realized, of course, that there will always be pressure to have the law construed favorably to those who want to evade it. Probably it will gradually be much weakened. One concession will be made, and then another. The people will be less watchful, and at last we may find that we have virtually no law at all."

This prophetic disaster has long since been realized.