OPINION ON "WHAT IS WHISKEY."

(Continued from page 15.)

and price. The addition of patent still spirit, even when it contains a very small amount of by-products, may be viewed rather as a dilution than an adulteration, and, as in the case of the addition of water, is a legal act within the limits of strength regulating the sale of spirit. (P. VII of the Report.)

The last of the questions put to me is whether the name whisky has different scope according to the fact whether the article called whisky is used as a drug or as a beverage; and I have answered that it has not. No foundation for giving different significance to the name in the two cases exists in actual public usage. What is whisky for drinking is equally whisky as a medicine, so far as the popular acceptance of the name can determine. It has been suggested, however, that the Pure Food Act makes the drug called whisky different from what public usage considers the beverage whisky, because section 6 of that act declares that "the term 'drug' as used in this act shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use;" and section 7 of that act provides that a drug shall be deemed adulterated "if when a drug is sold under or by a name recognized in the United States Pharmacopoeia or National Formulary it differs from the standard of strength, quality, or purity as determined by the test laid down in the United States Pharmacopoeia or National Formulary official at the time of investigation: Provided, That no drug defined in the United States Pharmacopœia or National Formulary shall be deemed to be adultered under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopoeia or National Formulary." The argument seems to be that under these provisions of the Pure Food Act whatever is described in the Pharmacopoeia as whisky must be entitled to the same whisky, and that the description of whisky in the Pharmacopoeia differs from that which I have found to result from public usage. I am unable to see, however, that the Pharmacopoeia definition of whisky is other than I have given. The Pharmacopoeia's definition has already been quoted; and I have stated my view that such definition, beside insisting upon the grain origin of whisky, demands both because of such origin and also because of its requirement that whisky have "a distinctive odor and taste," that a substantial amount of the by-products of the distillation of grain, giving distinctive favor and other properties, be present in whisky. The particular requirements which the Pharmacopoeia makes, after giving its definition-such as that "whisky should be at least four years old," and that its specific gravity, acidity and other particular qualities satisfy special tests-do not seem to be parts of the definition, but are rather points of distinction between superior and inferior whisky. They do not obliterate the fundamental requisites of whisky, as given in the definition itself. Further, it is to be noted that if an article conforms to the definition of whisky given in the Pharmacopoeia but does not satisfy the tests of excellence prescribed by the Pharmacopoeia, that article may still be sold as whisky without being deemed adulterated under section 7 of the Pure Food Act if "the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof." The proviso of section 7, as quoted above, expressly so declares. Very respectfully,

SOLICITOR GENERAL.

LLOYD W. BOWERS.

SOLICITOR GENERAL OF THE DEPARTMENT OF JUSTICE,
WASHINGTON, D. C.

Before his appointment by President Taft as SolicitorGeneral of the Department of Justice, Lloyd W. Bowers had earned an enviable reputation as a lawyer in fields requiring legal talent of the very highest order. A genius for hard work did much to accomplish this and a natural love of the law and quick grasp of its intricacies helped to give him his present lofty position in his profession. As SolicitorGeneral of the United States, Mr. Bowers has won one of the highest honors that can be given a lawyer in this country

Since 1882, Mr. Bowers, whose conspicuous career at the bar, forms the subject of this sketch, has been building for himself, by dint of unfailing zeal and tenacity of purpose,

a standing in his profession of which he has just cause to be proud.

He is the son of Samuel D. and Martha W. Dowd Bowers and was born at Springfield, Massachusetts, on March 9, 1859. Although his father was of English and his mother of Irish descent, the ancestors of both came to New England in Colonial days. The Bowers settled in Massachusetts early in the 17th century and one, John Bowers, about 1640, was a student at Harvard College. The Bowers were leaders in the Commonwealth and numbered many clergymen and teachers in its ranks.

Mr. Lloyd W. Bowers was graduated from Yale in 1879. Early in life he yearned to become a disciple of Blackstone, so after his collegiate career was completed he entered Columbia Law School from which he was graduated in 1882. In June of the same year, Mr. Bowers was admitted to the bar.

After graduation from the law school, Mr. Bowers obtained a desk in the offices of Chamberlain, Carter and Hornblower, an eminent law firm of New York city. There his natural talent for law and close application to his duties soon won him success in a legal environment composed of the master minds of the legal profession from every quarter of the United States. Amid such surroundings he soon acquired a recognized standing at the bar and was known as one of the rising young lawyers of the metropolis. In a short time he had won a junior partnership with the firm. In 1884, however, he resolved to go west and embraced an opportunity to do so as the partner of Ex-Chief Justice Wilson of Minnesota.

In the west as in the east Mr. Bowers' legal capabilities were soon evinced and he remained in successful general practice in Minnesota until he removed to Chicago in 1893. There, in June, 1893, he became general counsel of the Chicago and Northwestern Railway. This important office he filled with fidelity and distinction, a notable feat when it is remembered that among the many ramifications of a great railway system there is no department that requires such a high standard of efficiency in its personnel as does that in which its legal affairs are handled. Hardly an advance move is made without the advice of the trained lawyers who guide these empire-making corporations through the rocks and shoals of the law. In these tumultuous times, to a greater extent than ever before it is necessary that the legal department of a railway have that sound judgment that comes of natural mental equipment, coupled with wide experience.

A notable phase of Mr. Bowers' sixteen years' connection with the Chicago and Northwestern Railway as general counsel is found in the fact that, during that time, no charges of any kind were brought against the road, not even those of technical misconduct.

Mr. Bowers is deeply learned in the law, a close student and ever delving in the mysteries of legal lore. His appointment to his eminent post in the Department of Justice means that the people's affairs will be handled with the same thorough legal knowledge and forethought that he brought to his private practice. The vast judicial machinery of this great country is handled at the Department of Justice and it is especially fitting that the men in charge there have thorough preparation for the work in hand.

Mr. Bowers was appointed by President Taft to this office very soon after his inauguration and the appointment was confirmed by the United States Senate on the 5th day of April, 1909.

Mr.

Mr. Bowers is a member of the Chicago and University Clubs and also belongs to the Chicago Athletic Club. Bowers was president of the Chicago Law Club and also president of the Yale Alumni Association of Chicago.

On September 7, 1887, Mr. Bowers was married to Miss Louise B. Wilson of Winona, Minnesota, who died on December 17, 1897. In August, 1906, he married Miss Charlotte Josephine Lewis.

ARSTRACT FROM ARGUMENT OF W. M. HOUGH. The arguments before the Solicitor General of the United States upon the question of "What is Whisky" occupied all of Friday and Saturday, May 7th and 8th.

Mr. W. M. Hough opened the argument on behalf of the rectified whisky interests and began his argument by saying:

"Mr. Solicitor General, what is whisky? It may be better stated, for the purposes of this hearing, in terms of inclusion rather than in terms of exclusion. According to the weight of the evidence as we regard it, all distilled spirits from grain as commercially produced of the proper

potable alcoholic strength, are whisky. The expression, as commercially produced,' excludes a distilled spirit which contains all of the so-called secondary or congeneric products created during fermenation, and which are volatile at the temperatures at which the distillation is usually carried on, and it also excludes those distilled spirits which contain absolutely none of these secondary or congeneric products, and which are therefore ethyl alcohol, for the reason that neither of those two distilled spirits are commercially produced; and therefore is is unnecessary to consider at this time whether either of those two ought to, could, would or should, be regarded as whisky. It seems to me that for all practical purposes

without reference to its chemical constituents, if it is produced from the material from which whisky is commonly supposed to be produced, and has the distinctive flavor known to consumers as that of whisky. There is no one definite or abstract or distinctive flavor of whisky. It is as numerous, or they are as numerous, as the processes which have been used from the very beginning to produce an article known to the consumers of a particular time and a particular country or a particular locality as whisky."

Mr. Hough then went on to say that there was one flavor, that of Ethyl alcohol, which was common to all whiskies, and that the other flavors which were found in whisky were

we may exclude from consideration, at this time, all testimony of a purely chemical nature, as well as all testimony of a literary character, which relates to imitations, for that reason that all of that testimony, or testimony of that character, has relation primarily not to imitations of whisky as such, but to imitations of particular brands of whiskies or particular types of whisky.

"I say that chemistry must be excluded because it has been clearly established that there is no relation between the distinctive flavor or flavors of an article which has become known to the public in this country and abroad as whisky, and the chemical analysis of that particular distilled spirit. Chemistry does not deal with flavors. Therefore that distilled spirit must be regarded as whisky

flavors which were added by one process or another, and that the two combined made the various flavors which in different localities were recognized as the whisky flavor. Continuing he said:

"The flavor which the majority of the consumers identify, in other words, when they think of the word whisky, depends upon the process pursued or carried on in various countries,'

and following this thought, he said:

"We are forced to the conclusion that the article known to the consuming public, or rather to the majority of the consuming public, as whisky is a distilled spirit from grain from which a part more or less of these congenerics have been removed by various processes and it possesses a color

and flavor not due primarily to any inherent ingredients, but to substances added by one process or another." Continuing, Mr. Hough said:

"Morewood is regarded as an authority both by the courts of England and by the courts of this country, that have had occasion to refer to any published work on the subject. It is there stated, and it has also been similarly stated in all the works that have ever been printed in the English language on distillation, that the effort in the first place must be made to exclude as much as possible certain substances produced during the fermentation of the mash, and which were volatile at the temperatures at which these distillations were carried on; and when they had not been sufficiently excluded they were to add substances which would drown that flavor.

"According to Morewood nothing was ever produced in the British Isles and sold as whisky except that product which first passed through the hands of the rectifier, who purified whenever necessary the article in the form in which he bought it from the distiller and added his coloring and his flavoring substances."

Mr. Hough went on to show that by reason of the enactment of taxing laws the term whisky was extended to the unpurified product of distillation, and also to the product of the distiller which he obtained by separating the heads and tails from the middle run.

Mr. Hough then referred to debates in the House of Representatives of Congress as reported in the Congressional Globe of 1862, showing that at that time the common understanding was that the article known as whisky was an article which always passed through the hands of the rectifier who subjected it to the processes of purification as far as possible of elimination of all secondary products and the addition of such color and flavor as he had been giving to the article which he had been selling as whisky.

Mr. Hough then showed that the first regulations issued by the Internal Revenue Bureau in 1869 provided that "the term 'raw spirits' must be understood as including all spirits in the state in which they are produced by the distiller," thus showing that the distiller was not at that time understood as producing the finished article, but that whisky, the finished product, was only produced and should only be produced by the rectifier.

In the law of 1866 and 1868 there was no provision, Mr. Hough said, that the particular name of the distilled spirit, as known to the trade, must be placed upon the distiller's package. That was placed there by a regulation of the Internal Revenue Bureau made entirely without the authority of law. Later, in 1879, while this regulation was in force, Congress amended Section 3287 relating to the marking and branding of distiller's packages, and provided specifically that a distiller's package should be marked with the names known to the trade, that is to say, high wines, alcohol or spirits, as the case may be. The phrase, "as the case may be," being an adverbial phrase modified the verb "marked" or "branded" and not the noun "spirits."

Mr. Hough then continued:

"Notwithstanding the act of Congress which was passed with knowledge of the fact that the Internal Revenue regulations were permitting certain names to go upon the distillers package, the Commissioner of Internal Revenue never changed the regulations, and, therefore, in my opinion violated an act of Congress, and that violation has continued to this day."

So that, as he pointed out, while the law prescribed three names to be placed upon the distillers, namely: high wines, alcohol or spirits, as the character of the product might require, the Internal Revenue regulations has without authority added to the law and allowed the placing upon these distillers' packages of other names than those prescribed by law.

"Before the war, when there was no tax upon distillation and no tax upon any of the processes of producing the finished article known as whisky, the distillers as a rule used pot stills. That was the principal still used in the olden days, and they unquestionably carried on the process as it is carried on in England today and has been carried on in Scotland and Ireland in all times in the past of cutting out the heads and tails, which contain the largest amount of impurities, which were usually regarded as undesirable without any definite knowledge on the part of distillers, who operated largely by rule of thumb, as to what they were. They were something to be eliminated. The vast majority of whisky according to the evidence was produced by a set of men known as rectifiers or compounders. And I say that the history of the word indicates that whisky implies a compound just

as the word Champagne implies a compound. It implies a distilled spirit that has been treated in a certin way. These rectifiers went among the small distillers and bought their product in various states of purity or impurity. They took it to their rectifying plants; and the period to which I refer antedated the continuous process as it exists today. They there treated it by leaching through charcoal, if that was all that was required to eliminate this offensive smell and taste, and if more was required they redistilled it, and in some cases both rectified and redistilled, thus producing a high proof spirit as free as it was possible for science to make it at that time, which they reduced to proof by the addition of water, and added color and flavor."

After discussing the various advances in the Internal Revenue laws and the fact that rectifiers were at one time permitted to rectify the product before tax payment and then return the rectified product to the distillery for gauging and tax payment, Mr. Hough said:

"That opened the door to more fraud and the Commissioner of Internal Revenue said: 'the best way to do this thing is to permit the distillers who want to produce that kind of whisky to unite those two processes on the distillery premises, that is the leaching, charcoal process, and the redistilling apparatus, or column. This was first permitted by regulation, but a large number of the wealthy distillers of the country were unwilling to invest their capital in machinery of this character, when the right so to do was based only upon a regulation of the Commissioner of Internal Revenue; and so the regulation permitting that process to be carried on by a continuous system was not taken advantage of to the extent which it was desired by the Revenue Department it should be. They insisted that they should have the sanction of an act of Congress, and that sanction was obtained in 1872 and then millions of dollars commenced to be invested in that kind of machinery, solely upon the understanding that the article so produced by that process could be used by the rectifier or the distiller in making this whisky.'

Mr. Hough then declared that not one dollar would have been invested if at that time it had been suggested that the article produced was not whisky.

Replying to a question of the Solicitor General as to how far the early rectification went, Mr. Hough said:

"We have no accurate data, as far as chemical analyses are concerned, to determine to what extent chemically the secondary products had been eliminated; but it is in evidence that the thing was made neutral. In other words, so much had been eliminated that in comparison with the thing before this process of rectification, it was regarded as neutral; and I take it that there was practically no difference between that article as then produced and the article as produced today; but I say it makes no difference unless we are prepared to say that we are to reach back into the past and stay the march of progress by saying: 'Thus far shalt thou go and no farther.' Mr. Hough then called attention to a statement made by Mr. Shirley, a member of Congress from Kentucky, in a debate upon an amendment to the Food and Drugs Act, which amendment was for the purpose of excluding this article from using the name of whisky. Among other things Mr. Shirley said: "There has been a lot of talk about neutral spirits, about cologne spirits, as if that was some bugaboo to scare people. Those who know anything about the manufacture of whisky know that the purest ingredient in it is the neutral or cologne spirits. It contains the medicinal property in whisky. The more of ethyl alcohol, which is the neutral spirit, you have in whisky, and the less of fusel oil, the purer whisky you have. Now in the old days before the Internal Revenue tax came into existence, whisky was made by distilling neutral spirits from the grain and afterwards adding coloring and flavoring matter. Kentucky whisky was shipped to Cincinnati, then the great market, sent there as white whisky, then colored and flavored to suit the purchaser. But subsequently it was discovered that by putting into a charred barrel whisky would in course of time take a color and flavor. The gentleman would have Congress legislate the exclusive use of the word 'whisky' to a process that has not been in existence much more than fifty years, and would put out of existence and deny the use of the word 'whisky' to the makers of whisky by a process that had existed over one hundred and fifty years. It is to that sort of legislation under the name 'Pure Food' that I object." This amendment was defeated in the House by a vote of more than two to one.

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Mr. Hough then referred to the report of the English

Royal Commission, which, after a long hearing and exhaustive examination, adopted the view held by himself and which he was then urging upon the Solicitor General, and is closing, said:

"We are concerned primarily with the question as to whether these things, which ? ? ? ? ? country are not entitled to the name whisky, and whether the selling of that as whisky has been in fraud of what it was the purpose of the Pure Food Law to correct. I say in reply to the latter 'No, there was no fraud. In reply to the former, it is whisky.'

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ABSTRACT FROM ARGUMENT

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OF MR. ALBERT LUCKING.

Mr Alfred Lucking, of Detroit, representing the Canadian Club Whisky, followed Mr. Hough. In his argument he said that is appeared that Canadian Club whisky was designed to cater to a public demand for whisky that was aged, and at the same time was as free as possible from fusel oil. The designers of Canadian Club had interviewed the public in large numbers, and found that the majority were opposed to and considered obnoxious the fusel oil. This whisky, he said, had been accepted in every country in the universe as whisky, and had never been questioned anywhere, until suddenly in the United States, the inanufacturers were confronted with the proposition that it was only an imitation for the reason that it was a refined product.

He referred to a statement made by Dr. Wiley before a congressional committee when the Pure Food Law was under consideration in which Dr. Wiley said: "Now what I want, and what I believe we all want, is that the law shall require such a distinction that the purchaser may know which kind of whisky he is getting, and then let each of the products stand upon its merits."

Mr. Lucking then said that that was the reason for the passage of the Pure Food Law, and that after it was passed, a government official had taken it upon himself to declare that one article, which he had previously referred to as whisky, was not now whisky, but only an imitation. He used this

illustration:

"It would be the same precisely as if Congress had been induced to pass a law to put, we will say, gold and silver dollars upon a plane, and then the persons in authority afterwards were to say that one is a genuine dollar and the other is a counterfeit dollar." Mr. Lucking presented forty-one points, which he claimed were established by the evidence. Among them were these: That before the war whiskies in general were not aged, but went into immediate consumption.

That since the war the major portions of whiskies have not been aged.

That caramel has always been used as far back as whisky dates to produce the usual whisky color.

That the so-called straight whiskies were not known until after the war.

That before the process of continuous distillation, whiskies were always rectified or improved after leaving the still, and that the continuous process simply produces by one operation what had theretofore always been produced by two or more

processes.

That fusel oil in whisky is regarded by the public as obnoxious and undesirable, and by a great portion of the public, as poisonous.

That up until 1905 it was universally considered desirable to rid whiskies of fusel oil, and efforts in that direction were considered commendable.

That at least ninety per cent of the whiskies consumed in the United States prior to 1906 was rectified whisky, or a rectified whisky blended.

Mr. Lucking combated the idea that it was practicable to make any standard as to the quantity of congenerics necessary to be present in order that the substance might be called whisky, since even the so-called straight whiskies differed tremendously in their amounts of congenerics.

He said that any chemical standard would be an absurdity, since it would lead to such confusion as to make it impossible to conduct business. He argued strongly that neutral spirits, so-called, when reduced to proof, are whisky.

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ABSTRACT FROM ARGUMENT OF

THE HON. JOSEPH H. CHOATE. The Honorable Joseph H. Choate, of New York, former ambassador of the United States to Great Britain, said that the question to be determined by the Solicitor General was not what was the article whisky, as known to the manufacturers,

and to the trade, prior to the passage of the Pure Food Law, but what was the article called whisky, as known to the manufacturers and the trade. He argued, that if the rectified whisky had been known as whisky, and called whisky prior to the passage of the Pure Food Law, it was still entitled to that

name.

In illustration, Mr. Choate said:

"Near Boston we had two hills, Breed's Hill, which was right adjacent to and in sight, and within rifle shot of Boston, and Bunker Hill, which was a mile behind. When, on the 17th of June, 1775, our troops were led there by Colonel Prescott, he was told to go to Bunker Hill, he went right to Breed's Hill, because it was nearer the enemy, and the most exposed position, and entrenched there. From the night of that day, that hill, which had always been Breed's Hill, was and will forever be known in history as Bunker Hill, and Breed's Hill has disappeared, or must take a name of its own in the rear." Continuing. Mr. Choate said:

"The great bulk of the evidence establishes without dispute the three articles that I have mentioned (so-called straght whisky, blends and rectified whisky) were called whisky at and before the time of the passage of this act. Some of the worst of his (Mr. Carlisle's) straight whiskies had probably disappeared from the market, and were not called at all, but what remained of the straight whiskies were called, whiskies; the blends were called whiskies, and the neutral spirits, reduced to proof by water, were called whisky to such an extent that even Mr. Wiley himself has declared, I believe, that these composed a great majority of the whiskies in the market." Mr. Choate also contended that no line could be drawn as to the amount of congenerics in a distilled spirit, which would entitled it to be called whisky, and referred to the testimony of Professor Chandler, who stated that it was impossible to draw the line anywhere between those that contained the highest amounts, and those that contained none of the congenerics. He ridiculed the position taken by Dr. Wiley that if a distilled spirit had so many one-thousandths of one per cent of the congeners it was whisky, and if it contained a one-thousandth of one per cent less than his established standard, it was not whisky, but only an imitation. Upon this point he said:

"This whole thing. Mr. Solicitor General, turns upon what seems to me the merest trifle. All these whiskies that we indulge in are, as I understand it, ninety-nine and one-half per cent alcohol and water, and the richest straight whisky that Mr. Carlisle would recommend would contain but one-half of one per cent of the congeners; and there we are, fishing for a standard between the limits of one-half of one per cent of a substance, and nothing at all."

Mr. Choate said that if any standard were established, it would have to be done abritrarily, without any reason, without any judgment, and that is what Dr. Wiley had done. He said that Dr. Wiley had moved the standard himself several times, and that "he, the greatest of United States chemists, comes here and says that he has changed his mind constantly; well, he will be changing his mind again, and if you adopt his standard today, why, next year, or the next, or the next, he will have to change it again. So I say that no evidence has been furnished you, by which you can establish a standard, by which you can put up a fence and say, beyond this, you are not whisky, this side you are."

Mr. Choate further contended that the distinctive whisky taste was not any particular taste, but was the taste of ethyl alcohol, as modified by any one or more of many flavoring materials, which might be added to make the product suit the taste of any particular community, and that, if, in a certain community a whisky of one flavor had been used as whisky that community would reject the identical product if flavored in another way.

He referred to the report of the English Commission as sustaining the contention of himself and his associates.

"Whisky is not a natural article. It is a manufactured article, which has been manufactured in a variety of ways, and the real claim of Mr. Carlisle and Mr. Taylor, with the assistance of Dr. Wiley, is that hereafter it shall be manufactured only in one particular way. Not only is it a manufactured article, but it is an article the manufacture of which from the earliest times down to the invention of the continuous still that is used in this country was done only by rectifiers. Prior to that time the article as it left the still was never in its completed state.'

Mr. Maxwell pointed out that prior to the passage of the Internal Revenue Laws the distiller could complete the manufacture by processes of rectification more or less perfect; after the laws were passed, the distiller could not complete the manufacture, and further processes elsewhere were necessary. The Revenue Laws, Mr. Maxwell said, were not passed for the regulation of the manufacture of whisky for purposes of regulation alone, but only to protect the revenue.

Mr. Maxwell asked:

"What is this contention for? It is not claimed that the article which they seek to make contraband of trade has any deleterious substance added to it, or any important or material substance subtracted from it. It is not a question of health. It is not a question of public interest in any way. It is simply an attempt to monopolize trade. It has been clearly established here, and if the investigation of the Royal Commission in England has no other significance, it has this, that it was established there, that no consideration of public health is involved in this inquiry."

The only thing claimed for the so-called congeners, which Mr. Maxwell said were not pretended to be material in fact or so deemed by the public, was that they affected the taste and flavor of the article, but these, Mr. Maxwell argued, were unimportant, because each man decides for himself when he takes a drink of whisky as to the taste of flavor, and cannot, therefore, be deceived with respect thereto.

The article which it has been sought to condemn, Mr. Maxwell declared, had been recognized by the trade and by the public in this and other countries as whisky during the lives of the men and women who now or hereafter are likely to drink it.

Mr. Maxwell then read the statement of President Taft in the preliminary hearing at the White House on April 7, as follows:

"I know something about the manufacture of whisky, because I was Collector of Internal Revenue, and we collected millions and millions of dollars of revenue on whisky which was made just as here described. It was stamped whisky and went into the market as whisky. In amount it was far in excess of anything produced in Kentucky."

Following his reading of this statement, Mr. Maxwell read copious extracts from the commercial report of the Cincinnati Chamber of Commerce, showing that years ago, before the present controversy was ever thought of, continuous whisky had been manufactured and dealt in as whisky to the universal knowledge and acquiescence of the trade and public. He also read from the testimony of many witnesses, given during the hearing, to show that the trade throughout the country had sold neutral spirits, reduced to potable proof, either colored or flavored, or both, or without coloring and flavoring, as whisky, and that it was bought and consumed as such by the public.

He also read testimony showing that the continuous whisky, or so-called neutral spirits, reduced to potable proof, is similar to and the successor of the rectified and redistilled whisky made before the day of continuous stills from high wines on the premises of rectifiers. He read with telling effect the testimony of Mr. John M. Atherton, to the effect that neutral spirits was a distinctive trade name, to distinguish the article of that name from its predecessor, high wines, and that neutral spirits of drinkable strength became whisky. Mr. Atherton had qualified as a Kentucky distiller, and Mr. Maxwell commented upon his statement that he had come to the hearing to prevent what he regarded as a great injustice, although he had been a life-long Kentucky distiller.

The use of neutral spirits from bad grain or from molasses, according to the testimony, Mr. Maxwell showed to have been impossible without either a rum taste.

Mr. Maxwell said:

"This testimony, I think, ought to be accepted as establishing with reasonable certainty the facts to which they testified, taking the testimony of men who have been in the business from early times, but more than all, the

reports of the Cincinnati Chamber of Commerce; because all of these gentlemen, it might be said, had an interest in the issue, although that cannot be said of Mr. Atherton. But when we get the testimony of what was said and reported of these transactions, going beck to 1877 and 1878, I think that the Solicitor General assumes no risk in accepting this proposition, that the commercial neutral spirits, practically the same as today, for nearly forty years at least have been very generally and largely sold to and bought by the public as whisky, and that, therefore, if you are going to accept the public standard of taste and flavor in determining what is whisky, you cannot debar from commerce as whisky the commercial neutral spirits of today."

Mr. Maxwell had an interesting colloquy on the proposition that those commercial products which had been recognized as whisky should be continued to be regarded as whisky, with Mr. Carlisle, who inquired whether anything that had been sold as honey should be regarded as honey. Mr. Maxwell said that Mr. Carlisle was reverting to his fundamental error that whisky is a natural product; while whisky is a manufactured product, it cannot be compared with honey, a natural product. In response to Mr. Carlisle's suggestion that the Food and Drugs Act makes no distinction between natural and manufactured products, Mr. Maxwell said:

"Well, God made the bee, and arranged their processes by which they produced the honey. Now, Dr. Wiley wants to substitute himself for God in the manufacture of whisky. The trouble about it is that he did not appear soon enough. If he had had, in 1830 or 1840, the autocratic power which now he would like to possess, of course he would have established the one and only way of making whisky

Mr. Maxwell said that it was amply established that neutral spirits at potable proof in the British Isles and the United States had been known in the trade as whisky, and sold to and consumed by the public as whisky, and that the only claim possible for the other side was that the public had been deceived in the use of the name. Since it was conceded by everybody, including Mr. Wiley, that nothing deleterious was in rectified whisky, and nothing was taken from it unless it be a particular taste or flavor, the question came down on the claim of deception, Mr. Maxwell said, as to whether or not the public had been misled during all these years with respect to how the taste and flavor were secured. Mr. Maxwell said:

"Well, doubtless they have been misled, but it was not with respect to continuous whisky. If anybody made the inquiry, they were misled with respect to straight whisky, and by Dr. Wiley, who was preaching up and down the land that all the fusel oil was taken out of straight whisky by the process of aging, and he held that opinion, not taking the pains to make any experiment to ascertain whether it was so, until Dr. Schidrowitz only two or three years ago, pointed out to him that by a simple process of chemical analysis, the fact was demonstrated to be otherwise."

Mr. Maxwell then demonstrated that the flavor given whisky by whatever process used was for the purpose of giving a flavor which the public was accustomed to in a particular kind of whisky. He pointed out that the flavor of straight whisky was due to the barrel, as shown by the CramptonTolman report, which was only one method of adding a flavor to whisky. He declared that the satisfaction of the public with rectified whisky and their continued use of it was proof that there had been no deception. Reading from reports of hearings before congressional committees the testimony of Dr. Wiley in years gone by, Mr. Maxwell showed that Dr. Wiley admitted that no deception had been practiced in the sale of blended whiskies of reputable houses.

Referring to the report of the British Royal Commission on Whisky, and to the testimony taken by them, Mr. Maxwell showed that the question had been settled in England in the same way that the Blenders and Rectifiers now asked that it be settled in this country. Mr. Maxwell closed his argument by showing the history of the controversy in the United States and the necessity in order that justice be done to a great industry, that the present branding regulations be revised in order that the true names appear upon spirit packages.

The twelfth annual convention of the National Retail Grocers' Association was held in Portland, Ore., June 2 to 7. About two hundred delegates were

present.