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Full text of "The_Dry_Decade"

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PUBLIC UBMRY 

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THE DRY DECADE 



Books by 
CHARLES MERZ 

The Great American Band Wagon 

And Then Came Ford 

The Dry Decade 



THE DRY DECADE 

BY 
CHARLES MERZ 




MCMXXXI 
DOUBLEDAY, DoRAN & COMPANY, INC, 

Garden City, New York 



l &'$.' Country *ife ***>/. ctARUEN CITY, N. Y, U. 8* A 



COFYItJOHT, 

BY C8ARE.fi* 
ALL RiaMTft fcfc 



RST ffDJTIOM 



TO WALTER LIFFMANN 



Contents 

L Prohibition Before the War / 

II. The Adoption of the Eighteenth Amendment 25 

IIL The Law in Action 51 

IV, The Neutrality of Congress 75 

V. The Search for a Formula xoi 

VL The Pattern of Enforcement 130 

VIL The Battle of Propaganda 158 

VIIL The Deadlock of 1926 183 

IX. The Appearance of Organized Opposition 208 

X. The Hoover Program 233 

XL The Appeal to the States 257 

XIL The Position in 1930 282 

Appendices 37 

Index 337 



THE DRY DECADE 



CHAPTER I 
Prohibition Before the War 



IN ATIONAL prohibition by constitutional amendment, 
the golden dream of thousands of devoted men and 
women, became effective at (midnight on January 16, 
1920) The night was quiet in New York. A few hotels 
draped their tables in black cloths in deference to the 
drooping spirits of Broadway, but no special ceremony 
marked the passing of the old order. In Washington 
a group of the chief prohibition leaders, including Mr. 
Bryan, Mr. Wheeler, Mr. Volstead, and Mr. Sheppard, 
gathered at the First Congregational Church to watch 
at the stroke of twelve for the supreme consummation 
of a cause to which they had given years of service. In 
Norfolk, Virginia, Mr. Billy Sunday preached the fu 
neral service of John Barleycorn. The deceased arrived in 
a coffin twenty feet in length, brought to the doors of 
the tabernacle by a span of horses and trailed by a 
dejected Devil. "Good-bye, John," cried Mr. Sunday. 
"You were God's worst enemy. You were Hell's best 
friend, I hate you with a perfect hatred." 1 
" This was the start of a new experiment in the United 
States. By what sequence of events it had come about, 
by whose command New York had lost control of one of 
its own customs, how authoritatively the leaders who 
J New York Timts, January 17, 1920. 



2 The Dry Decade 

gathered at this church in Washington represented the 
opinion of the nation, why Mr. Sunday was able on a 
night in January, 1920, to welcome a new order which 
had seemed impossibly remote ten years before, all 
this is still a subject of unending controversy. 



The long story of the early prohibition movement in 
the United States lies outside the purpose of this book, 
but a short summary of its adventures throws some light 
on the situation we have reached to-day. 

It has often been pointed out that the prohibition 
movement in this country began not as a prohibition 
movement but as a temperance movement, directed at 
the task of winning converts by persuasion rather than 
by law. The origin of the movement can be traced as 
far back as Colonial days and followed well down into 
the nineteenth century in the steady growth of a re 
formist movement which had temperance as its goal 
This movement never died. The old temperance socie 
ties like the Washingtonians and the Sons of Temper 
ance have long since lost the large authority they once 
enjoyed; but temperance work is still carried on by the 
churches, by many social service agencies, "and even by 
those militant prohibition societies which have sunk 
much of their moral fervor into the task of persuading 
Congress to enforce the law. 

It would be a mistake, however, to assume that 
temperance rather than prohibition remained the chief 
goal of the reformist movement down to our own times 
and that only in comparatively recent years did there 
come a sudden violent wrench away from the old meth 
ods, a discarding of the old objectives, an abandonment 



Prohibition Before the War 3 

of the hope of temperance by moral suasion and a de 
mand for abstinence by law. 

So far back does this change in the major interest of 
the movement date that the first great wave of pro 
hibition swept the country as long ago as the 1850'$. 
Between 1846 and 1855 thirteen states adopted prohibi 
tion laws. Maine led the way, followed not only by 
New Hampshire, Vermont, Delaware, Michigan, In 
diana, Iowa, Minnesota, and Nebraska, but by such 
unfamiliar converts to the cause of prohibition as Con 
necticut, Rhode Island, Massachusetts, and New York. 
This early wave of prohibition soon receded. Some 
of the laws were declared unconstitutional by the 
courts. Others were nullified by later legislation. Still 
others were repealed. By 1863 the thirteen prohibition 
states had shrunk to five. Four of these five seceded 
later. 

A second wave of prohibition began in the i88o's. It 
had been twenty-five years since the crest of the first 
movement, and in this quarter century no new state 
had been added to the list. In 1869, however, the Pro 
hibition party had been organized, and in 1824 the 
Woman's Christian Temperance Union took tEe field. 
To a new set of leaders the time seemed ripe for a 
crusade. Once more the movement started forward. In 
1880 Kansas wrote prohibition into its Constitution, 
something that no state had ever done before. By 1890 
North and South Dakota had adopted prohibition laws. 
Iowa and Rhode Island, having repealed their earlier 
legislation, were now experimenting with prohibition for 
a second time. 

Once more the movement ebbed. Out of the legisla 
tive battles of the i88o's three states emerged with 
prohibition laws by 1905. These three were Kansas, 



4 The Dry Decade 

Maine, and North Dakota. Meantime, however, a good 
deal of laboratory work had been carried on in other 
methods of regulating the traffic in intoxicating liquors. 
South Carolina had tried a dispensary system borrowed 
from northern Europe. Pennsylvania, Missouri, and 
Illinois experimented with high-license plans. Massa 
chusetts tried a prohibition law, then a license system, 
then prohibition of everything except malt liquors, 
and then another license plan. Other states experimented 
with low-license, with exemption of wines and beer 
from prohibition laws, and with local option legislation 
under which counties, towns, and villages could outlaw 
the saloon. 

How well or how badly these various systems worked, 
how well they were liked, why any of them failed, and 
whether this failure was due to factors inherent in the 
plan itself, to a poor start, or to maladministration : all 
this has been the subject of a vast controversy, charac 
terized by a great uncertainty of fact. It is enough here 
to note that it was out of this decade of experiment that 
the third great wave of prohibition started. Georgia led 
the way in 1907. In rapid succession Oklahoma, Missis 
sippi, North Carolina, Tennessee, and West Virginia 
fell into line. 

All of these states, it will be noted, lay south of the 
Ohio and Potomac. All of them were primarily agricul 
tural states, scarcely touched by the industrial revolu 
tion which had so thoroughly changed the interests and 
the point of view of many Northern states in the long 
half century since the first wave of prohibition swept 
the country. 

Nevertheless, it was clear that after a long interlude 
the list of prohibition states had once more begun to 
gain. Six states had been added rapidly in six years* 



Prohibition Before the War 5 

time. There was reason to believe, in 1913, that a third 
wave of prohibition was plainly on the rise. 



If there was any single factor which had rescued the 
prohibition movement from its own inertia in the past 
and now given it a fresh start forward toward its goal, 
it seems fair to say that this factor was the attitude 
displayed toward all this agitation by the brewers and 
distillers. 

These gentlemen had a large stake in the controversy 
over liquor which had been in progress now for more 
than fifty years. They had a stake, by 1913, which may 
conservatively be estimated as worth a billion dollars. 
They wished to preserve this stake, and they chose a 
method of preserving it which has frequently been tried 
by organizations under fire and very often failed: they 
stood pat in the face of an opposition whose strength 
they underestimated and scorned all talk of compro 
mise. 

There was never a moment in the history of these 
years when the brewers could not have reformed the in 
stitution which was the chief point of attack in the cam 
paign against their ves.ted interests made by the pro 
hibition movement. This institution was the saloon. The 
power of the brewers over the saloon was absolute. They 
controlled it under mortgage bonds and under their 
power to shut off its supply. They could have changed 
the saloon, or even have destroyed it, if they had wished 
to act. 

Later on, when it was too late to profit them, the 
brewers showed themselves aware of the power which 
they held and regretful that they had made no more 



6 The Dry Decade 

effective use of it. This was in 1916, when members of 
the United States Brewers' Association announced 
through advertisements in the press that they lamented 
the "false mental association" which had coupled the 
brewers with the worst of the saloons, confessed that for 
this association they themselves were in large part 
responsible, and offered to show the country, if it would 
give them time, that they were ready to reform the 
saloon and to promote temperance "real temperance, 
which means sobriety and moderation; not prohibition, 
which has proved a fallacy and a failure/' 2 

It is idle to speculate on what might have' happened 
had this announcement been made in 1906 instead of 
1916 and had it been followed by action taken in good 
faith. Reformation by the brewers and distillers of their 
own trade might have averted national prohibition. It is 
an academic point. There is no way of telling now. The 
question was not tested. Apparently convinced that 
the gods were on the side of a billion dollars, wherever 
it was found, and that the prohibition movement would 
once more peter out, the brewers and distillers refused 
all reformation and all compromise. They might have 
attempted to protect their business by putting it in 
order. They preferred to argue that there was nothing 
in their business which needed to be put in order and 
to spend their time and effort creating an elaborate sys 
tem of protection which toppled to the ground. 

The history of this effort was partially revealed by 
an investigation made by a committee of the Senate in 
the fall of 1918. The story which this investigation tells 
is a story of money wasted, energy misspent, and a 
system of alliances so obviously artificial that it creaked 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, ist Session, pp. 1032-1033* 



Prohibition Before the War 7 

at every joint when it was subjected to high pres 
sure. 

By their own admission the brewers dumped money 
into various states to win elections for friends who 
promptly failed them; they financed a dummy chamber 
of commerce which existed largely for the purpose of 
fighting liquor legislation; they employed experts to 
investigate the strategy of the prohibition movement, at 
a time when the prohibition movement was shouting 
its strategy from the housetops; they organized a black 
list system which threatened to withhold trade from a 
long list of businesses regarded as unfriendly to the 
brewers' interests. 3 

The Delaware, Lackawanna & Western Railroad was 
on this list because it had forbidden its employees to 
drink liquor. The Grasselli Chemical Company of 
Cleveland was on the list because some of its officials 
had given their support to a revival meeting staged by 
Billy Sunday, The Heinz Pickle Company was on the 
list because its president was an officer of a Sunday- 
school association which had championed the cause of 
prohibition. 4 

This petty and capricious system of attempting to 
control opinion by means of a business boycott is typ 
ical of the tactics employed by an industry which mis 
judged its power. 'The brewers and distillers were con 
fronted by a larger problem than they knew how to 
handle. Their inability to cope with it explains one 
reason why the prohibition movement was able to re 
cover time and again from its successive setbacks and 
resume its brisk advance. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6$th Congress, pursuant to S. Res. 307. 
; see also New York Times, November 21, 1918. 



8 The Dry Decade 



It would be a mistake to suggest that while the brew 
ers temporized with a situation which grew more and 
more alarming from their point of view, the prohibition 
movement bowled along of its own momentum, gather 
ing impetus for its third great drive from the support 
which flowed to it spontaneously from distant sections 
of the country. 

The prohibition movement was not spontaneous and 
never had been. It had in 1913, as it had always had, a 
basic fund of sentiment to draw upon, in the moral 
teaching of the schools, in the temperance work of the 
churches, in popular disapproval of the drunkard, and 
in the increasingly persuasive proof that intemperance 
was a heavy handicap to modern industry. But the 
task of converting this sentiment into a sustained de 
mand for prohibition, rather than an appeal for tem 
perance, was a task which required the expenditure of a 
vast amount of money and the unrelenting efforts of 
many salaried men, Mr. Wayne B. Wheeler testified 
before a committee of the Senate in 1926 that in thirty 
years of active labor no less than $35,000,000 had been 
spent by the friends of prohibition to create and to 
sustain public interest in their cause. 5 

Fortunately for the friends of prohibition, there was 
an organization in the field by 1913 which was capable 
both of raising large sums of money and of spending 
them to good advantage. This organization was the 
Anti-Saloon League of America, founded at Oberlin, 
Ohio, in^g^ approximately at the time when the 



5 Testimony before the Senate Campaign Fund Investigating 
Committee, June 23, 1926. 



Prohibition Before the War 9 

second of the three great waves of prohibition was be 
ginning to recede. 

The founders of this movement were a few men 
whose interest in prohibition had brought them to 
gether, shortly before this time, in an effort to obtain 
the adoption of a local option law. In this venture they 
had had the support of the local churches, and with the 
churches the Anti-Saloon League was closely identified 
from the day of its foundation. 

The original meeting to organize the League was held 
in the First Congregational Church at Oberlin on June 
4, 1893. The first affiliation which substantially in 
creased the membership of the new society was a merger 
with a church temperance alliance effected in this same 
year. The call for a convention in 1895 to establish the 
society on a national scale was issued after a conference 
of influential churchmen. When this convention as 
sembled in Washington it was at the Calvary Baptist 
Church, with delegates present representing not only 
the more important temperance organizations but vari 
ous church bodies. 

It was under church auspices that the League was 
born and to the churches that it turned for patronage. 
As Mr. Ernest H. Cherrington, secretary of the national 
executive committee of the League, has pointed out: 
"The movement was dependent upon the church, first 
of all, for financial support. It was also dependent upon 
the church for the necessary influence and power to 
turn the tide along non-partisan lines in the election of 
members of the legislatures favorable to temperance 
legislation and in the election, as well, of public officials 
who would enforce the law." 6 

6 Ernest H. Cherrington, History of the Anti-Saloon League, 
p. 61. 



io The Dry Decade 

The churches were not won easily. A venerable tradi 
tion against church intervention in politics raised certain 
stubborn doubts. As Mr. Cherrington says, "many 
years of difficult and persistent endeavor were necessary 
to line up the church on the right side of this new 
movement/' 7 By 1913, however, the League had won 
its fight. A long list of churches had rallied to its support. 
Whatever doubts they may have had concerning church 
activity in politics had long since capitulated to their 
burning enthusiasm for the achievement of an imme 
diate reform. 

Armed with the powerful support of the churches, 
the Anti-Saloon League had expanded rapidly. Its de 
clared interest lay in political action to destroy the 
liquor traffic, primarily, as its name indicated, through 
the abolition of the saloon. Its method of achieving this 
result consisted of an omni-partisan plan of endorsing 
candidates which permitted the dry voter to vote dry 
without bolting his own party. The driving force behind 
this plan was a tireless campaign of propaganda. The 
extent of this propaganda, and the size of the task which 
it reflected, may be judged from figures covering a 
period beginning shortly before this time and running 
a few years later. Between October, 1909, and January,. 
1923, the Anti-Saloon League press at Westerville, Ohio, 
turned out 114,675,431 leaflets, 1,925,463 books, 
2,322,053 placards, 5,271,715 pamphlets, 21,553,032 
miscellaneous items, and 157,314,642 copies of weekly 
and monthly magazines. 8 

Year after year the presses spun with the vast litera 
ture of the prohibition movement, carrying into remote 

7 Ernest H. Cherrington, History of the Anti-Saloon League, 
p. 62. 

8 Peter Odegard, Pressure Politics, p. 75. 



Prohibition Before the War n 

corners of the country fresh appeals to friends and chal 
lenges to foes, arguing fresh reasons for the adoption of 
new laws, seizing upon every incident which might be 
turned to the profit of the cause, and meeting the propa 
ganda of the brewers with a counter-propaganda no 
less partisan but far more ably handled. 

The task was almost endless. For once an election was 
over, a large part of the public promptly lost its interest 
and the campaign had to start afresh. Mr. Wheeler 
himself once testified that even in 1917, following the 
most critical election in the history of the League, and 
at a time when the crusading spirit of this movement 
had theoretically reached its height, the problem which 
faced the Anti-Saloon League was how "to maintain 
public interest in prohibition until the new Congress 
should convene." 9 



In 1913 the Anti-Saloon League had been at work for 
twenty years. It was battle-scarred with valuable ex 
perience. It had lifted the list of prohibition states from 
three to nine. It had added to these states so many no- 
license counties that officials of the League were already 
claiming "two thirds of the territory of the country is 
now dry." 10 What had happened, meantime, to the li 
quor traffic ? 

It is one of the least noticed but most interesting 
facts in the story of the prohibition movement that the 
consumption of intoxicating liquor increased steadily 
despite the enactment of new prohibition laws. It is not 

9 New York Times, March 30, 1926. 
10 Associated Press dispatch, Columbus, Ohio, November II, 



12 The Dry Decade 

necessary to regard the laws as the cause of increased 
drinking, but it is certain that they failed to stop ilJ 
/in one respect, it is true, there had been a marked 
decrease in the consumption of alcoholic liquors. In 1850 
the per capita consumption of distilled spirits in this 
country had been 2.24 gallons; by 1910 it had dropped 
to 143 gallons. 11 This was a decrease of only a little 
less than 40 per cent: convincing evidence that years 
of temperance work had succeeded in checking and 
reducing the use of hard liquor in the United States., 

fin all other respects, however, the figures show a 
steady increase. In this same period of sixty years the 
per capita consumption of wine more than doubled and 
the per capita consumption of beer increased by more 
than a thousand per cent. 12 The aggregate figures for all 
forms of intoxicating liquor show this rising curve: 

In 1850, before the first great wave of prohibition, 
the per capita consumption of liquor in the United 
States was 4.08 gallons a year. 13 By 1860, at the end of 
the first wave of prohibition, it had increased to 6.43 
gallons. By 1880, when the second prohibition wave 
was getting under way, it was 8.79. In the decade of the 
'eighties, when the second wave was at its height, it 
increased to 13.20. In the decade of the 'nineties it rose 
to 16.98. In the decade from 1900 to 1910, with five new 
states adopting prohibition and the local option move 
ment in full swing, it increased to 20.53. Finally, in the 
year 1913, precisely at the time when the Anti-Saloon 
League was asserting that "two thirds of the territory 
of the country is now dry," it rose stubbornly to 22.80. 
At this point it had multiplied by more than five the 
^Statistical Abstract of the United States, 1920, p. 561. 



Prohibition Before the War 13!; 

figure for the year 1850, before all this agitation 
started. 

f There were two ways in which these steadily rising 
figures might be interpreted. Either they meant that by 
1913 one third of the territory of the country was con 
suming five times the amount of liquor consumed by 
the whole country sixty years before; or else they sug 
gested that liquor from wet states was still flowing into 
dry states and dry counties from across their borders, 
with their approval or against their wilL 

Since the second of these assumptions was the only 
credible one, the friends of prohibition turned it into a 
ready argument for action by the federal government. 
The failure of local laws to reduce the consumption of 
liquor did not destroy their faith in legislation; it en 
larged it. As Senator Borah once summarized from 
his personal observation the convictions of the prohibi 
tion leaders: 

"Having lived in a dry state, and believing, as I do, 
that the people have a right to prohibition if they want 
it, and having seen our laws broken down and trampled 
under foot by powers outside of the state, I became con 
vinced that so long as one state could ship into or 
through another state it would be utterly impossible for 
the state to protect itself unless the national govern* 
ment, which had that power, also declared that pol- 



Viewed in this light, the agitation for national action 
was not an effort to extend the demonstrated advantages 
of state-wide prohibition to the country as a whole. It 
was an effort to win for the dry states those advantages, 
not yet demonstrated, which the friends of prohibition 

"Debate at Boston with Dr. Nicholas Murray Butler, New 
York Times, April 8, 1927- 



14 The Dry Decade 

thought that prohibition could be made to bring, once 
state laws were no longer "trampled under foot" by 
interests outside of their own borders. 



The action designed to protect the dry states in the 
exercise of sovereignty over their own affairs was the 
adoption of the Webb-Kenyon Law. Contrary to much 
that is said of the law to-day, this measure was not in 
tended to prevent entirely the shipment of liquor from 
wet states into states with prohibition laws. It did not 
go that far. It merely prohibited such shipments as 
were "in violation of" state legislation. Some of the 
dry states legalized importation under certain restric 
tions. It was not the purpose of the new law to attempt 
to alter these restrictions// 

/The Webb-Kenyon Law was adopted by Congress in 
February, 1913, by large majorities in both Houses, 
many wet members agreeing that it was only fair to 
give the dry states the protection for which they asked. 
To the surprise of Congress, however, the bill was vetoed 
by President Taft, on the ground that it was unconsti 
tutional and "clearly violated the commerce clause of 
our fundamental law." 15 The President had been advised 
to this effect by his Attorney General, Mr. George W. 
Wickersham. 16 Congress disagreed with him. Both 
Houses promptly passed the bill over the President's 
veto. 

It is clear that at this point an interesting experiment 
began: an experiment in discovering whether the au- 

l5 Congressional Record, 62d Congress, 3d Session, pp. 4291- 
4292. 

., pp. 4292-4296. 



Prohibition Before the War 15 

thority of federal law, properly backed by federal en 
forcement, could actually have protected the dry states 
against invasion, in so far as each state, following its 
own standards, wished to be protected against invasion. 

The friends of constitutional prohibition insist to-day 
that this experiment failed; that the wet states con 
tinued to tyrannize the dry states; and that constitu 
tional prohibition on a national scale was the logical 
and inevitable answer. 

If this is true, then the decision was reached in a re 
markably short time. The Webb-Kenyon Law was en 
acted in February, 1913. In November of this same year, 
before the Webb-Kenyon Law was nine months old 
and before any funds had been appropriated by the 
federal government for the purpose of enforcing it, the 
Anti-Saloon League suddenly switched from the state 
law plan which had been its goal for twenty years and 
for the first time in its history demanded a constitu 
tional amendment v f 



The meeting at which this decision was reached was the 
" Jubilee Convention" of the League, held at Columbus, 
Ohio, in the second week of November, 1913. It was a 
memorable meeting, opening in the hush of an expected 
call to arms and reaching its decision in an outburst of 
enthusiasm. 

Plans were laid at once for a demonstration at the 
Capitol. Four weeks later, on December loth, a proces 
sion of four thousand men and women marched down 
Pennsylvania Avenue, while the street crowds smiled, 
white streamers fluttered from the lapels of winter over 
coats, and the band played "Onward Christian Sol 
diers/' On this same December loth Senator Sheppard 



16 The Dry Decade 

introduced his resolution for a constitutional amend 
ment. 

With the fresh impetus lent by the setting of a new 
and bolder goal, the prohibition movement now leapt 
forward. Mr. Wheeler has described the burst of energy 
which followed the 1913 demonstration. Fifty thousand 
speakers were sent into the Congressional elections of 
1914. Tons of new literature were turned out at Wester- 
ville. "It was no uncommon thing for carloads of 
printed material to roll out in one day for the front. . . . 
Under the terrific pace our finances expanded. . . . 
Our expenses gradually increased until they reached 
the greatest figure in our history, about $2,500,000 
a year. . . . We went into every Congressional district 
where there was a chance to elect a dry and waged as 
strong a fight as candidates have ever seen." 17 

The results of this activity were promptly apparent 
both at the Capitol and in the states. 

At the Capitol, a resolution for a constitutional 
amendment similar to Senator Sheppard's resolution 
was brought before the House of Representatives one 
month after the conclusion of the campaign which Mr. 
Wheeler has described. It received a vote of 197 in favor 
to 190 opposed: less than the two thirds vote required, 
but a clear majority. 18 

In the states the movement for more legislation swept 
ahead with the same sudden burst of energy which had 
marked the progress of the first great prohibition wave 
in the middle of the previous century, when four states 
adopted laws in 1852, one in 1853, one in 1854, and six 
in 1855. Now, in this third great wave, five states 
adopted laws in 1914, five in 1915, and four in 1916 
17 New York Times, March 29, 1926. 
^Congressional Record, 6sd Congress, jd Session, p. 616. 



Prohibition Before the War 17 

bringing the list of prohibition states to twenty-three. 
In this same year, the year before the war, the friends 
of prohibition began another drive for the election of a 
Congress committed to national action. This was the 
election of 1916; and if the Anti-Saloon League and its 
allied organizations had thrown themselves with fervor 
into the Congressional election two years before, they 
now outmatched their own best efforts. "All the 
energy we put into the 1914 campaign boiled and 
bubbled with hotter fire," wrote Mr. Wheeler, a dec 
ade later. 19 "We laid down such a barrage as can 
didates for Congress had never seen before and such 
as they will, in all likelihood, not see again for years to 



come." 



This was the election which sent to Washington the 
Congress destined so shortly and to a large part of the 
country so unexpectedly to adopt the Eighteenth 
Amendment and send it to the states. There were 
thousands of untroubled people living in Eastern cities 
who refused to believe that prohibition was an issue. 



If we stop at this point to recapitulate, we can meas 
ure the situation as it shaped itself on the first of April, 
1917, and throw some light on the validity of certain 
current dogmas. 

i. There is the dogma, popular with many wets, 
that national prohibition was foisted on the country 
without the slightest semblance of a warning. It is worth 
remembering here that a majority of the House of 
Representatives had voted in favor of a constitutional 
amendment as early as December, 1914. To the most 
19 New York Times* March 30, 1926. 



i8 The Dry Decade 

cocksure wet this should have been ample notice of the 
possibility that lay ahead. The opponents of prohibition 
needed to hold only one third of the House in order 
to block the adoption of a constitutional amendment. 
As events turned out, they had three years in which to 
attempt to elect and to organize a bloc of 146 votes. 
They neglected this opportunity and continued to 
regard prohibition as an empty threat. 

2. There is a second dogma of the wets that in those 
states which adopted prohibition before the war the 
decision was reached by the arbitrary action of the 
state legislatures and not by the free choice of the elec 
torate itself. The truth is more nearly the reverse of this. 
In only nine states was prohibition adopted solely by 
action of the legislature. 20 In all of the others there was a 
direct consultation of the electorate and a direct choice 
at the polls, either through the initiative and referendum 
or when the legislature submitted the question to a 
popular decision. 

^3. There is a third dogma of the wets, inconsistent 
with the previous dogma, that "the woman vote" was 
in large part responsible for prohibition. There is little 
basis for this theory. On the final question of ratifying 
the Eighteenth Amendment no women voted (and no 
men) except in one state, Ohio. On the question of 
state laws, women voted in only seven states which 
adopted prohibition before the war. These seven were 
Arizona, Colorado, Utah, Idaho, Montana, Oregon, and 
Washington. In all other states prohibition came first 
and woman suffrage afterward^ 

4, Meantime, there are various dogmas of the drys. 
There is the dogma that even before the war prohibition 
had won national support and not merely sectional sup- 
20 Cf. Appendix A. 



Prohibition Before the War 19 

port. Twenty-three states had adopted prohibition 
laws by the end of 1916. Three more were added in the 
first few months of 1917, bringing the list to twenty-six. 
Where were these states placed ? Fourteen were west of 
the Mississippi. Eight were south of the Ohio and 
Potomac. Two (Maine and New Hampshire) were in 
the northern and rural half of New England. In the belt 
of thirteen thickly populated industrial states reaching 
from Massachusetts on the east to Missouri on the west, 
prohibition had won only Michigan and Indiana. In 
Indiana the law had been adopted by the legislature 
without a popular vote. In Michigan there had been 
a referendum. The one large city in the state, Detroit, 
had voted wet. 21 The rural sections had snowed it under. 
In 1917 prohibition was still a method favored prin 
cipally in the agricultural states of the West and South. 
Its gains in the East and North were relatively un 
important. 

5. There is the dogma of the drys that in those 
states which had adopted prohibition by popular vote 
an overwhelming majority of the electorate had shown 
itself in favor of this action. A list of the state votes will 
be found in Appendix A. It shows that 1,967,337 people 
voted for prohibition in these states, as against 1,437,402 
opposed. These figures are fairly close. For every nine 
teen people who wanted prohibition, fourteen opposed 
it. The total vote is very small: so small that all of 
the state prohibition laws which were enacted in this 
country prior to the war were enacted by the affirmative 
votes of less than 4 per cent of the adult population of 
the country. 

6, Finally, and from the point of view of the present 
situation most significant, there is the dogma of the 

^Michigan Manual) 1917, p. 483, 



2O The Dry Decade 

drys that the (ultimate adoption of the Eighteenth 
Amendment was definitely foreshadowed by the adop 
tion of prohibition in twenty-six states before the war, 
and that the Eighteenth Amendment was merely a 
crowning achievement which followed logically and 
inevitably from this earlier legislation. 

The weakness of this dogma lies in its assumption 
that all twenty-six states had adopted a system of 
prohibition comparable with the system to be estab 
lished later by the Eighteenth Amendment: in other 
words, that they had chosen to be bone dry. This is a 
misleading theory*; 

It is true that'in February, 1917, two months before 
the United States entered the war, Congress adopted 
i the Reed bone-dry amendment: a drastic measure un 
expectedly proposed by a bitter enemy of prohibition 
rather than a friend, reinforcing the Webb-Kenyon Law 
with a new law forbidding interstate shipment of in 
toxicating beverages into any state which prohibited 
manufacture and sale, whether or not it also prohibited 
importation. This was a fiat from Washington, however, 
and not a decision by the states themselves. A large 
number of the dry states had never chosen to be bone- 
dry. They had chosen, on the contrary, to prescribe a 
thoroughly legal means of obtaining and using in 
toxicating liquor. On this point the authoritative com 
pilation of state laws assembled by Mr. Wheeler and 
published under the auspices of the Anti-Saloon 
League 22 leaves no room for doubt. 

Alabama is one of the states always listed as dry 
before the war. But the Alabama law provided (Section 
3a) that any citizen might legally import two quarts of 

^Wayne B. Wheeler, Federal and State Laws Relating to In 
toxicating Liquor y second edition, May, 1918. 



Prohibition Before the War 21 

distilled spirits or two gallons of wine or five gallons of 
beer every fifteen days' if he so desired. 23 

Virginia was another of the dry states. But the 
Virginia law provided (Section 39) that once in every 
thirty days "one quart of distilled spirits or three 
gallons of beer or one gallon of wine may be brought to 
any person not a student at a university, college or any 
other school, nor a minor, nor a female (not the head of 
a family) for his own use/' 24 

Indiana was a dry state; but its prohibition law 
denied (in Section 5) any intention to interfere with the 
domestic manufacture of wine, "nor shall this act be- 
construed to prohibit a person from giving intoxicating 
liquor to a guest in his own home." 25 

Michigan was a dry state. It had written prohibition 
into its Constitution. Under Article XV "the manufac 
ture, sale, keeping for sale, giving away, bartering or 
furnishing" of any form of intoxicating liquor was 
"prohibited forever." 26 This article, however, said 
nothing to prohibit personal importation of liquor for 
personal use. This privilege remained intact. 

Maine, New Hampshire, Iowa, and North Dakota 
were dry states; but their laws, like Michigan's, said 
nothing to prohibit personal importation of liquor for 
personal use. 27 

Mississippi, North Carolina, West Virginia, Ten 
nessee, and South Carolina were all dry states. But the 
Mississippi law (Section 12) permitted the manufac- 

^Wayne B. Wheeler, Federal and State Laws Relating to In 
toxicating Liquor, second edition, May, 1918, p. 93. 
*IUd., p. 766. 
Ibid., p. 194. 

p. 49. 
., pp. 274, 416-430, 206, 507-509. 



22 The Dry Decade 

ture of home-made wine. 28 The North Carolina law 
(Section 3) legalized the importation of one quart of 
spirits or five gallons of beer every fifteen days. 29 The 
West Virginia law (Section 4) permitted the manu 
facture of wine for personal use and (Section 31) the 
importation of one quart of liquor every thirty days. 30 
The Tennessee law permitted manufacture for personal 
use. 31 The South Carolina law, authorizing importation 
of one quart of liquor every thirty days on the assertion 
of the importer that "the same is desired for medicinal 
purposes," legalized the possession of such liquor on con- 

\dition (Section 15) that it was not stored up in "any un 
usual amount or in any unusual way." 32 
' Mr. Wheeler's compilation makes it clear, in fact, that 

Awhile there were many townships and counties through 
out the country which had adopted some form of 
prohibition under local option, and while there were 
many states which had adopted some form of prohibi 
tion on a state-wide basis, there were only thirteen 

jstates before the war which had sought to anticipate on 
a state-wide basis the drastic bone-dry legislation of the 
Eighteenth Amendment. 

These states were Arizona, Arkansas, Colorado, 
Georgia, Idaho, Kansas, Montana, Nebraska, Okla 
homa, Oregon, South Dakota, Utah, and Washington, 
all in the South and West. 

The total area of these states was 1,119,555 square 
miles, or 36.9 per cent of the area of the country. 

28 Wayne B. Wheeler, Federal and State Laws Relating to In 
toxicating Liquor, second edition, May, 1918, p. 371. 
Itid., p. 473. 
* Q Ibid., pp. 806, 817. 
3l lbid., pp, 632-634. 
pp. 570-571. 



Prohibition Before the War 23 

Their total population in 1910 was 13,200,907, or 
14.3 per cent of the population of the country. 

These thirteen states covered more than a third 
of the territory of the United States but held only one 
seventh of its people. 



On the eve of the war, then, the situation may be 
summarized as follows : 

A large number of states had adopted prohibition 
laws, but only thirteen states had adopted bone-dry 
laws. Local option was still the established principle in 
most of the populous industrial states. In many other 
states, theoretically dry, the adoption of prohibition 
had not been intended absolutely to prohibit the pur 
chase or the use of intoxicating liquors but rather to 
abolish the saloon and to place the traffic under rigid 
supervision. Some of these states permitted importation 
in limited amounts, until the Reed Amendment forbade 
such importation in February, 1917. Some permitted 
importation in limited percentages. Some permitted 
home manufacture in certain forms. Some drew a 
distinction between men and women as purchasers of 
liquor. In each case the methods and the penalties of 
prohibition varied according to local customs, local 
standards and local taste. 

Meantime, ignoring these actual and potential varia 
tions in local theory, there was the proposal militantly 
advanced by the Anti-Saloon League for a single rigid 
standard : a standard requiring absolute and compulsory 
prohibition for the entire nation. 

These two plans were fundamentally, dissimilar in 
philosophy and in method. One plan rested on local ini 
tiative; the other on centralized authority. One plan 



24 The Dry Decade 

was loosely shaped to take account of local prejudice; 
the other compromised with nothing. Yet both plans, 
in 1917, were plainly gaining ground. 

In the states the drift of affairs was unmistakably in 
the direction of more laws rather than less laws and of 
an increasingly rigid control, even in local option states, 
of the whole business of manufacturing and distributing 
alcoholic liquor. In Washington a majority of the House 
of Representatives had voted in favor of a constitu 
tional amendment in December, 1914, and the Anti- 
Saloon League was now ready to predict that on the 
next test of strength the plan for constitutional prohi 
bition would do better. 

Certainly there was much to justify the faith of the 
militant prohibitionists in 1917, despite the reluctance 
of the states themselves to adopt bone-dry prohibition. 
The Anti-Saloon League could count on its own 
effective political and religious power; on a steadily 
increasing resentment in most parts of the country 
against the saloon; on the reluctance of the brewers and 
distillers to put their trade in order; and perhaps above 
all else on the absence of any movement or any or 
ganization interested in planning a moderate program 
of reform. 

Whether the combination of these forces would have 
been powerful enough to override the old method of 
state action and to obtain the adoption of the Eigh 
teenth Amendment, provided no sensational new factor 
had suddenly been introduced, is a question destined 
never to be answered. 

At this point came the war.,/ 



CHAPTER II 
The Adoption of the Eighteenth Amendment 



1 HE WAR did three things for prohibition. It central 
ized authority in Washington; it stressed the importance 
of saving food; and it outlawed all things German. 

The first of these three changes was inevitable. The 
war brushed aside the restraints normally imposed on 
Congress. In rapid succession laws were adopted 
authorizing the government to do things which it had 
never done when the nation was at peace : seize railways, 
requisition factories, take over mines, fix prices, put an 
embargo on all exports, commandeer all ships, standard 
ize all loaves of bread, punish all careless use of fuel, 
draft men for an army, and send that army to a war in 
France. With such drastic legislation as a pattern, the 
proposal for one more drastic law seemed common 
place. For any suddenness, any boldness, and any 
severity involved in the adoption of a national pro 
hibition law, a dozen persuasive precedents had been 
set before the war was three months old. 

In the second place it was clear from the start that 
food was an important factor in the war and that great 
quantities of food could be saved if an end were put to 
brewing and distilling. This point was promptly em 
phasized by the friends of prohibition. It was echoed by 
many men in public life who were not identified with the 



26 The Dry Decade 

prohibition movement and never had been, but who 
recognized that prohibition could be made an effective 
means of saving grain. 

These men included party leaders, business men, 
publicists, and educators. The President of Brown 
University declared that it was impossible to talk of 
patriotism "while we continue to pour hundreds of 
millions of bushels of grain annually into the brewer 
ies." 1 Colonel Theodore Roosevelt announced himself 
a prohibitionist for the duration of the war and sent a 
letter to the National Temperance Board championing 
the cause. 2 Mr. Herbert Hoover, at this time a volunteer 
returned from Belgium, not yet appointed Food Ad 
ministrator, advocated prohibition as an emergency 
measure for the war, admitted that it might be difficult 
to apply it "with fairness to all sides," and suggested the 
appointment of a commission of investigation. 3 

Inevitably the effect of a long series of such state 
ments was to give momentum to the prohibition move 
ment, even when these statements advocated prohibi 
tion strictly for the duration of the war. So grateful 
were the drys in Congress for this sudden rush of fresh 
support, and so eager to start forward with their 
legislation, that before the war was six weeks old they 
attempted to write prohibition into a war bill that 
dealt with German spies. 4 This effort failed. But when 
the time came a little later to enact the Food Control 
Law, the drys in Congress seized upon the unanswerable 
statistics of the use of grain for alcoholic liquors and 

J New York Times, June 1 8, 1917. 

Associated Press dispatch, Washington, December 24, 1917. 
3 New York Times, May 10 and 27, 1917, 
^Congressional Record, 65th Congress, ist Session, pp. 2167, 
2196, 2269. 



The Adoption of the Eighteenth Amendment 27 

wrote into this law a provision (Section 15) forbidding 
the manufacture of distilled spirits from any form of 
foodstuffs. By a fortunate coincidence this action was 
taken two days before the Senate was called upon to 
debate the merits of the Eighteenth Amendment* 

Finally, as the third of the three chief contributions 
made by the war to the cause of prohibition, there was 
the obvious opportunity it afforded the drys in Congress 
and outside of Congress to point out the close associa 
tion between the brewers' trade and many men with 
German sympathies. Time and again, throughout the 
whole controversy over the adoption of the Eighteenth 
Amendment, the brewers were denounced not only as 
enemies of temperance but as enemies of peace. "The 
liquor traffic aids those forces in our country/' insisted 
Mr. Wheeler, "whose loyalty is called into question at 
this hour. The liquor traffic is the strong financial sup 
porter of the German-American Alliance. The purpose 
of this Alliance is to secure German solidarity for the 
promotion of German ideals and German Kultur and 
oppose any restriction or prohibition of the liquor traffic. 
Its leaders urge its members to vote only for those who 
stand for Germanism and oppose prohibition/^ 6 j, 

It was a happy combination, for men who "shared 
Mr. Wheeler's interest in the enactment of new legisla 
tion. 

As the Anti-Saloon League in New York suggested: 
"The spirit of service and self-sacrifice exemplified in 
a wonderfully efficient and loyal staff made it possible 
to take advantage of the war situation and the confusion 
which He whom we serve has wrought among our 
enemies/' 6 

6 New York Times, November 9, 1917- 

^American Issue, New York Edition, June 14, 1919. 



28 The Dry Decade 



With its new prestige as a war measure added to the 
earlier gains which it had made while the nation was at 
peace, prohibition came into Congress three months 
after the declaration of war, in the form of Senator 
Sheppard's resolution to add an amendment to the 
Constitution of the United States. 

This resolution was not the Eighteenth Amendment 
as we know it now, but a shorter and simpler amend 
ment favorably reported to the Senate on June nth by 
the Committee on the Judiciary. The Amendment in 
this shorter form consisted of two sections, one prohi 
biting the "manufacture, sale or transportation'' of 
intoxicating liquors for beverage purposes; the other 
granting Congress " power to enforce this article by 
appropriate legislation/' 7 This second article reserved 
to the states their right "to enact and enforce laws 
prohibiting the traffic in intoxicating liquors," but said 
nothing on a point which has subsequently become the 
subject of bitter controversy: namely, the question of 
" concurrent " power for the states to enforce the 
federal Amendment. The word "concurrent" was not 
mentioned. 

In this simpler form the Amendment was brought 
before the Senate on July soth, debated for three hours 
on that day, four hours on the next, and six hours the 
day following, most of the debate on the third day be 
ing limited to ten-minute speeches under a rule to 
which the Senate had agreed. 

Considering the dimensions of this question, the 
enormous number of people whose personal conduct 
' 'Congressional Record, 65th Congress, ist Session, p. 5548. 



The Adoption of the Eighteenth Amendment 29 

was involved, and the apparently irrevocable character 
of the decision, it might be thought that thirteen hours 
of debate, much of it under a ten-minute rule, failed to 
provide an adequate time in which to dispose of one of 
the most far-reaching resolutions in the history of the 
American Republic. It is doubtful, however, whether 
the result would have been appreciably different if the 
Senate had talked for a longer time. A victory for 
the resolution was plainly foreshadowed from the 
start. 

On both sides the argument consisted chiefly of a 
repetition of the familiar disagreements which had 
sustained this controversy for three decades, but with 
one striking difference in the present case. The war had 
brought a new and powerful argument to the cause of 
prohibition. The friends of prohibition made the most 
of it. 

Figures were cited to prove that prohibition would 
release large numbers of men for the army, for ship 
building and munitions work. Why should the country 
permit workmen to be employed in the useless manu 
facture of intoxicating liquor, asked Mr. Kenyon of 
Iowa, "when there is a shortage of labor in the im 
portant and necessary work to carry on the war?" 8 

More figures were cited to prove that by shutting off 
grain from the breweries and distilleries the country 
would save the equivalent of 11,000,000 loaves of bread 
a day "enough to supply the bread needs of the 
English, French, and Italian armies," Congress was 
told, "counting the bread ration at a little less than 
one pound a day per soldier" and "much more than 
enough to supply the entire bread relief of Belgium." 9 

^Congressional Record, 65th Congress, ist Session, p. 5639. 
9 Ibid., p. 5655. 



3O The Dry Decade 

Why should Congress hesitate to act, asked Mr. 
Thompson of Kansas, when by adopting the Amend 
ment it could "contribute more to the final success and 
victory in the present war" than by any other action it 
could take ? 10 

Whether such arguments as these changed any votes 
on the floor of the Senate, or whether the die was cast 
before the debate began, it is impossible to say. In 
either case, in a short and somewhat unreal debate the 
Senate spent a large part of its time discussing details. 
Most of the real dispute, and most of the Senate's 
thirteen hours, was devoted to the question of the 
precise form in which the proposed Amendment should 
be worded. Five attempts were made to alter the 
language of the Amendment. The first four failed. The 
fifth succeeded. 

The first attempt was made by Senator Hardwick 
of Georgia, who insisted that if the friends of prohibi 
tion were sincere in their stated wish to make the 
country dry they ought to be bold enough to forbid not 
only the "manufacture," "sale," and "transportation" 
of intoxicating liquor, but also its "use" and "pur 
chase." Mr. Hardwick therefore moved to add these two 
words to the resolution. He would have made the 
Eighteenth Amendment less equivocal and far more 
drastic, but too drastic for a cautious Senate. No such 
vigorous language as this was really needed, said the 
author of the resolution, Mr. Sheppard. In fact, it would 
prove to be a waste of words. For once manufacture was 
stopped and sale was stopped, there would be no liquor 
on the market and hence no risk of use or purchase. 11 

^Congressional Record, 65th Congress, 1st Session, p. 5619. 
ll llid., p. 5647. 



The Adoption of the Eighteenth Amendment 31 

By a vote of 62 to 4 Mr. Hardwick's amendment was 
defeated. The small company of four consisted of Mr. 
Hardwick himself, Mr. Reed of Missouri, Mr. Brous- 
sard of Louisiana, and Mr. Harding of Ohio. 

The next three efforts to change the resolution were 
equally unsuccessful. Two proposals were made to 
exempt beer and wine from the Amendment and limit 
it to hard liquor; one proposal to recompense the 
brewers and distillers for damages they would suffer. 
Apparently none of these proposals was offered in the 
hope that it would be accepted. None was seriously 
debated by the Senate. All were easily defeated. 

There remained one other plan to change the res 
olution. This was the proposal made by Mr. Harding 
of Ohio to put a time-limit of six years on the process 
of ratification by the states. 

A few of the friends of prohibition, including Mr. 
Borah, suspected the motive behind this plan and 
vigorously denounced it. 12 Other friends, however, were 
willing to accept the proposal, not because they wanted 
it, but because it seemed to them a necessary compro 
mise. Mr. Jones of Washington frankly admitted that 
without a time-limit there was grave danger of the 
whole Amendment being voted down. "A very careful 
investigation has convinced some of us that a two 
thirds vote is very uncertain unless this limitation is 
put on." 13 This argument proved to be decisive. With 
most of the drys rallying to its support, Mr. Harding's 
proposal was accepted. 

Ten minutes later came the final test. By the top- 

^Congressional Record, 65th Congress, 1st Session, pp. 5649- 
5650. 

p. 5658. 



32 The Dry Decade 

heavy vote of 65 to 20 the Senate adopted the Amend 
ment and the battle shifted to the House. 14 



There occurred at this point an interlude of four and 
a half months, during part of which time Congress stood 
adjourned. It was on August ist that the Senate gave 
its approval to Mr. Sheppard's resolution and not until 
December iyth that the resolution came before the 
House. Meantime the House Committee on the Judici 
ary had made certain interesting changes in its text. 
The six years proposed as a time-limit on ratification in 
the Senate draft was changed to seven; a new provision 
was added, giving the brewers a year of grace before the 
Amendment took effect; the word "concurrent" made 
its appearance for the first time in a totally new section 
which declared: "The Congress and the several States 
shall have concurrent power to enforce this article by 
appropriate legislation/ 5 

The first two of these three changes can be explained 
by what Mr. Wheeler later called "a trade in jack- 
knives." 15 The wets had asked for the year of grace; 
the drys consented on condition that the six year limit 
for ratification be raised to seven. On this basis the two 
sides struck a bargain. 

The third change raised a more important question, 
though the House showed little interest in it at the 
time. Casually, and without seeming to recognize that 
it was sowing the seeds of a bitter controversy, the 
Judiciary Committee introduced that section of the 

14 The vote of the Senate on the Amendment will be found in 

Appendix B. 
"New York Times, March 31, 1926. 



The Adoption of the Eighteenth Amendment 33 

Eighteenth Amendment which gives the states "con 
current" power to enforce: a section destined to be 
come the subject of an endless quarrel between those 
who believe that the Eighteenth Amendment places an 
obligation on the states and those who deny this 
theory. The House seems to have had no premonition 
of the dispute which lay ahead. As casually as its com 
mittee had proposed the plan, the House adopted it 
without bothering to debate the question even for five 
minutes. 

For this alacrity it is not difficult to find an ex 
planation. Here was a proposal which seemed somehow 
to involve the states in the problem of enforcing the 
Amendment. Any proposal directed toward this end, 
promising to relieve Congress of a heavy burden, was 
obviously welcome to the House. As the chairman of 
the committee said: "We do not want ten thousand 
federal officers, with all the expense of salaries, going 
over the country enforcing these laws when the states 
have their own officers to do so and are willing to do 
so/' 16 The House wholeheartedly agreed. But whether 
all forty-eight states would actually prove to be 
"willing to do so" and what would happen if they were 
not willing, the chairman of the committee did not 
explain. The House asked him no questions. 

As in the Senate's case, debate on the whole question 
of the Amendment occupied less time than the House 
frequently devotes to a revenue measure or a public 
buildings bill. The Senate had given the resolution part 
of three days' time. The House encompassed it at a 
single session beginning at eleven in the morning and 
lasting until six at night. 

Much of the debate, as in the Senate's case, re- 
l *Congrcssional Record, 6sth Congress, 2d Session, p. 424. 



34 The Dry Decade 

hearsed familiar arguments. Much of it stressed the im 
portance of national prohibition as a contribution to 
the winning of the war striking "the mightiest blow 
possible at the Prussian idea/' as Mr. Kelly of Pennsyl 
vania put it 17 though it seemed clear that the Amend 
ment could not take effect until the states had ratified 
it and the brewers had received their year of grace, a 
process which was not likely to be completed until the 
war was over and the nation was again at peace. 

Nevertheless, it was inevitable that the war should be 
discussed and that it should arm with a fresh argument 
those members of the House who were convinced that 
prohibition was sound policy. The opponents of the 
Amendment derived no similar comfort from the war. 
They had only the case which they had argued many 
times before and the conviction that prohibition could 
not be made successful in the communities they repre 
sented. These communities were for the most part cities 
in the North. But in their opposition to the Amendment 
the spokesmen of these cities were joined by a small 
company of old-fashioned Democrats, personally dry, 
from the dry South. 

It was Mr. Small of North Carolina who insisted that 
his own state, believing in states' rights, could not 
consistently claim the right to establish a standard for 
other states, 18 and Mr. Slayden of Texas who warned 
the House that it ought not to place a contentious 
question in the Constitution where any change was 
subject to the veto of one quarter of the States. 19 But 
the sharpest attack on the Amendment and perhaps 
the clearest statement of the traditional Southern point 

^Congressional Record, 6sth Congress, 2d Session, p. 438. 
l *Ibid., p. 434. 
ig lbid., p. 439. 



The Adoption of the Eighteenth Amendment 35 

of view came from a gentleman no longer identified with 
this side of the question Mr. Heflin of Alabama. 20 

Describing himself as a dry whose devotion was 
proved by years of service, Mr. Heflin raised the ques 
tion of whether it would help the cause of prohibition to 
impose this law upon states which were unwilling to 
accept it of their own volition. "The question is: Will 
we be patient and tolerant enough to accord to other 
states the right to settle the whisky question as we our 
selves settled it through the rights and powers reserved 
to the states ? Gentlemen, are we willing to take away 
from the state that sovereign power without whose 
exercise we would not now have prohibition in any 
state in the Union, and, in taking that power away, 
surrender forever the right and power of the state to 
control its own domestic affairs?" 

In Mr. Heflin's judgment, no emergency had arisen 
which would justify interference by the federal govern 
ment in the time-honored prerogatives of the states, 
Not only would this interference be unwarranted. It 
would be unwise. "All candid people must admit that 
the wisest and best way to handle the whisky question 
is through the exercise of the police power of the state/' 
The state was the natural unit for control of purely 
domestic questions of this sort. Standards varied in 
different states. Public opinion varied. Some states 
wanted prohibition. Well and good: "When you get 
prohibition that way you have a strong and sympathet 
ic public sentiment to sustain the state in its action/' 
But the proper process was one of education and free 
choice; the goal could not be reached "by depriving the 
people of the states of the right and power to do that 

^Congressional Record, 6$th Congress, 2d Session, pp. 457- 
458. 



36 The Dry Decade 

which they can do and do more wisely and effectively 
than can the federal government/' 

Finally, unwise and unwarranted, this proposal^ 
seemed also to Mr. Heflin to be fraught with danger. 
For it seemed to him in 1917 to foreshadow the possi 
bility of open resistance by reluctant states. "Why, Mr. 
Speaker, in 1776 the thirteen colonies took up arms 
against the mother country because they were denied 
the right to shape their own domestic policies and to 
manage as each colony thought best its own domestic 
affairs. . . . Mr. Speaker, I regret to see that some 
gentlemen here from the South in their enthusiasm for 
certain federalistic theories on prohibition do not seem 
to realize that we are treading on dangerous ground." 

The House voted, a few hours later. By a majority 
of ^282 to I28jt overrode the last defenders of the dying 
theory of states' rights and adopted the Amendment. 21 



It is one of the anomalies of the story of prohibition 
that those sections of the country which were ultimate 
ly to show themselves most bitterly opposed to this 
decision paid least attention to it at the time that it was 
made. 

This was a moment of triumph for the drys. The wets 
seem scarcely to have observed their own defeat. It is 
difficult to find any trace of organized protest against 
the Eighteenth Amendment either during 1917, when 
Congress was debating it, or for some time thereafter. 

No memorials were adopted by the state legislatures 
petitioning Congress to change its mind. No demonstra- 

21 The vote of the House on the Amendment will be found in 
Appendix C. 



The Adoption of the Eighteenth Amendment 37 

tions of hostility took place in the wet centers of the 
country. The press of the larger cities reflects small 
interest in the question, either in its letter columns or 
its news. During the whole period of four months which 
intervened between action by the Senate and action by 
the House, when it might have been expected that the 
opponents of this change would do their best to block 
action or delay it, the columns of the New York Times 
reveal only eight brief items of news concerned with the 
Amendment and a single letter of protest from one 
indignant reader. 22 

Even a year later the fact that Congress had actually 
adopted the Eighteenth Amendment and referred it 
to the states for action seems scarcely to have pene 
trated to the consciousness of such centers of potential 
opposition as New York. In this year, 1918, Alfred E. 
Smith was running as a candidate for Governor against 
Charles S. Whitman, with New York's action on the 
Amendment still in doubt. This would seem to have 
presented an opportunity for a memorable debate on the 
issue of prohibition. Yet, despite this opportunity, Mr. 
Smith seems to have made his campaign on the issue of 
public utility regulation and Mr. Whitman on the issue 
of Tammany Hall and Mr. Smith's appointments as 
Sheriff of New York. There is nothing in the Times 
to indicate that from one end of the campaign to the 
other either candidate so much as mentioned the word 
"prohibition" in a single campaign speech. 

The obvious explanation of this lack of interest dur 
ing 1917 and 1918 lies in the fact that during these two 
years a still larger story absorbed the interest of the 
nation. 

w New York Times, August 4, November 9, 15, and 23, De 
cember 3, 10, ii, 12, and 16, 1917. 



38 The Dry Decade 

On June 12, 1917, when the Judiciary Committee of 
the Senate favorably reported the Eighteenth Amend 
ment and the Times was recording this news on page 13^ 
the first American troops were on their way to France, 
the Italians had launched their offensive on the Tren- 
tino, and the British were attacking south of Ypres. 

On July 3 ist, when debate on the Amendment had 
begun in the Senate and the Times found a place for it 
in an inside column on page 5, the Battle of Flanders 
was in progress, Kerensky was experimenting with a 
new government in Russia, and the German fleet had 
mutinied at Wilhelmshaven. 

In August, September, October, and November, 
while the Sheppard resolution was marking time after 
its adoption by the Senate, and its enemies were plainly 
neglecting an opportunity to rouse opposition to its 
passage in the House, the French were attacking at 
Verdun, a British army was marching into Palestine, 
the Germans were in retreat from the Chemin des 
Dames, the Austrians were driving into Italy, the Bol- 
sheviki were overthrowing the Kerensky government in 
Russia, the second Liberty Loan was being raised in the 
United States, and the first American troops had faced 
the fire of German guns in France. 

Certainly in these circumstances it would have been 
idle to expect the American public to keep alive and 
clearly focused its interest even in so large a question as 
national prohibition. 

The war not only shifted the attention of the Ameri 
can public away from prohibition. The intensity of 
public interest in the war permitted those Americans 
who were opposed to action on this question to believe 
in some vague way that the whole agitation for pro 
hibition, like the war itself, was something transient, 



The Adoption of the Eighteenth Amendment 39 

incidental to an emergency, and in due time bound to 
disappear. 

It was this feeling which unquestionably accounts 
for the insistence by wets and even lukewarm drys on a 
time-limit of six or seven years on the process of ratifica 
tion. Whatever Congress itself might do, in the interest 
of war efficiency and under the stress of war emotion, 
the fact remained as a check on war excitement that the 
opposition of any thirteen states was enough to block 
adoption of the Amendment. 

It was the mistaken notion of the opponents of pro 
hibition that thirteen hostile states could hold out 
comfortably for seven years. 



V 

It was on January 8, 1918, in the fourth week follow 
ing the action of Congress, that the first state ratified 
the Eighteenth Amendment. This state was Mississippi. 
Its action was prompt and overwhelming. Within fifteen 
minutes after the Governor of the state submitted the 
question to the legislature, both Houses had arrived at 
their decision. 23 There was no debate. The roll call was 
impressive. A total of 122 votes was cast in favor of 
ratification against 8 votes opposed. 

This was an auspicious start, and it soon became ap 
parent that there were certain forces operating in 
favor of ratification which had not been assessed at full 
value by the wets who put their faith in the effective 
opposition of a handful of reluctant states. 

In the first place, these gentlemen overlooked the 
fact that the battle was now to be fought in the state 
capitals and that it was precisely in the state capitals 
^Associated Press dispatch, Jackson, Miss,, January 8, 1918. 



40 The Dry Decade 

that the Anti-Saloon League and its allied organizations 
had been functioning most effectively for more than 
twenty years. 

The Anti-Saloon League understood the methods of 
state legislatures. It knew how to swing pivotal votes 
when they were needed. Mr. Wheeler has described how 
this was done in several cases during the fight over 
ratification which had now begun. 24 The opponents of 
the law, meantime, had no such effective organization. 
In fact, they were not organized at all. The only organ 
ized opposition to ratification came from the brewers 
and distillers. The brewers were under fire as pro- 
German. The distillers had been outlawed for the 
duration of the war. Ordinary people who were neither 
brewers nor distillers, but who were opposed to prohi 
bition on principle or as a matter of personal taste, had 
no organization to represent them at the state capitols, 
no lobby and no leaders. 

In the second place, it soon became apparent that 
the war would play a positive part and not merely a 
negative part in the ratification of the Amendment. For 
while the war overshadowed the Amendment and kept 
it from becoming the burning issue which it might 
otherwise have been, the war also served effectively to 
identify patriotism with the cause of prohibition. 

Canada was going dry in 1918, setting a persuasive 
example as our senior partner in the war for the United 
States to follow. 

The United States itself was going dry, even in ad 
vance of the Eighteenth Amendment and without its 
aid, for the same reason which prompted action in the 
case of Canada: namely, for the purpose of conserving 
food. Under the Food Control Law adopted in August, 
York Times, April i, 1926. 



The Adoption of the Eighteenth Amendment 41 

1917, the distilleries were already closed. Now, in 
September, 1918, the government decided to close the 
breweries as well as the distilleries, partly because of a 
drought which had damaged crops and partly because 
of a labor shortage and the necessity of drafting more 
men for the army. 25 

Finally, in this same month September, 1918 
Congress gave its approval to a plan for "war-time" 
prohibition on a national scale. Ironically enough, the 
bill carrying this provision did not become a law until 
fourteen days after the war was over and did not actu 
ally take effect until the seventh month of peace. 
Nevertheless, the approval of the proposal by Congress 
precisely at the time when the state legislatures were 
acting on the Eighteenth Amendment once more 
linked the cause of prohibition with the war. 

This cause already had effective leadership. It had 
the momentum of the gains which it had made while the 
nation was at peace. It had the precedent of some form 
of prohibition adopted in twenty-six states before 
April, 1917, and in nine new states during the war 
period. 26 It had the support of many thousands of 
devoted friends who did not lose their interest in it 
merely because the government of Russia was falling 
or the French were attacking at Verdun. It had the 
prestige of an overwhelmingly favorable vote in Con 
gress. It had the assistance of the bright bonfires which 
the Anti-Saloon League now began to build behind 
various state legislatures which seemed reluctant^ to 
take action or more interested in what was happening 
in Europe. 27 The net result of all these factors was a 

26 New York Times, September 7, 1918. 

26 Cf. Appendix A. 

27\Vayne B. Wheeler, New York Times, April i, 1926. 



42 The Dry Decade 

prompt and favorable vote even in many of the wet 
states and the completion of the process of ratification 
in an almost incredibly short time. 

It was on January 8, 1918, that Mississippi ratified 
the Amendment. During the same month Virginia, 
Kentucky, South Carolina, and North Dakota added 
their vote to Mississippi's. Eight more states took ac 
tion before the end of spring. Two states voted favor 
ably in the fall; and twenty states added their approval 
suddenly in the first fifteen days of January, 1919. 

This brought the total to thirty-five. At 10:32 on the 
following morning January 16, 1919 the upper House 
of the Nebraska Legislature voted for ratification by the 
comfortable majority of 31 to i, and three quarters of 
the states had fallen into line. 



The process of ratification was complete. The battle 
in the state legislatures had ended in a rout. Prohibition 
took its place in the Constitution of the United States. 
The drys had scored their triumph. The wets have 
never to this day agreed that the test of strength was 
fairly staged and that the Eighteenth Amendment was 
ratified with the declared approval of a majority of the 
American people. There are three chief points which 
they still cite in support of this contention. 

In the first place, they insist that ratification was the 
result of war psychology and the identification of pa 
triotism with prohibition as a means of saving food. 
They insist that the war was at all times dominant in 
the discussion of the Amendment, from the day it ap 
peared before the Senate down through the debate on 
the question of ratification in the states, and that 



The Adoption of the Eighteenth Amendment 43 

without the war the Amendment would never 'have 
been adopted. 

In the second place, they insist that the quarrel over 
prohibition was in large part a dispute for power be 
tween rural districts and urban districts, and that in 
this dispute the rural districts had more than their due 
share of representation in the state legislatures which 
ratified the Eighteenth Amendment. 

It is impossible to dispute this argument successfully, 
in so far as it applies to many large industrial states. 
In New York, for example, one voter in rural Putnam 
County had as much representation in his State As 
sembly on the question of ratification as four voters in 
Rochester, five voters in Syracuse and as many as seven 
voters in certain districts of New York City. 28 Similar 
conditions existed (and still exist) in other industrial 
states. In Michigan one voter in rural counties like 
Antrim, Alpena, Livingston and Midland had as much 
representation in the State House of Representatives 
as two and a half voters in Detroit. 29 This situation, 
however, was not produced by prohibition. Prohibition 
simply profited in certain states from the traditional 
methods by which the American people achieve self- 
government. 

In the third place, the opponents of prohibition 

insist that the Eighteenth Amendment was never 

ratified in the sense that either of the major parties 

first declared itself in favor of such action at a national 

convention and then submitted the question to a 

popular vote. Obviously nothing of the sort happened. 

Neither the Republican nor the Democratic party had 

ever declared itself in favor of national prohibition. 

**New York State Manual, 1919, pp. 577> S7$> 59- 

^Michigan Manual, 1919, pp. 822-823. 



44 The Dry Decade 

No President had ever been elected on this issue. No 
state except Ohio ever submitted the question of 
ratification to a popular vote. In Ohio a small majority 
declared against ratification, 30 though the state itself 
had recently been voted dry. In no other state did any 
voter go to the polls to cast a ballot on the question. 
All this is obvious. The reply made by the drys is that 
the Amendment was ratified in strict accordance with 
the provisions of the Constitution. 

These are the three chief points which the wets cite 
in support of their contention that the Eighteenth 
Amendment never had the sanction of the country as a 
whole. A different set of arguments is available to the 
drys. 

They can point out, first, that the Eighteenth 
Amendment was ratified not only by the twenty-six 
states which had adopted some form of prohibition as 
their policy before the war, but also by twenty others, 
includmg such traditionally wet states as New York, 
New Jersey, and Wisconsin. 31 

They can point out, second, that the vote in most 
of the legislatures of these states was overwhelmingly in 
favor of ratification; that in fifteen states it was a unan 
imous vote either in one House or both; and that only 
in five states New York, Illinois, Wisconsin, Louisi 
ana, and Pennsylvania was it even close. 

They can point out, finally, that more than 80 per 
cent of the members of all the state legislatures in the 
country voted in favor of ratification, and they can 
insist that not even war psychology explains a vote so 
heavily one-sided. 

30 New York Times, December 18, 1919. 
81 The votes of the forty-six state legislatures which ratified 
the Eighteenth Amendment will be found in Appendix D. 



The Adoption of the Eighteenth Amendment 45 

With this argument, however, we merely return to 
the point from which we started, and the contention of 
the wets that this is just what happened. For it is 
precisely the one-sidedness of the vote, the haste with 
which it was taken, the failure to ask for the guidance of 
popular referendum^, and the heavy emphasis on pro 
hibition as good patriotism which seem to the wets to 
supply convincing proof that the state legislatures were 
stampeded into action under pressure of the war. 

No method will ever be devised for ascertaining how 
much truth lies in this argument and how much in the 
argument used in rebuttal by the drys : their insistence 
that the war merely added pace to a process which 
would inevitably have reached the same conclusion. 
The war played a part. That much is certain. How large 
a part, wets and drys will continue to debate as long as 
the question interests them. 

Meantime, the importance of one influence wholly 
remote from the war ought not to be lost sight of. 
Whatever immediately effective political power was 
exercised in this controversy was exercised by the drys. 
From first to last the case for ratification of the Amend 
ment was presented in the state capitals by men who 
could claim to speak for millions of organized voters, 
whereas the case against ratification was presented for 
the most part by individual objectors who represented 
only the force of their own convictions, eloquently 
expressed, but less persuasive to the average member of 
a legislature than a visible bloc of a thousand, five 
thousand, or ten thousand votes. 

Nothing of this sort could be offered by the oppon 
ents of ratification, now that the brewers were laid low 
and the burden of opposition rested on outsiders. For 
even after the end of the war and a revival of public 



46 The Dry Decade 

interest in domestic questions, there was no leadership 
capable of uniting an unorganized opposition overnight 
into a movement formidable enough to interest a state 
legislature. Down to the end of the story this opposition 
remained scattered, ineffective, and perpetually out of 
breath. 

A mass meeting was held in Madison Square Garden 
in New York City to denounce the adoption of the 
Eighteenth Amendment. 32 It cheered to the echo the 
demand that this law be repealed. But when the meeting 
was over, it was over. A parade of twenty thousand 
people marched through the streets of Baltimore on a 
hot day in June, 33 but when it had passed the grand 
stand it disbanded. A press campaign in opposition to 
the Amendment was begun in the East by a hastily 
organized association of opponents of the law; but the 
ineffectiveness of the plans which these gentlemen 
thought up may be judged from their proposal that a 
day of protest should be set aside, to be known as 
national "Daisy Day/' on which all opponents of 
prohibition would wear this flower in their button 
holes. 34 

More serious opposition developed in the ranks of 
union labor, which had what these other movements 
lacked : real organization. At its Atlantic City conven 
tion in June, 1919, the American Federation of Labor 
denounced the adoption of war-time prohibition and 
demanded modification of the Eighteenth Amendment. 35 
Three days later this protest was carried to the doors of 
the Capitol in a stormy and spectacular demonstration 

32 New York Times, May 25, 1919. 

33 Associated Press dispatch, Baltimore, June 2, 1919. 

34 New York Times, June 23, 1919. 
.y June 12, 1919. 



The Adoption of the Eighteenth Amendment 47 

of ten thousand union workmen which lasted for three 
hours. 36 Meantime the Central Federated Union in New 
York had urged its affiliated branches to poll their 
members on the question of a strike, with the slogan 
of "No Beer, No Work." 37 This slogan spread to other 
states, and for a time the movement in favor of direct 
action by organized labor assumed formidable propor 
tions. 

In the end it petered out. No strike took place. 
Organized labor did its work and got its beer, but not 
from the hands of Congress. 



This was the last gesture. The fight was over, not in 
the sense that the wet cities of the country accepted the 
new law as binding upon their future conduct, for there 
is nothing in the record to suggest this compliance on 
their part, but in the sense that the last ineffective 
effort to alter the decision of the legislatures now col 
lapsed. From this point forward, the opponents of 
prohibition put what faith remained to them not in the 
legislatures but in the courts. Once more they were 
doomed to disappointment. 

Meantime, for the friends of prohibition there re 
mained only the task of consolidating their gains by the 
enactment of a law for the enforcement of the new 
Amendment so speedily written into the Constitution. 
It was a task which found them well prepared. On the 
same day that Nebraska became the thirty-sixth state 
to ratify the Amendment, the Anti-Saloon League an- 

36 New York Times, June 15, 1919. 
id., February 12, 1919. 



48 The Dry Decade 

nounced that it had already completed plans for an 
enforcement measure. 38 

This measure was introduced in the House of Repre 
sentatives by Mr. Volstead of Minnesota on May 27, 
1919, carrying provisions for the enforcement of both 
war-time prohibition, now about to become operative on 
July ist, at the beginning of the seventh month of 
peace, and of constitutional prohibition, as established 
by the Eighteenth Amendment. 

A minority of the Committee on the Judiciary in the 
House denounced this measure, demanded the repeal of 
the war-time law on the ground that the war was long 
since over and insisted that the provisions for constitu 
tional prohibition were too harsh ever to be effectively 
enforced. 39 This protest went unheeded. The drys were 
in command. There was no challenging their power. 

So foregone was the conclusion that the bill would be 
adopted precisely in the form in which the Anti-Saloon 
League wished it to be adopted that during most of the 
debate only a few members of the House took any 
part in the discussion on the floor. Certain amendments 
were actually adopted or rejected by votes as small 
as 26 to 14, 48 to 4, and 41 to 6, 40 with a handful of 
drys in command of the situation, and a few wets on 
the mourners' bench. On the final question of adoption 
the House turned out for the sake of the record and by 
a vote of 287 to 100, approximately the same vote as 
the vote on the Amendment, approved the bill and sent 
it to the Senate. 

There one interesting change was made in it: the 

38 New York Times, January 17, 1919. 
**Ibid., July 8, 1919. 

^Congressional Record, -66th Congress, 1st Session, pp. 2968, 
2964, 2966. 



The Adoption of the Eighteenth Amendment 49 

insertion of a provision guaranteeing the farmer's un 
questioned right to possession of sweet cider which 
would later turn to hard; 41 but for the rest, no signif 
icant change was made in the bill; the Senate's debate 
was listless; and after two days of almost casual dis 
cussion, during which the hope of the wets sank to a 
vanishing point, the Volstead bill was adopted by the 
Senate without even the formality of a roll-call vote. 42 

For one brief moment the hope of the wets flared into 
flame again. This was on October zyth, when President 
Wilson suddenly returned the bill with his veto, to the 
astonishment of the Anti-Saloon League and of Con 
gress. 43 The stated ground for this veto was the fact 
that Congress had lumped war-time prohibition with 
constitutional prohibition, that the emergency of the 
war had long since passed, and that this section of the 
law should be repealed. To this comment the President 
added, speaking more generally: "In all matters having 
to do with the personal habits and customs of large 
numbers of our people, we must be certain that the 
established processes of legal change are followed. In no 
other way can the salutary object sought to be ac 
complished by great reforms of this character be made 
satisfactory and permanent/' 

Whether this comment implied disapproval by Mr. 
Wilson of that section of the bill dealing with con 
stitutional prohibition as well as war-time prohibition 
has subsequently become the subject of lively dis 
agreement. It is an interesting but academic point. 

For within two hours of the time when the President 

41 New York Times, September 5, 1919. 

^Congressional Record, 66th Congress, 1st Session, p. 4908. 

The text of the Volstead Act will be found in Appendix E. 
43 New York Times, October 28, 1919. 



So The Dry Decade 

sent his veto message to Congress, the House overrode 
his veto by a vote of 176 to 55, and on the next day the 
Senate followed suit. 

It was the end of the road. An experiment to be 
described a decade later by another President as noble 
in motive and far-reaching in purpose was now about to 
start. 



CHAPTER III 
The Law in Action 



IT is here at last dry America's first birthday/' 
said a statement given to the press by the Anti-Saloon 
League of New York on January 15, 1920. "At one 
minute past twelve to-morrow morning a new nation 
will be born. . . . To-night John Barleycorn makes his 
last will and testament. Now for an era of clear thinking 
and clean living! The Anti-Saloon League wishes every 
man, woman and child a happy Dry Year." 1 

It is difficult now to re-create the mood in which this 
adventure started, but there can be no doubt of the 
faith of the prohibition leaders that liquor was effec 
tively banished from the United States by the Eigh 
teenth Amendment. There were no reservations in the 
assurance with which these leaders faced the future. 
It did not seem to them then, in the hour of their 
triumph, that this law might be difficult to enforce, that 
too much must not be expected of it all at once, that 
the results of its first year or even its first decade must 
be viewed with leniency, and that the nation would be 
fortunate if a law so revolutionary were effectively 
established in a generation. 

On the contrary, the dry leaders were plainly ready to 
date the dawn of prohibition in the United States from 
*New York Herald, January 15, 1920. 



52 The Dry Decade 

the day when the law became effective, and it is not 
difficult to understand their confidence. Having cham 
pioned prohibition for thirty years as a solution of the 
liquor problem, their faith was too deeply founded to 
harbor skepticism. They believed that the law could be 
enforced and would be enforced, promptly, effectively 
and to the immediate advantage of the country. Even so 
experienced a campaigner as Mr. Wheeler saw no rea 
son why the government should encounter any real 
difficulty in enforcement. "I think five millions a year 
appropriated to enforce this law would be ample/' said 
Mr. Wheeler in a letter read on the floor of the Senate at 
this time, " and if the liquor dealers suddenly become law- 
abiding it can be reduced when the need disappears/' 2 

So authoritatively optimistic were the drys, and so 
completely routed were the wets, that most of the dis 
cussion of prohibition which took place at this time was 
concerned less with the problem of enforcement than 
with the effect which enforcement would have on the 
business and social life of a country suddenly changed 
from wet to dry. 

Various manufacturers of luxuries and near-luxuries 
were interviewed by the press on the effect which this 
change would have on the sale of jewelry, furs, and 
motor cars. The Actuarial Society of America debated 
the question of insurance rates in the light of a decreased 
consumption of alcohol as against a probable increase 
in the use of sugar. 3 The New York Times quoted a 
representative of the arts who predicted that prohibi 
tion would be followed by a great boom in the music 
trade. 4 Only the California grape growers seemed to be 

^Congressional Record, 66th Congress, 2d Session, p. 5655. 

3 New York Times, October 24, 1919. 

*Ibid., May 9, 1920. 



The Law in Action 53 

discouraged. Congress had been told that prohibition 
would bankrupt thousands of California farmers, and 
to the bitter end the Grape Growers' Protective 
League fought the constitutionality of the law with 
every device at its command, going so far as to obtain 
a writ of injunction against the action of the California 
legislature in ratifying the Amendment. 5 When the law 
finally took effect, one vineyard owner killed himself 
because the outlook seemed so dark. 6 

In January, 1920, the grape growers of California do 
not seem to have foreseen the bonanza that lay just 
around the corner. 



It was at midnight on January i6th that the law took 
effect and twenty-four hours later that the public re 
ceived its first enforcement news. "Four stills, two in 
Detroit and two in Hammond, Indiana, were raided 
yesterday in the government's crusade against violators 
of the Volstead Act/' said an Associated Press dispatch 
from Chicago on January lyth. "The raided stills, ac 
cording to A. V. Dalrymple, head of the Central West 
prohibition forces, were operating on a major scale/' 

The country was dry. Prohibition had come. The 
Constitution itself forbade the manufacture of intoxi 
cating liquor. It seems clear, however, that there was no 
sharp break between the old and new, in the sense that 
manufacture ceased abruptly for a time and only at a 
later date did illicit stills begin to flourish. The stills 
were present from the start, obviously prepared to 

^Associated Press dispatch, San Francisco, January 14, 1919. 
^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, ist Session, p. 20, 



54 The Dry Decade 

carry on the business of manufacture without interrup 
tion. 

Such a development was logical in the circumstances. 
Prohibition did not suddenly develop the illicit still 
Moonshining antedated the Eighteenth Amendment 
by many years. It was carried on in the backwoods 
sections of the country by men who sought to evade the 
payment of a government tax and carried on so exten 
sively that over a period of forty-three years from 1876 
to the date when the Eighteenth Amendment became 
effective a total of 66,794 st ^ s were seized by agents 
of the Bureau of Internal Revenue. 7 

What happened now was merely that the illicit still, 
which had hitherto been merely a mechanism of tax- 
dodging, became the main source of production of hard 
liquor and under the stimulus of a new market flour 
ished on a more ambitious scale. In the forty-three 
years from 1876 to 1919 the government had seized an 
average of 1,553 stills a year. In the first six months of 
1920, following the date when the Eighteenth Amend 
ment became effective, the government seized 9,533 
stills 8 an increase, for a six months' period, of 1127 
per cent. 

Moreover, prohibition had this second result on the 
production of liquor by illicit stills. If it established a 
new and wider market for the still large enough to 
operate on a commercial scale, it also popularized the 
small portable still, designed to cheat the law through 
a process of home manufacture. 

^Annual Reports of the Commissioner of Internal Revenue; 
Prohibition Commissioner Woodcock, New York Times, 
October 12, 1930; Statistics Concerning Intoxicating Liquors, 
United States Treasury Department, 1930, p. 63. 
^Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. 64. 



The Law in Action 55 

On January 28th, the twelfth day of national pro 
hibition, a force of federal agents set out from the 
Customs House in New York City in what was de 
scribed as "the greatest campaign ever conducted 
against violators of the prohibition law/' a phrase which 
was destined to become familiar. The goal of this drive 
was a round-up of one-gallon stills which, even as early 
as the second week of national prohibition, were thought 
to be in wide use throughout the city. 

"Any person caught with one of these stills in his 
possession will be proceeded against at once," said the 
Federal Prohibition Administrator in New York. 9 "I 
advise everybody who has one to bring it to my office 
immediately." On the following day, no stills hav 
ing been surrendered, the Federal Administrator an 
nounced that his men would promptly begin to search the 
city for them. 10 For this purpose he had at his disposal a 
staff of 178 agents to distribute among 1,278,431 homes. 

Both the commercial still and the small still for 
kitchen use thus made their appearance promptly, in 
the first two weeks of prohibition. They date from the 
first days of this experiment, playing a part in the prob 
lem of enforcement in dry states as well as wet states. 
In February, 1920 the first full month of national 
prohibition 103 stills with an aggregate capacity of 
7,194 gallons were seized and destroyed by federal 
agents in Alabama. 11 In North Carolina, South Carolina, 
Virginia, Kentucky, and Tennessee, the number of 
commercial stills seized by federal agents assigned to 
this district averaged for each state 157 stills a month, 12 

9 New York Times, January 29, 1920. 

1Q Ibid. y January 30, 1920. 

"Associated Press dispatch, Talladega, Ala., March 13, 1920. 

12 Associated Press dispatch, Louisville, January 28, 1921. 



56 The Dry Decade 

From the point of view of effective enforcement of 
the law, the obvious problem presented by a still was the 
difficulty of finding it when it was hidden away in 
miniature form in a city home or in its commercial form 
concealed in some thicket or some hollow so inaccessi 
bly placed that even the owner of the land on which it 
stood might be unaware of its existence. 

A case in point occurred during these early months 
when a still with a capacity of 130 gallons daily was 
found operating five miles north of Austin, Texas, on 
the farm of Senator Morris Sheppard, author of the 
Eighteenth Amendment. 13 



If the question of illicit stills raised a problem for 
the government, there is nothing in the record to sug 
gest that the prompt appearance of this problem 
tempered the optimism shown by officials of the Pro 
hibition Bureau 14 in their early statements to the press. 

The Treasury Department had brought to Wash 
ington, as the first Prohibition Commissioner in the 
history of the United States, an Ohio Lawyer and a 
former member of the Ohio Legislature John F. 
Kramer, a devoted dry. This man was not a party boss. 
He controlled no votes. He had no experience in the 
business of party plunder. He was an unknown in 
Washington, a disinterested outsider, a lifelong friend of 

13 New York Times, September 7, 1920. 

14 " Prohibition Bureau" did not become the official title of the 
government's enforcement service until March 3, 1927. 
Previous to this time the service was known as the "Pro 
hibition Unit." In order to avoid confusion, however, the 
phrase " Prohibition Bureau" is used throughout this book. 



The Law in Action 57 

prohibition, and a champion whose first announcement 
to the press breathed confidence and fire: "This law 
will be obeyed in cities, large and small, and in villages, 
and where it is not obeyed it will be enforced. . . . The 
law says that liquor to be used as a beverage must 
not be manufactured. We shall see that it is not manu 
factured. Nor sold, nor given away, nor hauled in any 
thing on the surface of the earth or under the earth or 
in the air." 15 

Nevertheless, despite the finality of this statement 
and the confidence with which it bristled, it rapidly 
became apparent that the law would encounter a 
variety of problems which had not been anticipated by 
its authors. An immediate expansion of the business 
of illicit distilling was one of these problems. Others 
cropped up with a disconcerting promptness which is 
evident in the calendar of the first official efforts at en 
forcement. 

January 16: The law took effect. 

January 31: Congress was informed that wholesale 
smuggling of liquor was in progress on the borders. In a 
letter to the Appropriations Committee of the House of 
Representatives, George W. Ashworth, director of the 
Customs Service, reported that only "an infinitesimal 
quantity " of this liquor was being seized, advised Con 
gress that it had not adequately prepared to meet the 
problem, and asked for the immediate appropriation of 
an additional $2,coo,ooo. 16 

February 19: Two agents of the Internal Revenue 
Department engaged in prohibition work were arrested 
at Baltimore on charges of corruption. 17 

15 New York Sun, January 4, 1920. 

^House Document No. 641, 66th Congress, 2d Session. 

17 Associated Press dispatch, Baltimore, February 19, 1920." 



58 The Dry Decade 

February 28: Two carloads of patent medicine con 
taining 55 per cent of alcohol were seized in Chicago by 
government officials. 18 

March 10: Federal agents in Brooklyn began a round 
up of druggists accused of selling whisky without a 
prescription from a doctor. 19 

March ig: The lower House of the Mississippi 
Legislature voted down a bill proposing to appropriate 
state funds to aid the federal government in suppressing 
stills. Major W. Calvin Wells, federal Prohibition 
Commissioner for the state, urged the members of the 
Legislature to reveal the sources of the liquor which he 
said was being sold to state officials "openly and 
brazenly/' 20 

May 8: The federal prohibition office in New 
York City complained that it was not receiving the 
support of the New York police. "We are making a 
great many arrests, but the cooperation of the local 
authorities is absolutely necessary. We don't get that 
cooperation/' 21 

May 18: A deputy collector of Internal Revenue in 
New York City engaged in prohibition work was ar 
rested on charges of corruption. 22 

May 24: Dr. Charles W. Eliot of Harvard University 
declared in an ad'dress at Boston that people with money 
and social position were helping to defeat the law. 
"These so-called "best people/ who are doing so much 
to interfere with prohibition enforcement, are causing 
a great deal of trouble in nearly all parts of the country, 

18 Associated Press dispatch, Chicago, February 28, 1920. 
19 New York Times, March n, 1920. 

20 Associated Press dispatch, Jackson, Miss., March 19, 1920. 
21 New York Times, May 9, 1920. 
. y May 19, 1920. 



The Law in Action 59 

and they are teaching lawlessness, especially to the 
young men of the country/ 923 

June 2: Captain Hubert Howard, federal Prohibition 
Administrator for Illinois, estimated that 300,000 
spurious prescriptions had been issued by Chicago 
physicians since the law became effective. 24 

June 6: The special train of the Massachusetts delega 
tion to the Republican National Convention was raided 
by prohibition agents who seized its stock of liquor. 25 

June 17: District Attorney Clyne reported that the 
dockets of the federal courts in Chicago were congested 
with prohibition cases. "Between five hundred and six 
hundred cases are now awaiting trial." 26 

June 18: The Department of Justice announced that 
it would be unable to employ special attorneys to handle 
prohibition cases because of the failure of Congress to 
provide the necessary funds. "District attorneys have 
notified the Department that they cannot enforce the 
Volstead Act without assistance and the Department 
faced the alternative of drafting men from other 
branches of work or leaving the district attorneys 
without aid in handling the mass of cases rapidly ac 
cumulating in the various districts." 27 

June 30: San Francisco was reported to be wide open 
in honor of the Democratic National Convention. 
Acting Mayor McLernaii later said: "Everybody knew 
it. The roof of the house was off, and San Francisco 
was entertaining." 28 



York Times, May 25, 1920. 
Ibid. y June 3, 1920. 
**Ibid., June 7, 1920. 
**Ibid., June 18, 1920. 

27 Associated Press dispatch, Washington, June 18, 1920. 
28 New York Times, October 7, 1920. 



60 The Dry Decade 

July 2: Jail sentences aggregating fifty-nine months 
and fines totaling $85,000 were imposed on officials of 
two companies in New York City, found guilty of with 
drawing 25,000 gallons of industrial alcohol which were 
diverted to beverage purposes. 29 

July 23: A Washington dispatch to the New York 
Times reported: " Federal authorities are greatly con 
cerned over the failure of state and city law officers to 
cooperate with prohibition agents. The fact that the 
anti-liquor laws are being flouted in many of the great 
est cities of the country causes chagrin and disappoint 
ment to the government." 30 



So reads a page from the record of the first six months 
of prohibition. One point it shows clearly. Even within 
as brief a time as half a year every major question which 
is now prominent in the problem of enforcement had 
already raised its head. 

The first important case involving the diversion of 
industrial alcohol had come to trial. The first warning 
of congestion in the courts had appeared in the form of 
a federal docket five hundred cases behind schedule in 
Chicago. The first evidence of lack of cooperation on the 
part of local authorities had reached the public in the 
lassitude of the New York police, the unwillingness of 
the Mississippi Legislature to contribute money for 
enforcement, and the complaint of federal authorities 
in Washington that they were being asked to shoulder 
the whole burden. 

Meantime stills were flourishing both in the cities 

2 ?New York Times, July 3, 1920. 
Ibid., July 25, 1920. 



The Law in Action 61 

and in the rural districts. Patent medicine was under 
suspicion. Druggists were being raided. Smuggling on 
the borders was already a serious enough problem for 
the Customs Service to report that only a fraction of 
the liquor run across the border had been seized. The 
first cases involving a new type of corruption in the ser 
vice of the government had reached the courts. The 
problem of insufficient funds had already compelled the 
Department of Justice to abandon plans to add special 
prosecutors to its staff. Dr. Eliot of Harvard was re 
buking the best people for their complaisant revolt 
against the law; and both the Republican and Demo 
cratic conventions had furnished evidence that certain 
men in public life and public office were content to 
break the law while they were writing solemn planks on 
law enforcement. 

All this had happened in six months, before the law 
had been in operation long enough for its enforcement 
officers to be handicapped by a defeatist propaganda 
launched by the wet press. 

Within a half year's time a miniature "enforcement 
problem" had shaped itself precisely in the form in 
which the country was destined to debate it ten years 
later. 



There were various ways in which these early symp 
toms of trouble might be viewed. One realistic way was 
to recognize that difficulties which had appeared so 
promptly were likely to be inherent in the law itself; 
to concede that these difficulties probably could not be 
wished away by insisting that they were inconvenient; 
and to prepare a program bold enough and sufficiently 
far-reaching to permit a real attack on the problems of 



62 The Dry Decade 

enforcement before they became too formidable to 
handle. Another way was to ignore all this and to 
assume that these early difficulties were the work 
of a few malcontents who would soon retire from the 
field. 

There were several reasons why this second theory 
was more attractive to the friends of prohibition than 
the first. For one thing, it honestly represented their 
convictions. The adoption of the Eighteenth Amend 
ment found them reluctant to believe that this law 
would encounter any difficulties which were more than 
fleeting. The failure in the past of various state prohibi 
tion laws to measure up to expectations they had been 
able to understand and even to anticipate. There was 
always the ready explanation that the trouble lay not 
with the law itself but with the neighboring wet states 
whose efforts broke it down. Once there were no wet 
states, there would be no problem. For there would be 
no liquor to defeat the law. The possibility that abund 
ant sources of liquor might be developed under cover, 
by an illicit industry strong enough to defy any efforts 
which the government was willing to expend, does not 
seem to have suggested itself to the sponsors of the 
Eighteenth Amendment as an alternative which needed 
to be considered seriously. 

There was a second reason why the friends of prohi 
bition preferred to believe that any early trouble was 
the result of sabotage rather than a warning of difficul 
ties inherent in the law. Not only did they believe this to 
be true; it was obviously good tactics for them to say so. 
For to face the question of inherent difficulties was 
to raise the question of the wisdom of the law. To 
denounce the malcontents was merely to insist on 
public order. 



The Law in Action 63 

At no stage of these early proceedings did the friends 
of prohibition raise before Congress or the country the 
question of what should be done about such matters as 
congestion in the courts, corruption in the government 
or the failure of the states to vote money for enforce 
ment. Whatever difficulties had appeared they attrib 
uted to a conspiracy against the law and not to the 
law itself: "a vicious conspiracy," as the Anti-Saloon 
League put it, at the end of these six months, "to dis 
credit and ultimately overthrow prohibition by viola 
tion and non-enforcement." 31 

Conspiracy could and should be punished. In the 
opinion of the Anti-Saloon League the right way to solve 
these problems was not to raise doubts about them, but 
to bring down the full force of the law on the heads of 
the conspirators. The courts had ample power to solve 
any problems which had yet appeared, but the courts 
were slow to act. Certain judges had shown themselves 
to be sufficiently severe. "The unstinted credit due 
them should not soften the weight of public condemna 
tion justly deserved by those recreant judges, some of 
them in territory dry even before national prohibition 
became effective, who because of personal prejudice or 
for other reasons have so dealt with violators of the 
law as to make a mockery of the administration of 
justice." 32 

Satisfied with the law itself, ready to stand on Mr. 
Wheeler's estimate of five million dollars as ample for 
enforcement and convinced that it lay within the power 
of the courts to break up a wholly artificial conspiracy 
if they chose to act, the one appeal which the Anti- 
Saloon League addressed to Congress at this time was an 
81 New York Times, September 19, 1920. 



64 The Dry Decade 

appeal for legislation which would make it possible to 
remove from the bench any judge who failed to impose 
stiff sentences on violators of the law. 33 



Powerful as were the courts, and reassuring as their 
power seemed to the Anti-Saloon League in 1920, the 
courts were at best one stage removed from the original 
factor in violations of the law: namely, illicit liquor. 
The courts, to be sure, could discourage the agents of a 
new liquor traffic by the infliction of harsh penalties if 
juries found these agents guilty. But the business of 
patrolling the traffic in illegal liquor, of organizing a 
large enough force to cope with it successfully, of detect 
ing and arresting its chief agents, of producing evidence 
against these agents which would stick in court, and of 
providing enough courts to hear this evidence with 
reasonable promptness all this was not the work of the 
courts but the work, first, of the legislatures which wrote 
laws and appropriated funds, and second, of the execu 
tive officials who administered the laws and spent the 
funds to obtain enforcement. 

The central problem in destroying an illicit trade was 
plainly the problem of shutting off its sources of supply. 
There were five chief sources of supply for the illicit trade 
which sprang up suddenly in the first six months of 
1920. It was easy to identify these sources and possible 
from the very start to appreciate what efforts would 
be required to suppress them. The problems which 
they presented could have been measured as accurately 
in 1920 as in 1930. 

^Resolution adopted at a national conference of the Anti- 
Saloon League, New York Times, September 19, 1920. 



The Law in Action 65 



The first source was medicinal liquor. It was the least 
important source but the most obvious. The Eighteenth 
Amendment had forbidden the manufacture, sale, or 
transportation of intoxicating liquor for beverage pur 
poses, but left the legality of liquor for medicinal pur 
poses intact. In these circumstances there was certain 
to be a very considerable distribution of such liquor. 
This was not a matter of guesswork but of plainly 
demonstrated fact. By July 3, 1920, before prohibition 
was six-months old, more than fifteen thousand physi 
cians and more than fifty-seven thousand druggists and 
manufacturers of proprietary medicines and extracts 
had applied for license to prescribe and to dispense 
intoxicating liquor. 34 

How was the government to make certain that none 
of this liquor was so dispensed as to defeat the purposes 
of the law ? 

The government's first task was to check the prescrip 
tions written by the doctors. Its second task was to 
supervise the druggists. It was not enough, for the 
effective enforcement of the law, to inspect the records 
from time to time. For the system by which the 
druggist obtained liquor made it easy for him to 
cheat the law, if he so desired, and still keep perfect 
records. 

On presentation of his permit the druggist withdrew 
a certain quantity of whisky. By diluting this whisky he 
could double its quantity and dispose of half of it ille 
gally. If the government wished to prevent this practice 
it must have enough inspectors to make certain that 
w New York Times, July 4, 1920. 



66 The Dry Decade 

the whisky which the druggist sold was of the same qual 
ity as the whisky he received from the distilleries. 



The second source of supply was illegal beer. Under 
the terms of the Volstead Act, breweries, or cereal bever 
age plants, as they were now renamed, were forbidden 
to manufacture beer containing more than one half of 
one per cent of alcohol but permitted to manufacture 
beer with a lower alcoholic content. It was impossible, 
however, to manufacture legal beer of a lower alcoholic 
content without manufacturing an illegal product first. 
The process of making what now came to be known as 
near-beer involved the production of genuine beer with 
an alcoholic content of three or four per cent and then 
the de-alcoholization of this beer until it reached the 
legal limit. 35 

It was the obvious result of this method of production, 
the only method by which near-beer could be produced, 
that it opened a wide doorway to violations of the law. 
Under the Volstead Act breweries continued to manu 
facture real beer, precisely as they always had. The 
question of whether they would de-alcoholize this beer 
before they sold it was a matter of good faith on the 
part of the individual brewer plus what restraint the 
government could impose upon his methods of produc 
tion. 

No real restraint was possible without a large enough 
staff of agents to police places where near-beer was sold 
in quantity, as well as places where it was made. For 
it was a common practice of less scrupulous breweries 

^Prohibition Commissioner Kramer, New York Times, April 
27, 1921. 



The Law in Action 67 

to supply distributors with alcohol which could be 
"needled" or "shot" into near-beer after it had passed 
the inspection of the government. 



The third source of supply was smuggled liquor. It 
was an important source, particularly in the early years 
of prohibition. 

The problem may be simply stated. The length of 
the Atlantic, Pacific, and Gulf coasts of the United 
States is approximately 12,000 miles. The length of the 
land borders on the north and south is 3,700 miles. The 
length of the frontage on the Great Lakes and connect 
ing rivers is 3,000 miles. The total distance vulnerable 
to smuggling by land and sea, given enough incentive to 
make smuggling profitable, is approximately 18,700 
miles. 

To prevent such smuggling, the government had in 
1920 a force of 1,550 prohibition agents, 36 whose duties 
included not only the prevention of smuggling but all 
other matters pertaining to the law. There were also 
some 3,000 active customs agents in the field. 37 A 
limited amount of assistance could be expected of the 
Immigration Service, the Public Health Service and 
perhaps even the Federal Horticultural Board, which 
had agents on the borders for other purposes. Along the 
seacoast substantial help could be expected of the Coast 
Guard. 

The problem of the government was complicated by 
three factors. First, these various services were wholly 

^Report of the Commissioner of Internal Revenue, Fiscal year 

ended June 30, 1920, p. 33. 
& House Report No. 1581, 6sth Congress, 3d Session. 



68 The Dry Decade 

uncoordinated; second, their personnel was so meager 
that if the entire staff of 1,550 prohibition agents had 
been relieved of all other duties and placed along the 
borders and the seacoast, each agent would have had 
twelve miles to cover; third, the shore line of the United 
States is richly indented with deep coves, convenient 
creeks, and long stretches of deserted beach in close 
proximity to the largest cities; for example, on Long 
Island. 

The important question was whether Congress and 
an administration now faced with the duty of enforcing 
a national prohibition law would create and maintain 
a border and coast patrol adequate to prevent the easy 
importation of illicit liquor. 

The first six months of experiment in this direction 
had brought from the director of the Customs Service 
a sharp warning that only a fraction of the smuggled 
liquor had been seized. 



The fourth source of supply was industrial alcohol. It 
was a munificent source of supply for the reason that the 
experiment with federal prohibition happened to coin 
cide precisely with the development of a large and varied 
chemical industry in the United States. Ten years earlier 
prohibition would have found this industry compara 
tively quiescent. By 1920 it was in the full swing of its 
post-war expansion, developing substitutes for German 
dyes, discovering new processes like the manufacture 
of rayon silk, and rapidly increasing the long list of in 
dustries which required alcohol for a wide variety of 
products ranging all the way from photographic films 
to anti-freezing mixture and shaving cream to smokeless 
powder. 



The Law in Action 69 

In 1910 the entire production of denatured alcohol 
in this country had been less than 7,000,000 gallons. 
By 1920 it had jumped spectacularly to 28,000,000 
gallons. 38 The problem of preventing any part of this 
28,000,000 gallons from being diverted to illicit pur 
poses was a problem not only in devising formulas 
which would make this alcohol undrinkable, but also 
in tracing the whole output through the hands of its 
successive owners from the time it left the special de 
naturing plants which manufactured it until it reached 
the ultimate consumer. 

Unhappily, the government had no power under the 
law to go beyond the original purchase of any products 
manufactured. 39 Effective enforcement of the law re 
quired that the government be given this power, plus 
"tfctotigh agents to make certain that at no point in the 
labyrinth of shippers and jobbers and manufacturers 
and wholesalers and retailers was alcohol sold to dummy 
companies which would in turn dispose of it to boot 
leggers. 



Finally, it was clear from the first day of national 
prohibition that illicit stills could be relied upon to 
furnish a large quantity of liquor and that the business 
of ridding the country of stills required an effective army 
of federal or state police. 

A commercial still representing an investment of $500 
could produce from 50 to 100 gallons of liquor daily. As 
the Prohibition Bureau pointed out, this liquor could 

^Industrial dlcohol, United States Treasury Department, 

1930, p. 48. 
* g lbid., pp. 24-25. 



70 The Dry Decade 

be made at a cost of fifty cents a gallon. 40 It could be 
sold for three or four dollars a gallon at or near the 
place of manufacture. At minimum profit a still 
operating at full capacity would pay for itself in four 
days' time. There was little to lose in having it seized. 
Another could be purchased with the profits of the 
next four days. Meantime the base of operations 
could be shifted constantly in an effort to escape 
detection. 

As for the small still in a private home: the problem 
here was Herculean. Not only could a portable one- 
gallon still be purchased on the open market for as low a 
price as six or seven dollars; in addition, the public 
libraries of the country carried on their shelves many 
books and magazines which discussed the art of dis 
tilling liquor with such commonplace utensils as wash 
boilers, steam cookers, and even coffee percolators. 

The government itself had contributed to the existing 
literature on this subject a number of such pamphlets 
as Farmer's Bulletin No. 269 (1906), Farmer's Bulletin 
No. 410 (1910), Bureau of Chemistry Bulletin No. 130 
(1910), and Department of Agriculture Bulletin No. 
182 (1915), describing in detail and with complete sim 
plicity the manufacture of alcohol from such familiar 
ingredients as apples, oats, bananas, barley, sorghum, 
sugar beets, watermelon, and potato culls. In the sim 
plest form of manufacture, all the equipment needed to 
make an evil-tasting alcohol was a tea kettle, a quart 
of corn meal and an ordinary bath towel. 

If the business of ridding the country of commercial 

stills was a battle with an unseen enemy over a wide 

front which was constantly shifting, the business of 

40 Prohibition Commissioner Haynes, New York Times, July 

1 8, 1923. 



The Law In Action 71 

putting an end to distilling in private homes was an 
effort such as no government had ever undertaken. 



Such were the potential sources of supply of a new 
traffic in illegal liquor. All that was needed to develop 
these sources and make certain that they would grow 
and prosper was a market for the goods so readily 
available. This market was assured in the circumstances 
in which the venture started. 

For though the Eighteenth Amendment had now be 
come the law of the land, there were large numbers of 
people who failed to accept this law as binding. In many 
urban sections of the country opposition to the method 
and philosophy of prohibition was deep-rooted. Most 
of the states with large industrial centers New York, 
New Jersey, Pennsylvania, Massachusetts, and Con 
necticut in the East; Illinois, Missouri, and Wisconsin 
in the central section; California in the West had 
refused to adopt state prohibition laws. In the large 
cities opposition was particularly stubborn^ as the result 
both of a prevailing set of moral values different from 
moral values in the smaller towns and the influence 
of a rich strain of recent European immigration. Time 
and again the cities had shown their opposition in the 
past. While the Eighteenth Amendment was being 
considered by Congress and the states, San Francisco, 
St. Louis, St. Paul, Chicago, Cincinnati, Cleveland, 
Detroit, and Boston all voted on a proposal for state 
or municipal prohibition and all voted to reject it. 41 

41 New York Times, November 7, 1918; ibid.; Legislative 
Manual, Minnesota, 1919, p. 624; New York Times, April 2, 
1919; Ohio General Statistics, Vol. 5, p. 25; ibid.', Michigan 
Manual, 1919, p, 868; New York Times, December 17, 1919. 



72 The Dry Decade 

The question at this point is not whether opposition 
to prohibition before its enactment was wise or unwise, 
but whether this opposition persisted after the adoption 
of the Eighteenth Amendment with enough spirit to 
make it count as one of the problems in enforcement. 
On this point there can be no doubt. The federal Pro 
hibition Bureau had itself complained at the end of its 
first half year of work that the law was being flouted in 
many of the largest cities 42 and the backwash of hostility 
in the industrial sections was already rising. 

In this same half year the legislatures of New Jersey, 
New York, and Massachusetts adopted bills proposing 
to legalize light wines or beer, or both, despite the limita 
tions in the Volstead Act. 43 The American Federation 
of Labor, with its constituency chiefly in the cities, 
reiterated its opposition to the law. 44 The Republican 
and Democratic parties, meeting at their national con 
ventions in Chicago and San Francisco, showed them 
selves so well aware of the hostility to prohibition in the 
industrial states that they deliberately dodged the 
question of endorsing the Eighteenth Amendment in 
their platforms, though it was now a part of the Con 
stitution and though they were specifically called upon 
for an endorsement. 45 

Nor did opposition to the Eighteenth Amendment, 
as a factor in the problem of enforcement, develop 
merely in those states which had hitherto been wet. A 
definite change had taken place in states which had 
hitherto been dry. For in many of these states people 
who had been able before 1920 to obtain alcoholic 

^New York Times, July 25, 1920. 

Ibid.> March 3, May 25, May 7, 1920. 

M Ibid., June 19, 1920. 

45 Ibid., June u, July 3, 1920. 



The Law in Action 73 

beverages by entirely legal means, in limited quantities 
or in limited percentages, now found themselves denied 
this legal access and therefore tempted to disobey the 
law. 

Moreover, this substantial change had taken place. 
Hitherto these people living in dry states had been 
governed by laws which varied in their standards, their 
methods, and their severity entirely according to local 
taste. Alabama permitted the importation of limited 
quantities of intoxicating liquor at regular intervals 
twice a month. Mississippi permitted the manufacture 
of home-made wine. Michigan placed no limit on per 
sonal importation for personal use. Other states had 
other standards. In few states were the laws dealing 
with the difficult and long-standing problem of regulat 
ing liquor precisely alike. In some states they differed 
widely. In all states they followed local customs, theo 
ries and precedents. Now, however, people living in these 
dry states found themselves confronted suddenly by a 
system which imposed the same universal standard of 
judgment on every city, every town and every hamlet 
in the country. 

The change could scarcely fail to raise new questions 
of large importance. 



This was the situation shaped by the first six months 
of the effort to enforce the law. Large problems had 
appeared. It is not necessary to describe these problems 
as insoluble, but it is perfectly clear that they tran 
scended any estimate which assumed that this law could 
be enforced with a handful of agents, a little exhortation, 
and a casual appropriation of five million dollars. The 
friends of prohibition who took this optimistic view were 



74 The Dry Decade 

guilty of one fundamental misconception. They re 
garded the Eighteenth Amendment as a treaty of peace 
with the liquor traffic. It was, in fact, a declaration of 
unremitting war. 

Only one agency of the government could make 
this war, could raise the forces needed to conduct it 
and equip these forces with the bold appropriations and 
the irresistible authority needed to suppress the ready 
sources of illicit liquor. 

This agency was Congress. For while the legislatures 
of forty-six states had ratified the Amendment, many 
of these legislatures had never chosen hitherto to ex 
periment with prohibition. Inevitably they looked to 
Congress to set the pattern of enforcement. 

The history of national prohibition properly begins 
in the Capitol at Washington. 



CHAPTER IV 
The Neutrality of Congress 



V^ONGRESS had been sitting uncomfortably between 
the devil and the deep sea for some years when this 
adventure started. The brewers had constantly been 
making threats and issuing ultimatums. The Anti- 
Saloon League had promised prompt retaliation at the 
polls against Congressmen who blocked its program. 

Time after time, for more than a generation, Congress 
had been asked to take sides in a bitter and endless 
dispute whenever it was forced to vote on a bill to place 
higher taxes on the liquor traffic, or a bill to bar liquor 
advertising from the mails, or a bill to prevent inter 
state shipments of liquor itself, or a bill to establish 
outright prohibition at the army posts, in the District 
of Columbia, or in other territory under federal control. 
Congress had had no respite from the problem. If it 
gave its support to the brewers, it invited reprisals from 
the Anti-Saloon League. If it gave its support to the 
Anti-Saloon League, it encountered the mailed fist of 
the brewers. By 1917 there were a good many members 
of both Houses who were weary of debating the liquor 
traffic, tired of choosing sides, and increasingly resentful 
at being forced to jeopardize their political security on 
an endless sequence of decisions. 

So real was the resentment of Congress on this score 

75 



76 The Dry Decade 

that unquestionably it played a part of some importance 
in the adoption of the Eighteenth Amendment. During 
the debate in the House on that occasion Mr. Heflin 
of Alabama suggested that certain members plainly 
intended to vote for prohibition merely in order to be 
rid of it. These gentlemen, he insisted, set too high 
a value on their own impatience. "No member of the 
House can dispose of this question simply by saying that 
he was tired of being bothered with it." 1 In the Senate 
Mr. Harding of Ohio had declared that it was "unwise, 
imprudent and inconsiderate to force the issue" while 
the war was on, but agreed that it would be pleasant, 
war or no war, to have it out of the way forever. "I 
want to see this question settled. I want to take it out 
of the halls of Congress and refer it to the people, who 
must make the ultimate decision." 2 

Now that the decision was made it seemed possible 
to hope for relief at last from the steady, unrelenting 
pressure of both wets and drys. Certainly the mood of 
Congress in January, 1920, seemed to reflect a belief that 
it had done its duty and that it would now thank every 
body to bother it as little as possible with a question it 
had heard discussed too often. 



Evidence of this frame of mind is to be found in the 
record of Congress during the first critical six months 
following the date when the law became effective. 

Congress was in session during all but the last few 
weeks of this period of half a year. It had met in Decem 
ber, 1919, and it remained in session -until June, 1920. 

Congressional Record, 65th Congress, 2d Session, p. 458. 
2 Ibid., 65th Congress, ist Session, p. 5648. 



The Neutrality of Congress 77 

It had an excellent opportunity to watch the first efforts 
at enforcement. It was in a good position to measure the 
difficulties which had appeared so promptly and to de 
cide what action they required. It had seen the first signs 
of congestion in the courts. It had learned from the 
Customs Service that liquor was flowing easily across the 
borders. It had heard the complaint of the Prohibition 
Bureau that the law was being ignored in many of the lar 
ger cities and it had observed the failure of local authori 
ties in certain districts to cooperate with federal officials. 

This was the situation which confronted Congress. 
The extent of its interest in this situation may be judged 
from the fact that only six times in six months was pro 
hibition referred to, even briefly, on the floor of either 
House of Congress. 

Mr. Volstead made one speech in praise of the law, 
and Mr. Babka of Ohio one speech in opposition to it. 3 
An impromptu attempt to repeal the Volstead Act by at 
taching a rider to an appropriation bill was defeated by a 
vote of 89 to 38.* Mr. Warren of Wyoming suggested in 
the Senate that a serious effort to enforce the law might 
ultimately cost as much as $50,000,000 annually, where 
upon Mr. Sheppard read into the record Mr. Wheeler's 
estimate that $5,000,000 would be ample for the first 
few years, with the probability of a reduction later. 5 
Late in the session, on June ist, the Senate argued for 
ten minutes whether or not to believe newspaper reports 
of large-scale trading in forged certificates to take 
whisky out of bond. 6 

^Congressional Record, 66th Congress, 2d Session, pp. 8936, 
9051, 

*IUd., pp. 3472-3474- 
TOi., pp. 3108, 5655. 
*Ibid., p. 8049. 



78 The Dry Decade 

At this point Congress adjourned. It had been in 
session during the first six months when a precedent 
was being set for all future enforcement of the law. Its 
own attitude had helped to set this precedent. Not once 
in these first six months had any member of either 
House proposed to increase the meager appropriation of 
$2,000,000 which had been allotted to the Prohibition 
Bureau for the first half year. Not once had any mem 
ber of either House discussed on the floor of Congress 
the question of prohibition on the border or prohibition 
in the cities or prohibition in the Attorney GeneraFs 
office or prohibition in the courts. Not once had Con 
gress taken any step or shown that it contemplated 
taking any step which might have convinced skeptical 
sections of the country from the very start that this law 
was intended to be taken seriously. 

From January to June in 1920 Congress showed less 
interest in the law than many church societies, many 
women's clubs, and many Chautauqua circuits, at this 
time earnestly and in all good faith debating the bene 
fits to be achieved by prohibition, thanks to the foresight 
of the authors of the Eighteenth Amendment. 



If we follow the work of Congress into a second session 
the pattern does not greatly change except in one par 
ticular. By this time, back in Washington after a sum 
mer holiday, Congress had before it certain official 
summaries of some of the handicaps under which the 
government had labored. 

The Commissioner of Internal Revenue had now filed 
his first report and pointed out the difficulty of enforcing 
the law with an inadequate staff of agents. " It was found 



The Neutrality of Congress 79 

impossible to establish a salary scale that would com 
pare favorably with salaries paid in other occupations 
and which would prove sufficiently attractive to enable 
the department to secure the number and type of men 
needed." 7 

These men were expected to be intelligent enough to 
understand the law, honest enough to play no favorites 
in its administration and content enough with the terms 
of their employment to resist the bribes certain to be 
offered them by an enormously successful industry. 
For the purpose of finding such men Congress had 
appropriated sufficient funds to pay a salary of $35 a 
week. 

Meantime, appearing before the Appropriations Com 
mittee of the House of Representatives in December, 
1920, Attorney General Palmer had unbosomed himself 
of a long list of troubles acquired by his own department 
in its experiment with enforcement. There had been an 
alarming increase in federal police activities. In the 
first eight months of prohibition 17,566 arrests had been 
made by federal agents. The Attorney General's office 
was being asked to prosecute cases at the rate of three 
thousand a month. "It is totally and absolutely impos 
sible to prosecute those cases successfully unless we 
have more help." The courts were behind schedule. 
"The district judges are very restless under this new 
burden. I am receiving constant complaints from them. 
. . . The Department of Justice cannot do the work 
that ought to be done with its present force under the 
present appropriation." 8 

^Report of the Commissioner of Internal Revenue, fiscal year 
ended June 30, 1920, p. 30. 

Associated Press dispatch, Washington, December 29, 1920; 
New York World, December 30, 1920. 



80 The Dry Decade 

Nevertheless, despite this official information, now 
brought forward to corroborate the obvious evidence 
of the government's experiences earlier in the year, the 
second session of Congress passed with as little stir 
about enforcement as the previous session. The House 
spent two hours on one occasion debating an increase 
in the appropriation of the Prohibition Bureau, 9 and 
fifteen minutes on another occasion debating an increase 
in the appropriation of the Department of Justice for 
legal work on prohibition cases, 10 The sums of money 
at issue in these debates, however, were scarcely im 
portant enough to raise large questions of public policy: 
being $600,000 in one case and $200,000 in the othen In 
the Senate, meantime, not a word was spoken of prohibi 
tion during the entire session from first to last, except on 
January I4th, when Mr. Sheppard called the attention 
of his colleagues to a telegram which had reached him 
from Bishop James Cannon, Jr., urging strict enforce 
ment. 11 

The low state of interest of both the Senate and the 
House in the question of enforcement during this second 
session may be judged from the record of the bills sub 
mitted. For while bills in Congress are often merely 
verbal broadsides, not necessarily intended to be made 
into laws, the activity of Congressmen in this respect is 
usually an accurate index of the relative importance 
which they attach to various public questions. 

In this case, eleven prohibition bills were introduced 
in the session beginning in December, 1920, and ending 
in March, 1921 as compared, for example, with eighty- 

*Congressional Record, 66th Congress, 3d Session, pp. 1224- 
1226, 1229-1233, 1328-1330. 
Ibid., pp. 1016-1017. 
p. 1393- 



The Neutrality of Congress 81 

nine farm bills and of these eleven only five showed 
any interest in the problem of enforcement in the United 
States. The other six soared out of the United States, 
ignored the problem of enforcement and proposed in 
stead a fresh advance on a broad front west toward 
Asia. 

Three bills demanded the prompt extension of the 
Volstead Act to the Philippines. 12 

Three others went past the Philippines and proposed 
to extend the Volstead Act to Americans living in con 
sular districts of China. 13 



At this point prohibition in the United States was 
a little more than a year old. The sum of $4,575,000 had 
been spent on its enforcement. This sum was demonstra- 
bly inadequate. The Prohibition Bureau was still with 
out the staff it needed. The border was unprotected. 
No police force had been organized on a large enough 
scale to suppress illicit stills. Not an hour's time had 
been spent on the floor of either the Senate or the House, 
discussing the precise responsibility of the states or the 
question of what the federal government would do in 
case the states did nothing. The law was being disobeyed 
in many places. Congress seemed to take small interest. 

The question arises, where were the militant prohibi 
tion organizations which had played so large a part in 
the enactment of this legislation ? Their authority could 
not have vanished in a moment. They were too familiar 

12 S. 4550, Mr. Jones of Washington; H. R. 14470, Mr. Ran 
dall; H. R. 14478, Mr. Volstead; 66th Congress, sd Session. 

13 S. 4551, Mr. Jones of Washington; H. R. I4758> Mr. Up- 
shaw; H. R. 14954, Mr. Randall; 66th Congress, 3d Session. 



82 The Dry Decade 

with the history of prohibition legislation not to recog 
nize the importance of a prompt start if Congress really 
intended to enforce the law. They were too close to the 
scene of action to believe that in the first year of en 
forcement Congress had taken its responsibility very 
seriously. Why had they failed to rouse Congress from 
its lethargy and stir it into action ? 

The fact is, that the militant prohibition organizations 
found themselves in a somewhat equivocal position. 
They devoutly wished the law to succeed. They were 
apparently reluctant to bring too much pressure to 
bear on Congress, in the hope of making it succeed, 
lest they invite the country to believe that they re 
garded the first year's experiment as a failure. To ask 
Congress for drastic action to enforce the law would 
have been to admit that enforcement required large 
sums of money. To ask Congress to appropriate these 
sums of money in the first year of prohibition would all 
too probably have created fresh opposition to the law 
precisely at the time when the chief political interest of 
the country lay in the prompt reduction of its post-war 
taxes. 

Confronted by a choice between arousing Congress 
and reassuring the country, the prohibition organiza 
tions chose the second of these two alternatives. Aside 
from making a scant five million dollars available for the 
purposes of the Prohibition Bureau, Congress had done 
literally nothing at the end of a year to enforce the law. 
The prohibition organizations chose nevertheless to 
hail the results achieved by Congress as little short of 
astonishing. To the Methodist Board of Temperance, 
Prohibition and Public Morals it seemed at the end of 
this first year that the law was already being enforced 
more effectively than many older laws throughout 90 



The Neutrality of Congress 83 

per cent of the country. 14 So well had Congress done its 
work, in the opinion of the Anti-Saloon League, that in 
this first twelve months the country had saved "at a 
conservative estimate . . . more than a billion dollars." 15 

Nor need the country fear that against this saving 
would be charged higher taxes to cover the cost of en 
forcement. Mr. Wayne B. Wheeler, who had been ready 
to predict in 1920 that the law could be enforced at an 
annual cost of five million dollars, was now ready to 
predict in 1921 that it could be enforced without any 
cost whatever. The law would actually pay dividends. 
"There will be collected in fines, forfeited bonds and 
prohibitive taxes more than it costs to enforce the law. 
. . . This appropriation is different from any other ap 
propriation, because it returns to the government more 
than is paid out for the service." 16 

Plainly Congress had nothing to fear in so mellow a 
mood on the part of the militant friends of prohibition. 
During this first year it was occasionally asked to make 
a small increase in an appropriation bill or to adopt the 
measures which sought to extend the Volstead Act to 
China, a proposal which had received the warm en 
dorsement of the Anti-Saloon League. 17 For the^ rest, 
it went its way in peace, less bothered by the question of 
how to enforce the Eighteenth Amendment than it had 
ever been by the question of whether to enact it. 

Not until the second year of prohibition was this 
serenity interrupted by the appearance of a new prob 
lem, suddenly posed before Congress by a totally unex- 

14 New York Times, February 13, 1921. 

l *IUd. y January 24, 1921. 

"Testimony before Senate Committee on Appropriations, 

New York Times, January 29, 1921. 
* 7 New York Herald, December 14, 1920. 



84 The Dry Decade 

pected decision emanating from the Department of 
Justice. 



This decision was the ruling of Attorney General 
Palmer, reached at the tag end of the Wilson Admin 
istration and announced only after it had taken leave 
of office, that the Volstead Act placed no limit on the 
authority of physicians to prescribe beer and wine for 
medicinal purposes. "I can find in the act no purpose 
either to directly impose a limitation or to confer upon 
the executive officer any power to do so/' said the At 
torney General. "I think, therefore, that a regulation 
having this in view would be, in effect, an amendment 
to the statute and not a mere regulation to carry out the 
expressed purpose of Congress/' 18 

As might have been anticipated, the leaders of the 
prohibition movement lost no time in denouncing this 
decision as poor law, poor statesmanship, and an un 
fortunate reversal of policy which was certain to en 
courage the use of liquor as a beverage on the pretext 
that it was being used as medicine. Under the auspices 
of the prohibition organizations meetings were held 
throughout the country in protest against the ruling 
made by Mr. Palmer. On behalf of the Anti-Saloon 
League Mr. Wheeler insisted that neither " the Attorney 
General nor anyone else is justified in placing such a con 
struction on the wording of the law." 19 In the Senate 
Mr. Willis of Ohio and in the House Mr. Campbell 
of Kansas introduced a bill designed to copper-rivet the 
law .against tampering by executive officials. 

This measure not only strictly forbade the prescrip- 

18 New York Times, March 10, 1921. 
19 New York World, March 9, 1921. 



The Neutrality of Congress 85 

tion of beer as a medicine and limited prescription to 
spirituous and vinous liquors : in addition, it drew up a 
rigid code of conduct for the medical profession. No 
physician was to prescribe, nor was any druggist to sell 
or to furnish on prescription, any wine containing more 
than 24 per cent of alcohol by volume. No physician 
was to prescribe, and no druggist was to sell, more than 
one half pint of alcohol to any one person within a period 
of ten days. No physician was to receive from the gov 
ernment more than one hundred prescriptions for any 
period of ninety days, or to issue more than this number 
unless he could prove "that for some extraordinary 
reason a larger amount is necessary/' 20 

This was the answer of the friends of prohibition to 
the challenge of Attorney General Palmer. To many 
spokesmen of the medical profession, unexpectedly 
caught in the cogs of this dispute, it seemed to go un 
reasonably far. 

Insisting that it was important for physicians to have 
the "unimpaired right" to prescribe alcohol without 
Congressional restrictions, the American Therapeutic 
Society declared that "no legislative body or enforce 
ment authority should limit or hamper a doctor in the 
legitimate practice or exercise of his functions as a 
physician/' 21 The New York Medical Association pro 
tested that there was "nothing inherent in the powers, 
the traditions or the knowledge of Congress to justify 
this assumption of suzerainty over the profession of 
medicine as practised in the United States." 22 In the 
columns of the Journal of the American Medical Asso 
ciation a number of prominent medical men, including 

^United States Statutes, Vol. 42, pt. i, p. 222. 

21 New York Times, June 5, 1921. 

Ibid., May 21, 1921. 



86 The Dry Decade 

Dr. Charles L. Dana, Dr. Samuel Lambert, and Dr. 
Herman M. Biggs, denounced the proposed bill as "an 
indictment of the integrity of the whole profession, in 
that it is assumed that many of its members, unless re 
strained by law, will pander for gain to the people's 
desire for drink/' 23 

Such protests, however, were dismissed by leaders of 
the prohibition movement as beside the mark. In the 
opinion of these leaders a larger issue was at stake than 
the independence of the medical profession. This issue 
was the sanctity of prohibition. Doctors who opposed 
this legislation were denounced by the Anti-Saloon 
League. 24 Congress was advised to ignore their protests. 
On June 27 the Willis-Campbell bill was brought be 
fore the House, debated for a single day and adopted 
by a vote of 250 to 93. 25 In the Senate some opposition 
to the bill developed, but not enough to block its pro 
gress. It was adopted by the Senate on August 8th by a 
vote of 39 to 2o; 26 sent to the President on November 
1 9th, after a delay in conference; and signed by him 
on November 23d. 

By contrast with the indifference of Congress in the 
first year of prohibition, here, in the second year, was 
action. Yet it is clear that this action, designed to close a 
gap unexpectedly opened in the Volstead Act, actually re 
sulted in creating a situation more anomalous than ever. 

For the great difficulty, to date, had not been a lack 
of drastic legislation. There was plenty of drastic legisla 
tion in the Volstead Act. The obvious failure of Congress 
had been its failure to make that law effective. 

23 Journal of the American Medical Association, June 4, 1921. 

^New York Tribune, April 1 8, 1921. 

^Congressional Record, 6yth Congress, 1st Session, p. 3135. 

ZQ Ibid., p, 4742. 



The Neutrality of Congress 87 

At the end of a year it was already clear that if Con 
gress wished to put an end to widespread lawlessness it 
would be wise to give the country either less law or more 
machinery of enforcement. At this juncture Congress 
chose to enact more law, rather than less law, and to 
create no new machinery to enforce it. 



The Willis-Campbell Law, known before its adoption 
as the Emergency Beer Bill, represents a landmark in 
the work of Congress because it was the first law, and for 
some years the only law, enacted by Congress to supple 
ment the Volstead Act. Not until March 26, 1924, when 
a bill to authorize a temporary increase in the Coast 
Guard received the approval of both Houses, 27 did Con 
gress adopt another law in any way concerned with 
prohibition in the United States. 

Meantime, one session succeeded another, and the 
record revealed no sudden change in the interest of 
Congress in the problem of enforcement. Now and then 
a flurry of speech-making would sweep the Senate or 
the House, with a few wets and drys assailing one an 
other for bigotry or treason. Now and then some partic 
ularly ambitious plan would be submitted in the form 
of a bill or resolution: on February 2, 1922, Senator 
Jones of Washington, reading in the newspapers that 
Spain had threatened to boycott Iceland because of the 
adoption of prohibition by that country, introduced a 
resolution expressing the Senate's attitude toward 
Spanish-Icelandic relations. 28 Now and then some vigor 
ous partisan of prohibition like Mr. Upshaw of Georgia 

27 H. R. 6815, 68th Congress, 1st Session. 
28 S. Res. 230, 6yth Congress, 2d Session. 



88 The Dry Decade 

would rise on the floor of one House or the other, to 
insist that the law must be enforced regardless of the 
cost, even if Congress was forced to spend "twenty 
millions or fifty millions or even a hundred millions a 
year, until this mighty task is completed/' 29 

On all such occasions the House was generous with its 
applause but by no means prepared to yield uncritically 
to its own enthusiasm. If it frequently cheered to the 
echo the proposal to enforce the law fearlessly and to 
the hilt, "regardless of the cost/' on no occasion did it 
accept this principle as a guide to its own action. Ap 
propriations for the Prohibition Bureau remained at a 
modest figure, so far below the demonstrated needs 
of the enforcement service that by the end of the second 
year of the experiment some of the smaller prohibition 
organizations, if not the Anti-Saloon League itself, were 
beginning to be restless. 

In November, 1921, the chairman of the Prohibition 
party complained that the law had been neglected, de 
plored "the scandalous, ineffective enforcement in 
many parts of the country" and insisted that the time 
had come when "the American people must take things 
into their own hands/' 30 The American Lutheran 
Publicity Bureau gave the press a statement declaring 
that "the authorities in many places are in collusion 
with the lawbreakers or helpless against the magnitude 
of the evil; the situation is fast becoming intolerable." 31 
The annual conference of Methodist churches in New 
York adopted a resolution asking the President to call 
out the army and the navy to put an end to bootlegging. 32 

^Congressional Record, 6yth Congress, 4th Session, p. 4544. 

30 Associated Press dispatch, Chicago, November 29, 1921. 

31 New York Times, January 12, 1922. 
April 4, 1922. 



The Neutrality of Congress 89 

All told, there was enough dissatisfaction and resent 
ment in the air, as prohibition entered its third year, to 
convince the loyal but inactive dry majority of Congress 
that the time had come when it must act again. Ac 
cordingly, a new bill was brought before the House in 
April, 1922. It proposed to attack the problem of en 
forcement not by arming the officers of the law with 
larger funds or more authority, but by deporting aliens. 



This proposal, in the form of a bill to make alien 
violators of the law liable to deportation for a first of 
fense, was a measure to which most of the prohibition 
organizations could give their cordial approval, for the 
reason that it implied no lack of merit in the law itself 
but fitted in precisely with the theory that opposition 
to the law was the work of a small company of unpa 
triotic and disloyal malcontents. In this theory many 
of the friends of prohibition had put their faith since the 
start of the experiment, and by 1922 the Anti-Saloon 
League was prepared to believe that a large part of 
the difficulty encountered by the law could be attributed 
to alien influence. "In many places," wrote Mr. Wheeler, 
in a letter addressed to members of the House, "most of 
the offenders against the liquor and narcotic laws are 
aliens." 33 

In the House itself opinion was divided between those 
who shared this point of view and those who believed 
that aliens contributed only a small fraction of the num 
ber of violations occurring every day. This second group 
insisted that the right way to enforce the law was to en 
force it even-handedly against all violators and declared 

^Congressional Record, 6yth Congress, 2d Session, p. 5074. 



9O The Dry Decade 

that the proposal to make alien violators liable to depor 
tation for an act which might involve merely the manu 
facture of a gallon of home-brewed wine was to create a 
penalty out of proportion to the character of the offense. 

This argument was advanced in the House not only 
by many opponents of prohibition but by some of its 
unquestioned friends. Mr. Moore of Virginia warned 
his dry colleagues that such legislation as this might 
react against their cause. 34 Mr. Huddleston of Alabama, 
describing himself as a lifelong prohibitionist, insisted 
that the proposal to punish alien violators first "by 
fine and imprisonment in this country and then by 
banishment to some foreign land from which perhaps 
the alien fled to save his life . . . marks the high tide of 
fanaticism and intolerance/' 35 

Such protests as these, however, stimulated friends 
of the bill to redouble their efforts in its behalf. Mr. 
Cramton of Michigan told the House that aliens who 
wert unwilling "to support the supreme law of the land, 
the codification of our American spirit/' deserved small 
consideration at the hands of Congress: "for God's 
sake send them back where they came from/' 36 Mr. 
Roach of Missouri replied to those critics of the bill 
who had described it as too drastic: "I want to answer 
that," said Mr. Roach, "by saying that in our attempt 
to support the Constitution of the United States and 
enforce it, we are not going to write a law that is too 
drastic for that purpose. That is exactly the trouble now, 
that the laws by which the Eighteenth Amendment is 
to be enforced are not sufficiently drastic." 37 

^Congressional Record, 6yth Congress, 2d Session, p. 5079. 
**Ibid. 9 p. 5071. 
Ibid., p. 5075. 
tU, p. 5081. 



The Neutrality of Congress 91 

Here, certainly, was a familiar theme: the theme that 
what the situation needed was not a vigorous effort to 
enforce existing law, an effort which required thought 
and money, but a fresh supply of drastic legislation, 
which was cheap. 

By a vote or 222 to 73 the House adopted the bill 
for deportation and sent it to the Senate. 38 

In this same year the Prohibition Bureau continued 
to roll its heavy stone uphill, its budget having been in 
creased over its budget for the previous year merely by a 
nominal $4OO,ooo. 39 



The Senate having shown no interest during 1922 in 
the plan of the House to deport aliens, and criticism of 
Congress on the score of its inaction having mounted, 
meantime, rather than diminished, the House looked 
elsewhere at the start of the fourth year of prohibition 
for an opportunity to contribute something to the en 
forcement of the law. Once more it overlooked the pos 
sibility of bringing its appropriations into line with the 
actual needs of the Prohibition Bureau, of placing 
enough guards along the border to put an end to rum- 
running or of giving the government the legal authority 
and the staff of agents it needed in order to prevent 
the diversion of industrial alcohol. Instead, having de 
bated the question of aliens in 1922, the House now 
turned its attention in the direction of the diplomatic 
corps. 

The issue arose early in the year when Mr. Cramton 
of Michigan, who had been active in support of the 

^Congressional Record, 6yth Congress, 2<1 Session, p. 5083. 
39 The sums of money appropriated annually by Congress for 
the enforcement of prohibition will be found in Appendix F. 



92 The Dry Decade 

deportation bill, introduced a resolution calling on the 
Secretary of the Treasury to reveal what shipments of 
intoxicating liquors had been received by the embassies 
and legations in Washington since January, 1920, " giv 
ing in connection with each such shipment the name 
and office of each consignee, the country to which he 
was accredited, the kind and quantity of liquor, the 
place from which shipped to the 'United States, to whom 
delivered by the Customs Service, and the date of such 
delivery to the consignee or his representative/' 40 

The question at issue, Mr. Cramton insisted, was by 
no means trivial. Charges had been made that diplomat 
ic liquor was pouring into the hands of bootleggers. In 
Washington "the problem of enforcement of the Eight 
eenth Amendment is said to be acutely affected by the 
presence of these liquors." The question was a serious 
one. "It is time Congress and the country knew the 
facts about this, knew whether that which has been per 
mitted as a courtesy is being used as a cover for abuses 
seriously contributing to scandalous disregard of the 
fundamental law of our land." 41 

Introduced in the House on February 3d, Mr. Cram- 
ton's resolution brought a reply from the Secretary of 
the Treasury on February I3th. It was a well established 
principle, this official pointed out, "that diplomatic 
representatives of foreign governments are entitled to 
free entry of goods as a matter of international comity 
and usage. . . . The Treasury does not, of course, en 
deavor to exercise control over the disposition of intoxi 
cating liquors delivered to diplomatic representatives, 
and it is manifest that it could not do so without in 
fringing their diplomatic privileges and immunities. 
*H. Res. 503, 67th Congress, 4th Session. 
^Congressional Record, 6/th Congress, 4th Session, p. 3789. 



The Neutrality of Congress 93 

Nor could it properly give out any reports or other in 
formation as to importations of intoxicating liquors by 
diplomatic representatives, in view of their diplomatic 
status and the protection of person and property to 
which that entitles them/' 42 

This statement from the Treasury was by no means 
satisfactory to Mr. Cramton. The liquor record of the 
embassies, he insisted, was a matter of importance to the 
country. This record was available at the Treasury. "It 
ought to be furnished to the Congress, the body which 
has the responsibility of dealing with the question/' 
Mr. Cramton therefore insisted that the House adopt 
his resolution and call on the Treasury to divulge its 
facts. 43 

Opposition to this plan came from certain members 
who were not convinced that it was wise. Mr. Parker of 
New Jersey described the proposed resolution as unfair 
to the embassies, and Mr. Garrett of Tennessee insisted 
that the only result of it would be to promote "friction 
and trouble and irritation on the part of foreign coun 
tries/' 44 The House, however, was plainly in a mood for 
action. A good deal of time had elapsed since the adop 
tion of the alien deportation bill, and nothing had hap 
pened in the meantime to convince the more restless 
friends of prohibition that Congress was sternly resolved 
to enforce the law. 

By a vote of 189 to 113 the House adopted Mr. 

Cramton's resolution and sent it to the Treasury, where 

it came to rest. For since the Secretary of the Treasury 

was required to divulge only such information as was 

^Congressional Record, 6yth Congress, 4th Session, pp. 379" 

3791- 

*IVid.y p. 3791. 
"Ilrid., pp. 379 2 "3793- 



94 The Dry Decade 

not incompatible with the public interest, and since he 
had already expressed his opinion that it would be in 
compatible with public interest to divulge this particular 
information, there was nothing more to be done about 
it. Here the matter ended. 

This was the sole contribution made by Congress to 
the cause of prohibition during the year 1923. No other 
bill was adopted either in the Senate or the House. No 
other bill was seriously discussed. Only one other bill 
was referred to even casually on the floor of either House. 
This bill was Senator Sterling's measure to place the 
employees of the Prohibition Bureau under civil service 
regulations. 

The history of this legislation throws an instructive 
light from another angle on the attitude of Congress 
toward the experiment with prohibition. 







When the Volstead Act was adopted in 1919, Con 
gress, for reasons of its own, had chosen to leave the 
appointment of all field agents in the hands of the Com 
missioner of Internal Revenue, without regard to the 
civil service rules applying to most other federal posi 
tions. 

This action had been vigorously opposed at the time 
by the National Civil Service Reform League, which 
filed its protest with the conference committee of both 
Houses. 45 Later on, the Anti-Saloon League, which had 
written at least as much of the Volstead Act as Mr. 
Volstead, agreed that the provision exempting prohibi 
tion agents from civil service rules was an unfortunate 

York Times, September 14, 1919. 



The Neutrality of Congress 95 

provision, but insisted that it would have been impossi 
ble to write the law in any other way. 

"When the Volstead Act was passed/' said the secre 
tary of the League, "neither the Anti-Saloon League nor 
any other agency could have gotten into that law a 
civil service provision, and for the League to have forced 
the issue would have been to jeopardize the passage of 
the bill/' 46 To this the vice-president of the National 
Civil Service Reform League replied: "The plain fact is 
that the Congressmen wanted the plunder and you let 
them have it. ... You admit that the League, although 
knowing the Congressmen's views were wrong, yielded 
to them to get the bill passed. That means that you 
bought the bill with Congressional patronage and paid 
for it not with your own money but, far worse, with 
offices paid out of taxes levied upon the people/' 47 

This was the status which a long-continuing contro 
versy had reached by 1923, but well before this time 
the disadvantages of a political system of appointments 
had seemed to many friends of the law to be a heavy 
handicap to its enforcement. As early as the first year 
of prohibition, a bill to place the staff of agents under 
civil service regulations was introduced in the Senate 
by Mr. Sterling of South Dakota, and a similar bill was 
presented in the House by Mr. Tinkham of Massachu 
setts, not as a partisan of prohibition, but as a champion 
of the civil service. 48 

These bills were ignored by Congress during 1921. 
They were reintroduced in 1922. They were again ig 
nored by Congress. Four sessions had passed without 

46 New York Times, January 8, 1923. 

47 Congressional Record, 6yth Congress, 4th Session, pp. 4S3 2 " 

4533- 
48 S. 4734, H. R. 15228, 66th Congress, 3d Session. 



96 The Dry Decade 

so much as a favorable report from a committee of either 
House, when Mr. Tinkham, apparently losing hope of 
any action by this method, attempted in December, 
1922, to offer his bill as an amendment to a measure 
carrying appropriations for the Prohibition Bureau, 
This proposal was defeated by a vote of 56 to 7 a 
majority of eight to one. 49 In 1923 both Mr. Tinkham's 
bill and Mr. Sterling's bill were still alive, having car 
ried over from the previous session. At the end of the 
year, however, both bills were still locked in the files 
of the same committees which had ignored them for four 
years. 

The fact is that members of Congress, endowed by 
the Volstead Act with a particularly attractive form 
of patronage, were extremely reluctant to surrender a 
privilege which had been one of the happy by-products 
of their foresight in adopting national prohibition. So 
well established was the system of political control by 
the end of the first few years of prohibition that even 
the Anti-Saloon League found itself embarrassed by the 
prerogatives claimed by Congress. 

On February 10, 1923, Mr. Richard H. Dana, secre 
tary of the National Civil Service Reform League, for 
warded a letter to President Harding in which he said: 
"Mr. Wayne B. Wheeler has recently twice told us that 
when both he and the Prohibition Commissioner had 
decided on and made a removal [of some agent], up 
would turn a member of Congress who was responsible 
for the appointment and insist that the man be rein 
stated/' Mr. Wheeler was not officially part of the 
government's enforcement service, but both he and the 
Prohibition Commissioner had been forced "to yield 

^Congressional Record, 6yth Congress, 4th Session, pp. 223- 
224. 



The Neutrality of Congress 97 

against their better judgment, time and time again/' 50 
This was February, 1923. One year after this letter 
was written, the bills which proposed to take enforce 
ment out of the hands of the politicians were still re 
posing quietly in the files of two committees, while 
prohibition celebrated its fourth birthday. 



If a tourist in Washington had gone to the Capitol 
in the early days of 1924, led there by his interest in this 
fourth anniversary of a national crusade, he might have 
been fortunate enough to hear a ringing demand for law 
enforcement made on the floor of the Senate or the 
House. If he had visited the office buildings which flank 
the Capitol on either side, he would unquestionably 
have been told by at least two of every three Congress 
men with whom he talked that prohibition was the law 
of the land, that it represented the settled convictions 
of the American people, and that Congress was resolved 
to leave no stone unturned in its effort to enforce the law. 

All this, if the tourist were a friend of prohibition, 
would have been immensely cheering. If he had gone to 
the House or the Senate Document Room, however, to 
discover precisely how many stones Congress had up 
turned, in its interest in enforcement, he would have 
been told that only one bill bearing in any way on the 
question of prohibition in the United States had been 
made a law in the first four years of this experiment: 
the Willis-Campbell bill to prevent doctors from pre 
scribing beer. 

If he had gone to the Prohibition Bureau to discover 
how much money Congress in its solicitude for the law 

50 New York Times, March 6, 1923. 



98 The Dry Decade 

had appropriated for its enforcement, he would have 
been told that appropriations for these four years had 
averaged $6,981,250 a year. If he had gone to the Con 
gressional Library to discover how much interest Con 
gress had shown in such problems as the prosecution 
of prohibition cases in the courts, the reorganization of 
the government enforcement service, the regulation of 
industrial alcohol, the prevention of illicit distilling and 
the division of authority between Washington and 
the states, he might have studied the pages of the Con 
gressional Record for a year without finding any evidence 
of a serious discussion of such questions. 

So completely did Congress avoid these larger prob 
lems of enforcement during the first four years of pro 
hibition that even an amateur investigator with an hour 
to spare in the Congressional Library would have been 
tempted to suspect that the design was scarcely acci 
dental. As a matter of fact, this avoidance of the larger 
problems of enforcement was the deliberate policy of 
Congress, undertaken with the approval of its most 
important prohibition leaders. These leaders had al 
ways advised Congress to adopt a policy of caution. 
They had favored the omission of any reference to "use" 
or "purchase" in the Eighteenth Amendment. They 
had willingly accepted Mr. Wheeler's estimate of five 
million dollars as ample for enforcement. They had 
advised a policy of caution in appropriations in the 
first years of the law. They still advised a policy of 
caution in the early months of 1924. 

When a proposal was made, precisely at this time, 
for a sweeping investigation into every phase of the 
problem of enforcement, it was the dry leaders in Con 
gress who discouraged the idea that such an investiga 
tion could possibly be useful. " In view of the marvelous 



The Neutrality of Congress 99 

achievements of the prohibition enforcement unit/' 
said Senator Sheppard, author of the Eighteenth 
Amendment, "a general investigation would be worse 
than useless a waste of funds and energy and time. 
Instead of a resolution of investigation, the unit should 
have a vote of thanks." 51 

Other leading prohibitionists in Congress echoed this 
opinion. "The fact is," said Senator Willis of Ohio, 
"that the effect of the inquiry proposed . . . is exactly 
the thing which every person in this country who is . 
opposed to the Eighteenth Amendment and to its ob 
servance and enforcement would desire. What could 
better operate to paralyze the forces of law enforcement 
than such an inquiry as is here proposed?" 62 

At first thought, this would seem to be a curious 
argument to be made by friends of prohibition: the 
argument that it would paralyze enforcement to find 
out what was wrong with it. In reality, however, this 
was strategically a sound position for the friends of the 
law to take. A searching investigation into the record of 
enforcement would have produced evidence to show that 
in certain respects enforcement was casual and super 
ficial, a matter of pretense rather than of fact. Such 
evidence might have injured the prestige of the law 
itself. It would have armed critics of the law with a new 
weapon. It would have challenged Congress to accept 
the logic of its own position and in the face of a con 
siderable body of hostile opinion to embark upon an 
uncompromising program of enforcement, whatever its 
cost and whatever risks it might involve. 

Far safer than a leap into the dark like this was the 
policy which Congress had pursued to date: a cautious 

^-Congressional Record, 68th Congress, 1st Session, p. 3237. 
p. 3234. 



too The Dry Decade 

policy of skirting the real problems of enforcement and 
saving its thunder for the aliens and the diplomats, of 
calling for strict enforcement and meantime economizing 
on appropriations which might have been unwelcome 
to the public, of blaming the states for their failure to 
take aggressive action and meantime setting the states 
a perfect example of inaction. 

It seems clear, in fact, that Congress had worked out 
for itself by 1924 a position with which it was well 
satisfied. It was, on the whole, a comfortable position, 
far more satisfactory to the average member of the 
majority than his position had ever been in the anxious 
days before the Eighteenth Amendment, when Congress 
was badgered by both wets and drys. 

The wets were out of the running now, confronted 
by the apparent impossibility of modification or repeal. 
The drys might file an anxious protest now and then, but 
they were effectively estopped from any real rebellion by 
their desire to pronounce the law an unqualified success. 
Meantime, Congress itself had abundant freedom from 
all worry, a new type of patronage with which to build 
up political machines at home and plenty of opportunity 
to make speeches about patriotism, good citizenship 
and unswerving loyalty to the Constitution. 

This was more than a comfortable position. It was 
very near ideal. 



CHAPTER V 
The Search for a Formula 



HILE the law limped on, no President challenged 
Congress to accept responsibility for its own legislation. 
No President pointed out the difficulty of attempting 
to enforce the law with an inadequate staff of agents. 
No President volunteered to lead a crusade in behalf of 
larger appropriations. 

Whether the duty of initiating such a crusade prop 
erly rested on the President is an open question. The 
President was not a supreme prohibition agent. He 
had many laws to enforce, many policies to frame, and 
many bureaus to remember. It is possible that if he had 
set himself at the task of persuading Congress to ap 
propriate enough funds for a serious experiment with 
the enforcement of prohibition, he would have had no 
time for any other public business. It is also possible 
that if he had succeeded in this effort he would have 
capsized his own budget. 

Without leading a crusade, however, the President 
might have pointed out to Congress the anomaly of his 
position. He was sworn to enforce the law. He could not 
enforce the law with the equipment at his command. 
By the end of the first four years of prohibition the 
responsibilities of the executive department had enor 
mously expanded; its personnel remained unequal to the 

101 



102 The Dry Decade 

work which it was called upon to handle. With 3,374 
employees on the pay roll of the Prohibition Bureau in 
1924, it was theoretically the duty of the government to 
prosecute 40,000 prohibition cases in the federal courts, 
to guard 18,000 miles of seacoast and of border, to safe 
guard against diversion 57,000,000 gallons of industrial 
alcohol and, with what help it could obtain from the 
states and municipalities, to prevent the manufacture 
of intoxicating liquor in the kitchens or the basements of 
20,000,000 homes. 

In these circumstances it would have been logical 
for any President in the early,years of prohibition to con 
front Congress with an ultimatum, insisting either that 
enough funds be made available for an honest effort to 
administer the law or that Congress clear the executive 
department of responsibility for its enforcement. 



In the collected papers of the Presidents of the 
United States the problem of enforcement is discussed 
from various points of view, during the first four years 
of prohibition, but with no suggestion of an ultima 
tum. 

In an address at Marion, Ohio, on July 4, 1922, Mr. 
Harding insisted that obedience to the law was a duty 
of good citizenship: "The Eighteenth Amendment 
denies to a minority a fancied sense of personal liberty, 
but the Amendment is the will of America and must be 
sustained by the government and public opinion/' 1 

In December of the same year, in his message to Con 
gress, Mr. Harding repeated his conviction that prohibi- 

x New York Times, July 5, 1922. 



The Search for a Formula 103 

tion represented the will of the American people and his 
insistence that the law must be enforced, but suggested 
that "in plain speaking there are conditions relating to 
its enforcement which savor of nation-wide scandal." 
Mr. Harding suggested two ways of improving these 
conditions. He urged a wider respect for the law on the 
part of private citizens. He also urged a larger contribu 
tion to enforcement by the states and announced that 
with this end in view he "purposed to invite the Gov 
ernors of the states and territories, at an early oppor 
tunity, to a conference with the federal executive 
authority/' 2 

In May of the following year, at a time when the 
Legislature of New York had repealed its state enforce 
ment law and the repeal bill was awaiting the veto or 
approval of the Governor, Mr. Harding insisted that 
"the executives of the nation and equally the executives 
of the states are sworn to enforce the Constitution." 
The Eighteenth Amendment had placed a joint respon 
sibility upon both the federal and state governments. 
"It will be obvious that many complex and extremely 
difficult situations must arise if any of the states shall 
decline to assume their part of the responsibility of 
maintaining the Constitution and the laws enacted in 
pursuance of it." 3 

In June of this same year, in an address at Denver 
during his last trip West, Mr. Harding again returned 
to the question of state responsibility and the duty of 
the individual citizen. Reports to the federal govern 
ment indicated "a growing laxity on the part of state 
authorities about enforcing the law," the President de 
clared. "Doubtless this is due to a misconceived notion, 
2 Message to Congress, December 8, 1922. 
3 New York Times, May 17, 1923. 



IO4 The Dry Decade 

too widely entertained, that the federal government has 
actually taken over the real responsibility/' As for the 
responsibility of the individual citizen: "The example 
of law defiance by those who can afford to buy and are 
reckless enough to take the risk . . . may some day find 
expression in far more serious form. I do not see how 
any citizen who cherishes the protection of law in or 
ganized society may feel himself secure when he himself 
is the example of contempt for law/' 4 

This was Mr. Harding's last comment on prohibition. 
It was followed, a little later, by an address delivered 
by Mr. Coolidge before the Governors' conference which 
Mr. Harding had proposed in December, 1922, and 
which now assembled in October, 1923. Mr. Coolidge 
urged that the Governors take home with them a mes 
sage to their legislatures that "neither the Eighteenth 
Amendment nor the Prohibition Act undertakes to re 
lieve the states of their responsibility relative to in 
toxicating liquors." He discussed the responsibility 
of the individual citizen. "The complementary duty to 
enforcement of the law is obedience to the law." He 
defined for the assembled Governors the central prob 
lem of enforcement. "The main problem arises from 
those who are bent on making money by an illegal traffic 
in intoxicating liquors. If this could be eliminated, the 
rest would be easy." 6 

A few weeks later, in his message to Congress in 
December, 1923, Mr. Coolidge repeated his plea to the 
private citizen to obey the law, again urged the import 
ance of a substantial contribution by the states, sug 
gested as the contribution of the federal government "a 
supply of swift power boats" and the strengthening of 
4 New York Times, June 26, 1923. 
*Ibid. 9 October 21, 1923. 



The Search for a Formula 105 

the Coast Guard and declared that "the major sources 
of production should be rigidly regulated." 6 

The Prohibition Bureau, charged with responsibility 
for regulating the major sources of production, was at 
this time operating on an appropriation of $8,250,000. 
It had had $8,500,000 for the previous year, but in the 
interest of post-war economy its appropriation had been 
reduced in the budget submitted to Congress by the 
executive department. 7 



In the messages and public statements in which two 
Presidents discussed the problem of enforcement in 
the first four years of prohibition there was much com 
ment on the duties of the states, some comment on the 
duties of the federal government, and an earnest exhor 
tation to the public to obey the law rather than to treat 
it with indifference. In these statements and messages, 
however, there was no attempt on the part of the Presi 
dent to hold Congress responsible for setting both the 
public and the states an example of the indifference 
which the President deplored. There was no attempt to 
discuss the problem of enforcement in relation to the 
machinery of enforcement which Congress had provided, 
or to dissociate the executive department from respon 
sibility for inadequate appropriations. 

As a matter of fact, the executive department was in 
no position to dissociate itself from responsibility in the 
matter of appropriations. For the estimates submitted 
to Congress by successive Presidents for enforcement in 

6 Message to Congress, December 6, 1923. 
i Estimate of Appropriations for the Fiscal Year Ended June 30, 
1924, p. 669. 



io6 The Dry Decade 

the early years of prohibition were as meager as the 
funds actually allotted for the law by Congress. 

For 1921, the first full year of prohibition, the execu 
tive department submitted to Congress an estimate of 
$4,000,000. 8 This was a full million dollars below Mr. 
Wheeler's estimate and too small a sum for Congress. 
Congress appropriated $4,750,000 at the start of the 
year and added 1,600,000 later. 

For the next four years the President's estimates 
were 6,750,000, 9,250,000, 8,250,000 and 9>379>77 
respectively; 9 the appropriations of Congress for these 
same years were 6,750,000, 8,500,000, 8,250,000, and 
io,oi2,330. 10 

At the end of five years the President had recom 
mended an average expenditure of 7,525,954. Congress 
had actually appropriated 7,972,466. By a slight mar 
gin, Congress had voted more funds for enforcement 
than the President had requested in his budgets. 

Meantime the White House, whoever its occupant, 
made it a settled policy to remain aloof from such ques 
tions, closely allied with appropriations, as the reorgan 
ization of the prohibition service in the interest of 
obtaining better results from any funds, however mod 
est, which were voted for enforcement. 

In December, 1922, after five sessions of Congress 
had failed to result in any action on the proposal to 
bring the Prohibition Bureau under civil service regula 
tions, the National Civil Service Reform League came 
to President Harding with a request that he issue an 

^Estimate of Appropriations for the Fiscal Year Ended June jOy 

1921, p. 63. 

^Estimate of Appropriations for the Fiscal Years Ended June JO 9 

1922, 1923, ig24, 1925, pp. 70, 59, 669, 686. 
10 Cf. Appendix F. 



The Search for a Formula 107 

executive order placing agents of the Bureau in the 
classified service. 

The President had ample power to issue such an 
order. His decree would have been as effective as action 
taken by Congress itself, except for the possibility that 
some later President might have issued a contrary order 
restoring the spoils system in the appointment of en 
forcement agents. Mr. Harding, however, declined to 
interfere. "I am not yet convinced," he informed the 
National Civil Service Reform League, "that this is 
the wisest step to take to promote effective service/' 11 
Mr. Coolidge likewise declined to interfere, suggesting 
the danger that some later President might upset his 
order if he issued it. 12 

Similar reluctance on the part of the executive de 
partment to intervene in the plans of Congress appeared 
in the case of a proposal to transfer the Prohibition 
Bureau from the Treasury Department to the Depart 
ment of Justice. There had always been a considerable 
body of expert opinion in favor of this change ulti 
mately to be recommended, in 1930, by the Wickersham 
commission. Even before the Volstead Act was adopted, 
Mr. Carter Glass, as Secretary of the Treasury, had 
sent a letter to the Judiciary Committee of the House of 
Representatives, urging that the new bureau be set up 
in the Department of Justice rather than in his own 
department, since "the enforcement of prohibitory laws 
is in no way a fiscal matter/' but "depends for its effec 
tiveness principally on the steps which will be taken in 
the courts throughout the country by the Department 
of Justice." 13 

n New York Times, March 7, 1923. 
12 Message to Congress, December 3, 1924. 
13 New York Times, June 21, 1919. 



io8 The Dry Decade 

Congress had chosen to ignore this advice, but certain 
observers in an excellent position to watch the operation 
of the law had continued to insist that the change in 
departments was a matter of importance. Mr. Glass's 
opinion on this point was reaffirmed by his successor, 
Secretary Houston, who declared that the Treasury 
should be given "the opportunity of centering its 
attention upon its primary functions and should not be 
encumbered with large activities unrelated to fiscal 
operations/ 5 The senior circuit judges of the country, 
basing their recommendations on abundant first-hand 
experience in the courts, urged that the change be made 
without delay, as much in the interest of the prohibition 
law as of the Treasury Department. In a formal state 
ment in which Chief Justice Taft concurred, they in 
sisted that it " would make much for effectiveness in 
enforcing the law" if "all the appropriations for enforce 
ment should be expended under the direction of the 
Attorney General/' 14 

Nevertheless, despite the interest shown in this pro 
posal by two Secretaries of the Treasury, the senior 
circuit judges and the Chief Justice of the United States, 
neither Mr. Harding nor Mr. Coolidge raised the ques 
tion of this possible transfer in any of their public state 
ments on the problem of enforcement, discussed its 
relative advantages and disadvantages in any of their 
messages to Congress, or expressed an opinion in these 
messages on the merits of any one of several bills in 
troduced in the Senate and the House, designed to effect 
a change in the status of the Prohibition Bureau on the 
initiative of Congress. 

Lack of interest in such plans need not suggest that 

either Mr. Harding or Mr. Coolidge lacked interest in 

14 Associated Press dispatch, Washington, November 26, 1924. 



The Search for a Formula 109 

the question of enforcement. As Presidents, they could 
not possibly lack interest in this question. As Presidents, 
charged theoretically with enforcement of many thou 
sand federal laws, they could not possibly fail to note 
with interest that one federal law now resulted in an in 
comparably larger number of prosecutions in the courts 
than any other federal law. 15 No doubt both Presidents 
felt a genuine concern over the readily available evidence 
of disrespect for a law which had the sanction of the 
Constitution. Mr. Harding warned the country on one 
occasion that violations of the Prohibition Act "bred a 
contempt for law" which might "ultimately destroy 
the Republic." 16 Mr, Coolidge declared in his address 
to the Governors' Conference in 1923 that in the ability 
of the nation to enforce its laws "is revealed the life or 
the death of the American ideal of self-government." 17 

The fact remains, however, that while both Mr. 
Harding and Mr. Coolidge were willing to discuss en 
forcement in its broadest terms, as a matter of public 
policy, good government and sound theory, they were 
not prepared either to urge Congress to increase its 
appropriations for the enforcement of a law which was 
being widely violated or to interfere definitely enough 
in any controversial question of enforcement to take 
away from Congress full responsibility for establishing 
the major principles of a policy of national prohibition. 

Through these early years from 1920 to 1924 the ex 
ecutive branch of the government was apparently con 
tent to stand on the theory that since the legislative 
branch had chosen to originate the experiment with na- 

l3 Report of the Attorney General of the United States, fiscal year 

ended June 30, 1925, pp. 134, 135, 138. 
l6 Message to Congress, December 8, 1922. 
17 New York Times, October 21, 1923. 



no The Dry Decade 

tional prohibition on its own initiative, it was plainly 
the duty of the legislative branch, and not of the execu 
tive branch, to carry the experiment successfully to its 
conclusion. 
This policy was entirely satisfactory to Congress. 



For a hard-pressed Prohibition Bureau which could 
feed, meantime, neither on the inexpensive oratory of 
Congress nor on the exhortations addressed by succes 
sive Presidents to the public, the early years of this 
adventure were not easy ones. The Prohibition Bureau 
could not ignore the concrete problems of enforcement 
which Presidents had left to Congress and Congress had 
set aside in order to devote its time and energy to aliens 
and the diplomatic corps. The Prohibition Bureau was 
forced to attack these problems as best it could, with a 
staff which had an average of 3,060 agents for the years 
from 1920 to 1925, including clerks and stenographers 
as well as active agents in the field. 18 

Obviously with such a staff the activities of the 
Prohibition Bureau were strictly circumscribed. There 
were certain things which it could do. There were other 
things which lay beyond its power to accomplish. It is 
possible to define the authority of the Bureau with some 
precision by the end of 1925. For at this juncture in the 
experiment with the Eighteenth Amendment and the 
Volstead Act, a subcommittee of the Senate Committee 
on the Judiciary initiated a series of hearings which, 
while not intended to explore the whole problem of en- 

l *Report of the Commissioner of Internal Revenue, fiscal years 
ended June 30, 1920, 1921, 1922/1923, 1924, 1925. 



The Search for a Formula in 

forcement, brought to the witness stand the chief en 
forcement officers of the government, including General 
Lincoln C. Andrews, at this time Assistant Secretary of 
the Treasury, in charge of prohibition work, and Dr. 
James M. Doran, chief of the Chemical Division of the 
Prohibition Bureau. 

The testimony of these witnesses supplies an accurate 
index of the ability of the government to deal in 1925 
with the five chief sources of illegal liquor which had 
constituted its chief problem from the outset. 







As early as January, 1920, the Prohibition Bureau 
had drawn up regulations to control the first potential 
source of supply which threatened to become a problem: 
the prescription of alcohol by doctors and the sale of 
alcohol by druggists. These regulations were accom 
panied by a permit system. The Bureau also required 
records to be kept of the character of the illnesses of 
millions of sick people throughout the country, the 
amount of alcohol prescribed for them following a diag 
nosis by their doctors and the precise form in which 
this alcohol was given. 

During the first six years of enforcement the Bureau 
issued an average of 63,891 permits annually to doctors. 
It revoked an average of 169 permits. It issued various 
instructions concerning the use of whisky as first-aid and 
raided various drugstores. It was obvious, however, that 
if the Bureau were to hunt in the haystack of 11,000,000 
prescriptions issued every year for cases which seemed to 
be suspicious, and to subject these cases to first-hand 
examination, it needed a large staff of agents. If it 



The Dry Decade 

hoped to prevent the cutting of whisky in drug stores, a 
practice not appearing in the records, it needed still 
more agents. 

These agents it did not have. At the hearings of the 
Senate subcommittee it was testified that by the end 
of 1925 the government had only 17 inspectors to keep 
check upon 1,200 drugstores and to investigate approxi 
mately a million prescriptions issued every year by 5,100 
doctors in New York City. 19 It was testified by the 
Assistant Secretary of the Treasury that in New York 
and in other large cities the control of medicinal liquor 
was inadequate and its misuse extensive. 

"I am working now on the details of a law which I 
shall ask Congress to consider," said General Andrews, 
"which will enable me to control the distribution of 
medicinal whisky, which I cannot do now." 20 



The second source of supply presenting a problem 
for the Prohibition Bureau was the brewery manufac 
turing illegal beer. The problem here was similar to the 
problem of preventing the misuse of medicinal liquor, 
since it imposed upon the Prohibition Bureau an effort 
to enforce regulations with a staff of agents which the 
Bureau did not have. 

In this case the regulations were concerned with the 
methods by which near-beer was to be produced and 
the methods by which it was to be kept within the 
strict limitations of the Volstead Act. The production 
of near-beer was small by comparison with the produc- 

l9 Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 69th Congress, 1st Session, pp. 119-121. 
Ibid., pp. 70-71. 



The Search for a Formula 113 

tion of real beer before the adoption of the Eighteenth 
Amendment. Nevertheless, 956,220,919 gallons of near- 
beer were produced during the first five years of pro 
hibition. 21 All of this near-beer had first been manu 
factured as genuine beer with a higher alcoholic content. 
The problem of the Prohibition Bureau had been to see 
that all of it had been legally de-alcoholized. It was 
apparent in the circumstances that the government 
lacked agents for this work. "There is every reason 
to believe," said Mr. Wayne B. Wheeler at this time, 
"that in several hundred plants large amounts of high- 
powered beer are made and distributed to the bootleg 
trade/ 322 

So far from satisfactory was the situation at the end 
of 1925 that General Andrews appealed to the Senate 
subcommittee to enlarge his staff of agents and to enact 
new legislation which would enable him both "to keep 
high-test beer off the market" and "to protect the hon 
est brewer." 23 With this end in view he urged an amend 
ment of the Volstead Act giving the government power 
to apply for an injunction against any brewery violating 
the rules of the Prohibition Bureau and additional power 
to place brewery apparatus under lock and key when it 
was not in use. 24 



The third source of supply of the bootlegger was 
liquor smuggled along the seacoasts and across the 

^Statistics Concerning Intoxicating Liquors, United States 

Treasury Department, 1930, p. 52. 
22 New York Times, April 4, 1926. 
^Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 6gth Congress, 1st Session, p. 69. 
*Ittd. 9 p. 7- 



H4 The Dry Decade 

borders. Until 1924 the Prohibition Bureau received only 
a limited amount of assistance from the Coast Guard. In 
1924, however, Congress reorganized the Coast Guard, 
permitting a temporary increase in its personnel and 
transferring to its control twenty second-class destroy 
ers to be reconditioned at a cost of $i3,ooo,ooo. 25 

This fleet was intended to make war upon Rum Row. 
To aid it in this effort the State Department had under 
taken to negotiate treaties which would broaden the 
authority of Coast Guard vessels to search suspected 
ships at sea. Such efforts as this took time. It was in 
July, 1922, that the American government first broached 
the question of a treaty with Great Britain, 26 and not 
until May 22, 1924, that a treaty setting a new search 
limit at "an hour's steaming distance" from the sea- 
coast was accepted by both parties, signed, sealed, 
ratified by the Senate and formally proclaimed. Other 
treaties were negotiated by the end of 1924 with the 
governments of France, Germany, Italy, Sweden, Nor 
way, Denmark, Panama, and Holland. 

Meantime, to prevent smuggling of liquor across the 
inland borders, the Prohibition Bureau had in the early 
years of its enforcement work a staff of 35 men to post 
along a Mexican frontier 1,744 miles in length (and to 
cover the states of Texas, New Mexico, and Arizona, 
incidentally) 27 and a larger and more variable staff for 
the Canadian frontier. It also had assistance from 
Customs Service agents not otherwise engaged, from 
Coast Guard vessels operating in the Great Lakes and 
from a convention signed with the government of Can- 

^H. R. 6815, 68th Congress, 1st Session. 
^New York Times, July 25, 1922, 

27 Prohibition Commissioner Kramer, New York Times, 
April 27, 1921. 



The Search for a Formula 115 

ada providing for the notification of American officials 
when any vessel cleared from a Canadian port with a 
cargo of liquor known to be, or suspected to be, intended 
for shipment to the United States. 

The cooperation of the Coast Guard and the various 
treaties negotiated by the government were unques 
tionably of assistance to the Prohibition Bureau in the 
prevention of rum-running. They were not a satisfactory 
substitute, however, for a force of agents adequate to 
maintain an effective watch over a long seacoast and 
border. In 1923 the Department of Commerce under 
Mr. Hoover estimated that the value of liquor smuggled 
into the United States amounted to $20,000,000 in 
I922. 28 For 1923 it increased its estimate to $30,000,000, 
and for 1924 to $40,000,000, with the comment that "in 
the opinion of officials connected with the Customs 
Service this is a low estimate." 29 

Asked at the hearings of the Senate subcommittee to 
estimate what proportion of liquor smuggled into the 
United States had actually been caught by the end of 
1925, General Andrews suggested five per cent. 30 



The fourth problem of the Prohibition Bureau was 
industrial alcohol. Year by year the production of this 
type of alcohol had been increasing at a rapidly accelera 
ting rate, either as the result of the expansion of the 
chemical industry or the expansion of the bootlegging 

28 New York Times, September 17, 1923. 

29 The Balance of International Payments of the United States in 

1924, Department of Commerce, April, 1925. 
^Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 6gth Congress, 1st Session, pp. 91-92. 



n6 The Dry Decade 

industry or very probably of both. In 1920, the first 
year of prohibition, 28,000,000 gallons of industrial 
alcohol were manufactured in the United States. 31 By 
1923, the fourth year of prohibition, the production of 
industrial alcohol had more than doubled. In 1924 it 
increased to 67,000,000 gallons; and in 1925 it reached 
81,000,000 gallons, an increase in six years of 189 per 
cent. 

In an effort to prevent diversion, the Prohibition 
Bureau established various formulas designed to make 
this alcohol undrinkable. By 1923 it had created 76 such 
formulas, varying with the purpose to which the alcohol 
was intended to be put. Some of these formulas used 
comparatively harmless denaturants such as oil of pep 
permint and menthol crystals or lavender and soft soap. 
Others used poisons as violent as iodine, benzine, and 
sulphuric acid. 32 On the chance, however, that not even 
iodine, benzine, and sulphuric acid would carry indus 
trial alcohol through to a wholly legal end, the Prohibi 
tion Bureau elaborated the permit system in vogue 
before the adoption of the Eighteenth Amendment, re 
quiring applicants for the use of alcohol to give some 
evidence of the legality of their intentions and to post 
a bond to be forfeited in case of misbehavior. 

The system itself was logical, but from the outset it 
encountered difficulties. In the first place, the law gave 
the Prohibition Bureau no power to trace industrial 
alcohol down the line of its widely varied uses beyond 
the first purchase of alcoholic products manufactured by 
firms or individuals holding permits. 

31 The figures cited here are quoted from Industrial Alcohol, 
United States Treasury Department, 1930, p. 48. 

32 Prohibition Commissioner Haynes, New York Times, July 
27, 1923, 



The Search for a Formula 117 

In the second place, even if the Bureau had had this 
power, it lacked the staff of agents required to follow 
60,000,000 gallons or 80,000,000 gallons of alcohol 
through the ramification of many purchases and repur 
chases, from the time it left the thirty denaturing plants 
which manufactured it until it reached the ultimate 
consumer. 

In the third place, when the Bureau discovered cases 
of diversion, it was compelled to initiate elaborate in 
vestigations in order to obtain evidence to justify 
revocation of a permit. As the Bureau itself pointed out: 
"Mere suspicion that a permittee is not keeping faith 
with the government is not sufficient under the law to 
warrant revocation. The law gives permit holders cer 
tain legal rights and the burden of proof is upon the 
government in instances of alleged diversion of alcohol 
or for other flagrant permit abuses/ 733 

In these circumstances, it is evident that an elaborate 
code of 76 denaturing formulas and an equally elaborate 
code of rules and regulations governing permits merely 
drew up a plan for an effort to enforce the law and did 
not actually constitute enforcement in themselves. 
Formulas were useful: they handicapped bootleggers at 
least to the extent of compelling them to "wash 5 ' 
industrial alcohol before turning it into expensive liquors 
for a public ready to pay fancy prices. Rules and regula 
tions sketched the outline of a system of control which 
was founded on valuable experience. These rules, how 
ever, were not self-executing. They required the applica 
tion of constant pressure at many different points. 

Proof of this fact is to be found in the actual results 
of the effort to prevent diversion. Testifying before 

^Industrial Alcohol, United States Treasury Department, 
1930, p. 29. 



n8 The Dry Decade 

the subcommittee of the Senate on conditions existing 
at the end of 1925, General Andrews described the 
thirty denaturing plants which manufactured industrial 
alcohol as "nothing more or less than bootlegging 
organizations" and estimated the amount of alcohol 
illegally diverted in 1925, despite the best efforts of the 
Prohibition Bureau, at "somewhere in the vicinity of 
13,000,000 to 15,000,000 gallons/' 34 

A much higher estimate of diversion was submitted to 
the subcommittee by the United States Attorney for the 
Southern District of New York, who placed his figure at 
from 50,000,000 to 60,000,000 gallons. 35 No estimate 
demonstrably accurate was available, for the reason that 
bootleggers filed no statistics with the government and 
all figures were necessarily derived from a process of 
estimating how much of the enormously increased pro 
duction of industrial alcohol could reasonably be ex 
plained by the growth of new industries requiring al 
cohol for legitimate purposes. 

One gallon of industrial alcohol diverted into the 
hands of Bootleggers was described by officials of the 
government as sufficient, when watered down, colored, 
and doctored, to manufacture a minimum of three gal 
lons of bogus liquor. 36 

Accepting as reliable the smaller estimate of diversion 
submitted to the Senate subcommittee by General 
Andrews and concurred in by the chief of the Chemical 
Division of the Prohibition Bureau, 37 enough industrial 
alcohol was being poured into the hands of an illegal 

^Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 6gth Congress, 1st Session, pp. 68, 479. 
**IKd. 9 p. 182. 
3& Ibid., p. 113. 
p. 1313. 



The Search for a Formula 119 

trade by the end of 1925 to manufacture from 
156,000,000 to 180,000,000 quarts of liquor every year. 



The last of the five chief sources of supply which 
constituted a problem for the Prohibition Bureau was 
the illicit still. Potentially this was by far the largest 
source. It was also the source with which the Prohibition 
Bureau was least equipped to deal. 

With a staff whose personnel averaged 3,060 men 
during the first six years of enforcement, the Prohibition 
Bureau was plainly in no position to suppress illicit stills 
all over the United States. Including its office help, it 
had one agent to every 972 square miles of territory. 
Since such a staff could not effectively patrol the coun 
try, the Prohibition Bureau fell back upon the only type 
of action available to it within the limits of its appropria 
tions : 

(a) It appealed to the states and municipalities to 
help round out an inadequate staff of federal agents by 
using their own officers to enforce the law. "Special 
attention was paid," said one of the early reports of the 
Bureau, "to securing cooperation from prosecuting 
attorneys, sheriffs, police departments and peace of 
ficers." 38 

(b) It set at the task of detecting and raiding stills as 
large a part of its own staff as could be spared from 
other duties. Considering the number of men available 
for this work, the record of achievement is impressive. 
In 1925 agents of the Prohibition Bureau seized 29,877 

^Report of the Commissioner of Internal Revenue, fiscal year 
ended June 30, 1923, p. 24. 



120 The Dry Decade 

distilleries and stills, 7,850 still worms and 134,810 
fermenters. 39 

(c) It attempted to prevent the use of domestic stills 
in private homes by warning the public that the Vol 
stead Act (Title II, Section 18) made it "unlawful to 
advertise, manufacture, sell, or possess for sale any uten 
sil, contrivance, machine, preparation, compound, tab 
let, substance, formula, direction or recipe advertised, 
designed or intended for use in the unlawful manufac 
ture of intoxicating liquor." 

(d) It issued various decrees with respect to methods 
of home manufacture which were and were not legal. 
For while the Volstead Act had been precise in its pro 
vision exempting only cider and fruit juices from a limi 
tation of one half of one per cent of alcohol, there were 
inevitably certain cases on the border line. Thus the 
Prohibition Bureau, called upon in 1922 to decide the 
fate of dandelion wine, ruled that this beverage was not 
legal, since the dandelion was not a fruit. 40 

It is clear, however, that to bar dandelions from kit 
chen kettles by administrative fiat was one thing, and to 
prevent a dandelion on a lawn two thousand miles from 
Washington from being snipped in the dead of night by 
a housewife bent on making dandelion wine was a very 
different matter. With a staff of 3,060 agents to cover 
the United States, the Prohibition Bureau had no actual 
power to execute the rules it framed concerning liquor 
made by a process of home manufacture. It had no 
power to interfere effectively with the sale of "utensils, 
contrivances or machines" intended to be used in pri 
vate homes, though the Volstead Act had made such 

^Statistics Concerning Intoxicating Liquors, United States 

Treasury Department, 1930, p. 64. 
40 New York Times, May 18, 1922. 



The Search for a Formula 121 

sale illegal. It had no power to break up a commercial 
traffic which reinvested its capital in new equipment as 
rapidly as its old equipment was confiscated by the 
government. 

Asked by the subcommittee of the Senate to report on 
the success achieved in suppressing illicit stills by the 
end of 1925, General Andrews estimated that of large 
commercial stills his Bureau had managed to seize "a 
fair percentage" and that of smaller stills "I should 
imagine that we did not get one in ten/' 41 

Since 29,877 stills of all sorts had been seized in 1925 
and since these stills represented no more than "a fair 
percentage" of large commercial stills and "one in ten" 
of smaller stills, it is clear that the Prohibition Bureau 
itself believed that a great many more than 29,877 stills 
remained in operation. 

Approximately how many stills the Bureau did not 
attempt to guess. 

But if there had been no more than 29,000 stills, and 
if they had all been small stills with a capacity of ten 
gallons daily, the Prohibition Bureau would have pic 
tured here a source of supply which was capable of 
producing a hundred million gallons of hard liquor every 
year, provided it could find a market for its wares. 



Plainly the Prohibition Bureau had not succeeded in 
shutting off the sources of an illicit trade by the end of 
1925. Medicinal liquor and high-test beer were still 
troublesome enough for the Assistant Secretary of the 
Treasury to plan new legislation to supplement the 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, pp. 447, 465-466. 



122 The Dry Decade 

Volstead Act. On the authority of the same official, not 
more than five per cent of the liquor smuggled across 
the borders had been seized. Enough industrial alcohol 
was being diverted into the hands of violators of the 
law to manufacture on the government's own estimate 
150,000,000 quarts of liquor annually. Lacking an 
adequate staff of its own and effective support from 
various states and municipalities, the Prohibition 
Bureau could only hope to harry the owners of illicit 
stills and cause them to shift their base of operations as 
frequently as possible. 

So far was the Bureau from a successful solution of 
its chief problems that the question arises whether its 
real function in the early years of prohibition was pro 
perly understood. Called upon suddenly to undertake 
a formidable task with which the federal government 
had no previous experience, confronted by stubborn 
opposition in many urban sections of the country, and 
effectively hamstrung by Congress in the matter of 
appropriations, it seems likely that the real mission of 
the Bureau was not to enforce the law effectively, some 
thing which could not be done with the funds at its 
disposal, but to go through the motions of enough en 
forcement to give Congress a clean bill of health and sim 
ultaneously to encourage that part of the public which 
liked the law to believe that better days lay just ahead. 

On this policy the Prohibition Bureau had embarked 
at the start of the adventure, probably less with a con 
scious desire to vindicate Congress than because the 
early heads of the Bureau were themselves sincere 
friends of the law and men of a profoundly optimistic 
cast of mind. 

Mr. John F. Kramer, the first Commissioner of Pro 
hibition, had begun his administration by assuring the 



The Search for a Formula 123 

country that the government would see that liquor was 
not manufactured, "nor sold, nor given away, nor 
hauled in anything on the surface of the earth nor under 
the sea nor in the air." 42 

Major Roy A. Haynes, who succeeded Mr. Kramer in 
1921, keyed his own statements to the public in the 
same sanguine mood, in various cheerful prophecies 
which stand in sharp contrast to the humdrum figures 
later submitted to the Senate subcommittee by General 
Andrews. From the bulletins of Major Haynes, extend 
ing over a period of several important years in this ex 
periment, flowed constant encouragement to the friends 
of prohibition to believe that the corner had been turned 
at last and that satisfactory enforcement of the law 
required only patience and a little courage. 

Thus in January, 1922, Mr. Haynes announced that 
enforcement of the law was "rapidly approaching the 
highest point of its efficiency " and that "the Amend 
ment is being enforced to an even greater extent than 
many of its devoted friends anticipated/' 43 During the 
same month he gave to the press a statement citing fig 
ures to prove that 17,500,000 people had already stopped 
drinking as a result of prohibition "a wonderful rec 
ord/' 44 In September of the same year, addressing a 
convention at Winona Lake, Indiana, he declared that 
while the cost of enforcing the law during the previous 
twelve months had been 9,500,000, the "various 
fines, assessments and taxes amounted to nearly 
$62,000,000 " 45 a return on each dollar invested of 



York Sun, January 4, 1920. Cf. Chapter III, supra. 
43 New York Times, January 9 and 15, 1922. 
^Ibid.y January 15, 1922. 

45 Associated Press dispatch, Winona Lake, Ind., September 2, 
1922. 



124 The Dry Decade 

better than six to one. In a message addressed to the 
country a few months later, on Christmas Eve, he an 
nounced his discovery that "the home brew fad is taking 
its final gasp/' 46 

This cycle of good cheer continued uninterruptedly 
from one year to another. In April, 1923, Major Haynes 
informed the public that "bootleg patronage has fallen 
off more than fifty per cent" and that "the redistillation 
of denatured alcohol is now impossible/' 47 In July he 
announced that moonshining in the cities was "on the 
wane"; "there is less of it to-day than at any time since 
national prohibition became the law." 48 In August he 
declared that the business of bootlegging had reached a 
"desperate plight"; "the death rattle has begun/' 49 
By December he was certain that the progress made by 
the Prohibition Bureau had been "nothing short of 
marvelous. . . . There is but little open and above- 
board drinking anywhere." 50 

Whether these confident reports from headquarters 
were interpreted by the public as a running comment on 
the actual conditions of enforcement, or whether they 
seemed to carry in themselves evidence of ardent and 
devoted propaganda, it is impossible to say. 

In any case, breathing hope and enthusiasm and as 
surance that all was well, they must have made good 
reading for the dry majority of Congress. For they sug 
gested that nothing more was needed to enforce this law 
than had already been provided. 

^Associated Press dispatch, Washington, December 24, 
1922. * 

*Ibid., April 9, 1923. 

48 New York Times, July 19, 1923. 

id. y August 265 1923. 

rid; December 24, 1923. 



The Search for a Formula 125 

This was precisely the kind of talk that Congress 
liked to hear. 



Certainly if the Prohibition Bureau aimed to do 
nothing else during these early years, it aimed at least to 
convince the country that its goal lay always near at 
hand and that one more trial would bring success. Time 
and again, whenever the public showed signs of losing 
faith that this law could ever be enforced successfully, 
the Prohibition Bureau either announced the start of 
some fresh effort or reorganized its work on some new 
plan designed to win back confidence. 

The orbit of these reorganizations was familiar. It 
would be complained in the press or in the pulpit that 
in some locality the law was being flouted on all sides. 
A tired and somewhat disillusioned official of the Pro 
hibition Bureau would admit that without adequate 
funds the problem was too much for him. A new official 
would be appointed in his place. The new official would 
come to his work with high hope and boundless energy. 
He would promptly reorganize whatever organization 
his predecessor had created and begin afresh. He would 
ask the public to be patient enough to give his plan a 
trial. The public would sit back to watch. Gradually 
conditions would return to normal. The public would 
again begin to doubt the possibility of enforcing the law 
successfully. The official would confess his heavy handi 
caps. A new official would be appointed. Travel in a 
circle would begin afresh. 

Thus, in New York City, for example, Mr. James L. 
Shevlin, the first federal administrator appointed to 
this difficult assignment, admitted at the end of seven 
unsuccessful months in office that liquor was being 



126 The Dry Decade 

widely sold throughout the city and that with a staff of 
two hundred agents there was very little he could do to 
stop it. 51 One month later, Mr, Shevlin was transferred 
from Broadway to El Paso "in the interest of the ser 
vice." 52 He was succeeded by Mr. Frank L. Boyd, who 
permitted the press to understand that he was forming 
an entirely new line of attack on the problem of enforce 
ment, designed "to make illicit traffickers sit up and 
take notice/' 53 Mr. Boyd lasted for three months. He 
took leave of his work with the statement that it was "a 
thankless and a hopeless task." 64 He was succeeded by 
Mr. Daniel L. Chapin, who came into office with new 
plans of the right way to enforce the law. S5 Mr. Chapin 
lasted for three months. He was succeeded by Mr. 
Ernest Langley, who announced that he would shake up 
Mr. Chapin's staff, set new standards for his agents, 
and attempt at last to give the city real enforcement. 56 
Meantime, in the state as well as in the city, control 
changed hands as often as it was necessary to inject 
fresh enthusiasm into the experiment for the reassurance 
of the public. Mr. Charles R. O'Connor, the first Pro 
hibition Director for the State of New York, remained 
in office for the exceptional period of sixteen months. 
He resigned in May, 1921, declaring that the problem of 
enforcement had "seemed at times well-nigh hope 
less." 57 He was succeeded by Mr. Harold L. Hart, who 
promptly announced that if the law was to be enforced it 

61 New York Times, August 12, 1920. 
id., September 1 6, 1920. 



w New York Herald, December 17, 1920. 
55 New York Times, February 6, 1921. 
Ibid. y March 20, 1921. 
5r lbid., May 23, 1921. 



The Search for a Formula 127 

would be necessary to "name a practically new force of 
inspectors and entirely reorganize the office force/' 58 Mr. 
Hart lasted from May until October. He was succeeded 
by Mr. E. C. Yellowley, who lasted from October to 
December, long enough to dismiss many of Mr. Hart's 
agents and to reorganize his methods. 59 Mr. Yellowley 
was succeeded by Mr. Ralph A. Day, who changed Mr. 
Yellowley' s plans and dismissed fifty of his agents on 
the ground that they were incompetent for public 
service. 60 

Nowhere else in the whole field of federal administra 
tion did public offices change hands like this or sudden 
reorganizations follow one another in such profusion. 
The experience of New York State and New York City 
could be duplicated in the experience of other states 
and other cities. The office of Federal Prohibition Com 
missioner itself changed hands with the necessities of the 
occasion. 

At the end of a year the early confidence of the first 
commissioner, Mr. Kramer, had been gnawed by certain 
doubts concerning his ability to achieve the task upon 
which he had embarked in the best of faith. Prohibition, 
he now declared, seemed to have been "to some extent 
forced upon whole states and especially upon large cities 
in which people had no sympathy whatever with the 
idea; in fact, they scarcely knew what the term prohibi 
tion meant." This hostility had created, "to my way of 
thinking/' Mr. Kramer said, "the most difficult problem 
that any state ever undertook to solve/' An enormous 
market had stimulated sources of production. Home 
stills were flourishing. "We haven't devoted much at- 

68 New York Times, July 10, 1921. 

59 /HJ., October 21, 1921. 

Ibid., October 5, 1922. 



128 The Dry Decade 

tention to this question. In fact, we are somewhat afraid 
to do so, lest we might thereby create a reaction against 
the law/ 561 

At this point, having uttered various heresies not in 
keeping with his role, Mr. Kramer took leave of public 
office: to be succeeded by Major Haynes, who at once 
discarded the plans developed by his predecessor, de 
clared that Mr. Kramer's theory of organization had 
been "clearly demonstrated after a thorough trial to be 
a failure/' 62 and created an entirely new system of or 
ganization of his own : only to have this system promptly 
torn apart by General Andrews, who declared that it 
was "not accomplishing results" and that it was im 
perative to substitute another system. 63 

Over and over this process was repeated, in an effort 
to find the magic formula of a reorganization so ingeni 
ous that it would somehow compensate for an insuffi 
cient staff of agents. Time and again fresh courage was 
pumped into the adventure by a constant shift in per 
sonnel. Change followed change. Another reorganization 
reorganized what an earlier reorganization had just ac 
complished. A new bulletin predicting that this time 
the key to enforcement had at last been found was 
broadcast to the public before the echo of its predecessor 
died. To the best of its ability the Prohibition Bureau 
kept alive the faith that despite a paralyzing lack of men 
and money its task could be accomplished. 

It was uphill work, but there was no other course the 
Prohibition Bureau could have followed. It had no real 
alternative in the matter of enforcement. The pattern of 

a New York Times, April 27, 1921, 
^Associated Press dispatch, Washington, June 17, 1921. 
^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary y 69th Congress, 1st Session, p. 46. 



The Search for a Formula 129 

enforcement was set by greater powers than the relatively 
unimportant captains of an experimental subdivision of 
the Treasury Department. It was set in the White 
House by Presidents with too many other irons in the 
fire to propose in their budgets the sums of money which 
alone could have launched a determined effort to en 
force the law. It was set in the offices of party bosses 
who raided the Prohibition Bureau for jobs for their ward 
heelers and protection for their friends. It was set in the 
halls of Congress by a dry majority which had at all 
times ample power to multiply its appropriations but 
consistently refused to act. 

The law limped on. It was scarcely the business of the 
Prohibition Bureau to quarrel with its peers. 



CHAPTER VI 
The Pattern of Enforcement 



EITHER the wets nor the drys were satisfied with the 
situation existing at the end of 1925. The willingness of 
Congress to let the law shift for itself, the failure of any 
President to raise the issue of increased appropriations 
and the inadequacy of any means available to the 
Prohibition Bureau created a vacuum which the casual 
efforts of local enforcement officers did not fill. The wets 
insisted that the law had broken down. The drys reluc 
tantly admitted that conditions were not what they 
desired. Without losing faith either in the merit of the 
law or in the theory that only a stubborn minority per 
sisted in disobeying it, they found themselves propelled 
into an increasingly critical attitude toward the methods 
employed by the government in its effort at enforce 
ment. 

This change was clearly reflected in various state 
ments issued from prohibition headquarters in 1925. 
In place of the earlier assurances that enforcement was 
steadily gaining ground, that there was no need for 
friends of the law to be concerned and that a dry Con 
gress could be relied upon to do its duty, there now ap 
peared a series of statements indicative of increasing 
restlessness over the course which events had followed. 

On behalf of the Anti-Saloon League Mr. Wheeler 

130 



The Pattern of Enforcement 131 

complained that due to the failure of Congress to take 
adequate steps to enforce the law "six million gallons 
of industrial alcohol reached the bootleggers last 
year." 1 

On behalf of the National Temperance Bureau Mr. 
Edwin C. Dinwiddie described the law as the victim of 
abuse by people in official circles who should have been 
its friends: "The situation is serious. Cabinet officers, 
Senators and other legislators and leaders find it easy to 
disobey the law themselves and they have been known 
to use their influence to free their henchmen after they 
have been caught in the toils of the law/' 2 

On behalf of the United Committee for Prohibi 
tion Enforcement Mr. Clinton Howard insisted that 
"prohibition has been enforced half-heartedly at best 
and with definite intention that it be broken, at worst; 
the law has not been enforced beyond the point where, 
in the opinion of the enforcers, it would hurt the party 
in power by enforcing it." 8 

Meantime, a militant prohibition organization active 
ly at work in the field reported that "rampant lawless 
ness" was "increasing by leaps and bounds" in a 
theoretically dry section of the country: 

"Dubuque boasts of 41,000 citizens and 1,000 boot 
leggers," said a statement issued in May, 1925, by the 
Anti-Saloon League of Iowa, "not to mention the count 
less moonshiners who operate in the city and vicinity. 
So keen has become the competition among the hun 
dreds of moonshiners who live on the jungle-like isles of 
the Mississippi and in the fastnesses of the heavily 
wooded bluffs that the largest manufacturer cut his 
Associated Press dispatch, Washington, March 8, 1925. 
2 New York Times, November 6, 1925. 
id. y December 4, 1925. 



132 The Dry Decade 

wholesale price in half during the past three weeks. The 
islands and bluffs are swarming with stills, some of 
which turn out huge quantities of liquor." 4 

Such statements as these were fairly typical of an 
increasingly persuasive suspicion on the part of the 
prohibition organizations that more could be done to 
enforce the law than was being done in 1925. 



Meantime, the actual pattern of enforcement had 
achieved a certain familiar outline after six years of 
experiment. By 1925 the first important symbol of 
enforcement was the "drive." 

It was more or less inevitable that this should be the 
case. If Congress had equipped the executive depart 
ment with a different type of machinery for enforce 
ment of the law, the administration of prohibition in 
the United States might have borne more resemblance 
to the administration of the average law than was ap 
parent in the circumstances. Drives were a new phenom 
enon. Various other laws which involved the risk of 
evasion by many thousand people were enforced with 
out recourse to sporadic round-ups. This was true, for 
example, of the pure food laws and the income tax. In 
the case of such legislation Congress had struck an 
equilibrium between the amount of willing compliance 
which it could expect on the public's part and the 
amount of force which had to be applied in order to 
coerce that fraction of the public which declined to 
accept the law as reasonable and just. 
No such equilibrium had been achieved by Congress 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 383. 



The Pattern of Enforcement 133 

in the case of prohibition. Public opinion was seriously 
divided. Lacking a close approximation to unanimous 
opinion, and attempting to apply coercion with too 
small a staff to meet all of its problems simultaneously, 
the federal government was constantly compelled to 
mobilize part of its staff in some special place for the 
achievement of some special purpose, neglecting, mean 
time, various other problems which it hoped to take up 
later. 

This was the origin of the prohibition drive, and by 
1925 the regular routine of enforcement was to pyramid 
fresh offensives on familiar fronts as rapidly as the 
Prohibition Bureau could complete an orbit of its more 
stubborn problems. One favorite battleground for such 
an effort was along the Atlantic Coast, where a flotilla 
of rum-runners was constantly reassembling at a differ 
ent point from the point at which it was dispersed. A 
second battleground was along the borderline between 
Canada and the United States, where drive followed 
drive with unfailing regularity, as frequently as the 
Prohibition Bureau could devote its major interest to 
the problem of preventing smuggling. 

The first such drive began in August, 1921, when 
it was announced that federal and state officials would 
pool their forces in an effort to put an end to an illicit 
traffic which had reached formidable proportions during 
the first eighteen months of prohibition. 5 

The second drive began in the summer of the follow 
ing year, when a fresh supply of men, this time rein 
forced with "naval craft, Coast Guard cutters, airships, 
armored trucks and high-powered motor cars' 5 was 
sent to the border by the federal government. 6 
Associated Press dispatch, Detroit, August 15, 1921. 
6 New York Times, July 29, 1922. 



134 The Dr Y Decade 

The third drive followed in June, 1923, when it was 
reported that "every available prohibition agent in the 
country" would be brought to Detroit for a fresh effort. 7 

The fourth drive began in December of the same 
year, when "the greatest assemblage of federal enforce 
ment officers ever seen in Michigan" gathered at 
Detroit; 8 the fifth in May, 1925, when "for the first time 
all the government's activities" were "being concen 
trated on the border in a terrific drive"; 9 and the sixth 
in the following August, when it was announced that 
"no limit" would be placed on the size of the border 
patrol "at every strategic point between the Great 
Lakes and the Atlantic," 10 

None of these drives, as was promptly demonstrated 
by the necessity of initiating its successor, succeeded in 
reaching its objective. None could reasonably be ex 
pected to furnish a satisfactory substitute for a staff of 
agents large enough to deal with the problem of smug 
gling systematically rather than in sudden spurts. 

The fact remains that when one drive had failed, the 
Prohibition Bureau had no recourse save to start 
another. 



On a local scale the counterpart of the national drive 
was the endless series of minor raids initiated by the 
same inadequate staff of federal agents wherever they 
suspected that liquor was being sold after it had crossed 
the border or after it was ready for distribution from 
some domestic source. Such raids were directed at a 

Associated Press dispatch, Detroit, June 13, 1923. 
8 Ibid., December 5, 1923, 
9 New York Times, May 15, 1925. 
, August 5 and 9, 1925. 



The Pattern of Enforcement 135 

wide variety of places, of which restaurants, hotels, 
amusement parks, roadhouses, cabarets, pool rooms, 
and delicatessen stores were the commonest examples. 

In the years from 1921 to 1925 the activities of the 
federal government in this type of work increased at a 
steadily accelerating pace. In 1921 agents of the Prohi 
bition Bureau seized 413,987 gallons of hard liquor 
in the course of their raids in different sections of the 
country; in 1925 they seized 1,102,787 gallons. 11 In 1921 
they seized 4,963,005 gallons of beer and other malt 
liquors; in 1925, 7,040,537 gallons. Between 1921 and 
1925 the amount of wine, cider, mash, and pomace con 
fiscated by the federal government rose from 428,303 
gallons to 10,572,933 gallons, an increase in six years' 
time of 2368 per cent. 12 

If it is difficult to appreciate the meaning of these 
enormous figures by considering them as abstract num 
bers, it is at least possible to suggest the character of 
the problem which they represented, and the tireless 
ingenuity which was forced upon the government in 
dealing with this problem, by considering the individual 
activities of two federal agents who have left an indeli 
ble impression behind them in the history of prohibition 
in New York. These two agents are Izzy Einstein and 
Moe Smith. Fantastic as their story seemed to be in 
1925, judged in the light of the activities which the 
public had hitherto associated with the responsibilities 
of the federal government, the sheer extravagance of 

u Figures cited in this paragraph are quoted from Statistics 
Concerning Intoxicating Liquors, United States Treasury 
Department, 1930, p. 64. 

^Figures of the seizures made by agents of the federal govern 
ment in each year from 1920 to 1929 will be found in Appen 
dix G. 



136 The Dry Decade 

the exploits upon which these agents of the law em 
barked was in itself a revealing measure of the task 
confronting the federal government when it found itself 
unable to control the sources of production of illegal 
liquor and compelled to pursue the supply in driblets, in 
the role of a detective. 

Izzy and Moe disguised themselves as automobile 
cleaners, raided a garage on West Broadway, and seized 
nine barrels of beer and 244 cases of whisky. 13 They dis 
guised themselves as milk drivers, carrying customers' 
account books, visited nine saloons on the East Side of 
New York, seized a quantity of liquor, and made 
seventeen arrests. 14 They disguised themselves as 
grave diggers, raided a speakeasy across from Wood- 
lawn Cemetery, and confiscated fifty barrels of alcohol. 15 

For purposes of other raids, and in each case with 
comparable success, they took to the streets disguised 
as vegetable venders, as fishermen, as horse dealers, 
as street-car conductors, as churchgoers in the Palm 
Sunday parade along Fifth Avenue, and as salesmen of 
a wholesale grocery concern, offering turkeys to the 
Thanksgiving trade. 16 On his own score, and without 
benefit of assistance from his usual companion, Izzy ap 
peared in the role of a thirsty motorman, a football 
player in Van Cortlandt Park, a patron of a suspicious 
pawnshop, an iceman catering to saloons in Brooklyn, 
a trombone player offering to treat new friends at the 

13 New York World, January 5, 1923. 

u lbid. 9 November 2, 1921. 

l *Ibid., March 4, 1922. 

16 New York Times, November 22, 1922; Ibid., July 17, 
1923; New York Herald, January 26, 1922; New York World, 
June 9, 1921 ; Ibid., April 10, 1922; New York Times, Novem 
ber 27, 1922. 



The Pattern of Enforcement 137 

Yorkville Casino and an actor who joined the Fern 
Club under the pseudonym of Ethelbert Santerre. 17 

Certainly in the pursuit of illicit liquor through 
the labyrinth of New York City no more substantial 
contribution was made to enforcement of the law than 
by these two resourceful agents. Their superior officers 
in the Prohibition Bureau credited them with respon 
sibility for twenty per cent of the cases brought to trial. 18 
The Supreme Court of the United States honored them 
on one occasion by upholding their interpretation of the 
law. 19 When the time came finally for the government 
to dispense with their services, presumably on the 
theory that a too generous publicity had robbed them of 
their usefulness, Mr. Wayne B. Wheeler and other 
friends of prohibition interceded unsuccessfully in 
their behalf. 20 

Damon and Pythias in the armor of enforcement, 
through four years of raids and round-ups the enter 
prising figures of Izzy and Moe appeared in silhouette 
against the cynicism of the city as symbols of the law. 



There was one unmistakable characteristic of 
hibition raids, whether undertaken by federal agents 
or by local police officials: the energy and the frequency 
of such raids varied with the degree of criticism to 
which the federal or local government found itself ex- 

17 New York Tribune, July 12, 1921 ; New York Herald, October 
31, 1921; New York Times, April 12, 1923; New York Trib 
une, June 21, 1921; New York Times, March 26, 1922; Ibid., 
July 23, 1925. 

18 New York Times, May 18, 1922. 

19 Associated Press dispatch, Washington, April 13, 1925. 

20 New York Times, November 20, 1925. 



138 The Dry Decade 

posed. When public interest in the law was at low ebb 
and the public's mind was more engaged with Wall 
Street or with summer sports than with the question of 
enforcement, raids as a rule were at their minimum. 
When something suddenly occurred to stimulate in 
terest in the law and to focus public attention sharply, 
if momentarily, on the question of enforcement, raids 
frequently picked up with astonishing celerity. 

A case in point may be cited from the experience of 
Chicago. In November, 1921, the administration of the 
law in that city was proceeding in a quiet manner when 
the Chicago Tribune published the results of a survey of 
local conditions of enforcement. At least 4,000 saloons, 
the Tribune found, were operating in Chicago. "Prac 
tically 100 per cent of them are selling some kind of 
beer, some sort of whisky, and some unbranded wine/' 
It was no trouble for a stranger to obtain liquor if he 
wished it. Drinks could be purchased openly. No guile 
and no acquaintanceship with the city's ways were 
needed. "The saloons are far less cautious than they 
were a year or eighteen months ago/' 21 

The sequence of events following publication of the 
Tribune's survey was a rallying of public interest in the 
question of enforcement, a considerable amount of 
popular discussion, and a sudden burst of activity in 
the Police Department. According to the Associated 
Press: "Real prohibition has arrived for Chicago's 
2,800,000 inhabitants, Chief of Police Fitzmorris an 
nounced to-night in an edict ordering the city's 5,300 
policemen to rivet the lid down "until it squeaks/ . . . 
The chief announced that all the teeth of the state 
dry act, counted even more drastic than the federal 
prohibition law, would be utilized 'to make Chicago so 
21 Chicago Tribune, November 10, 1921. 



The Pattern of Enforcement 139 

dry that a sponge can be wiped across it without pick 
ing up a drop of liquor/" 22 

For a few days the wires hummed with news of this 
offensive. Five hundred arrests were made in Chicago in 
the course of one day's round-ups. 23 A "dress-suit 
squad' 5 was formed in the Police Department to appre 
hend "exclusive society violators of the law" in well- 
known hotels and restaurants. 24 So many arrests were 
made in a few days' time that the city chemists could 
not keep pace with the police in their analyses of liquor 
seized. 25 At the end of a week of strenuous activity, 
however, the offensive began gently to taper off. At the 
end of a second week it seemed to have come to rest. At 
the end of a month it was a golden memory. 

When it appeared again, it was under different 
auspices and after the passage of two years. A reform 
mayor, William E. Dever, had been elected in the 
meantime. In 1923 the press reported him as believing 
that the city was wide open and as insisting that the 
police enforce the law. 26 

Once more a series of determined raids began. One 
hundred suspected violators of the law were arrested 
on the first day, three hundred on the second, three 
hundred on the third. 27 "The mayor made it clear to 
day," said the dispatches from Chicago, "that he did 
not intend to stop until he had closed every one of the 
six thousand ' soft-drink parlors' in the city, which are 
saloons operating under a false front. He declared that 

22 Associated Press dispatch, Chicago, December 15, 1921. 
23 New York Times, December 19, 1921. 
^Associated Press dispatch, Chicago, December 21, 1921. 
^Ibid.y December 20, 1921. 
26 New York Times, October 4, 1923. 
., October 5, 6, 7, 1923. 



140 The Dry Decade 

he will make Chicago a dry city inside of thirty days if 
he has to dismiss every captain and lieutenart in the 
Police Department/' 28 

There can be no question of the integrity of the 
mayor's intention and no question that he failed. What 
ever the fate of the soft-drink parlors, the sources of 
production flourished. "No man knows whether there 
are five thousand or eight thousand or ten thousand 
or twenty thousand stills in Chicago," Mayor Dever 
testified when he appeared as a witness before a com 
mittee of Congress, two years after this revival of en 
forcement in Chicago. "But that the stills are there, 
and that they are there in threatening numbers, I have 
not the slightest doubt." 29 



On a somewhat more elaborate scale this sequence 
of events was repeated in Philadelphia. The experience 
of the latter city off ers, in fact, an unusually clear illus 
tration of the methods used and the results achieved by 
police departments acting under pressure. 

As in the case of Chicago, the impetus for a sudden 
outburst of activity in Philadelphia was provided by a 
sharp criticism of existing conditions, issuing from a 
source sufficiently authoritative to challenge public 
interest. In an address delivered before the state con 
vention of the Woman's Christian Temperance Union 
toward the end of 1923, Governor Gifford Pinchot 
charged that the Philadelphia police were making 
"practically no effort" to obtain enforcement and that 

28 New York Times, October 6, 1923. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 1390. 



The Pattern of Enforcement 141 

saloons were operating in open defiance of the law. "In 
one saloon/' he said, describing the results of a personal 
tour of observation, "the law-breaking drinkers sur 
rounded the illegal bar four deep. It was easy to find, 
for there was as little secrecy about it as there is about 
the Washington Monument. Crowds walked in and out. 
A policeman stood at the very door/' 30 

This criticism of conditions of enforcement, made by 
the Governor of the state, coincided with the election 
of a new mayor in Philadelphia, Mr. W, Freeland Kend- 
rick, who volunteered to give the law a different type of 
administration under a more aggressive Director of 
Public Safety. 

With this end in view Mr. Kendrick appealed to the 
President in December, 1923, for a loan of the services 
of Brigadier-General Smedley D. Butler of the United 
States Marine Corps. General Butler had no previ 
ous experience as a prohibition officer, but he was a 
strong disciplinarian whose complete independence of 
local politics was a demonstrated fact. To his new 
public in Philadelphia he announced that he had not 
sought this position and did not particularly want it, 
but that having accepted it he was "going to do it right 
or not at all." 31 He had heard it said that prohibition 
could not be enforced. "That is silly. Any law can be 
enforced precisely as it is written if the men responsible 
want it done/' 32 He promised Philadelphia that he would 
give the city law enforcement "impartially and without 
fear/ 5 regardless of political pressure, even if he were 
"torn apart in the attempt." 33 

30 Associated Press dispatch, Erie, Pa., October 6, 1923. 
31 New York Times, December 23, 1923. 



^Associated Press dispatch, Philadelphia, December 16, 1923. 



i 4 2 The Dry Decade 

With this much by way of prelude, General Butler 
took command of the Police Department on January 7, 
1924, and immediately the guns began to roar.^Nine 
hundred and seventy-three saloons were closed in his 
first five days in office, the new Director of Public 
Safety announced on January iith. 34 Two thousand ar 
rests were made in round-ups during his second week 
in office. 35 Four hundred policemen were shifted over 
night in an attempt to improve the morale of the police 
force. 36 Eight police lieutenants were suspended for 
failure to rid their districts of saloons on forty-eight 
hours* notice. 37 

Meantime, the city's sixteen hundred firemen were 
invited by General Butler to "pitch in and help enforce 
the law/' 38 Fruit stores, pool rooms, restaurants and 
garages were searched industriously for liquor. 39 So- 
called "best society" was warned that the time had 
come when it would not be permitted to trifle with the 
law. "The day has passed in Philadelphia," announced 
the Director of Public Safety, "when societies and or 
ganizations can hold banquets in big hotels and serve 
liquor. We don't care who is holding them. We will 
arrest all the 'four hundred' if we catch that many in 
possession of illegal liquor." 40 

Here, certainly, was an enforcement officer made to 
order for those eager friends of prohibition who believed 
that what the situation needed was energy and a little 

^New York Times, January 12, 1924. 

**Ibid., January 20, 1924. 

^Associated Press dispatch, Philadelphia, January 25, 1924. 

37 New York Times, January n, 1924. 

., January 17, 1924. 

., January 19, 1924. 

.y January n, 1924. 



The Pattern of Enforcement 143 

backbone. "What General Butler has done in Philadel 
phia in a few short weeks can be done throughout the 
entire country if the people will rise up and support the 
law/' declared Mr, Josephus Daniels in an interview in 
Philadelphia. "As soon as Butler is finished here he 
should be called to Washington and made national 
prohibition enforcer/' 41 Similar statements appeared in 
other quarters. From a state conference of the Metho 
dist Church in New Jersey came a message of congratu 
lations, expressing hope that action comparable with 
General Butler's would promptly "be taken in every 
town and every city in New Jersey." 42 

For the moment, enthusiasm unquestionably ran 
high. Under pressure of events, however, General 
Butler's experiment gradually assumed a somewhat 
different form. The public began to hear less of raids, of 
round-ups, and of ultimatums, and more of factional 
disputes, of disagreements behind the scenes and of 
quarrels with the politicians. 

Thus in April, 1924, General Butler informed the 
press that he had been "double-crossed" by some of the 
men closest to him in the Police Department. 43 In July 
there were reports of a disagreement with the mayor 
which threatened to lead to a crisis but ultimately ended 
in a reconciliation. 44 In April, 1925, after his leave of 
absence from the Marine Corps had been extended for a 
second year, there came more serious reports that 
General Butler himself was tiring of his responsibilities. 
Enforcing the law in Philadelphia, he now informed 

41 New York Times, February 9, 1924. 
^Associated Press dispatch, Atlantic City, March 8, 1924, 
^Ibid., Philadelphia, April 8, 1924. 

44 New York Times, July 21, 1924; Associated Press dispatch, 
Philadelphia, October 2, 1924. 



144 The Dry Decade 

the Associated Press, "is worse than any battle I was 
ever in. ... The petty annoyances that are piled on me 
are worse than the Chinese drip torture." 45 

This theory of his responsibilities he expanded in 
September. "The path of law enforcement/' he in 
sisted, "has been blocked by powerful influences, by 
legal machinery that should have been an aid, and by 
the invocation of technicalities." So formidable were 
these obstacles that in General Butler's opinion, "en 
forcement of prohibition in this city is virtually 
stopped." This was a disillusioning conclusion for an 
enforcement officer who had begun his work in all good 
faith, but the trouble lay deep down. "Law enforcement 
on an absolutely even basis has not had the support of 
the people of Philadelphia and does not have it now/' 46 

Three months later, confessing that he was not 
reluctant to be leaving Philadelphia "the job isn't 
worth staying for a waste of time" 47 General Butler 
took leave of the post which he had filled for two event 
ful years. The conditions which he had come to correct 
admittedly lived after him. So did the method of en 
forcement to which he had given fresh vigor and 
publicity. 

Long after General Butler had returned to the ma 
rines and a quieter life in another section of the country, 
Police Unit No. i, which he had created for special en 
forcement work in his first days in Philadelphia, still 
plugged ahead at the task to which he had assigned it. 
On Christmas night in 1926 it completed its ten- 
thousandth raid. 48 

^Associated Press dispatch, Philadelphia, April 21, 1925. 
46 New York Times, September 13, 1925. 
47 Associated Press dispatch, Philadelphia, November 21, 1925. 
48 New York Times, December 26, 1926. 



The Pattern of Enforcement 145 



In the statement in which he announced his departure 
from Philadelphia, General Butler reported that one of 
the greatest handicaps with which he had had to con 
tend was the difficulty of enforcing prohibition in the 
courts. Of more than six thousand people arrested for 
alleged violations of the law during his second year in 
office, he pointed out that only 212 had been convicted. 
This was a discouragingly small percentage. "The 
result clearly shows/' it seemed to General Butler, 
"that enforcement hasn't amounted to a row of pins 
after the arrests were made/' 49 

In calling attention to this chapter of his experience 
in Philadelphia, General Butler was in reality calling 
attention to one of the major characteristics of the 
pattern of enforcement not only in Philadelphia but in 
the country as a whole. The second half of the effort to 
enforce prohibition with an insufficient staff of agents 
was the problem of imposing adequate penalties for 
violations with an insufficient staff of judges and 
attorneys in the courts. 

This problem had appeared in miniature form at an 
extremely early date in the history of prohibition. As 
an earlier chapter has pointed out, the United States 
District Attorney for Chicago had reported in June, 
1920, that the federal courts in that city were already 
five hundred cases behind schedule and Attorney 
General Palmer had appeared before the Appropria 
tions Committee of the House of Representatives in 
the following December to insist that the federal 

49 New York Times, September 13, 1925. 



146 The Dry Decade 

judiciary could not handle the flood of prohibition cases 
without more help from Congress. 50 

This warning was repeated by Mr. Palmer's suc 
cessor in the Department of Justice. In his first report 
as Attorney General Mr. Harry Daugherty pointed out 
that the number of unfinished prohibition cases pending 
in the courts had increased from 2,196 to 10,365 in a 
single year and urged the creation of eighteen new 
federal judges at large, to be assigned as needed. 61 

So much of a problem had violation of this law be 
come, from the point of view of the courts, that as early 
as the second year of prohibition Mr. Daugherty was 
already experimenting with the same plan for trials 
without jury, before United States Commissioners, 
which was to provoke a sensation in the headlines when 
it was recommended to the country nine years later 
by the Wickersham commission. In April, 1921, the 
Associated Press reported his belief that such a plan, 
relieving the federal courts of a responsibility which 
promised to engulf them, would aid materially in the 
enforcement of the law, particularly in the larger cities. 52 
From 1921 to 1925 this problem of relief for a hard- 
pressed judiciary steadily increased in importance 
rather than diminished. In 1922 the number of arrests 
by federal officers rose from 34,175 to 42,223, the 
number of prosecutions begun in the federal courts from 
29,114 to 34,984, and the number of cases unfinished 
at the end of the year from 10,365 to 16,713. 63 

BO Chapter III, supra. 

^Report of the Attorney General of the United States, fiscal year 
ended June 30, 1921, pp. 101, 4. 

62 Associated Press dispatch, Washington, April 21, 1921. 

^The figures cited here and in the three following paragraphs 
are quoted from Statistics Concerning Intoxicating Liquors, 
United States Treasury Department, 1930, pp. 64, 70. 



The Pattern of Enforcement 147 

In 1923 federal arrests again increased, in this case 
from 42,223 to 66,936; prosecutions increased from 
34,984 to 49,021; cases pending at the end of the year 
increased from 16,713 to 23,060. Commenting on the 
situation in which the federal courts now found them 
selves, the Department of Justice took occasion to ob 
serve: "The reports would seem to indicate that the 
crowded condition of the federal dockets is due for the 
most part to the fact that the prohibition burden is not 
being shared by the state courts, except in one or two 
states, notably Kansas and Wisconsin. It seems possible 
that other states could reduce the number of pending 
cases if they so desired/' 54 

In 1924 arrests once more increased, this time 
from 66,936 to 68, 1 1 6; there was a slight decrease 
in the number of prosecutions and the number of 
unfinished cases, which dropped from 49,021 to 45,878 
and from 23,060 to 22,329, respectively. The situation 
remained difficult enough, however, for the De 
partment of Justice to assert in its annual report that 
"the United States courts to-day are staggering un 
der the load imposed on them by prohibition legisla 
tion." 55 

Finally, in 1925, while the figures of the Prohibition 
Bureau for arrests by federal officers showed their first 
slight falling-off since the start of this experiment, 
diminishing from 68,116 to 62,747, the figures of the 
Department of Justice for prosecutions in the courts 
reached the highest point on record, mounting from 
45,878 to 50,743. Unfinished cases on the dockets at the 
end of the year also set a new high record, annulling 

64 New York Times > January 10, 1923. 

^Report of the Attorney General of the United States, fiscal year 
ended June 30, 1924, p. 79. 



148 The Dry Decade 

the decrease of the previous year and advancing from 
22,329 to 24,684. 56 

At this point, in the first six months of 1925, the 
Department of Justice now initiated more than three 
times as many cases as it had handled in the first six 
months of 1920. The docket of its unfinished cases had 
increased by 1024 per cent in five years' time. 



It was in an effort to find some instrument of enforce 
ment which would not give the federal courts more 
business than they could profitably handle, and an 
effort to supplement its policy of raids and drives with 
something which would not melt away in the fashion 
of General Butler's arrests in Philadelphia, that the 
Prohibition Bureau evolved its policy of padlocks. 
There had been a certain amount of experiment with 
this method in 1921. But it was "in the fall of 1922," 
as Major Haynes described the development of the 
policy, "that someone hit upon this tool. It was labeled 
* injunction/ It could be used, it was argued, under 
Sections 21, 22, 23, and 24 of the National Prohibition 
Act. And so it proved." 67 

The sections of the Prohibition Act to which this 
statement of Major Haynes referred were those sections 
broadly defining "any room, house, building . . . where 
intoxicating liquor is manufactured, sold or kept" as 
"a common nuisance" and giving the federal govern 
ment power to apply for an injunction against such a 
nuisance, with the provision that "upon judgment of 

^Figures of the prosecutions begun in the federal courts, con 
victions, acquittals, pleas of guilty, cases pending, fines, etc., 
for each year from 1920 to 1929 will be found in Appendix H. 

57 New York Times, August 8, 1923. 



The Pattern of Enforcement 149 

the court ordering such nuisance to be abated, the court 
may order that the room, house, building ... or place 
shall not be occupied or used for one year thereafter." 

The convenience of these provisions, for the purposes 
of the Prohibition Bureau, lay in the character of the 
penalty prescribed. A series of raids on a speakeasy 
known to be selling liquor usually had no other effect 
than to interrupt its profits momentarily. Once a place 
was padlocked, however, at least in theory it remained 
padlocked for a year. Moreover, this method of pro 
cedure had the advantage of a liberal interpretation in 
the courts. Although some conflict of opinion appeared 
upon the point, a single sale accompanied by unlawful 
possession of other liquor on the premises was held in 
test cases to be sufficient to warrant the issue of a pad- 
loclyriiunction. 58 "*"" 

"~do promising did this method of procedure seem to 
be, following its rediscovery in 1922, that the govern 
ment took advantage of it on an increasingly large 
scale. In 1922, 1,270 injunctions were issued by the 
courts, as compared with 466 during the previous year. 
In 1923 the number of injunctions increased to 1,928; 
in 1924, to 3,342 and in 1925 to 4,47i. 59 

Over a wide front the government sought diligently 
to invoke this method of procedure as a supplement to 
the arrests which it was making in these years. San 
Francisco was one of the first cities to witness the pad- 
lo^EiHg^oT a number of its saloons. The method was 
used extensively in Omaha and Detroit. In New York 

58 United States v. Eilert Brewing & Beverage Co., 278 F. 659 
(1921); Lewisohn v. United States, 278 F. 421 (1922), 
certiorari denied 258 U. S. 630 (1922). 

^Padlock Procedure, United States Treasury Department, 
P- 5- 



150 The Dry Decade 

City five hundred speakeasies were padlocked by an 
industrious federal attorney within thirteen months. 60 
In its interest in this legislation the government brought 
the owners of a wide variety of buildings into court. 
In Chicago an entire hotel of 125 rooms was closed as a 
result of frequent violations of the law. 61 In the same 
city padlocks were placed on the doors of two private 
residences, following the conviction of occupants of 
these buildings on a charge of manufacturing and 
distributing liquor. 62 

- So zealously was the injunction method used that in 
northern California the government actually succeeded 
in padlocking a tree. The tree was a redwood, twenty- 
four feet in diameter, six miles from the town of Dyer- 
yille. A hollow chamber in its base concealed a fifty- 
gallon still, operating at full capacity when it was 
raided. Kerosene was used as fuel, and the light smoke 
disappeared through a flue amid the foliage. Entrance 
to the chamber was concealed by a strip of canvas 
painted to resemble bark. 63 

Over this strip of canvas the government now hung a 
placard reading: "Closed for One Year for Violation of 
the National Prohibition Act/' 



As might have been anticipated, the government's 
resort to padlocking procedure on an increasing scale 
from 1922 to 1925 was not accomplished without protest 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 102. 

^Padlock Procedure y United States Treasury Department, 

*93, P- 43- 

^New York Times, January 25, 1925. 
^Associated Press dispatch, San Francisco, April 8, 1926. 



The Pattern of Enforcement 151 

on the part of a number of people, in no way involved in 
violations of the law, who believed this procedure to be 
arbitrary and unfair. Critics of the padlock method 
insisted that it was applied without benefit of a proper 
trial by jury. They insisted that it frequently penalized 
an innocent party who might not know that some por 
tion of a building which he had rented to a tenant had 
been used for an illegal purpose. They insisted that it 
inflicted punishment which varied capriciously not 
with the character of the offense against the law 
but with wide variations in the value of the properties 
involved. 

Whatever the force of these objections it is clear that 
the padlock method required less litigation than any 
other method suggested by the Volstead Act and that 
it was a far more effective principle of action to close the 
doors of a building for a year than to raid it every Mon 
day. It is equally clear that despite these obvious ad 
vantages the padlock method failed to provide the 
Prohibition Bureau with a satisfactory solution of its 
problems. There were inherent difficulties in the padlock 
method, as might have been inferred from the relatively 
small number of padlock proceedings in the whole run 
of prohibition cases brought to court. 

(i) Plainly the effectiveness of the padlock was 
measured by the circumstances of the individual case. 
It might make a three days' sensation in the headlines 
to padlock for one year a supper club patronized by a 
coterie of leading citizens. It was of little use to padlock 
a deserted warehouse where two soogallon stills manu 
factured enough liquor in a month to last a dozen night 
clubs for a year. The owners of such a plant simply re 
invested part of their profits in new equipment and 
sought another site. 



152 The Dry Decade 

(2) There were certain technical difficulties of a 
formidable nature which had to be faced in padlock 
procedure. Summarizing its experience at a somewhat 
later date, the Prohibition Bureau pointed out that 
fictitious leases, oral assignments of leases, and dummy 
corporations were frequently used to conceal the real 
identity of guilty parties, and asserted, "Records show 
that service [in padlock cases] can not be secured in 
more than 50 per cent of the cases brought and that not 
more than 35 per cent of the cases are finally closed by 
order of the court/' 64 

(3) Finally, there was the manifest difficulty of keep 
ing a padlock locked, once the key was turned. Testify 
ing before a committee of Congress in April, 1926, the 
United States Attorney for the Southern District of 
New York declared that one of the constantly recurring 
problems in this method of enforcement was the 
problem of preventing padlocked places from reopening 
for business at some convenient date after the courts 
had closed their doors. "We have nobody to see to 
that. . . . We have no way of knowing except as we rely 
upon the neighbors for information/' For Congress, 
in its reluctance to tax the country heavily in the 
interest of enforcement, had given the executive 
department only twenty-three agents to handle padlock 
procedure in a district with a population of eight million 
people. 65 

Once more the problem of enforcement returned to 
the question of half-hearted interest and inadequate 
appropriations. 

^Padlock Procedure, United States Treasury Department, 
1930, pp. lo-n. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 69th Congress, 1st Session, pp. 188-189, 



The Pattern of Enforcement 153 



By 1925 the pattern of enforcement was clearly de 
fined and reasonably well standardized. 

In the first place, lacking adequate personnel to 
handle its various problems simultaneously, the Pro 
hibition Bureau had fallen back upon a policy of 
mobilizing part of its personnel for special drives. These 
drives were supplemented by padlock action wherever 
possible and by local raids on the part of both federal 
officers and local officers. 

Raids varied in number and intensity in direct pro 
portion to the amount of criticism current at the mo 
ment: increasing with signs of active dissatisfaction and 
subsiding with a falling-off of public interest. The result 
which they achieved was the arrest by federal officers of 
313,940 suspected violators of the law during the first 
six years of prohibition 66 and the arrest by state and 
municipal officers of an unknown number of suspected 
violators, presumably much larger. It was not contended 
that the government had succeeded in arresting every 
person guilty of breaking the law, but merely that it 
had succeeded in arresting as many guilty persons as it 
could. "We do not begin to arrest all that are guilty/ 5 
General Andrews told a Senate subcommittee in 1926. 
"We cannot." 67 

In the second place, while the number of arrests was 
too small to encompass the guilty, it was too large to be 
handled successfully in the courts. By the end of 1925 

^Statistics Concerning Intoxicating Liquors, United States 

Treasury Department, 1930, p. 64. 
^Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 6gth Congress, ist Session, p. 57. 



154 The Dry Decade 

enough arrests were being made in New York City 
every month to occupy for an entire year the attention 
of such federal judges as were available for prohibition 
cases, assuming that the prosecution asked in each case 
for a jail sentence, which meant a jury trial. 68 At the 
end of a year's effort, therefore, with the judicial ma 
chinery furnished by Congress, and on the basis of a jury 
trial and a jail sentence for each violator, the federal 
courts would have found themselves with eleven years' 
work to handle. By the end of two years' effort they 
would have been twenty-two years behind schedule. 
In ten years they would have lost a century. 

Admittedly the law was unpopular in New York. 
But congestion in the courts was not unique to this one 
district nor the exclusive result of its lack at this time of 
a state enforcement act. In this same year the Depart 
ment of Justice reported that "United States attorneys 
throughout the country are handicapped by insufficient 
legal and clerical assistance and in many districts are 
prevented from promptly disposing of criminal prosecu 
tions by the inability of the courts to give sufficient 
time to the holding of criminal sessions. . . Additional 
judges and increased office help for United States at 
torneys are absolutely necessary." 69 

In the third place, it was clear that the law was fur 
ther handicapped, particularly in the matter of jail 
sentences, by the unwillingness of judges and juries in 
many instances to impose harsh penalties. "In many 
districts the variance between sentences imposed for 
violations of the National Prohibition Act and those 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, pp. 104, 105. 

**Rtport of the Attorney General of the United States, fiscal year 
ended June 30, 1925, p. 39. 



The Pattern of Enforcement 155 

imposed for convictions of other federal crimes is 
striking," said the Department of Justice in its annual 
report for 1923. "Some courts which exact the maximum 
penalties in other federal crimes are reluctant to place 
heavy punishment on prohibition violators/' 70 

In support of this conclusion Mr. J. J. Britt, of the 
legal staff of the Prohibition Bureau, informed a com 
mittee of Congress in 1925 that in such states as New 
York and Pennsylvania "it is very difficult to get a 
verdict of any great consequence in either civil or 
criminal cases relating to prohibition matters." 71 Mayor 
Dever of Chicago described the state judges in Cook 
County as deliberately indulgent. "These state judges 
have to go before the Chicago communities for nomina 
tion, for election. They have got to get the votes of the 
Chicago community. The Chicago city administration 
is enforcing an unpopular law. The judges, being human, 
see what is going on. They know they are coming up for 
reelection. They know that if they are with the un 
popular law they are going to be beaten for office." 72 

Faced with this double handicap of more cases in the 
courts than the courts could handle, and hostility to 
the law, or indifference to the law, precisely at those 
points where the courts were most congested, the 
government fell back upon the only expedient available 
to it in the circumstances and established its famous 
"bargain days." 

Here justice was dispensed with a broad hand and no 
necessity for juries. On set days in the court calendars, 

^Report of the Attorney General of the United States, fiscal year 

ended June 30, 1923, p. 86. 
71 New York Times, January 17, 1925. 

^Hearings of a Subcommittee of line Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 1396. 



156 The Dry Decade 

large numbers of bootleggers, restaurant proprietors, 
hotel keepers, waiters, smugglers, distillers, and go- 
betweens would plead guilty to violation of the law, 
provided they were assured in advance that they would 
avoid jail sentences and escape with fines. This was the 
regular method of handling prohibition in the courts by 
1925. Pleas of guilty, without jury trials, accounted for 
90.99 per cent of the convictions obtained in the federal 
courts. 73 Enforcement of the law, as General Butler had 
complained, might not "amount to a row of pins after 
the arrests were made/' There remained no other 
method by which the government could prevent its 
courts from being inundated. 

It is a somewhat ironic fact that a committee of the 
same Congress responsible for failure to create sufficient 
judicial machinery to handle prohibition cases should 
have thrown up its hands in horror at the conditions it 
discovered in the courts. 74 The heaviest penalty for 
violations of the prohibition law which this committee 
reported in 1925 was an average jail sentence of 185 
days and an average fine of $525 in Indiana. In the 
eastern district of Louisiana the average jail sentence 
was five days and the average fine $86. In Massachu 
setts the average jail sentence was three days and the 
average fine $127. In the western district of Kentucky 
the average jail sentence was three-tenths of a day and 
the average fine $148. " In New York City, in the federal 
court from June 23 to June 27, inclusive, Judge Clayton 
of Alabama sitting, the average fine imposed was $24 in 
256 cases. Nine prisoners were fined 5, 132 were fined 

^Statistics Concerning Intoxicating Liquors, United States 

Treasury Department, 1930, p. 70. 
^Report of a Subcommittee of the House Committee on Alcoholic 

Liquor Traffic, 68th Congress, 2d Session. 



The Pattern of Enforcement 157 

$10, five received $15 fines, seventeen were fined $20, 
and thirty were assessed $25. Only 63 of the 256 were 
fined more than $25. The maximum fine imposed was 
$200, levied upon two prisoners." 75 

The fact of the matter is that by 1925 the government 
had established a new license system, differing from the 
old license system only in the fact that it was low- 
license rather than high-license. 

The increasingly critical statements issued by vari 
ous prohibition organizations in 1925 showed their 
dissatisfaction with the character of any effort as yet 
expended in the interest of enforcement. It is small 
wonder that they were disappointed. 

^Report of a Subcommittee of the House Committee on Alcoholic 
Liquor Traffic, 68th Congress, 2d Session, p. 6. 



CHAPTER VII 
The Battle of Propaganda 



O, 



"F THE thousands of conflicting estimates of national 
prohibition placed before the country at the end of 
1925, these two are typical: 

From Congressman Schneider of Wisconsin: "Vice, 
crime, immorality, disease, insanity, corruption, and a 
general disregard for law, directly traceable to the 
unenforceability of the Volstead Act, are increasing with 
alarming rapidity." 1 

From the Anti-Saloon League of America: "Industry, 
commerce, art, literature, music, learning, entertain 
ment, and benevolence all find their finest expression 
in this saloonless land/' 2 

To the militant leaders of the wets, the law had not 
only broken down, but in its breakdown saddled the 
American people with a heavy burden. To the militant 
leaders of the drys, neither the handicap of hostility 
which the law had encountered in the cities nor the lax 
conditions of enforcement of which the drys themselves 
complained could rob this experiment of its usefulness. 
The net result was clear gain, of lasting value to the 
country. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary , 6Qth Congress, 1st Session, p. 629. 
2 New York Times, November 26, 1925. 

158 



The Battle of Propaganda 159 

On these two major themes there were many varia 



tions. 



The field of controversy over the results achieved by 
six years of prohibition in the United States has been 
plowed over many times and turned up few facts whose 
authenticity has not been challenged. One of these facts 
is unmistakable. Whatever had happened to vice, crime, 
and immorality or to art, literature, and music, for 
that matter Congressman Schneider and those who 
shared his opinion of this experiment were entitled to 
cite an increase in corruption in public office as one of 
its by-products. 

There is no evidence that corruption had reached any 
of the chief officials of the Prohibition Bureau or that it 
had seeped through to other bureaus of the Treasury 
Department. There is certainly no evidence to support 
the sweeping statement that as a result of six years of 
prohibition the integrity of the whole government was 
tottering. With this much said, however, any summary 
of events from 1920 to the end of 1925 is bound to re 
cord the fact that prohibition had introduced into the 
lower ranks of the federal service, and both the lower 
and upper ranks of many local governments, a type of 
corruption which was widespread, stubborn and de 
structive. 

Evidence of this corruption appeared on many sides 
and in many sections of the country. 

In March, 1923, indictments charging illegal sale and 
transportation of intoxicating liquor were brought 
against seventy-five citizens of the city of Gary, In 
diana, including the mayor, a judge of the City Court, 
a former prosecuting attorney and various police 



160 The Dry Decade 

officers, deputy sheriffs, bootleggers, and proprietors of 
speakeasies. Fifty-five of the seventy-five defendants 
were found guilty. The mayor was fined $2,000 and 
sentenced to eighteen months in prison. The other fifty- 
four received jail sentences ranging from one day to 
one year and fines of from $100 to $5OO. 3 

In May, 1921, charges of extortion and conspiracy 
to violate the Volstead Act were brought against 
twenty-three justices, ex-justices, aldermen, and sher 
iffs in Fayette County, Pennsylvania. 4 

In April, 1925, fifty-eight policemen and prohibition 
agents, found guilty of conspiracy to violate the law, 
were sentenced to prison terms in the United States 
District Court at Cincinnati. 5 

In October, 1921, warrants were issued at Phila 
delphia for the arrest of agents of the federal govern 
ment involved in a conspiracy by which liquor valued 
at $15,000,000 was withdrawn from distilleries in 
Pennsylvania, New York, New Jersey, Maryland, 
Illinois, Indiana, and Kentucky by means of fraudulent 
permits. 6 

In August, 1925, a Controller of Customs at New 
Orleans, a police captain, a sheriff, the brother of 
a state Senator, and twenty-seven others were indicted 
for participation in what was described by Treasury 
officials as "one of the largest liquor conspiracies as yet 
uncovered in this country/' 7 

In September, 1924, warrants were issued for the 
arrest of two state officials and sixty-seven citizens of 

3 Associated Press dispatch, Gary, Ind., April 28, 1923. 
*IKd., Uniontown, Pa., May 19, 1921. 
*Ibid., Cincinnati, April 22, 1925. 
*lUd., Philadelphia, October 20, 1921. 
*New York Times, September 13, 1925. 



The Battle of Propaganda 161 

Little Rock, charging conspiracy against the prohibi 
tion law. 8 

In December, 1921, one hundred agents of the federal 
government in New York City were dismissed as the 
result of an investigation into the abuse of permits for 
the use of intoxicating liquor. 9 

It is fair to say that such cases as these, involving 
charges of corruption on the part of as many as twenty, 
thirty, fifty, or even a hundred officials at a single time, 
were exceptional cases in the experience of the law. 
The usual thing was the dismissal of one agent here, 
two agents there, the indictment of a half dozen police 
men in Chicago, or the conviction on charges of con 
spiracy of a Federal Prohibition Commissioner for 
Ohio. 10 

In this form, cases of corruption appeared and re 
appeared in the news of prohibition with marked 
regularity. So conventional had a certain amount of 
bribery become, by the end of a few years, that the 
prohibition agent dismissed for issuing a false permit 
and the police officer indicted on a charge of extorting 
funds from the owner of a speakeasy anxious to protect 
his trade were as familiar figures in the pattern of en 
forcement as a new drive on the border, a sudden 
flurry of raids designed to quiet criticism in the press, 
the appearance and the disappearance of a General 
Butler, the locking of a padlock on a new saloon, or the 
announcement of a new plan to relieve congestion in 
the courts. It was presumably to this fact that the 
President of the United States referred when he said of 
prohibition in 1922 that "there are conditions relating 

8 New York Times, September 15, 1924. 

*Ibid., December n, 1921. 

10 Associated Press dispatch, Cleveland, June 10, 1925. 



162 The Dry Decade 

to its enforcement which savor of nation-wide scandal. 
It is the most demoralizing factor in our public life." 11 

How many state and municipal officials were actually 
found guilty of corruption in these early years of pro 
hibition it is impossible to say. States and municipalities 
do not make it their practice to keep such records. Noth 
ing better exists by way of an official estimate than the 
opinion of Commissioner Haynes that bribes had been 
offered freely to "sheriffs, constables and peace officers 
by all titles" and that "those who have been caught are, 
doubtless, but a fraction of those who are guilty." 12 

From the federal government itself, however, ac 
curate figures are available. By February i, 1926, at the 
end of six years of prohibition, 875 agents of the enforce 
ment service had been dismissed on the score of such 
offenses as bribery, extortion, solicitation of money, 
conspiracy to violate the law, embezzlement, and sub 
mission of false reports. 13 

That this list of dismissals measured the full extent of 
corruption in the Prohibition Bureau seems unlikely. 
Presumably there were agents shrewd enough to conceal 
evidence of misconduct until they had left the service of 
the government. Presumably there were other agents, 
less fortunate in this respect, who were saved from dis 
missal by the interference of a politician capable of 
exercising pressure. Assuming, however, that the list of 
875 dismissals was an accurate index of corruption, 
and accepting General Andrews's estimate that in six 
years' time some 10,000 men had passed in and out of 
the Prohibition Bureau for the purpose of filling an 

"Message to Congress, December 8, 1922. 
^New York Times, August 5, 1923. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 92. 



The Battle of Propaganda 163 

average of 3,060 jobs, the number of agents dismissed 
for corruption was approximately one out of twelve. 
This was not an entirely unprecedented figure. As 
Senator Harreld of Oklahoma pointed out, "One out of 
twelve of the disciples went wrong/' 14 and this was cer 
tainly no worse. Yet within the experience of the federal 
government it was novel. No other bureau in Washing 
ton shared the experience of the Prohibition Bureau in 
these years. No other bureau found it necessary to dis 
charge one twelfth of its employees for a breach of trust. 
Whatever precedent for these figures existed elsewhere, 
it seems clear that a great deal of confusion would have 
arisen in the United States, if at every point in its wide 
contact with the public the federal government had 
been 8 per cent dishonest. 



There was one unexpected way in which corruption in 
the enforcement of the Eighteenth Amendment, how 
ever much to be deplored, brought a certain sense of re 
assurance to the friends of prohibition. It is needless to 
say that they regretted the existence of corruption, 
sought in various ways to help bring it to an end, and 
believed that the law could be enforced much more 
effectively without it. The fact remains that since the 
law was not effectively enforced, corruption in the 
federal service offered a reassuring explanation of its 
failure to achieve a more complete success. The trouble 
lay not in the law itself, but in the fact that a competent 
and honest staff had never been appointed to enforce it. 

The conventional statement of this theory, in this 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 80. 



164 The Dry Decade 

case made before a committee of Congress in 1926 by an 
earnest advocate of prohibition, ran as follows : 

"As yet, prohibition has not even had a Chinaman's 
chance. , . . The blame is not on prohibition, but on the 
political conspiracy that has so largely filled the en 
forcement positions with crooked and corrupt ap 
pointees who were selected to insure that the prohibi 
tion law could be violated with impunity for the profit 
of professional bootleggers and the venal politicians who 
are their silent, powerful partners/' 15 

The moral of this theory, so frequently stated in the 
early years of prohibition, was that the law must be 
taken out of the hands of its enemies and put in the 
hands of its friends. This was clear enough in theory. 
The problem was how to put the law any more in the 
hands of its friends than it had been from the very 
start. 

For while the friends of prohibition might feel that 
Congress interfered too much for the good of the service 
in the matter of appointments, this was the same Con 
gress whose dry majority was committed to enforce 
ment. "Each year," said Mr. Wayne B. Wheeler in 
1926, "the Congress that has been elected has been 
dryer than its predecessor. " 16 Meantime, the prohibition 
commissioners who actually appointed agents of the 
law, decided questions of administrative policy and set 
their staffs an example in the matter of personal integ 
rity, were men who had received not only the warm but 
the enthusiastic endorsement of the prohibition organ 
izations. 

Mr. John F. Kramer, the first Commissioner of 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary > 6gth Congress, 1st Session, p. 1606. 
p. 868. 



The Battle of Propaganda 165 

Prohibition, was so thoroughly satisfactory to the Anti- 
Saloon League that after he had taken leave of public 
office it sent him on a lecture tour. 17 Major Roy A. 
Haynes, who took command in 1921, was endorsed by 
Mr. Wheeler as the right man for the office 18 and 
described in the House of Representatives by Mr. Up- 
shaw of Georgia as an executive of "unsullied integrity" 
whose "amazing genius and energy" had encouraged 
every friend of prohibition. "The story of his victories," 
in Mr. Upshaw's judgment, " reads like a revised edition 
of the Acts of the Apostles, with Scottish Chiefs and the 
Arabian Nights thrown in." 19 -- 

These ^two. ..a^isinistcators. of the law, actively in 
charge of enforcement work for the first five years of 
prohibition, unquestionably had the confidence of the 
chief spokesmen of prohibition in Congress and outside 
of Congress. Unquestionably they did their best to. find 
an honest staff of agents. Mr. Haynes, in fact, insisted 
not only upon honesty in making appointments to his 
staff but demanded active sympathy with the whole 
purpose of the law itself. "No man can do his best work 
for a cause in which he does not personally have faith," 
he explained in 1923. "So far, therefore, as it has been 
possible to man the unit with employees of proved 
ability and of known adherence to prohibition prin 
ciples, the force has been built up of men who believe 
wholeheartedly in the daily tasks they are perform 
ing." 20 

Apparently the trouble was that men who believed 

l7 Rtport of the Senate Committee on Campaign Expenditures, 

1 026, p, 1406. 

18 New York Times, January 29, 1925. 
^Congressional Record, 6yth Congress, 4th Session, p. 1512. 
20 New York Times, August 26, 1923. 



166 The Dry Decade 

wholeheartedly in the daily tasks they were performing, 
when they first entered public office, found it difficult 
to retain this frame of mind in view of the temptations 
they were later offered. Such temptations were per 
sistent and beguiling. Mr. Haynes himself reported, in 
the course of his third year in office, that " there appears 
"tCTBe no^limit to the size of the bribe an illegal liquor 
industry is willing to offer and pay. . . . Millions of 
dollars piled upon other millions are strewn carelessly 
across the pathway of those engaged in law enforcement. 
All or anything that human fancy can devise or desire 
is offered unhesitatingly. The reverberating chorus of 
corrupt dollars sounds day and night in the ears of all 
classes of employees of the enforcement unit/' 21 

The clink of these dollars in the ears of a prohibition 
agent receiving the regulation beginner's salary of $35 
a week may be readily conceived. Vast quantities of 
alcohol could be diverted from their lawful purpose 
with the right kind of assistance in Chicago, San 
Francisco, or New York. Offers of bribes occasionally 
reached astonishing proportions. Mr. Haynes described 
one state administrator, "on a salary of $6,000, who 
estimated "that within a given month's time he coiHd 
have accumulated at least $i,ooo,ooo." 22 This sum Mr. 
Haynes described as "higher than the average." Pre 
sumably it was very much higher, but it suggested the 
opportunities latent in the enforcement of the law. 

These opportunities being what they were, the 
essential problem in ridding prohibition of corruption 
was not the problem of putting the law in the hands of 
its friends, which had been done on numerous occasions, 
but in keeping its friends from one year to another. 
**New York Times, July 15, 1923. 
., July 16, 1923. 



The Battle of Propaganda 167 

There were various possibilities. Congress might ap 
propriate salaries large enough to offer a better guar 
antee against corruption. The public might accept the 
law wholeheartedly, in which case there would be no 
market for bootleggers, no profits, and no bribes. A 
type of enforcement agent might be developed, so 
loyal to the cause that temptation could not budge him. 

The friends of prohibition declined to be discouraged. 
The law was young. It deserved its day in court. 
Time was long, and the morals of the Prohibition Bureau 
would improve with age. 



The question of corruption was unique in one 
respect. Here, at least, there were certain dependable 
figures of the federal government concerning dismissals 
from its own service. To this degree, the extent and 
character of such corruption in public office as had been 
introduced by prohibition could be measured without 
bias. Over most other questions concerned with the 
social results of this experiment, a sharp dispute had 
developed by 1925, in which every relevant fact was 
stubbornly and bitterly contested. 

This was true, for example, of the controversy over 
the effect which prohibition had had upon the evil it 
was originally designed to cure: the evil of intoxication. 
A great many sets of figures on this point had come 
into existence by the end of 1925. The two most widely 
quoted, by friends of the law on one side and its critics 
on the other, were those assembled by the World League 
Against Alcoholism and the Moderation League, Inc. 
The first set of figures, covering arrests for intoxication 
in 300 American cities from 1913 to 1923, received the 
warm endorsement of the Anti-Saloon League and 



168 The Dry Decade 

other prohibition organizations. The second set of 
figures, covering arrests in 350 cities from 1914 to 1924, 
was more often quoted by opponents of the law. 

In a broad way these two reports agreed upon one 
fact. During the three years 1918, 1919, and 1920 there 
had been a steady decrease in arrests for intoxication, 
compared with earlier years, and therefore a presumptive 
decrease in intoxication itself. After 1920, both reports 
agreed that the curve turned up again. How sharply up, 
however, was a point involved in great dispute. 

According to the World League Against Alcoholism, 
the upturn was not important enough to discredit the 
results achieved by prohibition. The first four prohibi 
tion years from 1920 to 1923 showed an average of 
383,711 arrests in the 300 cities on the World League's 
list, compared with an average of 572,106 arrests in 
these same cities for the four pre-prohibition years 
from 1913 to 1916. Taking account of an increase in 
population, the World League estimated that arrests 
for drunkenness had decreased by 42.3 per cent as a 
result of prohibition. 23 

Meantime, according to the Moderation League, 
which dealt in yearly totals rather than in averages for 
periods of years, the number of arrests had increased 
steadily from 226,070 in 1920 to 306,866 in 1921, to 
412,640 in 1922, to 483,753 in 1923 and finally to 
498,752 in 1924. At this point it was higher than the 
figure for any preceding year since 1917 and practically 
back at the pre-prohibition figure of 506,737 for igi^ 

There are several reasons which explain the radically 
different conclusions at which these two reports arrived. 

^New York Times, November 24, 1924. 
^Hearings of a Subcommittee of ike Senate Committee on the 
Judiciary 9 6gth Congress, 1st Session, p. 354. 



The Battle of Propaganda 169 

For one thing, the authors of the two reports went to a 
number of different places for their data. In South 
Dakota, for example, the World League drew its figures 
from Aberdeen and Lead; the Moderation League, from 
Sioux Falls, Watertown, and Huron. In Illinois six towns 
and cities appeared upon both lists; three others only on 
the list of the World League; and seven others only on 
the list of the Moderation League. Similar discrepancies 
occurred in practically all states. 

In the second place, the actual figures presented in 
the two reports disagreed in many instances. There 
were 45,226 arrests for intoxication in Philadelphia in 
1923 according to the World League and 54,124 arrests 
in the same city in the same year according to the 
Moderation League. There were 10,643 arrests in 
New York City and 11,947 in Detroit, according to the 
first report; 13,141 in New York City and 12,977 in 
Detroit, according to the second. 

In the third place, the comparison between averages 
in one report and totals in the other was confusing, and 
in itself the subject of a bitter controversy. Partisans of 
the World League charged that the figures of the Moder 
ation League were "deceptive and misleading" because 
they failed to take account of an increase in population. 25 
Partisans of the Moderation League charged that the 
World League had fallen back on averages for four-year 
periods in order to conceal an alarming recent upturn 
in the curve. 26 

Added to these differences in method and in content 
in the two reports themselves, there was a sharp dis 
pute over the interpretation which could properly be 



York Times, December 3, 1925. 
^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 355. 



170 The Dry Decade 

placed on any figures for arrests. Friends of prohibition 
insisted that if 383,711 people in 300 cities were still 
being arrested for drunkenness in the fourth year of 
this experiment, it was for one important reason be 
cause of increased severity on the part of the police. 
On this point, as the result of inquiries addressed to 
various municipal authorities, the World League es 
timated that nine out of ten offenders were now being 
arrested for intoxication, as compared with two out of 
five in the days before the adoption of a national pro 
hibition law. 27 

To the wets, this theory of an aroused police force 
seemed too hopeful. The police, they argued, had little 
sympathy with prohibition, as was amply demonstrated 
by the complaint of the drys that in many cities the 
existence of speakeasies was regarded with the utmost 
complacency by mayors and the heads of police depart 
ments. If the police would not enforce the law against 
an illicit industry, they would not be likely to harass the 
patrons of its trade. Moreover, it seemed to critics of 
this law that since one result of prohibition had been to 
increase the production of liquor brewed at home, a 
great deal of drinking, and a great deal of intoxication, 
now took place away from the streets and behind closed 
doors, where there was no occasion for it to appear on 
the blotters of police departments. 

The net result of these contradictory sets of figures, 
and of the argument which arose over the proper method 
of interpreting them, was presumably to convince no 
one who was not prepared to be convinced. People 
who liked to believe that prohibition was a success 

2l7 Robert E. Corradini, research secretary of the World League 
Against Alcoholism, quoted, Irving Fisher, Prohibition at Its 
Worst, p, 32. 



The Battle of Propaganda 171 

despite the handicap of lax enforcement cited the figures 
of the World League Against Alcoholism, to show that 
arrests for intoxication, while still in the hundred 
thousands, had been appreciably reduced. People who 
preferred to regard the law as a failure cited the figures 
of the Moderation League to prove that arrests for 
drunkenness were practically back at their pre-prohibi- 
tion figure, without taking account of a probable in 
crease of drunkenness in private homes. 

There was every opportunity here for anyone in 
terested in the results of prohibition to fortify his per 
sonal prejudice with highly documented facts, and 
plenty of evidence to suggest that individual observers 
were taking advantage of the opportunity. When a 
committee of the Senate inquired into conditions exist 
ing at the end of 1925, it was able to discover men who 
could perceive precisely the same set of facts in the 
same place at the same time in profoundly different 
lights. 

Three instances are typical. By one clergyman the 
committee was told that in the mining towns of Pennsyl 
vania prohibition had enormously increased drinking 
and introduced an illicit still "into practically every 
other home"; by another clergyman from the same 
section of the country, that drinking was a thing of the 
past and that in five years of prohibition he had never 
seen a still. 28 

By an official of the Salvation Army the committee 
was informed that cases of poverty in New York City as 
a result of drunkenness were only a fiftieth of what 
they used to be, and by a judge of the Court of General 
Sessions, having much to do with these same people, 

^Hearings of a Subcommittee cf the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, pp. 423, 1240. 



172 The Dry Decade 

that prohibition had multiplied at least by three the 
menace of drunkenness in the tenement districts of the 
city. 29 

From a representative of organized labor the com 
mittee learned that intemperance among workmen was 
" constantly increasing/' and from an employer of labor 
that intemperance among workmen was no longer a 
problem for the manufacturer. "Before prohibition I do 
not remember ever seeing a milk wagon in our mill- 
yard. Every morning there are three or four milk wagons 
there, and the men are using milk in place of beer." 30 



The same paucity of official data, the same heated 
dispute over the manner in which these data should be 
interpreted, and the same striking variations between 
the first-hand observation of one observer and the next, 
all characteristic of the controversy over the effect of 
prohibition on intoxication, were also characteristic of 
a disagreement over the effect ^of prohibition on the 
nation's health. 

Into this disagreement voluminous sets of figures were 
introduced, showing the number of cases of alcoholism, 
alcoholic poisoning, cirrhosis of the liver, insanity, and 
drug addiction received from year to year by hospitals 
in a long list of cities. If such figures showed a tendency 
to rise, it was frequently the practice of friends of pro 
hibition to dismiss them on the ground that they came 
from centers of opposition to the law and therefore 
failed to measure the benefits to be had from strict en- 

H tarings of 'a Subcommittee of the Senate Committee Qn the 
. Judiciary y 6gth Congress, 1st Session, pp. 678, 146. 

pp. 277, 808. 



The Battle of Propaganda 173 

forcement. If they showed a tendency to fall, the en 
emies of prohibition argued that they were necessarily 
local figures, unimportant as an index of conditions 
existing in many populous industrial cities, where an 
unpopular law had raised formidable problems. 

Meantime, there was little by way of an authentic 
summary of conditions on a national scale available to 
partisans on either side. The Census Bureau, it is true, 
had for some years tabulated deaths from alcoholism 
in the United States Registration Area. For the seven 
years from 1911 to 1917 such deaths had been prac 
tically stationary at 4.9, 5.3, 5.9, 4.9, 4.4, 5,8, and 5.2 per 
100,000 people; for the three years from 1918 to 1920 
they had fallen sharply to 2.7, 1.6, and i.o; in 1921 they 
had begun to rise, and from that year forward to 1925 
they had stood at 1.8, 2,6, 3.2, 3.2, and 3.6 respectively. 31 

In a broad way these figures agreed with the down 
ward curve and then the upward curve in arrests for 
intoxication reported by both the Moderation League 
and the World League Against Alcoholism. There was 
a large element of risk> however, in using these figures 
as a peg on which to hang broad statements. Deaths 
from alcoholism played an extremely small part in the 
mortality figures of the United States, at no time in 
any of these years, either before or after prohibition, 
accounting even for the death of one person in every 
sixteen thousand. A change in such figures might con 
ceivably suggest a tendency, but as an index of the 
habits of the average American these figures were of 
little value. 

For statisticians interested in exploring the results of 
prohibition there was more fascination, in these cir 
cumstances, in experimenting with figures on a larger 
^Mortality Statistics, Bureau of the Census, 1911-1925. 



I 74 The Dry Decade 

scale: such figures, for example, as the data of the Cen 
sus Bureau on public health in general, as reflected in 
the death rate for all causes. Here there was clear evi 
dence of steady progress over a long period of years. 
Reports of the Census Bureau for the United States 
Registration Area showed that in the five years follow 
ing 1900 the average death rate was 15.9 per thousand 
people; that in the five years before the entrance of the 
United States into the World War the figure had 
dropped to 14.6; and that in the first five years of prohi 
bition it had dropped again to I2.7. 32 

The question at issue was whether prohibition had 
played any part in the lowering of the death rate in 
these last five years. Partisans of the law claimed that 
it had, and if they were devout enough in their par 
tisanship claimed on behalf of prohibition entire credit 
for the reduction. Thus Mr. Wheeler declared in 1924 
that "the saving of human life since prohibition reduced 
the death rate is equivalent to a million lives/' 33 

To critics of the law this seemed too large a count. 
Various things had been happening in these five years, 
they insisted, aside from an experiment- with prohibi 
tion. Medical science had improved, hospital methods 
had improved, new serums and new vaccines had been 
discovered, schools and insurance companies had ini 
tiated health campaigns, the standards of public 
hygiene were steadily advancing. If prohibition was 
responsible for lowering the death rate in the United 
States, critics of the law asked why the death rate had 
also fallen in these years in many European nations 
which still permitted the use of intoxicating liquors. 

^Mortality Statistics, Bureau of the Census, 1901-1905, 1912- 
1916, 1920-1924. 

York Times, November 27, 1924. 



The Battle of Propaganda 175 

Argument was based on faith. There were people 
who felt in 1925 that prohibition was entirely responsible 
for any gain in public health, people who felt that it 
could fairly claim some portion of the credit, people who 
felt that it had played no part whatever, and people who 
felt that its effect had been definitely harmful, slowing 
down progress which would have been more rapid if a 
large quantity of impure and poisonous liquor had not 
flooded the country in the years from 1920 to 1925. 

There was no way in which any of these people could 
establish indisputable proof of their theories on the 
basis_of existing data. 



The claims of rival prophets, the conflict between 
hostile theories and the will to believe what each ob 
server wished to believe, all reached their climax in the 
dispute over two final points widely debated in these 
years : namely, the question of what effect, if any, pro 
hibition had had upon crime in the United States, and 
the question of what effect, if any, it had had upon the 
prosperity which the country began to enjoy in increas 
ing measure after its first post-war depression. 

As might have been anticipated, the range of these 
two questions was sufficiently wide to open the door 
to sweeping statements made with great finality. Since 
crime and prosperity were even more complex in their 
causes than public health and arrests for intoxication, 
more difficult to measure accurately and more difficult 
to understand, it was correspondingly easy to be 
apostolic about them. On frequent occasions statesmen 
on both sides of this dispute confused hypothesis with 
fact and snap judgment with profound and sober re 
search. 



176 The Dry Decade 

The conclusions reached by this procedure could be 
many miles apart. In the matter of crime, for instance, 
it seemed clear to Mr. Hudson Maxim that prohibition 
had suddenly "changed the law-abiding American peo 
ple into the most lawless people in the world" and 
"filled our prisons with lawbreakers till the doors 
bulge/' 34 To Mr. Wheeler, on the other hand, it seemed 
no less clear that crime in a prohibition country had 
almost ceased to be a problem. "The crime rate has so 
decreased that many jails are closed. Others are sold. 
Our penal population is below the average of license 
years." 35 

On the whole, what data were available concerning 
crimes of a serious character lent themselves to more 
effective use by critics of the law than by its friends. 
In the opinion of the Census Bureau the most reliable 
figures concerning prison population were those showing 
admittance to penal institutions following sentence in 
the courts. 36 In this respect the census figures showed a 
decided increase in the number of prisoners admitted to 
federal and state prisons and reformatories over a 
period of sixteen years. In 1910 the number of such 
prisoners was 32.3 per 100,000 people; by 1923 it had 
increased to 34.6; by 1926 it had again increased to 
41. 8. 37 

The question at this point was whether prohibition 
had or had not played an important part in this increase. 
To many critics of the law the case seemed clear enough. 

^Hearings of a Subcommittee of the Senate Committee on ike 
Judiciary, 6gth Congress, 1st Session, p. 173. 

^New York Times, November 27, 1924. 

^Prisoners in State and Federal Prisons and Reformatories, 
1926, Bureau of the Census, 1929, p. 5. 
p. 7. 



The Battle of Propaganda 177 

Prohibition had fostered an illicit traffic. It had hung up 
enormous prizes for such gangs as infested many of the 
larger cities. It had diverted the attention of at least 
some part of the police from the prevention of crimes 
like burglary and homicide to a pursuit of illicit pints of 
liquor. By persuading otherwise law-abiding citizens to 
set an example of lawlessness with respect to this one 
law, it had fostered lawlessness in general. 

To these arguments the friends of prohibition took 
exception. By no reasonable process of deduction, they 
insisted, could such crimes as burglary and homicide be 
traced to prohibition. Crimes of this sort had their 
origin in other sources, entirely independent of federal 
control of intoxicating liquor. Some increase in serious 
crime had usually followed in the train of war. This had 
been true in other countries in the present case. "It is 
quite possible," the Federal Council of Churches sug 
gested in 1925, "that the effect of prohibition is really 
shown in the retardation of the post-war crime reac 
tion." 38 

Meantime, while commitments to federal and state 
prisons were increasing, so were bank deposits, wages, 
corporation profits, real estate values, the assets of 
building and loan associations, the production figures 
of American factories, and the prices of common 
stocks. 

It is characteristic of the whole argument over the 
social effects of prohibition that immediately the posi 
tion of the two factions was reversed. It was now the 
wets who insisted that it was wholly unfair to drag 
prohibition into the argument as an explanation of 
prosperity, and the drys who discovered here clear 

^Hearings of a Subcommittee of tine Senate Committee on the 
Judiciary, 69th Congress, 1st Session, p. 378. 



178 The Dry Decade 

proof of cause-and-effect which they had been unable 
to find in the case of prohibition and the prisons. 

On both sides the argument was familiar. 

To the wets it seemed certain that prosperity was the 
result of influences wholly remote from prohibition. 
In support of this contention they pointed out that most 
of the large cities, where prohibition was unpopular 
and unsuccessfully enforced, were at this time enjoying 
unusual prosperity, with high wages and rising values, 
whereas the rural sections of the country, which favored 
the law and more nearly observed it, were bitterly com 
plaining of hard times, insisting that farm values had 
depreciated to the extent of fifteen or twenty billion 
dollars and demanding prompt relief from Congress. 

To the drys the plight of the farmer was a political 
affair, but the prosperity of the towns was the clear 
result of six years of prohibition. This new law had fos 
tered sober habits. It had therefore promoted efficiency 
in industry and set new standards of production. It had 
saved for more useful purposes the vast sums of money 
which had been spent for liquor in the days before the 
war and diverted this money to the building of homes, 
the purchase of bonds, and the acquisition of radios and 
motor cars. 

On this theory of prohibition as the guiding genius 
of prosperity, the drys erected a superstructure of 
claims which were fully as broad and as sweeping as the 
contrary claims of those wets who indicted prohibition 
as the sole cause of a crime wave which had filled the 
prisons till their doors burst. 

To Mr. Wheeler it seemed clear that prohibition was 
primarily responsible for the gain in bank deposits, the 
issuance of an increasingly large number of life insurance 
policies and the vigor of the building boom which had 



The Battle of Propaganda 179 

appeared in 1924** Prohibition had eliminated "pau 
perism and the slums that clustered around their 
creator, the saloon/' 40 It was the principal factor in 
financing "vast expenditures on moving pictures, 
athletic equipment, and other wholesome entertain 
ment," in sending "throngs of youths and girls to high 
school and college by eliminating the liquor drain on 
the family purse," and in "making roads safer for the 
four million automobiles manufactured last year, many 
of which were bought by former impoverished drink 
ers." 41 

These views were shared in other quarters. 

Mr. Irving Fisher submitted figures to a committee 
of Congress in 1926 to support the claim that prohibition 
now added to the income of the United States six billion 
dollars a year, "without counting any savings in the 
cost of jails, almshouses, asylums, etc., or any economic 
savings from reducing the death rate." 42 

The World League Against Alcoholism estimated 
that since arrests for intoxication had been reduced by 
42.3 per cent as a result of prohibition, and since each 
arrest cost $94 01^ the average, the country now saved 
nearly a hundred million dollars annually in this one 
item. 43 

Major Haynes found in the Eighteenth Amendment 
the fundamental explanation of America's position as 
creditor of a "drink-fettered Europe" and declared 
that prohibition had introduced a new regime in in- 

39 New York Times, November 27, 1924. 
^Ibid. y January 16, 1926. 
* l lbid., December 25, 1923. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 1022. 
York Times, November 24, 1924. 



i8o The Dry Decade 

dustry: "We are the only nation in the world without an 
unemployment problem/' 44 

The proprietor of two thriving hairdressing shops in 
Washington was quoted in the press as saying: "It 
is very easy to trace the growth of the beauty parlor 
business to prohibition. When men drank, they were not 
so critical. Their wives and sweethearts looked attrac 
tive to them without the assistance of beauty parlors. 
Now, however, men remain clear-eyed all evening and 
notice wrinkles, pallor, straight hair and unsparkling 
eyes. As a result, the women are flocking to beauty par 
lors and we have to turn many away every day." 45 

At this point, it merely remained for some economist 
with a set of charts and a talent for round numbers 
to compute how many million or billion dollars a 
renaissance in the cosmetic trade had put in the pockets 
of a sober nation. 



The fact of the matter is, that while anyone could 
believe what he wished to believe, and find ample 
evidence to uphold his convictions after he had reached 
them, a large part of the argument over the effect of 
prohibition on both prosperity and crime was not sus 
ceptible of proof. It was possible to feel deeply that 
prohibition must inevitably be an important factor in 
such questions; it was possible to demonstrate with 
towering sets of figures that this or that had happened 
to bank deposits or to building loans or to jail admit 
tances, over one period of years as compared with 
another period of years; but to trace the precise re 
sponsibility from columns of figures back to prohibi- 

^New York Times, August II, 1923. 
*Ilnd. 9 April 13, 1922. 



The Battle of Propaganda 181 

tion, as a cause, was a procedure which did not lend 
itself to a scientific method when it was applied in 
discriminately to thousands of individual cases as if 
they were all alike. 

Even in the individual case itself, it was difficult to 
get back to single concrete causes in matters as complex 
and as involved as prosperity and crime. Psychologists 
might study for a year the record of a young criminal 
committed to prison by the courts and still feel uncer 
tain, if they were good enough psychologists, precisely 
how much influence they could properly attach to pre 
natal influence, to physical equipment, to inherited traits, 
to early environment, to later associations, to immediate 
temptation or to a variety of other factors which had 
little to do with intoxicating liquor or the Volstead Act. 

If any one of these psychologists had suddenly an 
nounced that here was a case in which pre-natal influence 
did not matter, physical equipment did not matter, 
early training did not matter, environment did not 
matter, and nothing mattered save the fact that the 
United States now had a prohibition law, his colleagues 
would have laughed at him. Yet it was precisely with 
out regard to the complex pattern of influences at work 
in the individual case that prohibition was denounced 
as the exclusive source of a new crime wave. It was 
precisely without regard to the complex pattern of such 
economic factors as the availability of ample credit, the 
increasing use of electrical power, the progress of 
mechanical science, the existence of a sound banking 
system, the purchasing power of other countries, and 
the maintenance on a world scale of a satisfactory 
balance between production and consumption, that 
prohibition was acclaimed as the fountainhead of all 
prosperity. 



182 The Dry Decade 

The difficulty in arriving at indisputable conclusions 
about prohibition as a social and industrial influence 
lay deep down. Not only had such questions failed 
to receive more than passing notice from the great re 
search societies and the scientific foundations which 
might have studied them with profit; not only did most 
of the fodder for this controversy come from partisan 
organizations which were concerned with the pleading of 
a special case and therefore not immune from self- 
deception; in addition, there were certain far-reaching 
questions concerning the results of prohibition which 
no amount of disinterested and expert research could 
have answered mathematically in 1925, with any equip 
ment which science had yet made available for the 
measurement of men and institutions in the mass. 

This fact, however, did not deter champions on either 
side from rushing into print with bulletins announcing 
ultimate conclusions. Year by year the controversy 
broadened. Year by year it increased in vigor and in 
tensity as new claims were made, new documents piled 
up, new challenges rang out, and new figures were scat 
tered broadcast in an effort to capture the loyalty of a 
public which surveyed the results of this experiment 
from profoundly different points of view and with some 
evidence of an increasing bitterness of feeling. 



CHAPTER VIII 
The Deadlock of 1926 



VXNE result of the policy pursued by the federal 
government jiovra to the end of 1925 was to restore at 
least in part the old days of local option. Since Congress 
had created no machinery capable of enforcing the 
law systematically and even-handedly throughout the 
country, each community was thrown back on its own 
resources. It could not choose what type of legislation 
it would have, but it could choose how much it would 
enforce the legislation which had been given it. Kansas 
had one standard. Georgia a second. Downstate New 
York a third. Upstate New York a fourth. Other parts 
of other states had other standards. Those communities 
which liked the law enforced it. Those communities 
which did not like the law enforced it only to a point 
consistent with the prevailing mood of local sentiment. 

Whatever value was to be set upon the results of this 
experiment whether it had fostered crime or pre 
vented crime, whether it had ruined the farmer by 
shutting off one market for his grain or added billions 
of dollars to the income of the nation it was clear by 
1926 that new methods of enforcement must be tried if 
the government wished to put an end to an illicit liquor 
traffic in all sections of the country. 

Drives had failed to solve the problems of the 

183 



1 84 The Dry Decade 

Prohibition Bureau. Sporadic raids had proved to be 
no substitute for steady pressure. Episodes like General 
Butler's march through Philadelphia had ended in a 
discovery that not very much had happened. The power 
of the courts to enforce the law was crippled by their 
lack of real authority. If they attempted to impose jail 
sentences, on the theory that only jail sentences would 
prevent frequent violations of the law, they found 
themselves confronted by more cases involving jury 
trials than they could handle. If they attempted to keep 
their dockets clear they were compelled to resort to 
light fines on bargain days and the restoration of a 
license system. 

The stage was set in 1926 for a bolder and more 
powerful effort to enforce the law than any effort which 
the country had yet witnessed. Every detail of the 
existing situation pointed in this direction. The first 
investigation made by a committee of Congress into 
the progress of enforcement had disclosed the failure of 
the government to control important sources of pro 
duction. 1 The estimate of General Andrews that his 
bureau had not been able to seize more than one tenth 
of the stills in operation or more than one twentieth, 
of the liquor run across the border had been broadcast 
by the daily press. The Department of Justice was 
insisting that "additional judges and increased office 
help for United States attorneys are absolutely neces 
sary/' 2 The militant prohibition organizations them 
selves were vigorously complaining of a lack of effective 
effort: their protests ranging from Mr. Wheeler's crit- 

l Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session. Cf. Chapter V, supra. 

^Report of the Attorney General of the United States, fiscal year 
ended June 30, 1925, p. 39. 



The Deadlock of 1926 185 

icism on the score of industrial alcohol to the com 
plaint of the United Committee for Law Enforcement 
that the law had never been enforced "beyond the 
point where, in the opinion of the enforcers, it would 
hurt the party in power by enforcing it." 3 

The one logical alternative to a great effort to create 
more machinery of law enforcement in 1926 was to 
reduce the amount of law to be enforced. This was only 
a theoretical alternative. A dry majority was in com 
plete control of Congress. It took its cue from the 
leaders of the prohibition movement. Enforcement 
might be difficult, but in the opinion of these leaders 
this was the last reason in the world to change the 
law. 

"The very fact that the law is difficult to enforce/* 
said Mr. Wheeler in April, 1926, "is the clearest proof 
of the need of its existence." 4 

With such a slogan there could be no course but 
forward. 



The program of enforcement placed before Congress 
and the country on behalf of the Prohibition Bureau in 
1926 was a far-reaching program, though it failed to 
come to grips with the central problem of an adequate 
supply of men and money. This was, and always had 
been, an embarrassing question: embarrassing to an 
Administration which was making its reputation on a 
record of economy, embarrassing to prohibition leaders 
who did not like to see the cost of enforcement pushed 

3 Chapter VI, supra. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, ist Session, p. 1626, 



1 86 The Dry Decade 

too high, embarrassing to a Congress reluctant to tax 
the public heavily for enforcement of a law concerning 
which there existed a wide difference of opinion, em 
barrassing to a public which at no time liked to pay 
more taxes for any purpose than it had to. 

General Andrews gave the House Judiciary Com 
mittee an idea of the responsibilities involved in a 
realistic effort to enforce the law, when he testified that 
on the basis of his experience it would require an army 
of from 12,000 to 15,000 men to handle the compara 
tively minor problem of preventing smuggling on the 
border. 5 Needless to say, the House Judiciary Com 
mittee did not think it necessary to refer again to this 
phase of the matter. General Andrews himself asked 
only for a modest increase of $3,000,000 in the budget 
of his bureau, to cover all his problems. 6 

Nevertheless, though it skirted the question of ap 
propriations, General Andrews's program was by all 
odds the most ambitious program of enforcement sub 
mitted to Congress by an official of the federal govern 
ment in the first six years of prohibition. For all five of 
the major sources of production which had flourished 
despite the best efforts of the Prohibition Bureau, 
General Andrews recommended the adoption of legisla 
tion giving the government new authority. 

He urged that the control of the Prohibition Bureau 
over the distribution of medicinal liquor be broadened. 7 
He proposed that all manufacturers of cereal beverages 
be required to take out a federal permit, give bond, and 
subject their plants to federal inspection. 8 He asked for 

*New York Times, April 13, 1926. 
*Ibid.> April 17, 1926. 
id., April 3, 1926. 



The Deadlock of 1926 187 

power to search American ships beyond the twelve- 
mile limit, power to confiscate vessels captured by the 
government, and power to negotiate new agreements 
with foreign countries, in an effort to reduce smuggling 
by sea and along the borders. 9 He proposed that Con 
gress permit the Prohibition Bureau to confiscate such 
industrial alcohol "as does not substantially comply 
with the formula under which it is authorized to be 
manufactured/ 510 He asked for power to search private 
dwellings to discover illicit stills, not only on warrants 
charging sale, as provided in the Volstead Act, but 
also on suspicion of manufacture for commercial pur 
poses. 11 

It was important to make this last change, in General 
Andrews's opinion, because "the liquor traffic operators 
have taken advantage of the protection afforded private 
dwellings, from entry by search warrants, to use them 
as distilleries. They rent these dwellings and establish a 
family whose occupation is to distill alcohol for the 
bootleg trade. They instruct them never, under any 
circumstances, to sell any liquor on the premises/' 12 
In these circumstances the government was powerless to 
interfere. It must have more authority. 

If the grant of this authority involved a risk that law- 
abiding homes would be invaded by raiding parties 
whose suspicions turned out to have been ill founded, 
that risk must be accepted. 

"I cannot impress you too much/ 5 said General 
Andrews to a committee of the Senate, "with my 
feeling of the necessity that Congress shall give us 

9 New York Times, April 20, 1926. 
lQ Ibid., April 3, 1926. 
*Ibid. 9 April 3, May 8, 1926. 
id.> April 3, 1926. 



1 88 The Dry Decade 

these laws and this assistance and an opportunity to 
show what can be done/' 13 



Accompanied by various briefs and a sheaf of mem 
oranda, General Andrews' s program was submitted to 
Congress in April, 1926. This Congress, elected in 1924, 
had been described by Mr. Wheeler as the dryest Con 
gress on record, "surpassing its predecessors in the 
majority to sustain and enforce constitutional prohibi 
tion/' 14 According to Mr. Wheeler's data, there were 72 
drys in the Senate against 24 wets, 319 known friends 
of the law in the House against 105 opponents, 15 In both 
cases the majority was practically three to one. If Mr. 
Wheeler's figures were correct, the friends of prohibi 
tion had ample power to force the immediate adoption 
of General Andrews's legislation in the House and to 
invoke cloture in the Senate in case of a filibuster. 

What followed was another demonstration of the lack 
of interest which a dry Congress could display in a dry 
program. Though General Andrews appeared before one 
committee of Congress or another on eight different 
occasions in the month of April to urge the adoption of 
his bills, 16 though he declared that the Prohibition 
Bureau would be seriously handicapped by the failure of 
this legislation, 17 and though his efforts to obtain action 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 1434. 

14 New York Times, November 27, 1924. 

15 Ibid., November 7, 1924. 

16 House Judiciary Committee, April 12 and 19, 1926; sub 
committee of the Senate Judiciary Committee, April 5, 6, 14, 
15, 23, and 24, 1926. 

17 New York Times, April 27, 1926. 



The Deadlock of 1926 189 

were reinforced by pleas from the Methodist Board of 
Temperance and other prohibition organizations/ 8 not 
one of the bills designed to give the government new 
power to deal with the sources of illicit liquor was 
adopted by the Congress to which it was submitted with 
a plea for urgent action. 

The House gave its approval to a bill separating 
the Prohibition Bureau from the office of the Commis 
sioner of Internal Revenue and finally bringing the en 
forcement staff under civil service regulations. 19 It voted 
a million dollars with which to begin work on nine new 
cutters for the Coast Guard and increased the appropria 
tion of the Prohibition Bureau by 2,3 22,445 . 20 The 
ambitious bills which were to give the government new 
authority to deal with the major sources of production 
were put aside. First the Judiciary Committee of the 
Senate whittled away some of their more ambitious 
sections; 21 then the leaders of the House decided that 
since the Senate was plainly in no mood for action and 
since 1926 was an election year, it would be a stroke of 
statesmanship to let the whole affair go over. 22 

Six months later, when this same Congress reassem 
bled for its final session, General Andrews confessed 
in an address before the Woman's Christian Temper 
ance Union that his program for a new era in the Pro 
hibition Bureau was "not progressing any too happily" 
and that he had "not encountered any undue eagerness 
on the part of Congress to get behind law enforce- 

18 New York Times, May 10, 1926. 

19 H. R. 10729, 6gth Congress, ist Session. 

^Statistics Concerning Intoxicating Liquors, United States 

Treasury Department, 1930, p. 2. 
21 New York Times, May 8 and 15, 1926. 
W., June n, 1926. 



190 The Dry Decade 

ment." 23 The Senate managed on this occasion to 
adopt the bill bringing the Prohibition Bureau under 
civil service regulations, but the bills that were to 
deal with the unflagging sources of production per 
ished. 

Four months after the adjournment of Congress it 
was discovered that not even the bill to establish civil 
service regulations could be effective for some time, 
since Congress had failed to appropriate funds for its 
enforcement. 24 



If the collapse of the Andrews program took place 
quietly and unostentatiously, another bold hope gently 
laid to rest as public interest petered out, it was for one 
reason because certain new and challenging issues had 
suddenly thrust themselves into the controversy over 
prohibition and captured the attention of both Congress 
and the country. 

The first of these issues had its source in an unex 
pected order issued from the White House in May, 
1926, within a month of the time when the Andrews 
program was first placed in the hands of Congress. 
This order was signed by Mr. Coolidge. In a brief 
paragraph it authorized the appointment of "any 
state, county or municipal officer ... at a nominal rate 
of compensation, as a prohibition officer of the Treasury 
Department," except in cases where such appointment 
was specifically forbidden by local statute. The purpose 
of giving federal authority to local officers, the President 
explained, was "in order that they may more efficiently 

^Associated Press dispatch, Washington, January 25, 1927. 
id., Washington, July 16, 1927. 



The Deadlock of 1926 191 

function in the enforcement of the National Prohibition 

Act." 25 

The storm of protest which this order aroused was as 
sudden as the appearance of the order itself and as 
violent as any protest which six years of prohibition had 
developed. Journals as staunch in their support of the 
Coolidge Administration as the New York Herald 
Tribune described the order as "confusing and danger 
ous," running counter "to the whole trend of Mr. 
Coolidge's governmental philosophy, which has stressed 
the importance of state government and the necessity 
of respecting its integrity/' 26 The New York Times 
could find no explanation of the order save that some 
one in the Prohibition Bureau had suggested it "and 
Mr. Coolidge, in the pressure of duties and campaigns, 
must have signed mechanically/' 27 A careful student 
of governmental procedure in the United States, Senator 
Beveridge of Indiana, insisted that in this case the Ad 
ministration had embarked upon a policy "which, if it 
succeeds, will radically and fundamentally change our 
form of government and change it at once/' 28 

Identifying General Andrews as the author of this 
policy, Senator Beveridge said: "The former officer 
of our regular army who devised this change in the 
American system and who is in charge of it tells ^us the 
constitutional pretext for it. He says that the hitherto 
exclusive police power of the states is now shared by the 
central government. If this military and bureaucratic 
exposition of constitutional law is sound, then the plan- 



York Times, May 22, 1926. 
York Herald Tribune, May 23, 1926. 
27 New York Times, May 24, 1926. 

^Address before the Historical Society of Pennsylvania, 
Associated Press dispatch, Philadelphia, June 2, 1926. 



192 The Dry Decade 

ners and builders of American institutions wrought in 
vain. It is obvious that if local officers can be made nation 
al officers to execute one national law in a particular local 
ity they can be made agents of a general and centralized 
government to enforce other laws in every locality." 29 

For two weeks Congress, the press, and presumably a 
large part of the public debated this new issue with in 
terest and intensity. Hot words were exchanged in Con 
gress. Various explanations were offered by the execu 
tive departments to clarify the issue. On Mr. Coolidge's 
behalf it was pointed out that he could scarcely have 
wished to attack states' rights when he had just made a 
speech defending them, saying, no longer ago than the 
previous Saturday, that "the states should not be in 
duced by coercion or by favor to surrender the manage 
ment of their own affairs." 30 On General Andrews's 
behalf it was explained that the executive order had 
been "asked for merely to meet a situation in California 
where some deputy sheriffs had volunteered to police 
rural precincts in cooperation with the federal forces." 31 
On behalf of the Department of Justice it was explained 
that while the Attorney General had not studied the 
order before it was issued he had studied it afterward 
and was convinced that it was proper. 32 

In the end, after two weeks of angry debate in Con 
gress and the firm statement of the Official Spokesman 
of the White House that the President would not yield 
under fire but intended to stand his ground, 33 the con- 

29 Address before the Historical Society of Pennsylvania, 

Associated Press dispatch, Philadelphia, June 2, 1926. 
30 Address at Williamstown, Va., May 15, 1926. 
31 New York Times, May 25, 1926. 



The Deadlock of 1926 193 

stitutionality of his action was upheld by a vote of 4 to 
i in the Judiciary Committee of the Senate and a vote 
of 8 to 7 in the Judiciary Committee of the House. 34 

This much having been established by the votes of 
two committees, and the President having carried his 
point with Congress, nothing more was heard about the 
matter. No state officials were appointed as agents of 
the federal government. No state officials were recom 
mended for appointment. No change was made in the 
enforcement of the law. Mr. Coolidge's order was filed 
away as No. 4439, and the whole question was forgotten. 



Scarcely had the echo of this controversy died away, 
however, before a new issue appeared, capable of arous 
ing a still more vigorous disagreement over the methods 
which could properly be employed by the federal govern 
ment in its effort to enforce the law. This issue turned 
upon the propriety of the government's under-cover 
work and particularly its use of the agent provocateur. 

It was inherent in the problem of enforcement that 
the law could not be invoked without a certain amount 
of subterfuge on the part of the government's agents. 
As the Assistant Commissioner of the Prohibition Bu 
reau explained to a committee of Congress on one 
occasion, purchase of evidence was an indispensable 
part of the administration of the law. "That is about the 
only way, Mr. Chairman, that our agents have of mak 
ing cases that will stick in court. They cannot convict 
on hearsay, and a person who buys from a bootlegger 
will not testify in court against the bootlegger, because 
that would cut off his source of supply. So it is necessary 

York Times, June 8 and n, 1926, 



194 The Dry Decade 

for agents to make the purchase, and they can testify 
in court that they personally have made the purchase, 
in that way getting evidence on which a conviction 
may be had." 35 

It was difficult to quarrel with this argument without 
quarrelling with prohibition. Plainly, if the government 
wished to enforce the law, it must in many cases first 
tempt people to break the law, in order to have clear 
proof of their guilt when it arrested them. 

There were various ways, however, of achieving this 
result. On certain occasions even the friends of prohibi 
tion had found fault with the methods employed by 
overzealous officials in their effort to elicit information 
which could be used in court. In one case the Controller 
General had been forced to overrule the claim of a pro 
hibition agent who included in his expense account the 
item of $50 lost in a poker game incurred in the line of 
duty. 36 On another occasion considerable excitement 
was aroused in Congress over the disclosure that $279 
worth of supreme of cantaloupe au porte, breast of 
chicken Florentine, asparagus Hollandaise, and bonne 
fraises au sole had been purchased for a single dinner 
at the Hotel Mayflower in Washington by two agents 
of the government entertaining a party of suspected 
lawbreakers. 37 

It was the case of the Bridge Whist Club, however, 
which brought criticism of the government's under 
cover work to a head and precipitated another contro 
versy in Congress, shortly after Mr. Coolidge's execu 
tive order concerning state and local officials had ceased 
to be a problem. Somewhat casually, in the course of a 

^Congressional Record, 68th Congress, 2d Session, p. 961. 
^Associated Press dispatch, Washington, May 9, 1925. 
37 New York Times, December 19, 1925. 



The Deadlock of 1926 195 

lawsuit brought to break a leasehold, it was discovered 
that agents of the federal government had rented prem 
ises at 14 East 44th Street in New York City, estab 
lished a popular speakeasy at this address, and sold 
liquor freely to all customers over a period of six months 
between November i, 1925, and May I, I926. 38 

These facts were corroborated by the Treasury De 
partment, following their disclosure in New York, and 
defended on the ground that the Bridge Whist Club had 
served as an important source of information concerning 
the activity of liquor smugglers. 39 To the dry majority 
of Congress this statement of the case was satisfactory, 
but to the wet minority it seemed to carry warning of a 
dangerous precedent. 

Two other cases of somewhat similar activity on the 
part of the federal government were discovered: one 
involving cooperation in the management of an enter 
prising poolroom-bar in Norfolk, Virginia; the other, a 
plan to transport liquor across the Canadian border in 
northern New York and dispose of this liquor to boot 
leggers who would then be raided. 40 All three of these 
cases seemed, to the minority in Congress, to lead the 
government along a strange new path which it could not 
pursue with honor, to involve it in flagrant treachery, 
and to threaten the private citizen with a system of en 
trapment which he would find intolerable. 

For the better part of three months the debate ran on, 
with a succession of statements issued by the Treasury 
Department and a fresh dispute reaching new heights 
of bitterness in Congress. As in the case of Mr. Cool- 
idge's executive order, the upshot was irresolution. 

38 New York Times, December 21, 1926; January 27, 1927. 
^Senate Document No. 198, 6gth Congress, 2d Session. 
"IKd. 



196 The Dry Decade 

The Treasury Department insisted that violations of 
the law were "nationwide in their occurrence and almost 
without number"; that "no parallel of this situation 
exists in normal times it is similar, rather, to war"; 
and that "without the employment of under-cover 
methods and the willingness of government servants to 
become identified with the law violators in order to un 
earth their secrets, prohibition enforcement will be 
handicapped almost to the point of failure." 41 

Simultaneously, however, the Treasury agreed that 
its agents ought not to "engage in any illegal practices 
or entice others to do so" and confessed that it found 
espionage unpleasant business. "No one likes the idea," 
said the Treasury. Unfortunately, "it is as essential here 
as it is in war in order to gain necessary intelligence." 42 

The conclusion seemed to be that the experiment 
with the Bridge Whist Club and the Norfolk poolroom 
had been efficacious but distasteful. 



There was one other question of a new and highly 
controversial character which thrust itself into the fore 
ground of public interest at this time, during the year 
which elapsed between the appearance and the disap 
pearance of General Andrews' s program of emergency 
legislation. The Christmas holidays of 1926 had been 
marked by an unusually large number of deaths from 
alcoholism or alcoholic poisoning, and "poison alcohol" 
leapt suddenly and sensationally into the headlines of 
the daily papers. 

^Senate Document No. 198, 6gth Congress, 2d Session, part 2, 

pp. 1-2. 

, part 2, p. 2. 



The Deadlock of 1926 197 

To many critics of the Volstead Act it seemed, in 
fact, that the time had come to charge the federal gov 
ernment with direct responsibility for these deaths and 
to accuse it of the callous and brutal murder of its own 
citizens. The federal government insisted upon doctor 
ing industrial alcohol with deadly poisons. On the au 
thority of the Assistant Secretary of the Treasury, 
enough industrial alcohol had been diverted into the 
hands of bootleggers in 1925 to manufacture 150,000,000 
quarts of liquor. 43 The government knew this to be true 
and yet continued to order the use of poisonous dena- 
turants : in fact, precisely at this time had ordered that 
the quantity of wood alcohol used in one of its common 
est formulas be doubled. 44 By what logic, asked the 
opponents of prohibition, could such action be defended ? 
Senator Edge denounced the government's policy as 
"fiendish." 45 Representative Cellar compared it with the 
methods of Lucrezia Borgia. 46 The New York State Leg 
islature adopted a resolution demanding that Congress 
prohibit by law the use of poisonous denaturants. 47 

To such criticism as this the government had certain 
ready answers. 

In the first place, it suggested that deaths attributed 
to wood alcohol could more properly be attributed in 
many instances merely to heavy drinking. In support of 
this theory it cited a letter from the Health Commis 
sioner of New York, concerning casualties in that city, 
in which this official stated : "We do not know how many 
of these deaths were due to acute alcoholic poisoning 

^Chapter V, supra. 

^Treasury Department order 3929, approved October 8, 1926, 

York Times, January 3, 1927. 
id., January 4, 1927. 
. y March 3, 1927. 



198 The Dry Decade 

and how many were the result of chronic indulgence in 
alcohol." 48 

In the second place, the Government insisted that its 
policy of using denaturants of a deadly character was 
not dictated by a sudden desire to enforce the Volstead 
Act more vigorously, but by a policy dating back to 
1906, when Congress had adopted a law designed to aid 
American industry by making denatured alcohol tax- 
free for industrial purposes. On this occasion Congress 
had required that "wood alcohol or other suitable in 
gredient" be added to this alcohol, in order to keep it 
from competing with beverage alcohol on which a tax 
was placed. Half of the formulas in use by 1926 predated 
prohibition. 

In the third place, granting that people had not been 
in the habit of drinking industrial alcohol in the days 
before prohibition and that this phase of the matter 
had become a problem only after 1920, the fact remained 
that the Volstead Act also required the use of effective 
denaturants and that no satisfactory substitute for wood 
alcohol had been discovered. As the chief chemist of the 
Prohibition Bureau pointed out: "Being closely related 
chemically to ethyl alcohol, having a boiling point only 
slightly below that of ethyl alcohol, and having physical 
properties closely resembling ethyl alcohol, it is a sub 
stance that cannot easily be removed." 49 

Finally, it was the Government's theory that doubling 
the quantity of wood alcohol would actually protect the 
very substantial part of the public which persisted in 
drinking illegal liquor. "Under the new formula there 
will be less chance of poisoning than heretofore," in 
sisted General Andrews. "A strong trace of wood al- 
r Document No. ig^ p. 137, 6gth Congress, 2d Session. 
i P- 135- 



The Deadlock of 1926 199 

cohol is so offensive that it will warn the most reckless 
drinker." 50 

On this point there was some difference of opinion. 
Dr. James M. Doran, as chief chemist of General An- 
drews's bureau, agreed at this time that wood alcohol 
carried "distinctive odorous substances commonly de 
signated as pyroligneous compounds that, by their 
characteristic odor and taste, at once disclose to the in 
dividual the patent fact that the mixture or liquid is 
unfit for consumption/' 61 In 1923, however, when the 
problem of the Prohibition Bureau had not been a de 
fense of the government against charges of using poisons 
but a question of helping enforce the law by alarming 
people into obeying it, Dr. Doran was quoted in the 
press as saying: "It is impossible to detect wood alcohol 
except by a thorough chemical analysis performed by a 
skilled chemist in a well-equipped laboratory/' 52 

In any case, this policy was mandatory. The Volstead 
Act required the use of ingredients which could not be 
removed. Wood alcohol was the best of these ingredients. 
If the law was wrong, it was the business of Congress to 
change it. The Prohibition Bureau itself stood on the 
theory that drinking in a post- Volstead era was too dan 
gerous to be risked but not dangerous enough to point 
an accusing finger at the government. 



If there was some hesitancy here, and little enthu 
siasm for drastic methods merely because they were 

50 New York Times, January 9, 1927. 

* l Senate Document, No. /P5,p. I35> 69 th Congress, 2d Session. 

* 2 New York Times, July 26, 1923. 



200 The Dry Decade 

drastic, it was not for lack of encouraging support on the 
part of the prohibition organizations. At every stage of 
the controversy which had run on through these years, 
the prohibition organizations had done their best to up 
hold the hand of the government and to stiffen its resolu 
tion. 

The President's executive order concerning the feder- 
alization of local officials had been endorsed by the Gen 
eral Assembly of the United Presbyterian Church as 
sound governmental policy. 53 The Anti-Saloon League 
had thrown itself into the controversy over the Bridge 
Whist Club and demanded that Congress retain in the 
budget of the Prohibition Bureau an appropriation for 
the employment of under-cover agents. 54 Mr. Wheeler 
had defended the use of wood alcohol and insisted that 
"the government is under no obligation to furnish peo 
ple with alcohol that is drinkable when the Constitution 
prohibits it; the person who drinks this industrial al 
cohol is a deliberate suicide/' 55 The Philadelphia branch 
of the Woman's Christian Temperance Union adopted a 
resolution denouncing as "modification of the Volstead 
Act" the proposal to substitute obnoxious but harmless 
ingredients. 56 Mr. Atticus Webb, superintendent of the 
Anti-Saloon League of Texas, sent a telegram to Secre 
tary Mellon insisting on the use of lethal poisons on the 
ground that "it is not the function of the Treasury to 
make it safe to heap contempt upon the Constitution." 57 

Nevertheless, though the government had had this 
prompt and vigorous support from many of the most 

^New York Times, June i, 1926. 

54 Ibid., December 20, 1926. 

K Ibid., December 30, 1926. 

m lbid., January 4, 1927. 

v Senate Document, No. 195, p. 136, 6gth Congress, 2d Session. 



The Deadlock of 1926 201 

ardent friends of prohibition, it had shown a certain 
amount of diffidence and irresolution. 

The executive order authorizing federal status for 
state and municipal officers had been launched on the 
theory that it would substantially improve the enforce 
ment of the law, yet no state or municipal officers had 
been appointed to federal positions. The Bridge Whist 
Club had been described by the Secretary of the Treas 
ury as an "exceedingly fruitful" venture, 58 leading to 
the discovery of information of great value, yet the 
government had decided to have no more whist clubs. 
Wood alcohol was defended by the chief chemist of the 
Prohibition Bureau as the most effective denaturant 
which the government could use, since it was the most 
difficult denaturant to remove, yet the government had 
used it sparingly until the end of 1926 and then merely 
substituted 4 per cent for 2 per cent. 

There were signs here of reluctance to pursue appar 
ently logical theories to their ultimate conclusions. Par 
ticularly in the matter of federal appointments for state 
officers, the government's hesitancy raised certain ques 
tions of special interest and importance. 



Whatever the legal and moral responsibilities of the 
states under the Eighteenth Amendment, and this ques 
tion was to be debated with increasing vigor as time 
passed, it was clear by 1926 that the states had not 
given the federal government the effective support 
which the authors of the "concurrent" clause had hope 
fully anticipated. 

^Senate Document, No. 198, p. I, 6gth Congress, 2d Session. 



202 The Dry Decade 

It is true, of course, that an immense amount of legis 
lation had been written on the statute books at the state 
capitals. By the end of the first year of prohibition 
thirty-eight states had adopted legislation to supple 
ment the Volstead Act and by the end of the second year 
only a few states remained without enforcement laws. 
In many states new legislation was constantly being 
added to the original enactment, in an effort to close 
gaps which had unexpectedly appeared and to increase 
penalties which seemed too lenient. 

On the whole the states had made an exceedingly 
thorough job of their enforcement codes, not only 
matching the Volstead Act, but measurably outdoing it. 
Sixteen states had set their standard of intoxicating 
liquor at an even lower percentage than the one half of 
one per cent established by the Volstead Act. 59 Other 
states had prohibited the possession of liquor under any 
circumstances, even though legally acquired before the 
adoption of the Eighteenth Amendment. Practically all 
states immensely broadened the powers of search and 
seizure which the Volstead Act had given to agents of 
the federal government. 60 

On certain points state legislation was particularly 
drastic. Vermont adopted a "disclosure law" carrying 
a prison penalty for persons who failed to reveal their 
source of liquor if arrested for intoxication. Iowa pro 
hibited the sale or manufacture of canned heat or other 
compounds from which alcohol could be extracted for 
beverage purposes. Indiana made it illegal for jewelers 
to display pocket flasks or cocktail shakers in the win 
dows of their shops. 

**State Cooperation in the Enforcement of National Prohibition 
Laws, United States Treasury Department, 1930, p. 26. 
p. 29. 



The Deadlock of 1926 203 

Nevertheless, despite the formidable character of the 
state legislation which had been enacted by the end of 
1926, there was an unmistakable hiatus in many in 
stances between the law and its enforcement. It was one 
thing to adopt a drastic law and another thing to pro 
vide enough enforcement agents to detect violations of " 
this law, enough police to arrest the violators, enough 
courts to try prohibition cases with reasonable prompt 
ness and enough jails to hold the guilty. 

A case in point may be cited from the experience of 
New York. In April, 1921, the legislature of that state 
adopted the Mullan-Gage Law, closely patterned on the 
Volstead Act and carrying heavy penalties for viola 
tions. Simultaneously, however, the legislature failed 
to make any special appropriation to enforce this new 
state code and refused, meantime, to adopt a bill 
which would have dispensed with the right to trial by 
jury. 61 

The result of this action might have been anticipated 
by 1926, if not in 1921. The Mullan-Gage Law had been 
signed by the Governor on April 5, 1921. Within ten 
days the assistant district attorney in charge of prosecu 
tions under the law in New York City reported that ten 
times as many cases had already accumulated as the 
existing machinery of state courts could handle and de 
clared that he had found it difficult to obtain satisfac 
tory juries. 62 

From this point forward, the problem of congestion 
in the courts and of unsatisfactory juries increased 
rather than diminished. In the third week following the 
enactment of the law, the same Governor who had 
signed it announced that he "might convene an extra- 
^New York Times, April 15, 1921. 
id., April 16, 1921. 



204 The Dry Decade 

ordinary term of the State Supreme Court and assign 
justices to help clear up the calendars/ 563 At the same 
time, the district attorney's office in New York City 
called for volunteers to serve without pay in helping it 
handle an unprecedented flood of business; 64 the Police 
Commissioner asked for an additional $2,000,000 to 
enable him to increase his force; 65 the Department of 
Plants and Structures reported that the police had al 
ready seized enough samples of liquor to occupy the at 
tention of the city chemist for a year. 66 

Approximately on this pattern the experiment con 
tinued for two years. What it might have accomplished 
if the legislature had been ready to create an army of 
state police and willing to abolish trials by jury there is 
no way of telling. What it actually accomplished, in the 
existing circumstances, may be measured by noting its 
results in New York County: an accurate test, since the 
whole purpose of a state law was to enforce prohibition 
not in the rural communities where enforcement was no 
problem, but in urban centers where enforcement had 
been lax. 

Basing its figures on court records, the Committee 
on Criminal Courts, Laws and Procedure of the Bar 
Association of New York reported that a total of 6,902 
cases had been presented to the Grand Jury under the 
Mullan-Gage Law while it was in force; that 6,074 of 
these cases, or 88 per cent, had been dismissed; that 496 
cases, or 7.2 per cent, had been settled by pleas of guilty ; 

^New York Times, April 22, 1921. 
^Ibid., April 18, 1921. 
Ibid. y May 10, 1921. 
id., April 19, 1921. 



The Deadlock of 1926 205 

and that only 20 cases, or three-tenths of one per cent, 
had resulted in conviction and a jail sentence following 
a trial by jury. 67 





If the Mullan-Gage Law differed from most state leg 
islation in the fact that its span of life was brief, it had 
one point in common with the average state enforce 
ment code: it had little authority behind it by way of an 
appropriation from the public treasury. 

It is true, of course, that the enactment of a state 
law opened the state courts to prohibition cases and in 
theory relieved the federal courts of carrying the whole 
burden of enforcement. There was little profit, however, 
in opening the state courts if they were promptly to be 
closed again by a glut of more cases than they could 
handle, precisely in those districts in which the law was 
disobeyed most frequently. If the states really wished 
to enforce prohibition where it was disobeyed, it was 
plainly important not merely to make laws, but to create 
courts in which to punish violations of these laws and to 
supplement the casual efforts of municipal police and 
county law officials with state machinery of enforce 
ment. Such efforts, of course, cost money. 

How much money the states expended to enforce 
their own state codes in the first three years of prohibi 
tion it is impossible to say, for the reason that it was too 
small a sum to be itemized separately in the financial 
data of the Census Bureau. In 1923, however, a total of 
$548,629 was spent by the states specifically for the 

67 New York Times, January 29, 1928. 



206 The Dry Decade 

purpose of enforcing prohibition. 68 By 1927 this sum 
had increased to 689,855. 69 

Here, in the eighth year of prohibition, was something 
less than three quarters of a million dollars for enforce 
ment. It was contributed by eighteen states. Thirty 
states, twenty-eight of which had state enforcement 
acts, contributed nothing. Three States Utah, Nevada, 
and Missouri contributed less than $1,000, Utah's con 
tribution being $160* Seven states contributed between 
$1,000 and $25,000. The largest contribution was 
146,577 in the case of Ohio. The grand total contrib 
uted by all of the states was a little less than one 
twenty-fifth of one per cent of their total expenditures 
for all purposes. It was approximately half of what they 
spent on regulating the sale of oil and gas and approxi 
mately one fourth of what they spent on maintenance of 
their monuments and parks. 

These figures are revealing. They suggest one reason 
why officials of the federal government had so frequently 
complained, from the start of this experiment, of a lack 
of effective assistance by the states; why the first pro 
hibition commissioner had declared at the end of his 
first year in office that some of the states seemed willing 
to let the federal government struggle along without 
their help; 70 why the Department of Justice had insisted 
that "except in one or two states" the state courts were 
not carrying their proper share of "the prohibition 

^Financial Statistics of the States, 1923, Bureau of the Census, 
pp. 9091. 

59 This figure and the figures cited in the following paragraph 
are quoted from Financial Statistics of the States, IQ2J 9 Bu 
reau of the Census, pp. 80-81. 

70 New York Times* April 27, 1921. 



The Deadlock of 1926 207 

burden"; 71 why President Harding had declared in 1923 : 
"A good deal of testimony comes to Washington that 
some states are disposed to abdicate their own police 
authority in this matter and to turn over the burden of 
enforcement to the federal authorities." Presumably 
this meant the wet states. As for the dry states : " It is 
a singular fact that some states which successfully en 
forced their own prohibition statutes before the Eight 
eenth Amendment was adopted have latterly gone 
backward in this regard." 72 

Three years after one President lamented the unwil 
lingness of the states to lend the federal government 
more effective support, another President issued an exe 
cutive order proposing to appoint state officials as agents 
of the federal government. 

If this proposal ended nowhere, at least it suggested 
the existence of a problem in cooperation which had not 
been solved. 

With one or two exceptions, the state legislatures had 
given the friends of prohibition enough laws, and enough 
drastic laws, to satisfy them to their hearts' content. At 
the same time they had not bothered the opponents of 
prohibition either with strict enforcement or high taxes. 

For communities within the states, as for states within 
the nation, there remained a large degree of local option. 

71 Chapter VI, supra. 

72 Address at Denver, June 25, 1923. 



CHAPTER IX 
The Appearance of Organized Opposition 



of the law marked time in 1926 and 
1927. Congress stood pat. A three-to-one majority was 
not large enough to ratify the Andrews program. The 
states appropriated no new funds to vitalize their ample 
legislation. The controversy over "poison alcohol" and 
under-cover work had unleashed a vast amount of argu 
ment but failed to arm the government with any power 
which it did not have before. In all its major characteris 
tics the pattern of enforcement had not greatly changed 
since 1920. If any fundamental change had taken place 
in this interval of seven years it was not in the method 
employed by Congress to carry the experiment with na 
tional prohibition through to a successful end, but in the 
character of the opposition to the law. 

To understand the extent and the significance of this 
change it is necessary to recall the auspices under which 
opposition to the Eighteenth Amendment had originally 
appeared. In 1917 it was the brewers and distillers who 
invoked the argument of home rule and championed the 
doctrine of states' rights. Organized labor filed its pro 
test against this legislation in a stormy meeting at the 
Capitol. 1 Various associations of hotel keepers employed 
counsel to protect their interests. Here and there a real 
Chapter II, supra. 

208 



The Appearance of Organized Opposition 209 

estate board adopted resolutions. But in the end it was 
the brewers and distillers who led the opposition to the 
law and organized its efforts. 

It was the Distillers' Association of America which 
carried the fight to the state legislatures in an effort 
to prevent ratification, organized emergency committees 
and attempted unsuccessfully to force a referendum 
vote in fourteen states. 2 It was the United States Brew 
ers' Association, and not an association interested in the 
theory of the Constitution or the bill of rights, which 
briefed the case against the Volstead Act and submitted 
its brief to the President with a petition for his veto. 3 
It was the firm of Feigenspan, New Jersey brewers, 
which employed Elihu Root and William D. Guthrie to 
carry a last desperate appeal to the Supreme Court of 
the United States. 4 

Throughout the whole controversy over national pro 
hibition from the time Senator Sheppard's resolution for 
a constitutional amendment first appeared in Congress 
to the June day in 1920 when the Supreme Court upheld 
the Volstead Act, the opposition to this legislation had 
no funds, no organization and no real leadership except 
in so far as these elements were supplied by the liquor in 
terests of the country. 

With the exception of union labor there were no im 
portant organizations arrayed in opposition to this pro 
gram. There were no independent organizations in the 
field whose motives were disinterested and whose con 
stituents were drawn from the rank and file of ordinary 
citizens. 

In the matter of making public sentiment either for or 

2 New York Times, January 30, 1919. 

Associated Press dispatch, Washington, October 15, 1919. 

4 New York Times> March 28, 1920. 



210 The Dry Decade 

against the law, of arguing the case before Congress and 
of persuading members of the state legislatures on which 
side safety lay, the struggle over the Eighteenth Amend 
ment was a straight-out struggle between the liquor 
interests on one side and the allied prohibition organiza 
tions on the other. 



It was more or less inevitable that this should be the 
case. Presumably if the conflict had come over the ques 
tion of prohibiting the manufacture, sale and transporta 
tion of tobacco rather than of alcohol, the character of 
the opposition would not have varied greatly, though it 
might have come most vigorously from other sections 
of the country. 

The plantation owners of the South would have op 
posed this legislation. The various associations repre 
senting manufacturers, wholesalers, and retailers would 
have organized lobbies, petitioned the state legislatures, 
and battled to protect their interests. The individual 
smoker might have grumbled. He might have insisted 
that it was no business of a federal Congress to regulate 
standards of conduct within the states. With sufficient 
provocation he might have volunteered to march in a 
protest demonstration, provided the weather happened 
to be right. He might have made it a point to vote 
against his Congressman, if he made it a point to vote at 
all. But he would scarcely have been found, at the time 
this controversy reached its height, enrolled as an ac 
tive member of a protective smokers' league, tirelessly 
working to convert his neighbor to his point of view, and 
paying faithfully at the end of every month dues which 
would have helped finance an endless flow of ardent and 
devoted propaganda. 



The Appearance of Organized Opposition 211 

It is probably inherent in the. nature of a reform 
movement that those who favor the reform should be 
more alert and better organized than those who are op 
posed to it. The reformer sees in the existing situation an 
immediate menace to morals or to public safety which 
spurs him into action. The opponent of the reform is 
usually self-satisfied. He may admit that in certain re 
spects an existing situation needs improvement. He is 
usually willing to let someone else improve it. No men 
ace appears in his case until the efforts of the reformer 
have become so formidable as to threaten him with a law 
of which he disapproves. It is apparently a rare case in 
which he has foresight enough to anticipate this danger 
until it overtakes him. 

Unquestionably it was a factor of some importance in 
the adoption of the Eighteenth Amendment that those 
people who disliked and distrusted prohibition as a 
method had never been willing or able to organize their 
opposition. Even in the South and West there had al 
ways been material with which to create more than a 
mere shadow of effective opposition. The South and 
West had not been overwhelmingly in favor of prohibi 
tion even on a basis of state action and even in the modi 
fied form in which it was frequently proposed. On the 
contrary, the division of opinion had been fairly close. 
In the eleven states in the South and West which 
adopted prohibition by popular referendum in the three 
years before the war, 44 per cent of the vote had been 
cast against this legislation. 5 

This was a respectable minority. Yet the people who 

polled so large a percentage of the vote were wholly 

unrepresented by any organization which could state 

their point of view persuasively. They had nothing re- 

6 Cf. Appendix A. 



212 The Dry Decade 

motely comparable with the Anti-Saloon League and its 
successful method of straddling both parties in an effort 
to send dry candidates to the state capitals and to Wash 
ington. They had no organizations continuing from one 
year to another which could meet the arguments of the 
prohibition organizations with counter-arguments. They 
had only their individual opposition to the law, what 
money the brewers poured into local campaigns with a 
generosity which was frequently more damaging than 
useful and what leadership they could derive from the 
entirely self-interested enthusiasm of an industry fight 
ing for its own existence. 

It is idle even to guess whether the Eighteenth 
Amendment would have been adopted in 1919 if the 
people opposed to it on principle had set out systematic 
ally to organize their opposition twenty years before it 
reached a vote in Congress. The question was not tested. 
The opponents of national prohibition never fought their 
battle. They chose to lose it by default. 



It was one of the unmistakable results of seven years 
of national prohibition that a number of organizations 
independent of the once almighty brewers and at least 
theoretically capable of serving as focal points around 
which effective opposition to the law could cluster came 
into existence in the years from 1920 to 1927. 

In 1923 the Moderation League was incorporated in 
New York for the purpose of creating sentiment in favor 
of modifying the Volstead Act by an amendment which 
would give "a reasonable and workable definition of 
intoxicating liquors/' 6 

Associated Press dispatch, Albany, September I, 1923. 



The Appearance of Organized Opposition 213 

In 1926 the Association Against the Prohibition 
Amendment, originally incorporated under the laws of 
the District of Columbia on December 31, 1920, joined 
hands with the Moderation League, the American Fed 
eration of Labor, and the Constitutional Liberty League 
of Massachusetts in presenting evidence to Congress in 
an attempt to prove that the law had not been and 
could not be successfully enforced. Testifying before a 
subcommittee of the Senate, the chairman of this asso 
ciation stated that by 1926 his organization had enrolled 
720,000 members. 7 

In 1927, "tired of taking a halfway position," the 
Women^s ^Committee for ^M^ification ~ of the^ ToT- 
stead Act changed its name tQjthe^JWomen's Com 
mittee for_Rjepeal^-theEighteenth Amendment and 
addpted as its slogan "the restoration of the bill of 
rights/ 58 ~ 

In this same year a movement for repeal was initiated 
among the bar associations of the country by a group 
of lawyers in New York City who incorporated them 
selves as the Voluntary Committee of Lawyers and who 
based their opposition to national prohibition essentially 
on legal grounds: "The Eighteenth Amendment is in 
consistent with the spirit and purpose of the Constitu 
tion of the United States and in derogation of the liber 
ties of the citizens and rights of the states as guaranteed 
by the first ten amendments thereto." 9 x 

The movement initiated by these lawyers made sub 
stantial progress in the larger cities. The Law Associa 
tion of Philadelphia had already declared itself opposed 

^Hearings of a Subcommittee of the Senate Committee on ike 
Judiciary y 6gth Congress, 1st Session, p. 44. 
8 New York Times, November 3, 1927. 
9 IKd. 9 December n, 1927. 



214 The Dry Decade 

to national prohibition. 10 In 1928 the Bar Association 
of New York adopted a resolution asserting it to be "the 
sense of this association that the Eighteenth Amend 
ment, the Volstead Act and all orders and regulations 
for the enforcement thereof should be repealed and the 
subject of prohibition be remitted to the sole regulation 
of the several states/' 11 Within two years similar action 
was taken by the Boston Bar Association, the New 
Jersey State Bar Association, the Detroit Bar Associa 
tion, the St. Louis Bar Association, the San Francisco 
Bar Association, and the Bar Association of Portland, 
Oregon. In 1930 the American Bar Association itself ap 
proved a proposal for repeal, by a referendum vote of 
13.779 to 6,34o. 12 

If proof were needed that a new type of opposition had 
come into the field, this protest by the bar associations 
furnishes it. For the bar associations had remained 
aloof from this whole controversy in 1917 and 1918. 
None of these organizations which now adopted reso 
lutions had been sufficiently concerned with the question 
of national prohibition to oppose it on constitutional 
grounds at the time of its adoption. 



To the militant prohibition organizations which had 
long been accustomed to facing the brewers and distil 
lers as their only adversaries, this change in the charac 
ter of the opposition to the Eighteenth Amendment was 
novel and on the whole unwelcome. The brewers and 
distillers made ideal opponents for the champions of pro- 

10 New York Times* March 9, 1927. 
n lbid., February 15, 1928. 
12 Ibid., November 19, 1930. 



The Appearance of Organized Opposition 215 

hibition. They could be described, and in all fairness, as 
interested parties to this dispute, primarily concerned 
with the preservation of their own profits. They could 
be denounced as bitter-end opponents of any refor 
mation of the saloon and as adversaries desperate 
enough in their choice of weapons to resort to the use 
of a blacklist. 13 Inevitably there was more satisfaction in 
sinking a righteous sword into the bowels of such op 
position than in arguing the merits of prohibition with 
miscellaneous committees of lawyers, business men, and 
bankers. 

In these circumstances it was tempting for the friends 
of prohibition to believe that the new organizations 
which had appeared in opposition to the law were merely 
a screen for the same old opposition which they had 
always faced : at best, the work of well-meaning people 
who had been duped by the propaganda of the liquor 
interests; at worst, pretentious organizations which 
claimed to be disinterested but actually depended for 
support on the brewers or their allies. 

Nevertheless, though the friends of prohibition clung 
to the theory that there had been no change, they were 
in reality dealing with a different situation. In 1917 the 
chief spokesman of the opposition was the president of 
the United States Brewers' Association* In 1927 leader 
ship of the opposition had passed to the president of the 
Pennsylvania Railroad or to the chairman of the board 
of the General Motors Corporation or to the president 
of the Western Union Telegraph Company, all of which 
organizations had once been on the brewers' blacklist. 14 

In 1917 it was the Distillers 5 Association of America, 

13 Chapter I, supra. 

"Testimony of W. W. Atterbury, Hearings of the House Judi 
ciary Committee, February 26, 1930. 



216 The Dry Decade 

eager to protect its vested interests in the liquor traffic, 
which sought to convince the state legislatures that the 
Eighteenth Amendment could not be successfully en 
forced. In 1927 it was a committee of members of the 
New York Bar Association which insisted that the 
Eighteenth Amendment had "proven a source of con 
fusion and hindrance in the interpretation and adminis 
tration of the entire body of the law." 15 

There was a fundamental difference here. Whether 
or not the friends of prohibition were prepared to recog 
nize the fact, there were people who could differ with 
them honestly over the theory of the Eighteenth Amend 
ment and over the results which it had achieved in prac 
tice. These people may have been either wise or unwise. 
They may have failed to see as far into the future as 
the friends of prohibition, or they may have seen still 
further. In either case their opposition to the law was 
based in many instances on an honest and deeply rooted 
conviction that this experiment had been disastrous; 
that it had attempted to solve an age-old problem by 
ignoring the fundamental factor of variations in local 
sentiment, and that it had broken down barriers which 
had hitherto protected individual Americans against a 
centralized authority in Washington. 



There was one important influence in the develop 
ment of opposition to the law which the friends of this 
experiment bitterly resented. This influence was the 
prestige of the daily press in the larger cities of the coun 
try. "Day by day," said a witness appearing before a 
committee of Congress in 1930, "the great metropolitan 
15 New York Times, December n, 1927. 



The Appearance of Organized Opposition 217 

newspapers of the country are dropping poison in the 
breakfast cups of millions of people/' 16 

With this < :riticism many friends of the law had long 
agreed. A committee of the quadrennial conference of 
the Methocfist Episcopal Church in 1927 denounced 
"the falsehoods of that part of the daily press which 
continues to lend comfort to the enemies of prohibition " 
and urged a boycott of such newspapers in advertising 
and subscriptions. 17 The Board of Temperance, Pro 
hibition and Public Morals of the same church insisted 
that "New York is bombarding the West with anti- 
prohibition propaganda, which in practice proves to be 
an incitement to violation of the law." 18 The general 
superintendent of the Anti-Saloon League regretted 
"the power of the press to magnify every failure, misfor 
tune or mistake in connection with prohibition out of all 
proportion to its proper relation toward a great na 
tional reform/' 19 Representative Fort of New Jersey 
declared that "the agitation against prohibition has 
equalled in intensity any agitation in our history; never 
have our great and powerful newspapers thrown the 
whole weight of their influence practically unanimously 
on the same side of a question before/' 20 

Two theories were suggested by the friends of prohibi 
tion to explain this bias which they detected in the met 
ropolitan newspapers. According to one theory, the press 
of the larger cities had been purchased outright or eff ec- 

lB Hearings of the House Committee on the Judiciary, yist Con 
gress, 2d Session, Serial 5, pt. 2, p. 648. 

17 Associated Press dispatch, Kansas City, May 14, 1927. 

18 New York Times, October 4, 1925. 

19 New York Herald Tribune, June 10, 1929. 

^Congressional Record, yist Congress, 2nd Session, pp. 2789- 
2792. 



218 The Dry Decade 

tively subsidized by the brewers and distillers. Accord* 
ing to the second theory, the press in the; larger cities 
merely catered to the known prejudice of it s clientele by 
publishing material which would bring the law into dis 
repute. In either case, the essential criticism brought 
against the press was that it persisted in giving a vast 
amount of space, headlines, and emphasis J:o every 
problem which the law encountered, large CT small, 
though prohibition had now been written into th * Con 
stitution. 

On the whole, it was probably a fair criticism. It was 
a criticism, however, which could have been applied 
with equal fairness to many newspapers in small towns 
and villages in which the law itself was popular, pro 
vided these journals were in touch by telegraph with the 
world around them. Prohibition had brought a number 
of new and exciting elements into American life. It had 
either introduced or provided with a new field of activity 
the bootlegger, the hijacker, the rum-runner, the speak 
easy, the illicit still, the government drive, and the po 
lice department round-up. All of these elements were 
essentially the stuff of which news is made. A press 
whose business is to sell papers took to them as naturally 
and as willingly as it would have reported any other 
news which had color, drama, and adventure. 

No doubt a great majority of the newspapers pub 
lished in the larger cities were frankly opposed to pro 
hibition and more opposed to it in 1927 than in I92O. 21 
In this attitude they shared the opinion of many people 
in their communities that prohibition had been a failure 
in the cities, however successfully it may have worked in 
rural sections of the country. No doubt it would be easy 



. a poll of 1 10 newspapers by the New York Her aid Tribune, 
April 7, 1930. 



The Appearance of Organized Opposition 219 

to cite many cases in which these newspapers had over 
emphasized news which was unfavorable to prohibition. 
It would also be easy to cite many cases in which they 
had overemphasized news which was favorable to pro 
hibition, not because they shared this point of view, but 
because they were good enough merchants to recognize 
that a vast public interest had been aroused in prohibi 
tion and that anything which dealt in an interesting fash 
ion with this question, from whatever angle, was good 

news. 

The record of the New York Times Is a convenient 
record to examine because that newspaper publishes an 
index of its news. In 1925, the same year in which the 
Methodist Board of Temperance declared that "New 
York is bombarding the West with anti-prohibition 
propaganda/' the New York Times published eighteen 
statements from the Methodist Board of Temperance in 
behalf of prohibition. It published sixty-nine items of 
news concerning the activities of the Anti-Saloon League, 
its pleas for strict enforcement, its tributes to the 
success of prohibition, and its replies to critics of the law. 
It published eighty-two statements from officials of the 
federal government, outlining optimistic plans to make 
enforcement a reality and summoning the public to obey 
the law. 

It was the Times 9 and not some journal in the Middle 
West, pledged to the cause of prohibition, that served as 
the medium through which Mr. Wheeler's syndicated 
articles were broadcast to the country. 22 It was the 
Times which published Mrs. Mabel Walker Wille- 
brandt's reminiscences of her career in office 23 and the 
Times which featured in no less than forty-two install- 

York Times, March 28 to April 4, 1926. 
, August 5 to 25, 1929. 



22O The Dry Decade 

ments the long narrative in which Major Roy A. Haynes 
summed up a record of achievement under the Eight 
eenth Amendment which was "nothing short of 
marvelous/' 24 

In the files of the metropolitan press there can be 
found glowing reports of the progress of prohibition as 
well as sensational chapters in its breakdown. If there 
is less material of the first type than the second it was 
at least in part because the communiques of the friends 
of prohibition failed in the long run to keep pace with an 
endless series of exciting violations. 



Whatever the net result of the vast literature of pro 
hibition published by the daily press (the New York 
Times printed 16,231 items of prohibition news between 
1920 and 1927), unquestionably a large number of pow 
erful newspapers in many widely scattered cities had 
taken an editorial position in direct opposition to the 
law. To critics of the Eighteenth Amendment this 
seemed entirely reasonable and as definitely a sign of the 
times as the appearance of opposition among the bar 
associations and the women's clubs. To friends of the 
Eighteenth Amendment these newspapers had chosen to 
flirt with treason and to adopt an editorial position 
wholly unrepresentative of the real convictions of the 
American people on the question of national prohibition. 

What the real convictions of the American people 
were, it is impossible, of course, to say. There had been 
no referendum on the adoption of the Eighteenth 
Amendment; there had been no referendum after its 
adoption; there was no provision in the Constitution 
York Times, July 15 to August 26, 1923. 



The Appearance of Organized Opposition 221 

for a referendum and no likelihood that if such a pro 
vision had existed Congress would have chosen to invoke 
it. Such estimates of American opinion as were freely 
offered during the years from 1920 to 1928 were based 
not on evidence as precise as the data of the Census 
Bureau, but on deductions drawn from three incon 
clusive sets of figures. 

j. Official Polls 

Down to the end of 1928, nineteen referendums on 
some phase of prohibition had been held under the aus 
pices of various states. Nine of these referendums were 
on questions of modifying the Volstead Act through 
some state device or of appealing to Congress to modify 
it or of appealing to Congress to repeal the Eighteenth 
Amendment outright. Two of these nine referendums 
were won by the drys: Ohio in 1922 and Colorado in 
1926. The other seven were won by the wets: Massa 
chusetts in 1920; Illinois in 1922; Illinois, Wisconsin, 
Nevada, and New York in 1926; and Massachusetts in 
I928. 25 

To the wets this record seemed to carry convincing 
proof of the unpopularity of the law, especially in large 
industrial states like New York, which had voted in 
favor of modification by a majority as large as three to 
one. To the drys these figures were unimportant. Refer 
endums of this sort, they insisted, were essentially a 
waste of time, since it was impossible for an individual 
state to escape from the tight grasp of the Eighteenth 
Amendment through any modification program of its 
own and futile for it to petition Congress to help it in 

^A tabulation of state votes on prohibition questions will be 
found in Appendix I. 



222 The Dry Decade 

this effort. The dry theory of these wet victories was sim 
ply that the wets voted and the drys did not, choosing 
rather to boycott such referendums as empty gesture ,. 

No doubt this is what happened in many instances. In 
New York, for example, a deliberate boycott by the drys 
is the only reasonable explanation of the fact that 
543,166 fewer votes were cast in the prohibition referen 
dum in 1926 than were cast in the election of a Governor. 
In this case, however, sentiment in favor of a change 
was strong enough to make the boycott a fact of minor 
importance. If all of these 543,166 votes had been dry 
votes and if they had been cast solidly against the pro 
posal for modification, this proposal would still have 
carried the state by a vote of 1,763,07 to i,i4i,6so. 26 

Meantime, there were certain cases in which a boycott 
was impossible if the friends of prohibition wished to 
protect a state enforcement law against repeal. However 
faint the voice of the states in Washington, they had 
undisputed power to decide this question for them 
selves. Ten referendums in five states were held in these 
same years on the question of enacting or repealing 
state enforcement codes. On this issue, armed with the 
persuasive argument that as long as the Eighteenth 
Amendment remained in the Constitution it was the 
duty of the states to help enforce it, the friends of pro 
hibition won a very considerable measure of success. If 
they lost California once (in 1920), Massachusetts once 
(in 1922) and Montana twice (in 1926 and 1928), they 
won Massachusetts once (in 1924), North Dakota once 
(in 1928), Missouri twice (in 1920 and 1926), and Cali 
fornia twice (in 1922 and 1926) . 27 

^Cf. Appendix L 

2 *The popular vote in each of these referendums will be found 
in Appendix I. 



The Appearance of Organized Opposition 223 

Of ten contests over the question of state enforce 
ment codes the drys had won six and lost four by the 
en<?. of 1928. Of nine contests over the question of at 
tempting to modify the law they had won two and lost 
seven. This was as much as could be claimed for either 
side as the result of what modest efforts had been made 
by official agencies of the states to measure the drift of 
local sentiment. 

2. Unofficial Polls 
f 

Meantime, a large number of wholly unofficial polls 
had been taken in these years. This was not surprising. 
Prohibition remained a controversial question before the 
American people. There was a natural interest in dis 
covering, if possible, what the American people thought 
about it. The forty-eight states having held only nine 
teen referendums in eight years, an average of one 
referendum for each state every twenty years, it was 
inevitable that private agencies should have been 
tempted to explore the question somewhat further. 

In tfceory, these unofficial polls taken by various news 
papers, magazines, professional societies, trade unions 
and other agencies for the expression of opinion had two 
clear advantages and one clear disadvantage. The ad 
vantages lay in the fact that these polls were the only 
polls to cross state lines and the further fact that they 
offered several alternatives for a plain expression of 
opinion, instead of a choice at the polls between yes and 
no on some proposal which the individual voter may 
have liked but may have thought illegal. The obvious 
disadvantage lay in the fact that there was no certain 
way of telling whether the results of any poll accurately 
measured a cross-section of opinion or only a cross- 
section of such opinion as cared to mail a postcard. 



224 The Dry Decade 

In point of numbers and of territory covered, the two 
most important polls taken by any private agency down 
to the end of 1928 were the first Literary Digest poll in 
1922 and -a poll taken by the Newspaper Enterprise 
Association in 1926. 

Employing the same method which it used in a later 
poll in 1930, the Literary Digest distributed ballots in 
1922 among the forty-eight states, asking for an ex 
pression of opinion (i) in favor of the existing law, or 
(2) in favor of its modification to permit light wines 
and beer, or (3) in favor of complete repeal. In reply to 
this request 922,382 ballots were received, of which 38.6 
per cent favored the law as it stood, 40.8 per cent favored 
modification, and 20.6 per cent repeal. 28 The satisfied 
vote was 38.6 per cent of the total; the dissatisfied vote, 
61.4 per cent. 

The results of the poll taken by the Newspaper En 
terprise Association in 1926 were more spectacular. In 
this case 326 newspapers in forty-seven states partici 
pated in a poll of 1,747,630 people. Of the total vote 
cast, 18.9 per cent favored the existing law, 49.8 per cent 
favored modification, and 31.3 per cent favored repeal. 29 
The satisfied vote in this case was 18.9 per cent of the 
total; the dissatisfied vote, 81.1 per cent. 

As might have been anticipated, these were impres 
sive figures to the opponents of prohibition, gathered 
by methods which they thought eminently fair. The 
Literary Digest had made an effort to distribute its bal 
lots accurately between urban and rural districts in 
accordance with their voting strength. The Newspaper 
Enterprise Association had invited and obtained the 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, ist Session, pp. 420, 439. 



The Appearance of Organized Opposition 225 

cooperation not only of newspapers in the larger cities 
but also of many such newspapers in smaller towns as 
the lola (Kans.) Register, the Danville (Va.) Bee, the 
Dowagiac (Mich.) Daily News, the Hickory (N. C.) 
Record, and the Taylorsville (III.) Breeze. To the wets 
the net result was a reliable index of opinion and persua 
sive proof of widespread opposition to the law which 
had gained ground impressively between 1922 and 1926. 

As might also have been anticipated, these same fig 
ures failed to carry conviction to the friends of prohibi 
tion. There was no way of knowing, the prohibition 
leaders insisted, how fairly these ballots had been 
counted, how many drys had failed to vote, and how 
many wets had voted twice. In the opinion of the Anti- 
Saloon League such polls as these were not only wholly 
unreliable and entirely misleading but "in effect, 
whether so intended or not, part of the wet agitation and 
propaganda/' 30 

There is no way in which to test the validity of these 
rival theories to the satisfaction of both parties. Com 
parisons are sometimes made between the vote cast In 
the Literary Digest poll in 1922, in California or in Massa 
chusetts, and the vote cast in these same states in the 
same year on the enactment of state enforcement laws. 
Such comparisons are unreal, since the two polls raised 
different issues. A more accurate comparison could be 
made between an unofficial poll and an official poll in 
which the same question was placed before the voter: for 
example, the question of modifying the Volstead Act to 
permit light wines and beer. All such polls, however, 
while convincing to the wets, were unsatisfactory to the 
drys as a test of public sentiment, whether official or 
unofficial. 

30 New York Times, March 14, 1926. 



226 The Dry Decade 



5, Elections to Congress 

There remained one other test of sentiment and to the 
friends of prohibition it was the only right one. "The 
only legal referendum on federal questions/' insisted 
the Anti-Saloon League, "is the election of federal of 
ficers who vote on such issues/' 31 Straw ballots made no 
legislation. The one certain test of public opinion was 
the election of a federal Congress which actually had 
power to make laws or to unmake them. 

In this respect the drift of opinion seemed to the drys 
to be unmistakably in their favor. A dry Congress had 
adopted the Eighteenth Amendment and written the 
Volstead Act. Subsequently, said Mr. Wheeler in 1926, 
"each year the Congress that has been elected has been 
dryer than its predecessor/' 32 

On this point, however, Mr. Wheeler's figures did not 
entirely bear him out. His analysis of the results of the 
1926 elections showed that "71 per cent of the Demo 
cratic members and 72 per cent of the Republican mem 
bers of the House, with 70 per cent of the Democratic 
members and 76 per cent of the Republican members of 
the Senate, have dry voting records or have made dry 
pronouncements." 33 

In the original test of strength on the adoption of 
the Eighteenth Amendment in 1917 prohibition had the 
support of 69 per cent of the Democratic members and 
69 per cent of the Republican members of the House; 
75 per cent of the Democratic members and 78 per cent 

31 New York Times, March 13, 1926. 

^Hearings of a Subcommittee of the Senate Judiciary Committee, 
6gth Congress, ist Session, p. 868. 
York Times y November 6, 1926. 



The Appearance of Organized Opposition 227 

of the Republican members of the Senate. On the basis 
of Mr. Wheeler's figures in 1926 the friends of prohibi 
tion had gained some ground in the House, but lost 
more in the Senate. 

Nevertheless, the dry majority was comfortably large. 
There was no question of its ample power in 1926 to 
block any proposal looking toward modification of the 
law or its repeal. To this extent the friends of prohibi 
tion had command of the situation. The opponents of 
prohibition were faced by the task of explaining the 
continued presence of a dry majority in Congress if 
public opinion itself, as they believed, and as they 
sought to prove from the results of many official and 
unofficial referendums, was so predominantly in favor of 
a change. 

One theory on which the opponents of the law relied, 
to explain their lack of success in Congress, was the 
theory that Congress itself had denied wet districts of 
the country their proper share of representation through 
its failure to reapportion seats in the House of Repre 
sentatives following the 1920 census. It is not a particu 
larly impressive theory, though there can be no question 
that Congress had chosen cheerfully to nullify a basic 
article of the Constitution. Reapportionment would 
have changed no seats in the Senate and only a handful 
in the House. 

A more persuasive argument, though one less often 
cited, lay in the fact that representation in Congress 
was so apportioned within the states that rural districts 
frequently enjoyed a superiority out of proportion to 
their numbers. In Wisconsin, for example, the legislative 
districts containing the two largest cities in the state, 
Milwaukee and Racine, had one representative in Con 
gress in 1926 for every 269,000 people; the other dis- 



228 The Dry Decade 

tricts, one representative for every 228,000 people. 34 
In New York, the districts containing New York City 
had one representative for every 249,000 people; the 
rest of the state one for every 232,000 people. 35 In 
Illinois, Cook County had one representative for every 
312,000 people; the rest of the state one for every 
223,000 people. 36 It took three people in Cook County 
to equal two outside. 

Nevertheless, with due allowance for all this, the fact 
remains that the opponents of prohibition had never at 
tempted to offset this disadvantage by organizing an 
effective opposition. The first signs of such opposition 
began to appear only after 1923. The strategy of the 
average Congressman in doubtful territory, in these cir 
cumstances, was to play the situation both ways as 
effectively as possible. By making what Mr. Wheeler 
described as "dry pronouncements" he could win the 
valuable support of the Anti-Saloon League and its 
allies. By keeping the cost of enforcement so low that it 
would neither add unwelcome taxes nor shut off the 
sources of illicit liquor he could hope to stave off an 
organized political revolt on the part of the opponents 
of the law. 

The net result could accurately be described as a stale 
mate. The friends of prohibition had elected a Congress 
which would make dry pronouncements till the record 
bulged. The enemies of prohibition had impressed this 
Congress with the desirability of making no real effort 
to enforce the law. 

It was a Congress with a three-to-one majority for 
prohibition that knifed the Andrews plan. 

^Congressional Directory, January, 1926, pp. 127-130. 
**Ibid.> pp. 70-83. 
pp. 22-27, 



The Appearance of Organized Opposition 229 



The sharpest change in the membership of Congress 
since 1917, as analyzed by Mr. Wheeler nine years later, 
had come on the Democratic side of the Senate. This 
was the result of the election of wet Democrats in sev 
eral of the large industrial states. A powerful faction of 
the party had its stronghold in the urban sections of the 
North and East. It was the increasing strength of this 
faction and its insistence on the necessity of a change, 
coupled with the reluctance of another faction of the 
party in the South and West to recognize the desirabil 
ity of a change, which resulted in the curious decision 
of the Democratic party in 1928 to nominate a wet can 
didate for President on a platform favoring strict en 
forcement. 

There was an unmistakable confusion of purposes here 
which time did not remove. On the contrary, not only 
did the confusion of purposes remain to the end: it 
rapidly became the business of statesmen in both parties 
to magnify it rather than to dissipate it. 

On the Democratic side, it was obviously good tactics 
to emphasize the importance of Governor Smith's theo 
ries in the cities and simultaneously to minimize the 
importance of his theories in the rural sections of the 
country, where they were certain to be unpopular. On 
the Republican side it was equally good tactics to re 
verse this policy, to emphasize the importance of Gov 
ernor Smith's theories in the rural sections and to be 
little the importance of his theories in the cities. 

Thus, while Senator Borah was traveling through the 
smaller cities of the South and West, insisting that the 
cause of national prohibition now faced a crisis and 



230 The Dry Decade 

warning the women voters of these towns that Governor 
Smith "proposes to destroy the effort which you have 
made to protect the American home/' 37 Mr. Charles 
Evans Hughes was traveling through the larger cities of 
the North and East, assuring Republican voters that 
Governor Smith's program could not possibly involve a 
serious threat to the cause of national prohibition and 
dismissing the whole controversy as a mere "sham bat 
tle/' 38 While Republican drys in the smaller towns of 
Kansas were girding themselves to defend the Constitu 
tion, Republican wets in Massachusetts were being told 
by a Kansas Senator, Mr. Curtis, that the Constitution 
was never more secure. "Don't let the Democrats fool 
you. They cannot amend the Constitution as Congress 
is constituted. . . . Don't grasp at the straw, because it 
won't hold you/' 39 

Meantime, it did not help clarify the issue to have 
Mr. Hoover's views, on the other side of this controversy, 
widely interpreted in dry sections of the country as un 
compromisingly in favor of prohibition and widely in 
terpreted in wet sections of the country as offering hope 
of an immediate change. 

Throughout the whole campaign an influential part 
of the Republican press in the larger cities differed on 
this point with the Republican press in the smaller 
towns, insisted that Mr. Hoover had never been identi 
fied with the prohibition movement, declared that his 
attitude toward the whole question was essentially 
open-minded, and argued that he would be in a far 

37 Speech at Salisbury, N. C, New York Times, October 17, 
1928. 

38 Speeches at Buffalo, Worcester, Mass., and Brooklyn, New 
York Times, October 27, October 31, and 'November i, 1928. 
39 New York Times, September 7, 1928. 



The Appearance of Organized Opposition 231 

more favorable position than Governor Smith to 
change the law, since he would not be handicapped 
within his own party by the opposition of the Solid 
South, One of the major triumphs of the campaign, for 
this section of the Republican press, was the discovery 
that Mr. Hoover had once expressed the opinion in a 
statement made as Food Administrator that it was 
"mighty difficult to get drunk on 2.75 per cent beer." 40 
If Kansas now chose to read Mr. Hoover's campaign 
speeches as a stirring repudiation of any and all plans 
to modify the law, the New York Herald Tribune threw 
its hat into the air over a statement of purposes which 
"plainly left the door open for such reforms as a new 
definition of what are intoxicating liquors." 41 



However cautious historians a decade hence may be 
in assessing the individual importance of the complex 
political, social, and economic influences which played 
a part in the 1928 campaign, there was no hesitancy 
on the part of leaders on both sides of the prohibition 
question to rush into print with ultimate conclusions 
on the morning after the election. 

To the Methodist Board of Temperance it seemed 
clear that in Mr. Hoover's victory the great referendum 
on prohibition had at last been held, 42 to the New York 
Herald Tribune that an attempt to work out a construc 
tive solution of the problems created by the Volstead 
Act would now begin, 43 to Dr. Francis Scott McBride 

40 Statement to the press, June 5, 1918. 
41 New York Herald Tribunt, August 17, 1928. 
42 New York Times, November 8, 1928. 

York Herald Tribunt, November 8, 1928. 



232 The Dry Decade 

that "the result is a thorough vindication of the Anti- 
Saloon League" 44 and to Dr. Nicholas Murray Butler 
that 21,000,000 wet votes had been cast in the election. 45 

With the slight advantage of a few years' perspective, 
it is difficult to-day to guess what part prohibition 
actually played in the campaign of 1928, to what degree 
it was shadowed by such issues as prosperity, how 
large an element of the Republican party in the larger 
cities voted for Mr. Hoover believing his candidacy 
carried promise of a change, and whether the Smith 
campaign was a meteoric interruption or a logical de 
velopment of the organized opposition which was now 
beginning to appear. 

Perhaps the one certain thing that can be said of 
1928 is that a candidate who had described prohibition 
as an ambitious experiment was now assured an op 
portunity to see what he could make of it. 
^New York Times, November 8, 1928. 
id.y November 20, 1928. 



CHAPTER X 
The Hoover Program 



A WENTY-FOUR hours before Herbert Hoover took 
his oath of office on March 4, 1929, two incidents oc 
curred which brought the story of enforcement up to 
date. On March 3d Mr. Hoover's predecessor in the 
White House signed the Jones Law. On the same day 
Congress disposed of a bold proposal to add $256,000,000 
to the budget of the Prohibition Bureau by deciding that 
one per cent of this sum would be ample. 

Debate over these two questions had precipitated a 
series of sharp disputes in Congress during the four 
months which elapsed between Mr. Hoover's election 
and his inauguration. The Jones Law, warmly endorsed 
by the leading prohibition organizations, added an 
amendment to the Volstead Act increasing the maxi 
mum penalties of that legislation to five years* imprison 
ment or $10,000 fine, or both. This measure was brought 
before the Senate on February I9th and adopted by a 
vote of 65 to 1 8, after a clause had been inserted ex 
pressing the Senate's intention that the courts "dis 
criminate between casual or slight violations and 
habitual sales of intoxicating liquors or attempts to com 
mercialize violations of the law/' 1 With the Senate's 
decision the House concurred, by a vote of 284 to 90.* 

Congressional Record, yoth Congress, 2d Session, p. 3742. 

2 Ibid., p. 4796. 



234 The Dry Decade 

Meantime, the dispute over the item of $256,000,000 
had come before the Senate in a somewhat less orthodox 
manner and raised questions which were not so easily 
decided. During the debate on the Treasury appropria 
tion bill Senator Bruce of Maryland offered an amend 
ment which suddenly and unexpectedly multiplied the 
appropriation of the Prohibition Bureau approximately 
by twenty. Without debate, without a roll-call vote, and 
apparently in a moment of sheer carelessness, the 
amendment was accepted. 3 

Immediately Congress was in an uproar. Senator 
Bruce was a confessed opponent of the law. The drys at 
once insisted that he had proposed this large increase 
merely as a gesture and merely for the sake of embarras 
sing the cause of prohibition. In reply, Senator Bruce 
pointed to an official estimate made by the Commis 
sioner of Prohibition, Dr. James M. Doran, whose 
loyalty to the law no one questioned and whose en 
thusiasm for prohibition had led the Methodist Board 
of Temperance to describe him as an "outstanding, 
sincere and trustworthy dry/' 4 had testified before a 
committee of Congress one week before this time that it 
would cost the federal government $300,000,000 a 
year if it wished to undertake the responsibilities which 
the states neglected and attempt to enforce the law 
in every section of the country. 5 By adding $256,000,000 
to the routine appropriation of $13,500,000 already 
available for the Prohibition Bureau, Senator B race's 
amendment still fell $30,000,000 short of Dr. Doran's 
estimate. 

^Congressional Record, 7oth Congress, 2d Session, p. 518. 
4 New York Times, June 27, 1927. 

testimony before the House Committee on Appropriations, 
December 5, 1928. 



The Hoover Program 235 

By whatever accident this item of $256,000,000 had 
found its way into a Senate bill, here at last was an 
appropriation which took at face value the frequent 
assertions of the prohibition organizations that the law 
must be enforced regardless of the cost. None of the 
prohibition organizations, however, now raised its 
voice to welcome this appropriation or to defend it on 
the ground that an experiment with strict enforcement 
was fully worth the imposition of a quarter of a billion 
dollars in new taxes. Nor did the item of $256,000,000 
survive the Senate's sober second thought. Four days 
after the Senate put this appropriation into the Treas 
ury bill, the Senate took it out. 6 

At this point, Senator Harris of Georgia proposed as 
a substitute that the budget of the Prohibition Bureau 
be increased to the extent of $25,000,000. This was a 
much more modest plan. It made as little progress. 
Secretary Mellon opposed it, on the ground that after 
years of experience with smaller sums the Prohibition 
Bureau would not know what to do with a sudden 
appropriation of this size. 7 The drys in the House op 
posed it, on the ground that it would embarrass the 
Administration by increasing the cost of government 
and leading the country to expect too much enforcement 
all at once. With most of the leading drys arrayed in 
opposition, the proposal was rejected in the House by 
a vote of 240 to 141, 8 

In the end, after many conferences, much bickering, 
a long series of statements from the Treasury Depart 
ment, and a long series of votes in Congress, a com 
promise was reached on an increase of $1,719,654 

^Congressional Record, 7oth Congress, 2d Session, p. 725, 

^ew York Times, January 16, 1929. 

^Congressional Record, yoth Congress, 2d Session, p. 2573. 



236 The Dry Decade 

instead of $25,000,000 or $256,00*3,000. This was more 
according to precedent* The compromise was accepted, 9 
The incident was closed. 

On the same day that this appropriation was finally 
ratified by the House of Representatives, Mr. Coolidge 
signed the Jones Law. 



Mr. Hoover thus entered office on the morning after a 
particularly clear-cut demonstration of the willingness 
of Congress to adopt more laws and its unwillingness to 
create machinery to enforce them. This was a familiar 
story. No two incidents could have summed up more ef 
fectively the experience of nine years of prohibition. 

There were other familiar factors in the situation 
confronting the incoming President. The Prohibition 
Bureau remained essentially the same inadequate 
agency it had always been. In the five and a half years 
since Mr. Coolidge succeeded Mr. Harding, to be suc 
ceeded by Mr, Hoover, the Bureau had not changed 
materially. In midsummer of 1923 it had had 3,413 
employees, including its office force. In the spring of 
1929 it now had 4,129 employees. 10 

Meantime the problems of the Bureau had mounted 
in the same familiar curve. Shortly before Mr. Hoover 
entered office, the Department of Justice estimated that 
smuggling from Canada into the United States had 
increased by more than 75 per cent since I925. 11 The 
production of industrial alcohol, with its inevitable op 
portunities for diversion, had increased from 57,000,000 

^Congressional Record, 7oth Congress, 2df Session, p, 5184. 
10 New York Tim**, March 24, 1929. 
ll lbid., December 4, 1928. 



The Hoover Program 237 

gallons in 1923 to 92,000,000 gallons in I928. 12 The 
quantity of illicit liquor seized by Federal agents had 
steadily increased from 14,346,649 gallons in 1923 to 
32,474,233 in 1928, more than doubling in six years. 13 
There was nothing essentially new in this. The repoa- 
^ibilitjesjpf Jthe Prohibition Bureau had always expanded 
at a more rapid pace than its equipment. The one new 
factqrjn the situation, as Mr. Hoover entered office, 
was Mr. Hoover's own proposal for an expert investiga 
tion of the problem of enforcement. 

As originally proposed in Mr. Hoover's acceptance 
speech at Palo Alto, the plan for an investigation had 
been limited specifically to prohibition. Reiterating his 
earlier opinion that the Eighteenth Amendment was 
"a great social and economic experiment, noble in mo 
tive "anS far-reaching in purpose/' Mr* Hoover had 
added this suggestion: "Common sense compels us to 
realize that grave abuses have occurred abuses which 
must ~be remedied. An organized, searching investiga 
tion of fact and cause can alone determine" tfie wise 
method of correcting them." -~^__ 

It was this comment which had enormously cheered 
the Republican press in the larger cities during the 
campaign and given it a text for its appeal to wet 
Republicans to vote for Mr. Hoover on the ground 
that his candidacy carried realistic hope of a change 
in a system which they disliked. Mr. Hoover had said 
that "grave abuses " had occurred. What were these 
abuses, asked the Republican press in the larger cities, 
if not the invasion of personal liberties, the breaking 
down of local authority by a federal bureaucracy and an 

^Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. 26. 
, p. 64. 



238 The Dry Decade 

increasing disrespect of law? Moreover, Mr. Hoover had 
spoken not only of an organized, searching investigation 
of "fact" but an organized, searching investigation of 
"cause/ 5 If Mr. Hoover intended to go into the question 
of "cause/ 5 how could he avoid exploring the whole 
foundation of public opinion on which the Eighteenth 
Amendment rested ? 

Whatever the merit of this logic, the investigation 
orginally proposed at Palo Alto had these two char 
acteristics: it was to be directly concerned with prohi 
bition, and it was to go into the question of cause as well 
as fact. In this form the proposal remained throughout 
the campaign and in this form its possible consequences 
were debated* 

During the four months following the election, how 
ever, Mr, Hoover's plan for an investigation consider 
ably expanded. The proposal had originally been aimed 
at one law. It was now to be aimed at 3!! laws. "I pro 
pose to appoint a national commission/ 5 said the in 
coming President in his inaugural, "for a searching 
investigation of the whole structure of our federal 
system of jurisprudence, to include the method of 
enforcement of the Eighteenth Amendment and the 
causes of abuse under it. Its purpose will be to make 
such recommendations for reorganization of the ad 
ministration of federal laws and court procedure as 
may be found desirable/' 

Plainly this was a more ambitious program than Mr. 
Hoover had originally proposed at Palo Alto. It was 
also a less satisfactory program to many of those people 
who had believed that Mr. Hoover's plan was intended 
to deal specifically and not incidentally with the prob 
lem of prohibition. 

On one side, Senator Carter Glass complained, as a 



The Hoover Program 239 

friend of the Eighteenth Amendment, that prohibition 
had now been buried in a mass of detail. It was Senator 
Glass who had introduced the resolution which gave the 
President's new commission official status and provided 
it with funds. He had introduced his resolution, he 
insisted, for the purpose of initiating an investigation 
into the enforcement of prohibition. " In an unguarded 
moment/' he now complained, " I allowed myself to be 
persuaded to insert the parenthetical words, * together 
with enforcement of other laws/ There was no purpose 
on earth in making other laws the feature; this was a 
mere incident to prohibition enforcement. But now 
what has happened ? The parenthesis has been made the 
main thesis. Prohibition enforcement has been sub 
merged/' 14 

Meantime, this new assignment given by the Presi 
dent to his commission was as disappointing to many 
opponents of the law as to many of its friends. Like 
Senator Glass, these opponents of the law regretted that 
prohibition was now to be considered merely as one 
detail in an investigation which would explore "the 
whole structure of our federal system of jurisprudence." 
Unlike Senator Glass, they also regretted that the 
President had instructed his commission to find methods 
of enforcing laws rather than to consider the question of 
whether laws were actually enforceable. For while Mr. 
Hoover had again referred in his inaugural to the neces 
sity of investigating "causes" as well as "facts/' he 
now affirmed that the purpose of such an investigation 
would be to discover ways of improving "the adminis 
tration of federal laws and court procedure/' 

To those opponents of prohibition whose hopes had 
been aroused by Mr. Hoover's Palo Alto speech this 
14 New York Times, June 20, 1929. 



240 The Dry Decade 

decision was unfortunate. It seemed to limit the pro 
posed investigation to a study of the machinery of en 
forcement, on the assumption that the law could be 
enforced, when the question of whether the law could 
be enforced was the real point at issue. If the law could 
not be enforced, then no amount of study would pro 
duce ways and means of enforcing it. To instruct the 
commission in advance as to what conclusion it must 
reach was to beg the question and to destroy the scien 
tific value of the inquiry. 

Moreover, to these critics of the law the President 
was guilty of serious misjudgment in lumping the 
Eighteenth Amendment with all other problems of law 
enforcement and instructing his commission to consider 
the prohibition of liquor as if it were precisely like the 
prohibition of murder, robbery, or arson. There was an 
indisputable distinction, the critics of the law insisted, 
between the enforcement of prohibition and the en 
forcement of the ordinary criminal law. This decision 
arose from the fact that the desirability of prohibiting 
murder or robbery or arson was not challenged any 
where by anyone, whereas the desirability of prohibiting 
liquor was challenged in many parts of the country by 
many men and women of unimpeachable character and 
position. 

In these circumstances, critics of the law insisted that 
disobedience of the Volstead Act was not ordinary law 
lessness. It was political rebellion. The proper analogy 
was not with ordinary criminal law but with the re 
sistance of the Colonies to British taxation and with the 
resistance of the Southern states to Negro suffrage. 
There could be no realistic investigation of the problem 
of enforcing prohibition which did not take this distinc 
tion as its fundamental premise. 



The Hoover Program 241 



It was on May 2Oth, two and a half months after his 
inauguration, that the President announced the ap 
pointment of a Commission on Law Enforcement and 
Observance, consisting of eleven members, with Mr. 
George W. Wickersham as chairman. Eight days later 
this commission met for the first time in Washington. 
"We are under no illusions as to the difficulty of our 
task," its chairman told the President. "We know there 
is no short cut to the millennium/ 5 To the press he 
added: "It should be understood that prohibition is 
only one angle of our survey. The attitude of the Amer 
ican people toward law enforcement is not bounded by 
prohibition. This commission is not to be the arbiter 
between the wets and drys, and I want to emphasize 
that it was not appointed to decide that question/' 15 

It is an interesting fact that while both the friends 
and the foes of the Eighteenth Amendment now la 
mented the submergence of prohibition as an unim 
portant detail in the work of the President's commis 
sion, and while Mr. Wickersham echoed the opinion of 
the President that prohibition was only one of a very 
large number of questions which needed to be explored, 
both Mr. Wickersham and his commission were drawn 
in the direction of prohibition as irresistibly as if they 
were steel filings in the presence of a magnet. 

On July 15th, approximately six weeks after he had 
insisted that it was no part of his commission's work to 
act as arbiter between the wets and drys, Mr. Wicker 
sham proposed a possible plan of arbitration. In a letter 
addressed to Governor Roosevelt of New York and 
15 New York Times* May 29, 1929. 



242 The Dry Decade 

read by Mr. Roosevelt at the Governors' Conference, 
then in session at Groton, Conn,, Mr, Wickersham sug-. 
gested that the time had come for the states to accept 
a real share of the heavy burden of enforcement. "If 
the national government were to attend to preventing 
importation, manufacture, and shipment in interstate 
commerce of intoxicants, the states undertaking the 
internal police regulations to prevent sale, saloons, 
speakeasies, and so forth, national and state laws might 
be modified so as to become reasonably enforceable and 
one great source of demoralizing and pecuniarily pro 
fitable crime removed/' 16 

Though this suggestion was obscurely phrased and 
somewhat casually proposed, both wets and drys in 
terpreted the plan as evidence that Mr. Wickersham was 
prepared to purchase more effective state assistance in 
the enforcement of prohibition by giving the states more 
authority to decide for themselves what type of pro 
hibition they would have. 

To the wets this seemed a statesmanlike proposal, 
realistic enough to face what they regarded as the 
fundamental problem of enforcement. To the drys, 
however, any system which would permit one state to 
depart from the code established for the country as a 
whole was destructive of the essential principle of 
prohibition. It was accordingly the drys and not the 
wets who described this proposal as ill timed and who 
rebuked Mr. Wickersham for giving aid and comfort 
to the enemy. 

Bishop Cannon deplored the incident as an exhibition 
of " defeatism/' 17 Senator Caraway declared that the 
letter to Governor Roosevelt "lent encouragement to 
16 New York Times, July 17, 1929. 
17 Ibid., July 23, 1929. 



The Hoover Program 243 

the criminal world" and demanded Mr. Wickersham's 
resignation. 18 Mr. Clinton Howard, chairman of the 
National United Committee for Law Enforcement, 
insisted that "the people are in no mood to be trifled 
with; they are not willing to have their Constitution 
Wickershammed into a squatter sovereignty hodge 
podge which means in effect that the Constitution of the 
United States will operate only in those states which 
may approve it/' 19 

Meantime, the Governors' Conference to which Mr. 
Wickersham's proposal was originally addressed dis 
missed it gingerly with the explanation that it was too 
controversial a question for Governors to handle. 20 



It was in July, 1929, that this incident took place and 
not until the following January that the public had any 
further news concerning the activities of the Wicker- 
sham commission, save that it had created a number of 
subcommittees, enlisted the aid of various experts and 
settled down to a quiet and systematic study of the 
American machinery of justice. Meantime, during the 
six months which now elapsed, the main outlines of 
the prohibition policy of the new Administration were 
becoming clear. 

In a large sense this policy was based not on an 
attempt to employ force but on an attempt to persuade 
the public to accept the law as a duty of good citizenship. 
Mr. Hoover had urged this point with unmistakable 
feeling in his inaugural. 

18 New York Times, July 18, 1929. 
l *Ibid., July 22, 1929. 
., July 19, 1929. 



244 The Dry Decade 

"A large responsibility rests directly upon our 
citizens/' he insisted. "There would be little traffic in 
illegal liquor if only criminals patronized it. We must 
awake to the fact that this patronage from large num 
bers of law-abiding citizens is supplying the rewards 
and stimulating crime. ... No greater national service 
can be given by men and women of goodwill who, I 
know, are not unmindful of the responsibilities of 
citizenship than that they should, by their example, 
assist in stamping out crime and outlawry by refusing 
participation in and condemning all transactions with 
illegal liquor. Our whole system of self-government will 
_ crumble either if officials elect what laws they will en 
force or citizens elect what laws they will support. The 
worst evil of disregard for some law is that it destroys 
respect for all law. For our citizens to patronize the 
violation of a particular law on the ground that they are 
opposed to it is destructive of the very basis of all that 
protection of life, of homes and property which they 
rightly claim under other laws." 

To this theme the President returned frequently 
during his first year in office. In an address before the 
Associated Press in April he declared that he wished 
"to again reiterate that the problem of law enforcement 
is not alone a function or business of government. . . , 
Every citizen has a personal duty in it." 21 In May he 
sent a message to the National Congress of Parents and 
Teachers in which he deplored the prevalence of the 
theory "that a citizen may choose what law he will 
obey" and insisted that "unless such illusions can be 
dispelled the whole of our liberties are lost." 22 In 
December he said in his message to Congress: "We can 

21 New York Times, April 23, 1929. 
., May 5, 1929. 



The Hoover Program 245 

no longer gloss over the unpleasant reality, which 
should be made vital in the consciousness of every citi 
zen, that he who condones or traffics with crime, who is 
indifferent to it and to the punishment of the criminal, 
or to the lax performance of official duty, is himself the 
most effective agency for the breakdown of society/' 23 

It was a vigorous and persistent effort which Mr. 
Hoover made, to solve the problem of prohibition by 
appealing for willing compliance on the part of otherwise 
law-abiding citizens, but it was an effort which Mr. 
Hoover's predecessors had often made before him. As 
early as October, 1920, in the first year of prohibition, 
and even before his election as President, Mr. Harding 
had appealed for respect for this law "as a fundamental 
principle of the American conscience." 24 

Two years later, in his message to Congress in 1922, 
Mr. Harding had uttered precisely the same warning 
which Mr. Hoover was to repeat in his message to 
Congress in 1929: "Let men who are rending the moral 
fiber of the Republic through easy contempt for the 
prohibition law, because they think it restricts their 
personal liberty, remember that they set the example 
and breed a contempt for law which will ultimately 
destroy the Republic/' 25 This warning he had repeated 
in one of his last speeches, when he declared at Denver 
in June, 1923: "Ours must be a law-abiding Republic 
and reverence and obedience must spring from the in 
fluential and the leaders among men, as well as obe 
dience from the humbler citizen, else the temple will 
collapse/' 26 

^Message to Congress, December 3, 1929. 
^Address at Marion, Ohio, October i, 1920. 
^Message to Congress, December 8, 1922. 
26 Address at Denver, June 25, 1923. 



246 The Dry Decade 

Precisely to this same theme Mr. Coolidge had de 
voted many of his public statements when he succeeded 
Mr. Harding. " Enforcement of law and obedience to 
law, by the very nature of our institutions, are not mat 
ters of choice in this republic," he told a Governors' 
conference in 1923. "The complementary duty to en 
forcement of the law is obedience to the law." 27 This 
maxim he repeated in an address before the Woman's 
National Committee for Law Enforcement in April, 

1924, in his speech accepting the Republican nomina 
tion in August of that year, in his inaugural in March, 

1925, and in his message to Congress in the following 
December. 28 "For any part of our inhabitants to ob 
serve such parts of the Constitution as they like, while 
disregarding others," he said in his message a year 
later, "is a doctrine that would break down all pro 
tection of life and property and destroy the American 
system of ordered liberty." 29 

For nine years before Mr. Hoover entered office, Mr. 
Hoover's predecessors had been making the same ap 
peal for observance of the law and giving the same 
warning of the consequences of widespread violation. 

Proof that neither the appeals nor the warnings had 
found their mark was apparent in the circumstances 
which now compelled Mr. Hoover to repeat them. 



Meantime, as far as the machinery of enforcement 
was concerned, Mr. Hoover made it plain early in his 

27 Address at Washington, New York Times, October 21, 1923. 
28 New York Times, April u, 1924; August 15, 1924; March 5, 

1925; December 9, 1925. 
^Message to Congress, December 7, 1926. 



The Hoover Program 247 

administration that there would be no sensational ef 
forts to accomplish by force what he plainly hoped, 
despite the experience of his predecessors, to accomplish 
by persuasion. 

"It is the purpose of the federal administration," he 
said in his address before the Associated Press in April, 
1929, "systematically to strengthen its law enforcement 
agencies week by week, month by month, year by year, 
not by dramatic displays and violent attacks in order 
to make headlines, not by violating the law itself, 
through misuse of the law in its enforcement, but by 
steady pressure, steady weeding out of all incapable and 
negligent officials, no matter what their status." 30 

To this early plan several additions were later made, 
all aimed at the same goal of a sober and efficient effort. 
The Prohibition Bureau, under new management, an 
nounced that it would now cease " wasting time upon 
pitiful, picayunish, non-commercial cases" and con 
centrate its activities against large commercial viola 
tions. 31 In order to detect such violations the Bureau 
proposed to organize picked squads of men at strategic 
points throughout the country, reporting directly to 
Washington, and consisting of agents especially quali 
fied "for the investigation of larger and more far- 
reaching conspiracies." 32 An effort would be made to 
improve the personnel of the entire service by the choice 
of a higher type of men. The Bureau would attempt 
"to train agents to act always as gentlemen, to use their 
brains rather than their brawn in discharging their duties. 
They will not use weapons except for self-defense." 33 

30 New York Times, April 23, 1929. 
* l lbid., July 31, 1930. 



248 The Dry Decade 

This was the Hoover program of enforcement. It is 
possible that it seemed new and promising at the time 
it was announced, a sharp break with the past and the 
prelude to a more successful future. If this was true, it 
was not because these various proposals were actually 
new but because so many different plans to enforce the 
law had been made at so many different times by so 
many different men that a long series of experiments 
with Mr. Hoover's plan had been forgotten. 

The decision to avoid "dramatic displays" in order 
"to make headlines" and to substitute quiet, orderly 
enforcement for sensational methods had been an 
nounced for the first time not in April, 1929, but in 
December, 1927. "Officials of the Treasury Department 
have ordered the abandonment of dramatic raids with 
subsequent sensational advertising," it was announced 
on this occasion. "Quiet, orderly enforcement of the law 
rather than sensational efforts is the new policy of the 
Prohibition Bureau." 34 

The decision in favor of a "steady weeding out of all 
incapable and negligent officials" had first been an 
nounced in July, 1921, when Major Haynes came into 
office with a plan to rid the enforcement service of all 
agents who were not "of unquestioned integrity, firm 
conviction and patriotic purpose." 35 It had been an 
nounced for a second time in January, 1926, when 
Major Haynes gave way to General Andrews, who 
declared that he wanted only "the finest, cleanest-cut 
type of intelligent, purposeful, clever men." 36 It had 
been announced for a third time in September, 1927, 

34 New York Times, December 2, 1927. 
^Ibid., July 4, 1927. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary^ 6gth Congress, 1st Session, p. 1461. 



The Hoover Program 249 

when command of the enforcement service once more 
changed hands and General Andrews gave way to Mr. 
Seymour W. Lowman. For six years Mr. Lowman's 
predecessors had been organizing an efficient staff. Now 
Mr. Lowman announced that in weeding out inefficient 
members of this staff his arm grew tired "signing orders 
of dismissal/ 537 

There were other familiar items in this new program. 
The plan for picked squads of trained investigators at 
strategic points had first been tried in June, 1921. 38 
Formal assurance that enforcement efforts would be 
kept strictly within the law dated back to April, 1926, 
when General Andrews testified before a Senate com 
mittee that agents had been warned to use "legal 
methods only." 39 The present order to enforcement 
officers to use weapons only in self-defense had 
been anticipated by precisely the same order on 
October 10, 1927,* but this fact had not prevented 
agents from using weapons frequently in a wholly 
different manner. 

As for the important decision to avoid "wasting time 
upon pitiful, picayunish, non-commercial cases" and 
to concentrate on "commercial manufacture and com 
mercial transportation": over a period of some years a 
steady succession of statements had been issued, af 
firming and reaffirming this same policy. 

As early as March, 1926, General Andrews had de 
clared that he "did not want agents on small stuff" 
but wished them "to get at the big interests and the 

37 New York Times, September 10, 1927. 

38 Associated Press dispatch, Washington, June 17, 1921. 

^Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 6gth Congress, 1st Session, p. 1433. 
40 New York Times, October n, 1927. 



250 The Dry Decade 

sources of supply/' 41 Still earlier, in December, 1925, 
Secretary Mellon announced that the Prohibition Bur 
eau would "concentrate its efforts against the sources of 
supply of illegitimate alcoholic beverages and against 
the organized traffic/' 42 Two years before this, in 
October, 1923, Major Haynes deplored a policy of wast 
ing time on anything save "the larger conspiracy viola 
tions and border problems." 43 As early as January, 
1921, on the first anniversary of prohibition, the Com 
missioner of Internal Revenue had insisted that for the 
Bureau to attempt to deal with cases involving minor 
violations "would be an unreasonable undertaking/' 44 

This was the background of the enforcement program 
which now appeared in 1929. If the various plans which 
it proposed had all been used before, and had all 
achieved so little that by this time the public had for 
gotten they were tried, it was not because these plans 
lacked merit as ideas. The trouble was that they had 
been fatally handicapped in practice by the performance 
of men in public office, by lack of funds and by opposi 
tion to the law. 

Like Mr. Hoover's appeal for observance of the law, 
Mr. Hoover's plan for enforcement of the law had its 
roots deep in the unsuccessful experience of nine years' 
effort. 



It was on January 13, 1930, in the tenth month of the 
new Administration, that Mr. Wickersham's Law En 
forcement , Commission reappeared as a factor in the 

York Times, March 12, 1926, 
* 9 December n, 1925. 
., October 14, 1923. 
M Ibid., January 16, 1921. 



The Hoover Program 251 

situation, with a formal report submitted to the Presi 
dent and in turn submitted by the President to Con 
gress. This report mirrored the interest which its chair 
man had shown in the problem of prohibition during 
the summer of the previous year. Though the commis 
sion now had "all law" as its field of inquiry, its first 
report dealt with enforcement of the Volstead Act to 
the exclusion of all other questions. 

There were four proposals in this first report. The 
commission recommended a codification of the various 
prohibition statutes which had been enacted over a 
period of forty years. It urged the importance of en 
acting new legislation to reenforce the padlock provi 
sions of the Volstead Act, since experience had shown 
that these provisions could be easily evaded. It recom 
mended that in the interest of efficient enforcement of 
the law the Prohibition Bureau be transferred from the 
Treasury Department to the Department of Justice. 

This was the same proposal which had first been rec 
ommended more than ten years before this time, in 
June, 1919, by the Secretary of the Treasury; 45 recom 
mended again in 1920 by another Secretary of the 
Treasury; recommended for a third time in 1924 by 
the senior circuit judges of the country; and consistently 
opposed through these years by the most active friends 
of prohibition. To transfer the Prohibition Bureau to 
the Department of Justice, the Anti-Saloon League had 
insisted, would be to jeopardize the whole experiment 
with national prohibition "by creating more oppor 
tunities to shift responsibility and to pass the buck." 46 
If the Anti-Saloon League had subsequently changed 

^Chapter V, supra. 

^New York Times, December i, 1924; also November 28, 
1924; May 29, 1921; April 5, 1921. 



252 The Dry Decade 

its mind it was presumably because it was now prepared 
to accept a change which pegged the hope of enforce 
ment on a new objective. 

Over these first three proposals, when they appeared 
in the report of the Wickersham commission, there was 
little disagreement. The fourth proposal, however, en 
countered opposition. This was the plan for a change 
in the law to permit "casual or slight violations" to be 
handled in the courts without trial by jury* 

It was natural that the commission should have 
found some special interest in this phase of the question 
of enforcement, not only because ten of its eleven mem 
bers were either judges or lawyers, but because the 
problem of congestion in the courts had stood out con 
spicuously since the first year of prohibition. 47 Now, 
in the tenth year, there was no sign of a let-up in prohi 
bition cases. On the contrary, the number of criminal 
prosecutions begun by the federal government had 
reached a new all-time high at 56,786 during Mr. 
Hoover's first year in office. 48 At the end of this year, 
18,690 cases were still listed as unfinished business. 49 
Those which were settled had been settled principally 
by pleas of guilty. Less than 7 per cent of these cases 
had come to trial. 60 Bargain day was still the accepted 
method of disposing of prohibition in the courts. 

As might have been anticipated, the condition of 
court calendars varied substantially in different judicial 
districts. By use of the bargain day method or by virtue 

47 Chapter III, supra. 

^Report of the Attorney General oj the United States, fiscal 
year ended June 30* 1929, p. 29. 



^Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. 70. 



The Hoover Program 253 

of a smaller number of cases, some courts had managed 
to keep their dockets clear. In October, 1929, approxi 
mately one month before the Wickersham commission 
filed its first report with the President, and three months 
before this report was submitted to Congress, the senior 
circuit judges had made a survey of conditions in the 
different courts. They had found in some circuits the 
first and fourth, for example that "business is being 
satisfactorily attended to." They had found in other 
circuits, such as the fifth and ninth, that new judges 
were imperatively needed. 51 In the opinion of the 
Wickersham commission, however, there were "serious 
objections to multiplying courts/' Moreover, bargain 
day itself was an " unseemly process." 52 The commission 
therefore proposed a new system of trials in petty cases 
before United States Commissioners, based on the 
following plan: 

(1) If the accused person wished to plead guilty, well 
and good; the commissioner would sentence him. 

(2) If he did not wish to plead guilty, the commissioner 
would hear his case, file a report with the court, and 
the court (still without benefit of jury) would render 
a verdict. 

(3) If, meantime, the accused person chose to take ex 
ception to the report of the commissioner, he could 
do so by demanding (within three days' time) a 
trial by jury. 

(4) In this case the district attorney could elect whether 
to go to trial on a minor offense or to start the case 
all over by accusing the defendant of a grave felony. 

51 New York Times, October 7, 1929. 

52 First report to the President, New York Tiwits, January 14, 
1930. 



254 The Dry Decade 

It was obvious that this plan placed wide powers of 
discretion in the hands of the district attorney. In effect, 
it gave him a club with which to persuade the defendant 
to acquiesce in the denial of a trial by jury. Whether 
this proposal was sound, whether it was more seemly or 
less seemly than the institution known as bargain day, 
whether the plan would relieve congestion in the courts 
or actually increase it, by creating a new system which 
might entail not one hearing but two or even three 
before a case was settled: these were questions destined 
to be debated for some months by the Wickersham 
commission and various competent and eager critics. 63 



It was the plan for trials without jury which captured 
the headlines in the daily press and rapidly became 
identified in the public's mind as the program of the 
Wickersham commission. This was inevitable, since the 
plan was the one substantial change in existing law 
which the commission had chosen to recommend. Yet 
it is curious that emphasis on this one point should have 
managed so completely to obscure another section of 
this first report which dealt with more fundamental 
problems than punishment for "casual or slight viola 
tions." The boldest section of the report, in fact, seems 
on the whole to have been the section which attracted 
least attention, possibly because it failed to carry any 
recommendation to the President. 



in defense of the plan, Mr. Wickersham, New York 
Times, January 16 and 23, 1930; in criticism, Howard 
Lee McBain, New York World, January 1 8, 1930; Senator 
Robert F. Wagner, Congressional Record, yist Congress, 2d 
Session, pp. 3129-3132. 



The Hoover Program 255 

In a brief passage of four hundred and fifty words the 
Wickersham commission bluntly raised two formidable 
questions which it called " observance 5 ' and "enforce 
ment/ 5 

Under "observance" the commission pointed out that 
the problem of enforcing prohibition in the United 
States could not be separated from "the large question 
of the views and habits of the American people with 
respect to private judgment as to statutes and regula 
tions affecting their conduct/ 5 It was important to note 
"the divergences of attitude in different sections of the 
country 55 regarding prohibition. It was important to 
note the tradition of a "right of revolution 55 against 
laws attempting to regulate standards of private con 
duct. It was important to remember that majorities or 
large minorities of the American people had frequently 
chosen to disobey laws of which they disapproved: 
"We must not forget the many historical examples of 
large-scale public disregard of laws in our past/ 5 

Meantime, under "enforcement, 55 the commission 
frankly confessed that the authority of the federal 
government had failed to keep pace with its responsi 
bilities. Nine years of prohibition had developed "a 
staggering number of what might be called focal points 
of infection/ 5 To deal with a problem "of this size and 
spread, 55 the government could draw only "on a portion 
of the personnel of three federal services, whose staffs 
aggregate about 23,000. Approximately one tenth of 
this number is in the investigative section of the 
prohibition unit. Of the remaining 20,000, only a small 
proportion of the personnel is available for actual pre 
ventive and investigative work. The remainder is en 
gaged in work far different from prohibition/ 5 To the 
commission the enormous gap between the responsibili- 



256 The Dry Decade 

ties of the government and its small staff of 2,300 agents 
seemed too obvious for comment. " These figures," the 
commission said, "speak for themselves/' 

For a moment, the country was challenged to face the 
fact that if the appeals of three Presidents for loyal 
observance of the law had fallen on barren ground it was 
because of a deep-rooted conviction of the American 
people concerning private judgment of laws governing 
their private conduct and the sharp "divergences of at 
titude in different sections" regarding prohibition. The 
country was challenged to face the fact that if no 
agency existed powerful enough to overrule such opposi 
tion as was inherent in these sources, it was because no 
President and no Congress had been willing to go be 
yond a policy of quiet, orderly enforcement and accept 
responsibility for creating such an agency. 

At this point, however, the commission stopped 
abruptly, followed the logic of its own argument no 
further, and turned its attention to the problem of 
deciding whether bargain days or trials before federal 
commissioners promised a better way of imposing 
sentences for casual violations. Having recognized that 
the attitude of the public was a fundamental factor in 
the enforcement of the law, and having recognized the 
total inadequacy of existing federal agencies of inves 
tigation and prosecution, the commission made no rec 
ommendations whatever on either of these points. 

The one new proposal which it made was concerned 
not with the large problems of "observance" and 
"enforcement," but with the small problem of handling 
petty cases in the courts. 



CHAPTER XI 
The Appeal to the States 



1 HE Wickersham commission avoided writing finis 
in its first report. Such modest plans as it proposed had 
been suggested, the commission said, without prejudice 
to " any ultimate program which we may have to rec 
ommend/' Meantime, the question which confronted 
the Hoover Administration in its second year was how 
to enforce a law which failed to take cognizance of 
"divergences of attitude in different sections of the 
country," if these divergences continued to exist despite 
all efforts to end them by persuasion. 

This was, and always had been, the essence of the 
problem. Divergences of attitude had been present from 
the start. The pattern of state legislation on the question 
of intoxicating liquor was not uniform, or nearly uni 
form, when the Eighteenth Amendment took effect. 
It was as variegated as Joseph's coat of many colors. 
At one extreme stood a group of agrarian states which 
had adopted bone-dry prohibition laws. At the opposite 
extreme stood a group of industrial states which had 
adopted no prohibition laws whatever. Between these 
two extremes stood a third group of states, some 
agrarian, some industrial, which still legalized the pos 
session and the use of intoxicating liquor in certain 
forms but regulated its manufacture, its sale, and its 

257 



258 The Dry Decade 

transportation in accordance with those widely varying 
local standards of which the Wickersham commission 
took note in 1930. It was into this medley of states with 
bone-dry prohibition laws, states with no prohibition 
laws, and states with prohibition laws reflecting a sharp 
disagreement in methods between different communities 
that the Eighteenth Amendment introduced a universal 
and uncompromising standard. 

Marking time during its second year, pending a fur 
ther report from the Wickersham commission, the Hoover 
Administration faced once more the problem of enforcing 
this standard realistically in all sections of the country. 







In its first report the Wickersham commission had 
described the problem of enforcement as a question of 
dealing effectively with "a staggering number" of 
"focal points of infection. 3 ' If the commission had failed 
to amplify this comment, and thereby to suggest the 
type of machinery which might reasonably be expected 
to enforce the law, there were reports available from 
other official sources which cast some light upon this 
cryptic statement. 

Unquestionably the commonest focal point of in 
fection in 1930, and the most persistent, was the illicit 
still. Other sources of supply continued to feed the 
traffic in intoxicating liquor. Smuggling was still a 
serious enough problem for the Secretary of the Treas 
ury to propose in January, 1930, simultaneously with 
publication of the Wickersham report, that a military 
guard be mounted on the Canadian frontier and the 
whole border closed to travel "except at points of entry 



The Appeal to the States 259 

designated by the President/' 1 Industrial alcohol was 
enough of a problem for the Prohibition Bureau to report 
that lack of power to compel holders of permits to open 
their books " makes it almost a superhuman task to 
detect them in violations/' 2 On the whole, however, 
industrial alcohol and smuggled liquor were now def 
initely minor factors. It was the illicit still which had 
unmistakably become the chief problem of enforcement. 

As early as 1926 Congress and the Coolidge Ad 
ministration had been warned that such a development 
was altogether likely. Testifying before a committee of 
the Senate at that time, General Andrews had described 
illicit stills as the one infallible source of production: 
"Where you cut off a source of supply of another nature, 
the moonshine wells up to fill the gap. . . . The old law of 
supply and demand carries in the case of bootleg liquor 
the same as in the case of any other merchandise/' 3 

Subsequent events had borne out the accuracy of 
this prediction. During the latter half of 1926 and 
throughout 1927 the problem of the illicit still steadily 
assumed a place of more importance in the govern 
ment's communiques. In 1928 Dr. James M. Doran, 
by this time in charge of the Prohibition Bureau, 
described illicit distilling as "the major problem of 
enforcement/' 4 In 1929 officials of the Bureau reported 
that 35,200 stills and distilleries had been seized during 
the previous year, together with twenty-six million 
gallons of mash, and suggested that " any estimate as 

Report to the President, New York Times, January 14, 1930. 
^Industrial Alcohol, United States Treasury Department, 1930, 

P- 25. 
^Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 6gth Congress, ist Session, p. 449. 
4 New York Times, December 27, 1928. 



260 The Dry Decade 

to what percentage of all illicit stills in operation is 
represented by the number seized would be sheer 
conjecture." 5 

By this time, approximately the time when the 
Hoover Administration entered office, the flow of liquor 
from illicit stills was in full swing, and during Mr. 
Hoover's first year nothing stopped it. On the contrary, 
the Prohibition Bureau reported that the production of 
distilled liquor steadily expanded. "There seems to be a 
constant growth in this production in the most modern 
type of plants," said the Commissioner of Prohibition 
at the end of the first year of the new Administration. 
"The use of corn sugar in the illicit manufacture of 
alcohol is causing us grave concern." 6 

Production of corn sugar had increased from 
152,000,000 pounds in 1921 to 960,000,000 pounds in 

1929. There was no way of explaining this enormous 
increase, in the opinion of the Prohibition Bureau, 
except on the theory that the great bulk of it had gone 
into manufacture of illicit liquor. " For every gallon of 
industrial alcohol diverted," said Dr. Doran in January, 

1930, "there are at least seven or eight gallons of high- 
proof alcohol produced illicitly from corn sugar and put 
on the bootleg market in the form of alcohol, gin, and 
alleged imported whisky. The corn-sugar racket now 
surpasses all others in the field of operation of the 
bootlegger." 7 

During the same year which the Wickersham com 
mission had devoted to a study of ways of handling 
minor violations in the courts, Dr. Doran's agents had 
seized 27,336 stills, of which 3,434 were "not small pot 

5 New York Times, January 5, 1929. 
6 /itW., January 10, 1930. 
^., January 18, 1930. 



The Appeal to the States 261 

stills, but big columns, costing anywhere from $5,000 
to $50,000 to build," constructed by expert chemists 
and capable in some cases of producing from 500 to 
2,000 gallons of alcohol a day, 8 

One indication of the importance which this problem 
had now assumed is apparent in the fact that three 
hundred stills with a capacity of 2,000 gallons could 
produce more hard liquor than the United States con 
sumed before the adoption of the Eighteenth Amend 
ment. 



There were various reasons, all easily identified, why 
illicit stills should have come to the front in these later 
years as the chief problem in enforcement. 

In the first place, this method of production was rela 
tively simple, since it involved no effort to divert in 
dustrial alcohol from manufacturers who were under 
bond, but merely required the purchase of a common 
article in the open market. In the second place, it was 
relatively safe, particularly when it used corn sugar, 
since the distillation of alcohol from corn sugar produced 
almost no odor and left no mash. In the third place, it 
was highly economical, since a hundred pounds of corn 
sugar could be purchased in the market for $5. In the 
fourth place, as Dr. Doran pointed out, alcohol pro 
duced in this manner in a modern plant was "of the 
highest type and as good as that manufactured leg 
ally." 9 

It is not strange that in these circumstances com 
sugar distillation should have prospered. The very 
advantages of this method, from the point of view of the 

8 New York Times, January 10 and 23, 1930. 
id. 9 January 10, 1930* 



262 The Dry Decade 

bootlegger, constituted its difficulties from the point of 
view of the enforcement agent. Using a product readily 
obtainable and not easily detected when it was put to 
an illicit use, the bootlegger could manufacture a high 
standard of alcohol at an exceedingly low cost for sale 
in a market which was prepared to pay high prices. 
The risks involved in this enterprise were negligible. 
Its profits were enormous. 

It was the clearest result of this development in the 
economics of an illegal liquor traffic that it definitely put 
an end to the theory that the law could be enforced 
with a compact staff of a few thousand men in Wash 
ington and a modest amount of assistance from the 
states. 

If the chief source of illegal liquor had been industrial 
alcohol, it would have been possible to deal with this 
source effectively by putting an agent in every factory, 
every wholesale house, and every retail store where in 
dustrial alcohol was bought or sold. Such an effort 
would have required a much larger staff of agents 
than the government had ever had. It would have 
required a much more honest staff of agents than 
the government had ever had. It would also have 
required more autocratic powers of control over 
American industry than Congress had been willing to 
lodge in the Prohibition Bureau. Nevertheless, the main 
problem of enforcement in this case would have been 
limited to the task of maintaining an effective watch 
over a known number of points at which alcohol might 
be diverted to illegal purposes. 

Similarly, if the chief source of supply of the boot 
legger had been liquor smuggled across the borders, the 
problem of enforcement would have required more 
thorough measures than an occasional series of breath- 



The Appeal to the States 263 

less drives, but it would at least have been a problem 
localized in a long strip of seacoast and of border. 

The problem of illicit stills, however, was neither 
localized in one section of the country nor confined 
to a relatively small number of industries. It was a 
problem as broad as the country itself and as limitless 
as its three million square miles of territory. To expect 
the federal government to solve this problem with the 
staff of 2,300 agents which the Wickersham commission 
counted for the President in January, 1930, would have 
been to expect the impossible. If these agents had done 
nothing but search the country for illicit stills, each 
agent would have had 1,316 square miles of territory to 
police, twenty-four hours of the day and night. Mean 
time, to expect the states to solve the problem as a 
mere by-product of the administration of ordinary local 
laws would have been to overestimate the strength of 
state enforcement agencies. 

For while the states had many more police officers 
than the federal government a total of approximately 
175,000 marshals, constables, sheriffs, and policemen 
in I930 10 the responsibilities of these officers included 
the enforcement not of one law but of many laws. An 
increasingly large part of the police force of every city 
was assigned exclusively to the enforcement of traffic 
regulations. No contribution to the effort of the federal 
government could reasonably have been expected of 
these officers. It was idle to suppose that a policeman on 
duty at a street corner from eight in the morning until 
six at night could help enforce the Volstead Act. There 
were other policemen, constables, and sheriffs not so 
narrowly restricted in their movements. These officers, 

"Assistant Attorney General Youngquist, New York Times, 
August 29, 1930. 



264 The Dry Decade 

however, were not local prohibition agents. They were 
general officers of the law, charged with the execution 
of a thousand duties which varied from the protection 
of jewelry stores against night robbery to the policing of 
crowds at baseball games and the prevention of thefts of 
motor cars to the service of warrants on citizens who 
failed to pay their paving bills. 

The states and municipalities were frugal in their 
law enforcement. They had never chosen to employ 
more officers than they could use. They had chosen, 
instead, to starve their police departments in the 
interest of low taxes. In these circumstances, there 
were few peace officers who found themselves at liberty 
to give their whole time to detecting violations of the 
Eighteenth Amendment. It was obviously true in many 
cases that local police officers discovered violations of 
the Eighteenth Amendment only when they stumbled 
upon such violations in pursuance of other duties. 

There was one way, and in reality only one way, 
to make an effective search of three million square miles 
of territory in order to detect and to destroy illicit stills 
which might lurk in any tenement basement or any 
deserted strip of countryside. That way was to organize 
a force of federal or state police specifically devoted to 
this ambitious task and adequate enough in personnel 
to offer reasonable hope of its accomplishment. 



It had always been the theory of the federal govern 
ment that responsibility for local enforcement of the 
Volstead Act properly rested on the states. The federal 
government, to be sure, had conducted an enormous 
number of local raids. It had conducted so many raids 



The Appeal to the States 265 

that by the end of 1929 it had arrested a total of 
550,307 people. 11 These arrests, however, admittedly 
apprehended only a small fraction of those who were 
guilty of violating the law. "We do not begin to arrest 
all that are guilty/* General Andrews had told a com 
mittee of the Senate in 1926. "We cannot/' 12 The federal 
government had always been involved in a certain 
amount of local police work, but never deeply enough 
involved to enforce the law effectively. Such responsi 
bilities as it had accepted in this field it was plainly 
reluctant to expand. 

There were two chief reasons for this reluctance. In 
the first place, various spokesmen of the government 
had long insisted that a policy of too active interference 
from Washington in the police work of the states would 
be certain to result in confusion and resentment. "I 
venture to say," wrote President Harding in 1923, "that 
if by reason of the refusal or failure of any state to dis 
charge its proper duty in such connection the federal 
government is at length compelled to enter upon the 
territory and jurisdiction of the state and to set up those 
police and judicial authorities which would be required, 
the most difficult and trying situations would inevitably 
arise. More or less conflict between state and federal 
authorities would seem unavoidable in such circum 
stances. The impression would be created that the 
federal government was assuming to interfere with the 
functions of the states and the distressing results that 
would ensue readily suggest themselves." 13 

^Statistics Concerning Intoxicating Liquors, United States 

Treasury Department, 1930, p. 64. 
^Hearings of a Subcommittee of the Senate Committee on the 

Judiciary, 6gth Congress, ist Session, p. 57. Cf. Chapter VI, 

supra. 
13 New York Times, May 17, 1923. 



266 The Dry Decade 

In the second place, any such activity would be cer 
tain, as Mr. Harding also pointed out, 14 to involve the 
federal government in enormous expense inevitably 
requiring the imposition of new taxes. How large an 
item this expense would be, Mr. Harding did not at 
tempt to estimate. Five years later, testifying before a 
committee of the House of Representatives, the fed 
eral Commissioner of Prohibition set the figure at 
$3OO,ooo,ooa 15 This would have multiplied the appro 
priation of the Prohibition Bureau approximately by 
twenty and increased its staff accordingly. Even with 
this vastly increased expenditure, however, there would 
have been no slack in the enforcement service. If the 
purpose of giving the Prohibition Bureau ^300,000,000 
was to enable it to make a serious effort to solve what 
had now become its major problem, the problem of 
searching the country for illicit stills, each enforcement 
agent would still have been left with sixty-six square 
miles to cover. 

In these circumstances, reluctant to accept either 
the heavy cost of an adventure with a federal police 
force or the political consequences which such an ad 
venture might entail, the federal government had in 
sisted from the outset that its own responsibilities were 
limited and that the duty of supplying an effective staff 
of agents for local police work was clearly imposed on 
the states by that clause in the Eighteenth Amendment 
which gave the states "concurrent power to enforce/' 

On this point, however, the government encountered 
no unanimity of opinion. There were, and had been 
for some years, two sharply different theories concerning 
the meaning of " concurrent power/* 

14 Address at Denver, June 25, 1923. 
15 Chapter X, supra. 



The Appeal to the States 267 



As an earlier chapter has pointed out, no mention of 
concurrent power occurred in the Eighteenth Amend 
ment as originally adopted by the Senate. 16 The phrase 
appeared for the first time when the Amendment 
reached the House. On this occasion the chairman of 
the House Judiciary Committee undertook to explain 
why the language of the Senate's resolution had been 
changed. 

Most of the members of the committee, he said, felt 
that the resolution should contain a specific reservation 
to the states "of power to enforce their prohibition 
laws." Accordingly, the resolution had been amended to 
include concurrent power. " I believe, regardless of our 
division on the wet and dry question/' said the chairman 
of the Judiciary Committee, "every member will agree 
with us that this is a wise and proper amendment. No 
body desires that the federal Congress shall take away 
from the various states the right to enforce the prohibi 
tion laws of those states. If we do not adopt this amend 
ment from the committee there might be a fight in 
Congress every two years as to whether the states 
should be given the right to help enforce this proposed 
article of the Constitution. Because, as I see it, after the 
states have delegated to the federal Congress power to 
do a certain thing, for instance, to stop the manufacture 
and sale of alcoholic liquors for beverage purposes, the 
question is whether the state has not turned over to the 
federal Congress the exclusive right to enforce it/' 17 

Stated in this form, the plain purpose of the clause 

"Chapter II, supra. 

17 Congressional Record, 65th Congress, 2d Session, p. 423. 



268 The Dry Decade 

giving the states concurrent power was (i) to make sure 
that the states would not lose power to enforce their 
own prohibition laws and (2) to avoid "a fight in Con 
gress every two years" over the " right " of the states 
to help the federal government enforce the Eighteenth 
Amendment. 

This was as far as the Judiciary Committee went, 
and the House itself showed no disposition to push the 
matter further. During the whole debate on the adop 
tion of the Eighteenth Amendment there was no dis 
cussion of the meaning of concurrent power. The 
House was plainly ready to accept without question the 
assurance of its committee that the states needed this 
added protection of their right to enforce their own 
prohibition laws. It was plainly ready to accept, also 
without question, the assurance of its committee that 
the states would be eager to help the federal govern 
ment enforce the Eighteenth Amendment and that the 
result would be to free Congress of an enormous burden. 

As the chairman of the committee explained the 
advantages of this plan: "We do not want ten thousand 
federal officers, with all the expense of salaries, going 
over the country enforcing these laws when the states 
have their own officers to do so and are willing to do 
so/' 18 This explanation satisfied the House, though it 
left unanswered the question of what would happen if 
some of the states or all of the states proved in fact not 
"willing to do so." 

Apparently, in this case, full responsibility for en 
forcement would remain with Congress, There was no 
suggestion in the statement of the chairman of the 
Judiciary Committee, and no suggestion on the floor of 

^Congressional Record, 6$th Congress, 2d Session, p. 424. Cf. 
Chapter II, supra. 



The Appeal to the States 269 

the House itself, that this proposal for concurrent 
power imposed upon the states any new responsibility 
which they did not have before. The plain purpose of 
the concurrent clause, in the form in which it was offered 
and expounded in the House, was to protect the states 
in the enforcement of their own legislation and to 
pave the way for the prompt acceptance by the federal 
government of such assistance in the enforcement of 
the Eighteenth Amendment as the states chose "will 
ingly" to offer. 



Nevertheless, though this was the interpretation 
given to concurrent power in the House, and though no 
different interpretation could possibly have been in 
tended in the Senate, since the concurrent clause had 
not been written when the Senate debated prohibition, 
it was not long before a new and more ambitious inter 
pretation was placed upon this section of the Eight 
eenth Amendment, According to this later theory, the 
original purpose of the House was not the decisive fac 
tor. The Eighteenth Amendment gave the states con 
current power. In so doing, it made the states coequal 
partners with the federal government and invested 
them with coequal responsibility for enforcement of the 
law, both legally and morally. 

If there was comparatively little discussion of this 
theory in the early days of prohibition, it was for one 
reason because the importance of effective state coopera 
tion had not been appreciated at full value. The friends 
of the Eighteenth Amendment had been confident that 
the law would be obeyed. They had foreseen no wide 
spread and determined opposition on the part of other 
wise law-abiding citizens. They had predicted that the 



270 The Dry Decade 

law could be enforced without difficulty on an annual 
appropriation of five million dollars. 19 There was little 
need for more millions from the states in such a fore 
cast. As time passed, however, as opposition to the law 
persisted, as the full scope of the problem of enforce 
ment came gradually to be realized and as the federal 
government continued to plod along with a staff of 
agents wholly disproportionate to the task in hand, the 
theory that the states were legally and morally bound 
to share the heavy burden of enforcement steadily ac 
quired emphasis. 

In the years from 1925 to 1930 this theory of the 
states as coequal partners of the federal government 
was argued at length on many occasions by many friends 
of prohibition, notably by Mr. Wheeler and Mr. Mc- 
Adoo, but argued by no one with more persistence and 
more vigor than by Senator Borah. 

To Mr. Borah it seemed unmistakably clear that the 
concurrent clause of the Eighteenth Amendment im 
posed upon the states a responsibility which they could 
not dodge with honor. "Under this section the obliga 
tion laid upon the state within its jurisdiction is no 
different and no less than that laid upon Congress or 
the federal government. . . . The Constitution of the 
United States affirmatively prohibits certain things and 
then authorizes both Congress and the states to enforce 
the Constitution. If the will of the people means any 
thing, as embodied in the national Constitution, neither 
Congress nor the states can disregard this command 
thus embodied in the Constitution. Both are under legal 
and moral obligation to make the will of the people as 
expressed in the Constitution effective/' 20 
19 Chapter III, supra. 
20 New York Times, July 28, 1929. 



The Appeal to the States 271 

On this point the opinion of the Supreme Court in a 
celebrated case arising under the Eighteenth Amend 
ment, United States vs. Lanza, 21 seemed to Mr. Borah 
entirely reassuring. For while the court had held in this 
case that the state is free to enact prohibition laws, 
"the court nowhere intimated/' insisted Mr. Borah, 
"that the state is free to disregard the national Consti 
tution and to refuse to enact laws. The state is free to do 
anything it may choose in harmony with the national 
Constitution, but it is not free to act contrary to the 
national Constitution, and it acts contrary to it when it 
declines or refuses to enact laws to make it effective." 22 

In short, the failure of the states to adopt laws in 
support of the Eighteenth Amendment was as patently 
illegal and as morally reprehensible as the adoption of a 
law which openly defied the Amendment. "When a 
provision of the Constitution is adopted, the state can 
not assume an attitude of indifference toward it or an 
attitude of indifference toward its maintenance. The 
state is an integral part of the Union, it receives vast 
privileges under the Constitution and owes an active 
duty in return. It is bound to be interested in maintain 
ing the federal Union. It is bound to be concerned in 
seeing that the federal Union is a going concern and, 
therefore, interested in supporting and maintaining the 
Constitution. 5523 



If this theory of the Eighteenth Amendment was 
convincing to the friends of prohibition, and if the 

21 26o 1L S. 377 (1922). 

York Times, July 28, 1929. 



272 The Dry Decade 

responsibility of the states under the concurrent clause 
seemed unequivocally clear, the theory did not lack able 
and aggressive critics. Mr. Borah's interpretation of the 
concurrent clause was challenged by the Voluntary 
Committee of Lawyers in New York. 24 It was chal 
lenged by Howard Lee McBain, Ruggles Professor of 
Law at Columbia University. 26 It was challenged, 
vigorously and persistently, by Governor Ritchie of 
Maryland. 26 

None of these critics of Mr. Borah's theory attempted 
to dispute the obvious fact that the Eighteenth Amend 
ment imposed the duty of obedience on every citizen of 
the country in whatever state he lived. Their quarrel 
was with Mr. Borah's conception of the duty of the 
states themselves. Nothing in the Eighteenth Amend 
ment, they insisted, had imposed upon the state govern 
ments any responsibility, either legal or moral, to 
assist the federal government in the enforcement of this 
legislation. 

In support of this theory Governor Ritchie turned 
back to the original debate on the Eighteenth Amend 
ment in the House of Representatives. On this occasion 
the chairman of the Judiciary Committee had inter 
preted the concurrent clause as a protection to the 
states in the enforcement of their own prohibition laws, 
The House had accepted this interpretation. The 
Supreme Court, insisted Governor Ritchie, had taken 
the same view. For in the case of United States vs. 
Lanza, discussed by Senator Borah, the Supreme Court 
had held: 



York Times, December 16, 1929. 
^Prohibition: Legal and Illegal, pp. 27-31, 

38 New York Times 9 February 6, 1927; Auguit 15, 1929; 
August 16, 1929; December 15, 1929. 



The Appeal to the States 273 

To regard the Amendment as the source of the power oi 
the states to adopt and enforce prohibition measures 
is to take a partial and erroneous view of the matter. 
Save for some restrictions arising out of the federal 
Constitution, chiefly the commerce clause, each state 
possessed that power in full measure prior to the 
Amendment, and the probable purpose of declaring a 
concurrent power to be in the states was to negative 
any possible inference that in vesting the national 
government with the power of country-wide prohi 
bition, state power would be excluded* 

To this the court had added the following comment 
concerning the power of the states to write prohibition 
laws: 

Such laws derive their force, as do all new ones consis 
tent with it, not from this Amendment but from power 
originally belonging to the states, preserved to them 
by the Tenth Amendment and now relieved from the 
restriction heretofore arising out of the federal Con 
stitution. 

In other words, the court had held that the states 
derived no power from the Eighteenth Amendment 
except perhaps the power to act upon interstate and 
foreign liquor, a power which had already been granted 
to them by act of Congress some years before the 
Amendment was proposed. "The result is unmistakable 
and uncontrovertible," insisted Governor Ritchie. "In 
asmuch as the states do not derive their power to pass 
state enforcement laws from the concurrent clause of 
the Eighteenth Amendment, it follows, of course, that 
the Eighteenth Amendment imposes no duty whatever 



274 The Dry Decade 

on the states to pass such laws. The Amendment simply 
preserves to the states the power in this respect which 
they already had. It grants them no new power, and 
since it grants them no power of any kind obviously it 
imposes no duty of any kind/' 27 

With this view Mr. McBain concurred: "It is curious 
that so little public attention has been given to this 
pronouncement by the court. It is of the highest im 
portance. For manifestly if the states derive from the 
Amendment no power to enact prohibition laws, they 
are of a certainty under no obligation, moral or legal, 
to enact such laws because of the Amendment. . . . 
They are undoubtedly absolved from all responsibility 
in respect to its enforcement by the high priests of 
American law. Whatever may be the widespread notion 
to the contrary, this is the law of the Constitution as 
expounded by its final determiner, the Supreme Court 
of the United States." 28 



In Senator Borah's theory of concurrent power and 
Governor Ritchie's interpretation of the same clause 
there was a wide discrepancy in point of view, reflecting 
a disagreement over the merits of prohibition as well as 
over the rulings of the Supreme Court and the theory 
of the Constitution. Meantime, whether it was the duty 
of the states to match the federal government man for 
man and dollar for dollar in the enforcement of the law, 
or whether no semblance of legal or moral responsibility 
rested on the states, this much was certain: the federal 
government had no power to compel the states to take 

27 Address at Boston, December 10, 1929. 

^Prohibition: Legal and Illegal, pp. 30-31. 



The Appeal to the States 275 

action against their will. As Mr. Borah himself pointed 
out, "We cannot mandamus a state to pass a state law, 
to execute or enforce a law/* 29 The states were sovereign 
bodies. Short of the application of armed force, there 
was no way in which to enlist their cooperation in this 
enterprise save through the power of persuasion. 

The attempt to exercise this power of persuasion had 
begun at an extremely early date. For obvious reasons, 
including the important element of cost and the equally 
important element of taxes, successive Presidents had 
chosen to adopt the same interpretation of the law as 
that championed by Mr. Borah. As early as December, 
1922, Mr. Harding made the first formal plea on behalf 
of a President of the United States for more effective 
assistance by the states. Prohibition had not been suc 
cessfully enforced. There were "conditions relating to 
its enforcement which savor of nation-wide scandal/ 5 
It was important that the states contribute more to 
this experiment than they had contributed to date. "I 
purpose to invite the Governors of the states and 
territories, at an early opportunity, to a conference with 
the federal executive authority." 30 

From this point forward the appeal for assistance 
by the states had been repeated by successive Presidents 
from year to year as regularly as the plea for loyal 
observance of the law on the part of private citizens. 
In May, 1923, Mr. Harding urged the states "fully and 
literally" to assume "their part of the' responsibility of 
maintaining the Constitution." 31 In June of the same 
year he deplored "a growing laxity on the part of the 
states" and appealed for "real cooperation between na- 

29 New York Times, July 28, 1929. 
30 Message to Congress, December 8, 1922. 
31 New York Times, May 17, 1923. 



276 The Dry Decade 

tional and state authority/' 32 In October Mr. Coolidge 
took up the burden of Mr. Harding' s appeal and urged 
the states to come to the aid of the federal government 
by using the machinery of local government "to the 
full extent of its capacity to secure the enforcement of 
the law." 33 

Time and again, during his five and a half years in 
office, this invocation to the states appeared and re 
appeared in Mr. Coolidge's public statements on the 
problem of prohibition in the United States. To this 
same theme he returned in his message to Congress in 
December, 1923; in his Memorial Day address at 
Arlington in May, 1925; in his message to Congress in 
December, 1925; in his message to Congress in Decem 
ber, 1926; in his message to Congress in December, 
1927; in his message to Congress in December, 1928, 
three months before the inauguration of the Hoover 
Administration. 

By this time, certainly, the appeal for effective state 
assistance had been stated so frequently and so earn 
estly that it must have rung in the ears of every state 
legislature in the country. "Vigilance on the part of 
local governments would render enforcement efforts 
much more successful." 34 "Local authorities, which 
always had been mainly responsible for the enforcement 
of law in relation to intoxicating liquor, ought not to 
seek evasion by attempting to shift the burden wholly 
upon the federal agencies." 36 "The federal government 
... is entitled to the active cooperation of the states." 36 

S2 New York Times > June 26, 1923. 

^Ibid. 9 October 21, 1923. 

^Message to Congress, December 6, 1927. 

id., December 7, 1926. 

id., December 3, 1928. 



The Appeal to the States 277 

"We need their active and energetic cooperation, the 
vigilant action of their police and the jurisdiction of 
their courts to assist in enforcement." 37 



Tireless as were these efforts to stimulate the states 
into aggressive action, the net result of eight years of 
earnest appeals from Washington was an appropriation 
by the states of $698,855 for enforcement in I927, 38 the 
latest year for which figures of the Census Bureau were 
available when the Hoover Administration entered 
office. 

At this point the states were contributing to the 
experiment with national prohibition less than a penny 
a year for each of their inhabitants. They were devoting 
to Mr. Borah's theory of their heavy responsibilities 
under the concurrent clause enough funds to give each 
state an average of five prohibition agents at a salary of 
$3,000. They were spending for the enforcement of the 
Eighteenth Amendment approximately one-eighth of 
the sum they were spending for the enforcement of 
their own fish and game laws. 39 

For the complete failure of the states to give the 
federal government the effective assistance for which it 
had so often asked, their indifference to a long series of 
appeals from Washington and their reluctance to reply 
to these appeals with money for enforcement, the 
Prohibition Bureau advanced an explanation in June, 
1930. In a pamphlet bearing the seal of the Treasury 

3r Message to Congress, December 8, 1925. 
38 Chapter VIII,, supra. 

^Financial Statistics of the States, 1927, Bureau of the Census, 
pp. 80-83. 



278 The Dry Decade 

Department and entitled State Cooperation in the En- 
forcement of National Prohibition Laws, the Bureau 
offered this suggestion: "To an observer the causes of 
this lack of cooperation are quite apparent. Unwhole 
some influences are at work to prevent enforcement/' 40 

It was a familiar theme, the theme of a conspiracy 
to defeat the law, but in the case of the state legislatures 
there were obvious influences with which it failed to 
reckon. Merely as a matter of routine administration 
there was an almost inevitable tendency on the part 
of the states to slacken their efforts in the enforcement 
of state prohibition laws when the federal government 
entered the field of enforcement with its great prestige 
and its enormous income. 

Something of this sort had happened many times 
before and in the case of many laws which antedated 
prohibition. Left to their own devices, to work out for 
themselves the solution of a problem which remained 
within their borders, the states had been compelled to 
exercise their own ingenuity and to accept responsibility 
for their own decisions. Once the federal government 
appeared upon the scene with its vast resources, it was 
entirely in accord with precedent that the states should 
feel, as Mr. Harding complained in 1923, that a kindly 
deus ex machina had "actually taken over the real 
responsibility." 41 

Deeper down than this, however, lay the fact that 
the states were now suddenly called upon to enforce a 
law which in most cases had never had the sanction of 
local legislation. If it is unquestionably true that forty- 
five of the forty-eight state legislative bodies ratified the 



Cooperation in the Enforcement of National Prohibition 
Laws, United States Treasury Department, 1930, p. 7. 
41 Address at Denver, June 25, 1923. 



The Appeal to the States 279 

Eighteenth Amendment during a period which began in 
the tenth month of the war and ended in the third 
month following the Armistice, it is also unquestionably 
true that most of these states had never chosen down to 
this point to experiment with anything as drastic as 
bone-dry prohibition. The method which they had fol 
lowed in dealing with the familiar problem of intoxicat 
ing liquor had been to proceed cautiously in accordance 
with local standards and customs which varied sub 
stantially in different sections of the country. 

If the legislatures of these states had subsequently 
failed to contribute generously to the enforcement of 
the Eighteenth Amendment, if they had been reluctant 
to create militant enforcement agencies and hesitant in 
resorting to their powers of taxation in order to maintain 
these agencies, the possibility of some such result might 
have been foreseen, in less extraordinary circumstances 
than existed when the Eighteenth Amendment was 
adopted, by those members of the House of Representa 
tives who had so casually accepted the theory of willing 
cooperation by the states. 



If one fact was abundantly clear by 1930 it was the 
failure of the federal government, after ten years of 
earnest exhortation, to persuade the states to make a 
realistic effort to enforce prohibition in the United 
States. The states, with six exceptions, had been willing 
to enact and to retain on their statute books a quantity 
of legislation. They had not been willing to appropriate 
more than a pittance for the enforcement of this legisla 
tion. 

Nevertheless, barren as were the efforts of the federal 



280 The Dry Decade 

government to enlist effective assistance by the states, 
it was once more to the states that the Hoover Adminis 
tration turned in 1930, confronted by a new develop 
ment in the problem of enforcement, the emergence of 
the illicit still as the dominant factor in production and 
the necessity of creating an army of agents adequate to 
police the country. 

The budget for enforcement submitted to Congress 
precisely at this time proposed merely a nominal in 
crease in the appropriation of the Prohibition Bureau. 
Nor did this budget stand alone as mute evidence that 
the Administration believed the vast problem of sup 
pressing illicit stills to be a problem beyond the respon 
sibility of the federal government. A series of state 
ments by various heads of departments in Washington 
not only emphasized again, in midsummer, 1930, the 
importance of effective state assistance, but now made 
it impressively clear that without effective state assist 
ance there would be no enforcement. 

Attorney General Mitchell insisted that the federal 
government could not possibly go into the states to 
"create an enormous police force . . . such as would be 
necessary to measurably enforce the law if the state 
authorities did nothing." 42 The Prohibition Bureau ar 
gued in its latest brochure that failure to enforce the law 
could not "consistently be laid at the doors of the fed 
eral authorities/' since, in the absence of state assist 
ance, "the burden put upon the federal enforcement 
machinery is too heavy/' 43 Assistant Attorney General 
Youngquist frankly confessed that the existing federal 
agencies of enforcement were "pitifully inadequate 35 for 
^New York Times, June 27, 1930. 

^State Cooperation in the Enforcement of National Prohibition 
Law*) United States Treasury Department, 1930, pp. 2, 64. 



The Appeal to the States 281 

the task in hand, 44 though the government plainly had 
no intention of increasing these agencies substantially. 
To a fuller extent than ever before in a decade of ex 
periment, the federal government abdicated responsi 
bility for the single-handed enforcement of bone-dry 
prohibition in the United States at the end of 1930. The 
problem of enforcing bone-dry prohibition now re 
turned to the states, the great bulk of which had never 
had it before 1920 and certainly never enforced it once 
they got it. 

York Times, August 29, 1930. 



CHAPTER XII 
The Position in 1930 



W IDESPREAD disregard of the law, indifference in the 
state legislatures, and unwillingness on the part of the 
federal government to accept the entire burden of en 
forcement: these were the decisive factors at the end 
of 1930. Where the law was liked, it was obeyed. Where 
it was not liked, there was nothing to enforce it except 
the same familiar sequence of ineffective drives, of ul 
timatums with no force behind them, of mobilizations 
and remobilizations of a small staff in a few strategic 
spots, of padlocks picked after the key was turned, and 
of light fines in the courts on bargain days. 

There was no good reason to suppose that this pro 
gram of enforcement could succeed in reaching its ob 
jective unless some fundamental factor in the situation 
changed : unless a larger part of the public began will 
ingly to obey the law, or unless the states accepted a.new 
view of their responsibilities, or unless the federal gov 
ernment multiplied its own investment in the cause of 
national prohibition. 

Without a change in one or another of these funda 
mental factors, the scope of the existing program of en 
forcement was definitely limited. A new commissioner 
of prohibition could reasonably hope to accomplish cer 
tain reforms in the administration of the law by his own 

282 



The Position in 1930 283 

agents. He could reasonably hope for more success than 
his predecessors had achieved, in persuading his agents 
to remain within the law and to avoid sensational meth 
ods. He could reasonably hope to make the efforts of his 
Bureau quiet and orderly, so quiet and so orderly as to 
pass almost unnoticed. What he could not reasonably 
hope to do was to shut off the sources of illegal liquor 
with any machinery which Congress had provided for 
that purpose. 

This much was frankly and explicitly acknowledged 
at the end of 1930 by officials in a position to speak for 
the federal government. 

When Assistant Attorney General Youngquist stated 
that "the magnitude of the task" made the existing 
program of enforcement "pitifully inadequate" to 
achieve its goal, 1 he definitely dismissed the theory that 
the law could be enforced by a series of patient blunders 
into some ingenious and inexpensive solution of a stub 
born problem. 

When Attorney General Mitchell declared that under 
existing conditions the question of how much enforce 
ment each community would have was largely " a matter 
of choice with the states" themselves, 2 he summarized 
the unmistakable results of ten years* effort. 

When the Prohibition Bureau insisted that without 
effective state assistance "the burden put upon the 
federal enforcement machinery is too heavy," 3 it brought 
to a sober and matter-of-fact denouement the era of 
resplendent promises inaugurated by Major Haynes in 
1923 when he pronounced the law triumphant over all 

x New York Times, August 29, 1930. 
*Ibid., June 27, 1930. 

*StaU Cooperation in the Enforcement of National Prohibition 
Laws, United States Treasury Department, 1930, p. 64. 



284 The Dry Decade 

its problems and described the success of the Prohibition 
Bureau as "nothing short of marvelous." 4 

The day of miracles was over. Whatever else was pos 
sible at the end of 1930, it was not possible to believe, 
on the basis either of ten years' experience or of any 
future which responsible officials now ventured to pre 
dict, that the Prohibition Bureau could succeed in lifting 
itself to the top of a long hill by a series of short tugs on 
its own bootstraps. 



At the end of 1930, five possible alternatives to the 
existing situation had been proposed. These alternatives 
were (i) willing compliance with the law on the part of 
enough people to reduce the problem of enforcement to 
manageable terms; (2) a realistic effort to enforce the 
law in the face of whatever opposition it encountered; 
(3) nullification of the law by deliberate failure to en 
force it; (4) an effort to modify the law by some change 
in the Volstead Act; (5) repeal of the law and restoration 
of the problem to the states. 

Because these alternatives existed, it did not follow 
that any one of them would necessarily be chosen by the 
American public within a reasonable period of years. 
There were formidable difficulties inherent in all five 
alternatives, from the enlistment of willing compliance 
at one end to repeal of the Eighteenth Amendment at 
the other. Unquestionably the easiest policy was to drift 
along. The course of this experiment had not changed 
substantially in a decade. Any change in its progress 
now required a reconciliation of conflicting views and 
a bold effort to overcome inertia. 

What possibilities lay ahead, which one of these alter- 
4 New York Times, December 24, 1923. 



The Position in 1930 285 

natives the American people would ultimately choose, 
if, indeed, they should choose any, could not be foreseen 
at the end of 1930. Ten years' experience made it possi 
ble, however, to examine the problems involved in each 
alternative and to measure the progress each had made. 







The first possible alternative to the existing situation 
was a fundamental change in public opinion and a will 
ing compliance with the law on the part of people who 
had hitherto disobeyed it. 

Such a change, of course, would promptly dispose of 
any problem confronting the federal government. As Mr. 
Coolidge had said at a conference of Governors in 1923, 
if the public would once stop patronizing bootleggers, 
"the rest would be easy." 5 It was an obvious comment, 
but it was still as much to the point in 1930 as it was in 
1923. If the 98 per cent or the 99 per cent of the Ameri 
can public which willingly obeys laws forbidding bur 
glary, forgery, assault, and arson should begin willingly 
to obey the law forbidding manufacture and sale of in 
toxicating liquor, there would be no prohibition prob 
lem. There would be no need to discuss enforcement 
plans. There would be no debate over the respective 
duties of the states and the federal government under 
the concurrent clause. 

Willing compliance with the law would promptly cut 
the Gordian knot of prohibition. Three Presidents had 
found it difficult, however, to persuade the public to 
yield this compliance as a duty of good citizenship. Al 
most in identical words Mr. Hoover was still repeating 

6 Address in Washington, October 20, 1923. Chapter V, supra. 



286 The Dry Decade 

the early appeals and admonitions of his predecessors: 
pleading for obedience to the law as "the first duty of a 
citizen of a self-governing state " as Mr. Harding had 
pleaded for obedience to the same law in 1920 as "a 
fundamental principle of the American conscience "; de 
nouncing the doctrine "that a citizen may choose what 
law he will obey" as Mr. Coolidge had denounced the 
doctrine that citizens may choose "to observe such parts 
of the Constitution as they like while disregarding 
others"; warning the country that the dogma of dis 
obedience to a particular law was "destructive of the 
very basis of protection of life, of homes and property" 
as Mr. Coolidge had warned the country that this same 
dogma would "break down all protection of life and 
property and destroy the American system of ordered 
liberty." . 

Nothing that three Presidents had said, nothing that 
had been said by many other men in public life, nothing 
that had been argued in support of the theory that pro 
hibition was like all other laws, equally binding upon the 
conscience of the American people and entitled to equal 
respect, had succeeded by the end of 1930 in persuading 
a large part of the public to accept prohibition on this 
basis. 

Opinion among the friends of prohibition was divided. 
There was one school which believed with Bishop Can 
non that the time had come to employ sufficient force 
"to convince the present rebels against prohibition 
that the government will suppress rebellion wherever 
found." 6 There was a second and more optimistic school 
which continued to believe that desperate remedies were 
not needed and that the American people would come in 
time to accept the law of their own free will, either be- 
6 New York Times, February 10, 1930. 



The Position in 1930 287 

cause they learned to appreciate its value or because 
they consented to obey it as good citizens, 

Force of circumstance had compelled this second 
school to revise its estimate of time. In the early years 
of the Eighteenth Amendment the advocates of na 
tional prohibition had believed that the law would be 
obeyed so promptly that a few million dollars would be 
sufficient to enforce it. Gradually it had been necessary 
to advance the date when such obedience might reason 
ably be expected. In 1930 there were friends of prohibi 
tion who believed that by 1933 or by 1935 or by 1940 the 
public could be won over to the law; other friends who 
looked ahead still further. "Prohibition will be enforced 
if we stick to it long enough," said Mrs. Carrie Chapman 
Catt. "Ten years is but a little time with 100,000 years 
ahead." 7 

To those Americans who disliked and distrusted pro 
hibition, a decade seemed ample time in which to find 
an answer to the question of how much support the 
public would give the law. To the friends of prohibition 
this test was unfair and a decade too brief for a real 
answer. 



The second possible alternative to a policy of drift 
was a realistic effort to enforce the law in whatever sec 
tion of the country it was disobeyed. In the opinion of 
the Hoover Administration, as expressed at the end of 
1930, such an effort could come only from the states 
themselves. 

If this was true, there was little difference between 
the first alternative and the second. The states in which 
the law was most widely disobeyed were obviously re- 
York Times, January 25, 1930. 



288 The Dry Decade 

luctant to vote large funds with which to enforce it as 
long as sentiment within these states was opposed to 
strict enforcement. The problem of persuading the states 
to enforce the law, therefore, was essentially the problem 
of persuading the public to obey it. If a time came when 
95 per cent or 85 per cent or even 75 per cent of the peo 
ple in the large industrial states were won over to the 
cause of national prohibition, the federal government 
would no longer need militant assistance from the states. 
Until such time arrived, appeals addressed to the legis 
latures of these states were appeals addressed to them 
to override the will of their constituents. 

Owing to the presence of a dry majority in Congress, 
the federal government was in a different position. With 
a three-to-one vote or a two-to-one vote in favor of pro 
hibition in both the Senate and the House, Congress had 
ample power to initiate a genuine effort to enforce the 
law at any time it chose to act. The starting point for 
such an effort was plain enough. Above all else the law 
needed men and money. 

Over a period of ten years Congress had done its best 
to escape this inescapable conclusion. The experiment 
with national prohibition had begun with an appropria 
tion demonstrably inadequate for the purpose of en 
forcement. At the end of 1930 the chief spokesmen of 
prohibition in the Senate and the House were still as 
insistent as they had always been, that the right way 
to enforce the law was not to appropriate money to en 
force it but to write more laws to be enforced : laws mak 
ing the purchaser of illegal liquor equally guilty with the 
seller, laws adding new penalties to the penalties carried 
in the Jones Act, laws making it mandatory upon the 
courts to impose prison sentences on first offenders. 

If ten years of prohibition had proved anything they 



The Position in 1930 289 

had proved the futility of such efforts. Nothing except 
additional confusion and a larger measure of hypocrisy 
had been achieved by adding more law to a law which 
was not enforced. If the existing federal machinery of 
enforcement was " pitifully inadequate" to enforce the 
law against sellers of illegal liquor, it was still more piti 
fully inadequate to enforce the law against the far more 
numerous purchasers of illegal liquor. If federal attor 
neys complained that juries would not convict under 
the heavy penalties carried in the Jones Act, there was 
no reason to suppose that they would convict more read 
ily in case these penalties were increased. If the courts 
had found it impossible to dispose of prohibition cases 
by any other method than a series of bargain days, it 
was idle to call upon the courts to send every prohibition 
case to trial for the purpose of imposing mandatory 
prison sentences on those who were guilty of violations. 

As far as enforcement was concerned, every alterna 
tive to the expenditure of ample funds had been tried not 
once but many times by the end of 1930. Laws had been 
added to existing laws, increasing the scope of the law 
to be enforced. Regulations had succeeded regulations, 
multiplying the responsibilities of a staff too small to 
carry them successfully. Drives had followed drives, in a 
long pursuit of the same familiar problem through a 
series of reincarnations at widely scattered points. Re 
organizations of the Prohibition Bureau in 1921 and 
1925 and 1926 and 1927 and 1930 had started out afresh 
five times to find some formula of enforcement suffi 
ciently ingenious to compensate for a paralyzing lack of 
men and money. 

If the federal government wished to enforce prohibi 
tion in the United States, ten years of experience plainly 
showed the way to go about it. The first step was to 



290 The Dry Decade 

organize an army of agents adequate to police the coun 
try to suppress illicit stills. The second step was to 
equip these agents not with more law to enforce but with 
more authority under existing law: with authority, as 
the Wickersham commission had proposed, to initiate 
padlock proceedings without personal service of a sub 
poena on the owners of the property involved; with au 
thority, as the Prohibition Bureau had proposed, to 
compel business firms to open their books and to show 
in detail what disposition they had made of any prod 
ucts requiring the use of alcohol; with authority, as 
General Andrews had proposed, to enter private homes 
and to search private dwellings not only on ^warrants 
charging sale of liquor but also on suspicion of its manu 
facture for illegal use. 

Whether the federal government would ultimately 
provide the authority and the machinery needed to en 
force the law remained to be disclosed. At the end of 
1930 Congress was still unwilling to believe that its own 
responsibilities went beyond halfway authority for the 
Prohibition Bureau, a budget of $13,000,000 and a staff 
of 2,300 field agents, each covering an average area of 
1,300 square miles. 



At the opposite extreme from the proposal for mili 
tant enforcement of the law stood the proposal for its 
deliberate nullification. This proposal was not advo 
cated solely in irresponsible places or by persons in 
irresponsible positions. There were intelligent and sober- 
minded men to whom nullification as a political method 
seemed both reasonable and opportune. 

Without specifically recommending nullification in 
the case of prohibition, Dr. Arthur Twining Hadley, 



The Position in 1930 291 

president emeritus of Yale University, described the 
method in 1925 as a "safety valve which helps a self- 
governing community avoid the alternative between 
tyranny and revolution." 8 A similar opinion was ex 
pressed in the Atlantic Monthly of October, 1926, by Mr. 
Jerome D. Greene, who endorsed nullification of the 
Eighteenth Amendment and the Volstead Act on the 
ground that this was the traditional method by which 
American communities asserted their will "against the 
improper or unwelcome intrusion of governmental ac 
tion in individual or local conduct." "This is not a coun 
sel of lawlessness," insisted Mr. Greene, "for law rests 
fundamentally on public opinion; and public opinion 
can assert itself as effectively and rightfully in breaking 
as in making a law, provided it is really public opinion 
which is acting and not the capricious action of lawless- 
minded individuals." 

There were other men who shared these theories. 
They argued that nullification was not revolution but a 
method of reducing political tension when it became in 
tolerable. They argued that majorities or large minori 
ties had chosen many times to nullify laws which lacked 
the sanction of public opinion in one section of the 
country or another; that the Fugitive Slave Law had 
been nullified by the people of the North; that the 
Reconstruction Acts had been nullified by the people 
of the South; that a large number of local laws, includ 
ing many blue laws, had been nullified both in the North 
and in the South, through a gradual loss of respect re 
sulting from a change in local standards. 

Moreover, while a policy of nullification undeniably 
carried with it certain risks, these risks seemed to the 

8 Law Making and Law Enforcement, Harper's Magazine, 
November, 1925. 



292 The Dry Decade 

advocates of nullification to be negligible by comparison 
with the risks involved in an effort to enforce by drastic 
means a drastic law which ran counter to the will of 
large numbers of people. 

"The cost of trying to compel obedience to a law 
which violates the consciences of a considerable minor 
ity of the people or the traditional usages and privileges 
of anything like a majority is usually too great/' 
insisted Dr. Hadley. "The attempt to enforce ^the 
Fugitive Slave Law converted the misunderstandings 
between North and South into public menaces. The at 
tempt to enforce the Reconstruction Acts not only re 
sulted in abject failure but left a legacy of bitterness 
behind it which lasted for many years. What has 
proved true in large matters like these has generally 
held good in small ones. The efforts to enforce legislation 
regarding Sunday amusements, for instance, have 
usually produced an amount of vexation and trouble far 
out of proportion to any tangible results that could be 
expected or achieved." 9 

It was a consideration of these circumstances which 
led Dr. Hadley to describe nullification as a safety 
valve. Inevitably there were many men who took excep 
tion to this theory. To Senator Borah, for example, 
nullification was not a safety valve, not a method of 
enabling self-governing communities to "avoid the 
alternative between tyranny and revolution," but a 
"slinking, silent, cowardly sapping of the very founda 
tion of all order, all dignity, all government the 
furtive, evasive betrayal of a nation," 10 

There was a sharp difference of opinion here, but a 

9 Law Making and Law Enforcement, Harper's Magazine, 
November, 1925. 
10 New York Tims, July 19, 1926. 



The Position in 1930 293 

difference of opinion over a philosophy of action rather 
than a plan of action. No organized movement with 
nullification as its objective had made its appearance in 
American politics by the end of 1930. No league and 
no association opposed to the Eighteenth Amendment 
advocated deliberate disobedience to the law while it 
remained in force. No bloc in Congress had proposed to 
repeal the Volstead Act without substituting some other 
legislation in its place. 

Such nullification as had appeared during ten years 
of prohibition consisted of individual disobedience of 
the law and unwillingness on the part of Congress to 
enforce it. 



Like the proposal to nullify the law, the proposal to 
modify it was based on the theory that the law could 
not be successfully enforced in those districts in which it 
was opposed to local habits and convictions. Nullifica 
tion aimed to dispose of the problem of enforcement 
in these districts by making the law a dead letter. 
Modification proposed a change in the law on the theory 
that the problem of enforcement would be simplified if 
a larger portion of the public were persuaded to obey it. 

In point of years the modification movement was 
older than the law itself. Even before the Eighteenth 
Amendment became effective and before the Volstead 
Act was reported to the House of Representatives, the 
American Federation of Labor petitioned Congress for 
the enactment of such legislation as would exempt 2,75 
per cent beer from the prohibition of intoxicating 
beverages. 11 Congress replied to this petition by setting 
the standard of intoxicating beverages at one half of one 
u New York Times, June 12, 1919. 



294 The Dry Decade 

per cent, but the American Federation of Labor and a 
minority of Congress itself continued to quarrel with the 
logic of this definition. 

Over a period of some eight years, in fact, an effort to 
persuade Congress to reconsider its definition of in 
toxicating beverages remained the chief objective of 
such political opposition to prohibition as appeared in 
the United States. A long series of possible alternatives 
was proposed, debated and rejected. 

In one session of Congress fifty-nine bills were intro 
duced for the purpose of legalizing 2.75 per cent beer. 12 
Other plans called for approval of beer of 4 per cent; 
others for the approval of light wines. In 1926 Senator 
Edge of New Jersey proposed that the Volstead Act be 
amended simply by substituting the words "non- 
intoxicating in fact" for the limitation of one half of 
one per cent, arguing that this amendment would 
"copy and assert the very words of the Constitution 
itself, and its constitutionality therefore cannot be 
questioned." 13 In 1928 Governor Smith of New York 
advanced his plan for an amendment of the Volstead 
Act which would give "a scientific definition of the 
alcoholic content of an intoxicating beverage" and 
simultaneously grant authority to each state "to fix 
its own standard of alcoholic content, subject always 
to the proviso that that standard could not exceed the 
maximum fixed by Congress." 14 

What is most significant about the movement in 
favor of modification is that Governor Smith's proposal 

^68th Congress, 1st Session. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 29. 

14 Address accepting the Democratic nomination, August 22, 

1928. 



The Position in 1930 295 

in 1928 was the last proposal made by an opponent of 
national prohibition which aroused widespread discus 
sion. When another plan for modification caught the 
attention of the country it was a plan submitted not by 
an opponent of prohibition but by a friend. This plan 
was the proposal of Representative Fort of New Jersey 
for an amendment of the Volstead Act which would 
legalize liquor brewed in private homes, provided it was 
non-intoxicating in fact: "To those who want beer and 
light wines, I suggest that they forego the wish to buy 
and be content with what they make/ 515 

As far as modification was concerned, the field of 
public interest had been preempted by midsummer of 
1930 not by a wet but by a dry. This unexpected reversal 
of roles was not accidental. It was an unmistakable sign 
of a waning interest of the wets in the cause of modi 
fication. Plans for a possible change in the Volstead Act 
still appeared occasionally in the party platforms 
adopted either by Republicans or by Democrats in 
states where prohibition was not popular. On the whole, 
however, these plans now seemed to arouse less en 
thusiasm than at any other time in ten years of prohi 
bition. Presumably there were two chief reasons for 
this lack of interest, 

In the first place, the argument made by Mr. Hughes 
during the 1928 campaign against the legality of any 
proposal to modify the Volstead Act had unquestionably 
carried weight and succeeded in discouraging those more 
skeptical wets who had always been inclined to doubt the 
possibility of reconciling beer that was really beer and 
wine that was really wine with the flat dictum of the 
Eighteenth Amendment against "intoxicating liquors/' 

^Congressional Record, 7ist Congress, 2d Session, pp. 2789- 
2792. 



296 The Dry Decade 

In the second place, the cause of beer and wine had 
been submerged by a much larger issue. It was no longer 
a question of tempering discontent by wringing a little 
comfort from the Volstead Act which occupied the at 
tention of the opponents of prohibition, but the question 
of restoring what they believed to be the fundamental 
principle of the federal system of government, by re 
dressing a lost balance of power between the national 
government and the states. 

So completely did this second question now over 
shadow the first, and so substantially had the field of 
controversy been broadened under the leadership of 
such men as Mr. Dwight W. Morrow and such or 
ganizations as the various bar associations of the larger 
cities, that by the end of 1930 only the interjection 
of some new and important factor seemed capable of 
reviving interest in the cause of modification. 

It was conceivable that such an agency as the Pre 
sident's Commission on Law Enforcement might ulti 
mately arrive at a proposal for modification and certain 
in these circumstances that controversy over^the merits 
of modification would begin afresh. Without some 
thing of this sort to alter the march of events, how 
ever, the opposition movement seemed destined to 
sweep past its earlier objective and to focus its effort 
not on modification but on repeal. 



There was one point with respect to repeal on which 
both the friends of prohibition and the opponents of 
prohibition could agree. It was the unquestioned right 
of every American to work for the repeal of any law of 
which he disapproved. This method of procedure raised 



The Position in 1930 297 

none of the legal doubts inherent in modification and 
none of the ethical doubts involved in nullification. It 
was a plain proposal to take out of the Constitution 
something which had been put into it. The friends of 
prohibition acknowledged the legality of this effort but 
believed it to be quixotic. " There is as much chance of 
repealing the Eighteenth Amendment," insisted Senator 
Sheppard in 1930, "as there is for a humming-bird to 
fly to the planet Mars with the Washington Monument 
tied to its tail/' 16 

This confidence in the impregnability of the Eight 
eenth Amendment rested not only upon the conviction 
of such men as Senator Sheppard that a majority of 
the American people favored national prohibition, but 
also upon a belief that it was practically impossible 
to repeal any part of the Constitution once it was 
adopted. 

In order to repeal the Eighteenth Amendment it 
would be necessary first to adopt a resolution by a two 
thirds vote of both Houses of Congress. Thirty-three 
Senators out of 531 legislators in both Houses could 
block repeal at the outset, A veto on repeal rested in 7 
per cent of the representation at the capital. Assuming, 
however, that the proposal for repeal could hurdle 
Congress, it had then to be ratified by both Houses of 
every legislature in thirty-six states. Seventy-two 
legislative bodies must agree before there could be 
repeal. Thirteen bodies could block repeal forever. 
These thirteen bodies, rightly apportioned, could exist 
in states containing approximately 5 per cent of the 
country's population. 

Mathematically, these statistics were a devastating 

argument against the possibility of repeal. As a matter 

16 Associated Press dispatch, Washington, September 24, 1930. 



298 The Dry Decade 

of everyday politics, they were formidable but not 
conclusive. 

Over a long period of time these figures ignored a 
steady drift of population and political power to the 
cities. Over a shorter period they ignored the psychology 
of mass movement and the possibility, at least con 
ceivable, of such a band-wagon rush on the part of the 
state legislatures as had occurred in 1918 and 1919, but 
in the opposite direction. They ignored the political 
pressure which would presumably be brought to bear 
on the less populous agrarian states, in the matter of 
withholding subsidies from the Federal Treasury, if the 
proponents of repeal succeeded in capturing a majority 
of Congress. They ignored the question of whether thir 
teen states with 5 per cent of the country's population, 
or even twenty states with 15 per cent of its population, 
would choose as a matter of sound political procedure to 
subject the American system of government to a heavy 
strain by exercising their veto power to block the will 
of a great majority of the American people, if a time 
came when a great majority was actually recorded in fa 
vor of repeal. They ignored, finally, the possibility of any 
change in attitude on the part of the friends of prohibi 
tion: a change perhaps no more likely but quite as credi 
ble as a change in attitude on the part of its opponents. 

It is significant in this respect that most plans for 
repeal proposed by the end of 1930 sought to assure the 
friends of prohibition that repeal need not necessarily 
mean either the return of the saloon to any part of the 
United States or the loss of federal assistance to those 
states which wished to prohibit intoxicating beverages 
entirely. 

The plan for repeal proposed by Governor Smith in 
1928, simultaneously with his plan for modification, was 



The Position in 1930 299 

based on the Canadian system of sale by a public agency 
in those states in which a majority of the electorate 
approved such a policy by referendum vote. 17 The plan 
for repeal submitted to the voters of New Jersey by Mr. 
Morrow in 1930 was a plan for a new amendment which 
would "restore to the states the power to determine 
their policy toward the liquor traffic/' but simultane 
ously "vest in the federal government power to give all 
possible protection and assistance to those states that 
desire complete prohibition against invasion from 
states that do not." 18 

Plainly the purpose of such plans was an effort to 
find some ground on which a new agreement might be 
reached. "I look forward to a time/' said Mr. Morrow in 
the address in which he announced himself in favor of 
repeal, "when the old leaders in the temperance move 
ment, the churches and the schools and the social 
workers, will appreciate that they have not reached a 
final solution of a world-old problem by the present 
Eighteenth Amendment. I look forward to the time 
when the moral teachers of the country will realize that 
in the battle for a great social reform there was wisdom 
in the old system of experimenting in forty-eight 
laboratories rather than in one." 19 

Whether this was a reasonable hope only the future 
could disclose. There were formidable difficulties in the 
process of repealing or amending the Eighteenth 
Amendment, It was an open question whether these 
difficulties were more formidable or less formidable 
than the difficulties involved in an effort to persuade the 

17 Address accepting the Democratic nomination, August 22, 

1928. 
18 New York Times, May 16, 1930. 



300 The Dry Decade 

public to accept the law or the effort to persuade the 
federal government to enforce it, or the effort to solve 
an unsolved problem by any other means than by a 
policy of drift. 



Whatever possibilities the future held, one fact seemed 
unmistakable. Until some settlement was reached which 
disposed of this problem as effectively as the American 
people could hope to dispose of it, by strict enforcement 
or by repeal or by some other method, prohibition 
seemed destined to remain a dominant and disturbing 
issue. The policy of drift not only failed to enforce the 
law. It left the raw edge of controversy uppermost. 

Friends of the law denounced its enemies as rebels. 
Opponents of the law insisted that its friends had be 
trayed the Constitution. Presidents accused the state 
governments of evading their responsibilities. State 
governments defied successive Presidents by con 
tinuing to vote inadequate appropriations for enforce 
ment. The debate over the results which prohibition 
had achieved ran on interminably and with mounting 
bitterness on both sides. The blunt prediction before a 
committee of the House of Representatives in 1930 that 
a real effort to enforce the law would lead to open re 
bellion matched the declaration of an ardent group of 
prohibitionists that it was now "war to the knife and 
knife to the hilt between the forces of sobriety and 
orderly government on one hand and the forces of 
liquor and lawlessness on the other." 20 

H 'tarings of ike House Judiciary Committee, 71 st Congress, 
2d Session, Serial 5, pt. 2, p. 200; resolution of the 
Southern Baptist Convention, New Orleans, New York 
Times, May 17, 1930. 



The Position in 1930 301 

There had been an early hope that the adoption of 
the Eighteenth Amendment definitely answered the 
question of regulating the use of intoxicating liquor in 
so far as this question concerned the United States. No 
doubt a large number of votes cast in favor of the 
Amendment, both in Congress and in the state legisla 
tures, had been predicated on this hope. Mr. Harding 
had expressed the devout wish of many men in public 
office to be done forever with a contentious issue when 
he declared, during the debate on the Eighteenth 
Amendment in the Senate, "I want to see this question 
settled. I want to take it out of the halls of Congress and 
refer it to the people, who must make the ultimate 
decision/' 21 

For a brief period of time circumstances favored the 
theory that the question had actually been settled, 
that it had at last been taken out of the halls of Con 
gress, that the process of referring it to the state 
legislatures during the war period was equivalent to 
referring it "to the people, who must make the ultimate 
decision/* The completeness of the dry victory crushed 
all political opposition. The effort of Congress to 
enforce the law primarily by making speeches about it 
seemed adequate to the occasion. The experiment with 
national prohibition was so new that the friends of 
prohibition could afford to dismiss indulgently any 
lack of enthusiasm on the part of the states. 

At the end of a decade nothing remained of these 
early hopes that the Eighteenth Amendment had 
finally disposed of the question of intoxicating liquor, 
either as an issue in politics or as a problem in admin 
istration. On the contrary, this question was now more 

^Congressional Record, 6$th Congress, 1st Session, p. 5648. 
Cf. Chapter II, supra. 



302 The Dry Decade 

of an issue in politics than it had ever been: threatening 
for the first time actually to split parties whereas it 
had once merely vexed them; forcing an unwelcome con 
troversy over the Volstead Act into the election of 
judges, prosecuting attorneys, sheriffs, and even county 
clerks; dominating political discussion in state and 
municipal elections, once either party announced a 
position which permitted the opposing party to raise 
the issue of modification or repeal; involving municipal 
administrations in a never-ending search for a work 
able compromise between enforcement of the law and 
observance of opinion in communities which did not 
like it. 

"I presume I am like the mayor of every other large 
city in this country, hoping for a day to come when 
our efforts may be given to something else than prohibi 
tion/ 5 Mayor Dever of Chicago told a committee of 
Congress in 1926. "I want to be relieved, if I can; I 
have a human longing either to pass the burden of this 
great subject on to somebody else, or else from the aid of 
constructive legislation to be relieved of its annoyance. 
It is an everyday yes, an hourly difficulty with us 
in Chicago. The mayor of that city has great powers. 
He is responsible for everything that occurs there. The 
school board, the library board, the great hospitals, 
the police, fire, everything is brought to the door of the 
chief executive; and yet, notwithstanding the growing 
need for attention to these highly important matters, 
our attention is engrossed with this particular subject. 
It is almost impossible to give anything approaching 
good government along general lines, this one subject 
presses so closely upon our attention. Even I, who have 
tried to divest myself personally and as chief executive 
of the subject, and not to allow myself to be embroiled 



The Position in 1930 303 

in it, find myself immersed in it, to the very great 
damage of the city, from morning until night/' 22 

The experience of Mayor Dever had been matched 
in the experience of mayors of other cities who told 
their stories to congressional committees, to the public 
or to the press. It had been matched in the experience 
of Governors, of state legislatures, of federal adminis 
trations, of Congress and of the courts. 

To the question of enacting or repealing state en 
forcement codes, Governors and legislatures devoted a 
vast amount of party strategy and political maneuver 
ing. To the task of winning compliance with a law 
which a large part of the public continued to disobey, 
successive Presidents devoted an endless series of 
messages and public statements. To the question of 
controlling a traffic in intoxicating liquor which it had 
sought to destroy in 1917, once and for all, Congress 
now gave more time than ever. To the question of en 
forcing prohibition in the courts the federal judiciary 
devoted so much of its attention that two thirds of all 
the criminal prosecutions within its jurisdiction were 
now cases under a single statute: the National Pro 
hibition Act, 

Until this question which troubled city administra 
tions, state administrations and federal administra 
tions had been disposed of by one means or another, 
by enforcement or by nullification, by observance or 
by repeal, it was difficult to believe that prohibition 
could be kept from monopolizing a large part of the 
attention of the government and determining single- 
handedly the fitness of many candidates for public 
office. 

^Hearings of a Subcommittee of the Senate Committee on the 
Judiciary, 6gth Congress, 1st Session, p. 1378. 



304 The Dry Decade 

National prohibition by constitutional amendment 
had begun as the golden dream of thousands of devoted 
men and women. At the end of a decade it had pre 
cipitated a struggle which was to test the political 
wisdom of the American Republic. 



APPENDICES 



APPENDIX A 
ADOPTION OF STATE PROHIBITION LAWS 

(SOURCE : Editorial Research Reports, Washington, August 7, 1928) 
(A) STATES ADOPTING LAWS BEFORE APRIL i, 1917 



STATE PROHIBITION 
ADOPTED 



STATUTORY OR POPULAR VOTE ON PROHIBITION 
CONSTITUTIONAL For Against Majority 



Maine 


1858.. 


statutory 




.... 


.... 


** 


1884 


constitutional . . . 


70,783 


23,811 


46,972 


Kansas 


1880.. 


constitutional . . . 


92,302 


84,304 


7,998 


North Dakota. . . 


1889.. 


constitutional . . . 


18,552 


17,393 


1,159 


Georgia 


1907.. 


statutory 








Oklahoma. ..... 


1907.. 


constitutional . . . 


130,361 


112,258 


18,103 


Mississippi 


1908. . 


statutory 




.... 


.... 


North Carolina. . 


1908.. 


statutory 


113,612 


69,416 


44,196 


Tennessee 


1909.. 


statutory 




.... 




West Virginia. . . 


1912. . 


constitutional . . . 


164,945 


72,603 


92,342 


Virginia 


1914.. 


statutory 


94>25i 


63,886 


30,365 


Oregon 


1914.. 


constitutional . . . 


136,842 


100,362 


36,480 


Washington. .... 


1914.. 


statutory 


189,840 


171,208 


18,632 


Colorado 


1914.. 


constitutional . . . 


129,589 


118,017 


11,572 


Arizona 


1914.. 


constitutional . . . 


25>887 


22,743 


3,144 


Alabama 


1915- 


statutory 








Arkansas 


1915.. 


statutory 




.... 


.... 


Iowa 


1915.. 


statutory 




.... 


.... 


Idaho 


1915- 


statutory 






.... 





1916 . 


constitutional . . . 


90,576 


35,456 


55,120 


South Carolina . . 


1915.. 


statutory 


4i>735 


16,809 


24,926 


Montana 


1916. . 


constitutional . . . 


102,776 


73,890 


28,886 


South Dakota . . . 


1916. . 


. . .constitutional . . . 


65,334 


53,36o 


n,974 


Michigan 


1916. . 


constitutional . . . 


353*378 


284,754 


68,624 


Nebraska 


1916. . 


constitutional . . . 


146,574 


117,132 


29,442 


Indiana 


1917.. 


statutory 




.... 




Utah 


1917.. 


statutory 




.... 


.... 


New Hampshire. 


1917.. 


statutory 




.... 






1,967,337 1,437,402 529,935 



307 



308 Appendices 

(B) STATES ADOPTING LAWS AFTER APRIL i, 1917 



STATE PROHIBITION 
ADOPTED 
New Mexico. . . . 1917. . . . 
Utah 1918 
Texas 1918. . . . 

" TOTQ 


STATUTORY OR 
CONSTITUTIONAL 
.... constitutional . . . 
.... constitutional . . . 
statutory 


POPULAR VOTE ON PROHIBITION 
For Against Majority 
28,732 12,147 16,585 
42,691 15*780 26,911 


constitutional 


159^23 
463,654 

31,439 
21,851 
13,248 
208,905 


140,099 
437395 

10,200 
13,609 
9,060 
198,671 


19,624 

25,759 
21,239 
8,242 

4,188 
10,234 


Ohio 
Wyoming 
Florida 
Nevada 
Kentucky 


. . 1918 
. . 1918 
. . 1918 
. . 1918 
. . 1919- . 


.... constitutional . . . 
.... constitutional . . . 
.... constitutional . . . 
statutory. . . 


.... constitutional . . . 



Total popular vote, (A) and (B) . 



970,243 837,461 132,782 
2,274,863 662,717 



APPENDIX B 



SENATE VOTE ON THE EIGHTEENTH AMENDMENT 

(SOURCE: Congressional Record, 6^th Congress, ist Session, p. $666) 



FOR THE AMENDMENT 65 



Borah, Idaho. 
Brady, Idaho. 
Colt, R. I. 
Cummins, la. 
Curtis, Kans. 
Fernald, Me. 
Frelinghuysen, N. J. 
Gronna, N. D. 
Hale, Me. 
Harding, Ohio. 



Republicans 29 

Johnson, Cal. 
Jones, Wash. 
Kellogg, Minn. 
Kenyon, la. 
Knox, Pa. 
LaFollette, Wise. 
McCumber, S. D. 
McNary, Ore. 
New, Ind. 
Nelson, Minn. 



Norris, Neb. 
Page, Vt. 
Poindexter, Wash. 
Sherman, 111. 
Smith, Mich. 
Smoot, Utah. 
Sterling, S. D. 
Sutherland, W. Va. 
Watson, Ind. 



Ashurst, Ariz. 
Bankhead, Ala. 
Beckham, Ky. 
Chamberlain, Ore. 
Fletcher, Fla. 
Gore, Okla. 
Hollis, N. H. 
Jones, N. M. 
Kendrick, Wyo. 
King, Utah. 
Kirby, Ark. 
McKellar, Tenn. 



Democrats 36 

Martin, Va. 
Myers, Mont. 
Newlands, Nev. 
Overman, N. C. 
Owen, Okla. 
Pittman, Nev. 
Ransdell, La. 
Robinson, Ark. 
Saulsbury, Del. 
Shafroth, Col. 
Sheppard, Tex. 
Shields, Tenn. 
309 



Simmons, N. C. 
Smith, Ariz. 
Smith, Ga. 
Smith, S. C. 
Stone, Mo. 
Swanson, Va. 
Thompson, Kans. 
Trammel, Fla. 
Vardaman, Miss. 
Walsh, Mont. 
Williams, Miss. 
Wolcott, Del. 



3io 



Appendices 

AGAINST THE AMENDMENT 20 



Brandegee, Conn, 
Calder, N. Y. 
France, Md. 



Republicans 8 

Lodge, Mass. 
Penrose, Pa. 
Wadsworth, N. Y. 



Warren, Wyo. 
Weeks, Mass. 



Broussard, La. 
Culberson, Tex. 
Gerry, R. I. 
Hardwick, Ga. 



Democrats 1 2 

Hitchcock, Neb. 
Husting, Wise. 
James, Ky. 
Lewis, 111. 



Phelan, Cal. 
Pomerene, Ohio. 
Reed, Mo. 
Underwood, Ala. 



PAIRS OF ABSENTEES 

Goff (W. Va.) and Townsend (Mich.), Republicans, for, with 

Tillman (S. C.) Democrat, against. 
Gallinger (N. H.), Republican, and Johnson (S. D.), Democrat, 

for, with Hughes (N. J.)> Democrat, against. 
Fall (N. M.)s Republican, and Thomas (Col.), Democrat, for, with 

McLean (Conn.), Republican, against. 



APPENDIX C 



HOUSE VOTE ON THE EIGHTEENTH AMENDMENT 

(SOURCE: Congressional Record, 6^th Congress, 2d Session, p. 460) 
FOR THE AMENDMENT 282 



Anderson, Minn. 
Anthony, Kans. 
Austin, Tenn. 
Bland, Ind. 
Bowers, W. Va. 
Browne, Wise. 
Browning, N. J. 
Burroughs, N. H. 
Butler, Pa. 
Campbell, Kans. 
Cannon, 111. 
Carter, Mass, 
Cooper, Ohio. 
Cooper, W. Va. 
Cooper, Wise. 
Copley, 111. 
Costello, Pa. 
Cramton, Mich. 
Currie, Mich. 
Dale, Vt. 
Dallinger, Mass. 
Darrow, Pa. 
Dempsey, N. Y. 
Denison, 111. 
Dillon, S. D. 
Dowell, la. 



Republicans 13 7 

Dunn, N. Y. 
Elliott, Ind. 
Ellsworth, Minn. 
Elston, Cal. 
Emerson, Ohio. 
Esch, Wise. 
Fairfield, Ind. 
Farr, Pa. 
Fess, Ohio. 
Focht, Pa. 
Fordney, Mich. 
Foss, 111. 
Frear, Wise. 
French, Ida. 
Fuller, 111. 
Good, la. 
Goodall, Me. 
Gould, N. Y. 
Graham, 111. 
Green, la. 
Griest, Pa. 
Hadley, Wash. 
Hamilton, Mich. 
Hamilton, N. Y. 
Haugen, la. 
Hawley, Ore. 
311 



Hersey, Me. 
Hicks, N. Y. 
Hollingsworth, O. 
Hutchinson, N. J. 
Ireland, 111. 
James, Mich. 
Johnson, S. D. 
Johnson, Wash. 
Kearns, O. 
Kelley, Mich. 
Kennedy, la. 
Kiess, Pa. 
King, 111. 
Kinkaid, Neb. 
Knutson, Minn. 
Kraus, Ind. 
Kreider, Pa. 
LaFollette, Wash. 
Langley, Ky. 
Lenroot, Wise. 
Little, Kans. 
Lundeen, Minn. 
McCormick, 111. 
McCulloch, O. 
McFadden, Pa. 
McKensie, 111. 



312 



McKinley, 111. 
McLaughlin, Mich. 
Mapes, Mich. 
Miller, Minn. 
Mondell, Wyo. 
Moores, Ind. 
Morgan, Okla. 
Mott, N. Y. 
Nelson, Wise. 
Norton, N. D. 
Osborne, Cal. 
Paige, Mass. 
Parker, N. Y. 
Peters, Me. 
Platt, N. Y. 
Powers, Ky. 
Pratt, N. Y. 
Purnell, Ind. 
Ramseyer, la. 
Rankin, Mont. 



Appendices 
Republicans Continued. 



Reavis, Neb. 
Reed, W. Va. 
Robbins, Pa. 
Rose, Pa. 
Rowe, N. Y. 
Rowland, Pa. 
Sanders, Ind. 
Sanders, N. Y. 
Scott, la. 
Scott, Mich. 
Sells, Tenn. 
Sinnott, Ore. 
Slemp, Va. 
Sloan, Neb. 
Smith, Ida. 
Smith, Mich. 
Snell, N.Y. 
Steenerson, Minn. 
Sterling, 111. 
Stiness, R. L 



Strong, Pa. 
Sweet, la. 
Switzer, O. 
Temple, Pa. 
Timberlake, Col. 
Towner, la. 
Treadway, Mass. 
Vestal, Ind. 
Volstead, Minn. 
Wason, N. H. 
Wheeler, 111. 
White, Me. 
Williams, 111. 
Wilson, 111. 
Wood, Ind. 
Woods, la. 
Woodyard, W. Va. 
Young, N. D. 
Zihlman, Md. 



Adamson, Ga. 
Alexander, Mo. 
Almon, Ala. 
Ashbrook, Ohio. 
Aswell, La. 
Ayers, Kans. 
Bankhead, Ala. 
Barkley, Ky. 
Barnhart, Ind. 
Beakes, Mich. 
Bell, Ga. 
Beshlin, Pa. 
Black, Tex. 
Booher, Mo. 
Borland, Mo. 
Brand, Ga. 
Brodbeck, Pa. 
Brumbaugh, O. 
Burnett, Ala. 
Byrnes, S. C. 
Byrns, Tenn. 
Candler, Miss. 



Democrats 141 

Caraway, Ark. 
Carlin, Va. 
Carter, Okla. 
Clark, Fla. 
Claypool, O. 
Collier, Miss. 
Connally, Tex, 
Connelly, Kans. 
Cox, Ind. 
Crisp, Ga. 
Decker, Mo. 
Dentpn, Ind. 
Dickinson, Mo. 
Dill, Wash. 
Dixon, Ind. 
Doolittle, Kans. 
Doughton, N. C. 
Drane, Fla. 
Evans, Mont. 
Ferris, Okla. 
Fields, Ky. 
Fisher, Tenn. 



Flood, Va. 
Foster, 111. 
Gandy, S. D. 
Garrett, Tenn. 
Garrett, Tex. 
Glass, Va. 
Godwin, N. C. 
Gregg, Tex. 
Hamlin, Mo. 
Harrison, Miss. 
Harrison, Va. 
Hastings, Okla. 
Hayden, Ariz. 
Helm, Ky. 
Helvering, Kans. 
Hensley, Mo. 
Hilliard, Col. 
Holland, Va. 
Hood, N. C. 
Houston, Tenn. 
Howard, Ga. 
Hull, Tenn. 



Humphreys, Miss. 
"acoway, Ark. 

ohnson, Ky. 

ones, Tex. 

ones, Va. 
Seating, Col. 
Kehoe, Fla. 
Kelly, Pa. 
Kettner, Cal. 
Kincheloe, Ky. 
Kitchin, N. C. 
Larsen, Ga. 
Lee, Ga. 
Lever, S. C. 
Littlepage, W. Va. 
Lobeck, Neb. 
Lunn, N. Y. 
McClintic, O. 
McKeown, Okla. 
Mays, Utah. 
Montague, Va. 
Moon, Tenn. 
Nicholls, S. C. 
Oldfield, Ark. 
Oliver, Ala. 



Appendices 

Democrats Continued. 

Olney, Mass. 
Overstreet, Ga. 
Padgett, Tenn. 
Park, Ga. 
Polk, DeL 
Price, Md. 
Quin, Miss. 
Ragsdale, S. C. 
Rainey, 111. 
Raker, Cal. 
Rayburn, Tex. 
Robinson, N. C. 
Romjue, Mo. 
Rubey, Mo. 
Rucker, Mo. 
Russell, Mo. 
Sanders, La. 
Saunders, Va. 
Sears, Fla. 
Shackleford, Mo. 
Shallenberger, Neb. 
Shouse, Kans. 
Sims, Tenn. 
Sisson, Miss. 
Snook, 0. 



313 



Steagall, Ala. 
Stedman, N. C. 
Stephens, Miss. 
Sterling, Pa. 
Stevenson, S. C. 
Sumners, Tex. 
Taylor, Ark. 
Thomas, Ky. 
Thompson, Okla. 
Tillman, Ark. 
Venable, Miss. 
Vinson, Ga. 
Walker, Ga. 
Walton, N. M. 
Watkins, La. 
Watson, Va. 
Weaver, N. C. 
Webb, N. C. 
Welling, Utah. 
Whaley, S. C. 
White, Ohio. 
Wilson, La. 
Wingo, Ark. 
Wise, Ga. 
Young, Tex. 



Independents 4 

Baer, N. D. (Non-Partisan) Fuller, Mass. (Independent) 
dall, Cal. (Prohibitionist) Schall, Minn. (Progressive). 

AGAINST THE AMENDMENT 128 



Ran- 



Bacharach, N. J. 
Britten, 111. 
Gary, Wise. 
Chandler, N. Y. 
Clark, Pa. 
Classon, Wise. 
Crago, Pa. 
Davidson, Wise. 
Davis, Minn. 
Drukker, N. J. 
Dyer, Mo. 



Republicans 62 

Edmonds, Pa. 
Fairchild, B., N. Y. 
Francis, N. Y. 
Freeman, Conn. 
Garland, Pa. 
Gillett, Mass. 
Glynn, Conn. 
Graham, Pa. 
Gray, N. J. 
Greene, Mass. 
Greene, Vt, 



Haskell, N. Y. 
Heaton, Pa. 
Hull, la. 
Juul, 111. 
Kahn, Cal. 
Kennedy, R. I. 
Lehlbach, N. J. 
Longworth, O. 
Lufkin, Mass. 
McArthur, Ore. 
McLaughlin, Pa. 



3 14 


Appendices 




Republicans Continued. 


Madden, 111. 
Magee, N. Y. 
Meeker, Mo. 
Merritt, Conn. 
Moore, Pa. 
Morin, Pa. 
Mudd, Md. 
Nichols, Mich. 
Nolan, Cal. 


Porter, Pa. Templeton, Pa. 
Ramsey, N. J. Tilson, Conn. 
Roberts, Nev. X^ 6 ? Pa 7 - 
Rodenburg, 111. Voight, Wise. 
Sanford,N.Y. Wa dow N. Y. 
Scott, Pa. Walsh, M ass. 
Siegel,N.Y. Ward, N Y. 
Snyder, N. Y. Watson, Pa 
Stafford, Wise. Wmslow, Mass, 


Parker, N. J. 


Swift, N. Y. 




Democrats 64 



Blackmon, Ala. 
Bruckner, N. Y. 
Buchanan, Tex. 
Caldwell, N. Y. 
Campbell, Pa. 
Cantrill, Ky. 
Carew, N. Y. 
Church, Cal. 
Coady, Md. 
Grosser, O. 
Dale, N. Y. 
Dent, Ala. 
Dewalt, Pa. 
Dies, Tex. 
Dominick, S. C. 
Dooling, N. Y. 
Doremus, Mich. 
Dupre, La. 
Eagan, N. J. 
Estopinal, La. 
Fitzgerald, N. Y. 
Flynn, N. Y. 



Gallagher, N. Y. 
Card, Ohio. 
Garner, Tex. 
Gordon, Ohio. 
Gray, Ala. 
Griffin, N. Y. 
Hamill, N. J. 
Hardy, Tex. 
Heflin, Ala. 
Huddleston, Ala. 
Hulbert, N. Y. 
Igoe, Mo. 
Key, Ohio. 
Lazaro, La. 
Lea, Cal. 
Lesher, Pa. 
Linthicum, Md. 
Lonergan, Conn. 
McAndrews, 111. 
McLemore,*Tex. 
Maher, N. Y. 
Mansfield, Tex. 



Oliver, N. Y. 
O'Shaunessy, R. I. 
Overmyer, Ohio. 
Phelan, Mass. 
Pou, N. C. 
Riordan, N. Y. 
Rouse, Ky. 
Sabath, 111. 
Sherley, Ky. 
Sherwood, 0. 
Slayden, Tex. 
Small, N. C. 
Smith, C., N. Y. 
Smith, T.,N.Y. 
Steele, Pa. 
Sullivan, N. Y. 
Talbott, Md. 
Van Dyke, Minn. 
Welty, Ohio. 
Wilson, Tex. 



Independents 2 
London, N. Y. (Socialist) Martin, La. (Progressive) 

PAIRS OF ABSENTEES 
Stephens, (Neb.), and Neeley, (W. Va.)> for the Amendment, with 

Gallivan, Mass., against. 
Goodwin, (Ark.), and Miller, (Wash.), for the Amendment, with 

Tague, Mass., against. 
Taylor, (Col), and G. W. Fairchild, (N. Y.), for the Amendment, 

with Curry, Cal., against. 



APPENDIX D 

RATIFICATION OF THE EIGHTEENTH AMENDMENT 
BY THE STATES 

(SOURCE: Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. /) 



C TATP 


SENATI 


E 


Hous 


B 




Date 


Vote 


Date 


Vote 


I. JIVIississippi. . 


Jan. 8, 1918 


2Q tO C 


Jan 8 1918 


O3 tO 1 


2. Virginia 


Jan. 10, 1918 


30 to 8 


Jan. n, 1918 


yj iu j 

84 tO 13 


3. Kentucky. 


Jan. 14, 1918 


27 tO C 


Jan 14, 1918 


67 to 1 1 


4. South Carolina.. . . 


Jan. 1 8, 1918 


34. tO 6 


Jan 23 iQi8 


66 to 28 


5. North Dakota 


Jan. 25, 1918 


43 tO 2 


Jan. 24. iQi8 


96 to 10 


6. .Maryland 


Feb. 13, 1918 


18 to 7 


Feb 8 1918 


c8 to 36 


7. Montana 


Feb. 16, 1918 


34. tO 2 


Feb. 18, 1918 


7Q tO 7 


8. Texas 


Feb. 28, 1918 


1C tO 7 


Mar i, 1918 


73 tO 36 


o. Delaware. . . . 


Mar. 18, 1918 


13 tO 3 


M!ar 14* 1918 


27 to 6 


10. South Dakota 1 


Mar. 19, 1918 


43 tO O 


Mar. 20, 1918 


86 to o 


ii. Massachusetts. . . 


Apr. 2, 1918 


27 tO 12 


]\ar 26* iQi8 


IAC tO QI 


12. Arizona. . . , 


May 23, 1918 


18 to o 


Mav 24. 1018 


J-4i> tu yj. 
2Q tO 3 


13. Georgia 


June 26, 1918 


3C tO 2 


June 26> 1918 


129 tO 24 


14. Louisiana 


Aug. 6, 1918 


21 tO 2O 


Aug 8) 1918 


6*Q tO 41 


15. Florida 


Nov. 27, 1918 


25 tO 2 


Nov. 27, 1918 


61 to 3 


16. Michigan 2 


Jan. 2* IQIQ 


30 to o 


Jan 2. IQIQ 


88 to 3 


17 Ohio . 


Jan 7. IQIQ 


2O tO 12 


Jan 7 IQIQ 


8c to 20 


18. Oklahoma 


Jan. 7. IQIQ 


4.3 tO O 


Jan. 7. IQIQ 


90 to 8 


19 Maine. . 


Tan 8. IQIQ 


29 to o 


Jan 8 IQIQ 


1 2O to 22 


2O. Idaho 1 


Tan. 8, IQIQ 


38 to o 


Tan. 7. IQIQ 


62 to o 


21. West Virginia. . 


Tan. 8. IQIQ 


26 to o 


Jan. o. IQIQ 


81 to 3 


22 ^Washington 1 . 


Tan 13. IQIO 


42 to O 


Jan 13. IQIQ 


O3 t!O O 


23. Tennessee 


Tan. 8. IQIQ 


28 tO 2 


Tan. 13. IQIQ 


bo tu u 

82 tO 2 



^Unanimous in both Houses. 

8 Repassed in House to correct error, January, 1923. 

315 



316 



Appendices 
APPENDIX D Continued. 



STATE 


SENATE 


HOUSE 


Date 


Vote 


Date 


Vote 


24. California 


Jan. 10, 1919 
Jan. 13, 1919 
Jan. 8, 1919 
Jan. 14, 1919 
Jan. 10, 1919 
Jan. 14, 1919 
Jan. 14, 1919 
Jan. 15, 1919 
Jan. 15, 1919 
Jan. 15, 1919 
Jan. 15, 1919 
Jan. 15, 1919 
Jan. 14, 1919 
Jan. 16, 1919 
Jan. 16, 1919 
Jan. 16, 1919 
Jan. 16, 1919 
Jan. 20, 1919 
Jan. 21, 1919 
Jan. 16, 1919 
Jan. 29, 1919 
Feb. 25, 1919 
Mar. 7, 1922 


25 to 14 
41 to 6 
30 to 15 
30 to o 
49 to o 
23 to ii 
39 to o 
30 to o 
42 to 7 
16 to o 
34 to i 
19 to 4 
31 to i 

22 tO 10 

25 to o 
19 to ii 
48 to ii 
12 to 4 
14 to i 
24 to 4 
27 to 24 
29 to 16 

12 tO 2 


Jan. 13, 1919 
Jan. 14, 1919 
Jan. 14, 1919 
Jan. 13, 1919 
Jan. 14, 1919 
Jan. 14, 1919 
Jan. 14, 1919 
Jan. 14, 1919 
Jan. 15, 1919 
Jan. 14, 1919 
Jan. 15, 1919 
Jan. 15, 1919 
Jan. 16, 1919 
Jan. 16, 1919 
Jan. 16, 1919 
Jan. 17, 1919 
Jan. 17, 1919 
Jan. 16, 1919 
Jan. 20, 1919 
Jan. 29, 1919 
Jan. 23, 1919 
Feb. 4, 1919 
Mar. 9, 1922 


48 to 28 
87 to ii 
84 to 66 
94 to 2 
94 to 10 
64 to 34 
121 to o 
S3 to 3 
86 to 13 
43 to o 

60 tO 2 
222 tO 131 

98 to o 
104 to 36 
S3 to o 
58 to 39 
92 to 36 
45 to i 
34 to 3 
155 to 58 
81 to 66 
1 10 to 93 
33 to 24 


25. Indiana ... 


26. Illinois. 


27. Arkansas 


28. North Carolina. . . . 


29 Alabama 


30. Kansas 1 


3 1 . Oregon 




. Utah 1 


34 Colorado. . . . 


35. New Hampshire.. . . . 


36. Nebraska 


37. IVlissouri 


38. Wyoming 1 


39. Wisconsin 


40. ^Minnesota. . . 


41. New Mexico 


42. Nevada. 


43. Vermont 


44, N^w York- - 


45. Pennsylvania 


46. New Jersey 





Unanimous in both Houses. 

Total Senate vote, 1,310 for, to 237 against. 
Total House vote, 3,782 for, to 1,035 against. 



APPENDIX E 

THE NATIONAL PROHIBITION ACT 

The National Prohibition Act, popularly known as the Volstead 
Act, consists of three Titles: Title I. To provide for the enforce 
ment of War Prohibition. Title II. Prohibition of Intoxicating 
Beverages; and Title III. Industrial Alcohol. 

Of these three Titles, the first is no longer effective and the 
third is concerned with technical provisions for users of industrial 
alcohol. Title II contains the general provisions for the enforce 
ment of constitutional prohibition. The text of this title follows. 

TITLE II. 
PROHIBITION OF INTOXICATING BEVERAGES. 

SEC. i. When used in Title II, and Title III. of this act (i) the word "liquor" 
or the phrase "intoxicating liquor" shall be construed to include alcohol, brandy, 
whiskey, rum, gin, beer, ale, porter, and wine, and in addition thereto any spiritu 
ous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, 
proprietary, patented, or not, and by whatever name called, containing one-half 
of i per centum or more of alcohol by volume which are fit for use for beverage 
purposes: Provided, That the foregoing definition shall not extend to dealcoholized 
wine nor to any beverage or liquid produced by the process by which beer, ale, 
porter, or wine is produced, if it contains less than one-half of I per centum of al 
cohol by volume, and is made as prescribed in Section 37 of this title, and is other 
wise denominated than as beer, ale, or porter, and is contained and sold in, or from, 
such sealed and labeled bottles, casks, or containers as the Commissioner may by 
regulation prescribe. 

(2) The word "person" shall mean and include natural persons, associations, 
co-partnerships, and corporations. 

(3) The word "commissioner" shall mean Commissioner of Internal Revenue. 

(4) The term "application" shall mean a formal written request supported by a 
verified statement of facts showing that the Commissioner may grant the request. 

(5) The term "permit" shall mean a formal written authorization by the Com 
missioner setting forth specifically therein the things that are authorized. 

317 



318 Appendices 

(6) The term "bond" shall mean an obligation authorized or required by or 
under this act or any regulation, executed in such form and for such a penal sum 
as may be required by a court, the Commissioner, or prescribed by regulation. 

(7) The term "regulation" shall mean any regulation prescribed by the Com 
missioner with the approval of the Secretary of the Treasury for carrying out the 
provisions of this act, and the Commissioner is authorized to make such regulations. 

Any act authorized to be done by the Commissioner may be performed by any 
assistant or agent designated by him for that purpose. Records required to be filed 
with the Commissioner may be filed with an Assistant Commissioner or other 
person designated by the Commissioner to receive such records. 

SEC. 2. The Commissioner of Internal Revenue, his assistants, agents, and in 
spectors shall investigate and report violations of this act to the United States 
Attorney for the district in which committed, who is hereby charged with the duty 
of prosecuting the offenders, subject to the direction of the Attorney-General, 
as in the case of other offenses against the laws of the United States; and such 
Commissioner of Internal Revenue, his assistants, agents, and inspectors may 
swear out warrants before United States Commissioners or other officers or courts 
authorized to issue the same for the apprehension of such offenders, and may, 
subject to the control of the said United States Attorney, conduct the prosecution 
at the committing trial for the purpose of having the offenders held for the action 
of a Grand Jury. Section 1014, of the Revised Statutes of the United States, is 
hereby made applicable in the enforcement of this act. Officers mentioned in said 
Section 1014 are authorized to issue search warrants under the limitations provided 
in Title XL of the act approved June 15, 1917 (Fortieth Statutes at Large, Page 
217, et seq.). 

SEC. 3. No person shall on or after the date when the Eighteenth Amendment to 
the Constitution of the United States goes into effect, manufacture, sell, barter, 
transport, import, export, deliver, furnish or possess any intoxicating liquor except 
as authorized in this act, and all the provisions of this act shall be liberally con 
strued to the end that the use of intoxicating liquor as a beverage may be prevented. 

Liquor for non-beverage purposes and wine for sacramental purposes may be 
manufactured, purchased, sold, bartered, transported, imported, exported, deliv 
ered, furnished, and possessed, but only as herein provided, and the Commissioner 
may, upon application, issue permits therefor: Provided) That nothing in this act 
shall prohibit the purchase and sale of warehouse receipts covering distilled spirits 
on deposit in Government bonded warehouses, and no special tax liability shall 
attach to the business of purchasing and selling such warehouse receipts. 

SEC. 4. The articles enumerated in this section shall not, after having been manu 
factured and prepared for the market, be subject to the provisions of this act if 
they correspond with the following descriptions and limitations, namely: 

(a) Denatured alcohol or denatured rum produced and used as provided by laws 
and regulations now or hereafter in force. 

(b) Medicinal preparations manufactured in accordance with formulas pre 
scribed by the United States Pharmacopoeia, National Formulary, or the American 
Institute of Homeopathy that are unfit for use for beverage purposes. 

(c) Patented, patent, and proprietary medicines that are unfit for use for beverage 
purposes. 

(d) Toilet, medicinal, and antiseptic preparations and solutions that are unfit for 
use for beverage purposes. 

(e) Flavoring extracts and syrups that are unfit for use as a beverage, or for in 
toxicating beverage purposes. 

(0 Vinegar and preserved sweet cider. 

A person who manufactures any of the articles mentioned in this section may 



Appendices 319 

purchase and possess liquor for that purpose, but he shall secure permits to manu 
facture such articles and to purchase such liquor, give the bonds, keep the records, 
and make the reports specified in this act and as directed by the Commissioner. 
No such manufacturer shall sell, use, or dispose of any liquor otherwise than as an 
ingredient of the articles authorized to be manufactured therefrom. No more 
alcohol shall be used in the manufacture of any extract, syrup, or the articles named 
in paragraphs b, c, and d of this section, which may be used for beverage purposes 
than the quantity necessary for extraction or solution of the elements contained 
therein and for the preservation of the article. 

Any person who shall knowingly sell any of the articles mentioned in Paragraphs 
a, b, c, and d of this section for beverage purposes, or any extract or syrup for 
intoxicating beverage purposes, or who shall sell any of the same under cir 
cumstances from which the seller might reasonably deduce the intention of the 
purchaser to use them for such purposes, or shall sell any beverage containing one- 
half of i per centum or more of alcohol by volume in which any extract, syrup, or 
other article is used as an ingredient, shall be subject to the penalties provided in 
Section 29 of this Title. If the Commissioner shall find after notice and hearing as 
provided for in Section 5 of this Title, that any person has sold any flavoring ex 
tract, syrup, or beverage in violation of this paragraph, he shall notify such person, 
and any known principal for whom the sale was made, to desist from selling such 
article; and it shall thereupon be unlawful for a period of one year thereafter for 
any person so notified to sell any such extract, syrup, or beverage without making 
an application for, giving a bond, and obtaining a permit so to do, which permit 
may be issued upon such conditions as the Commissioner may deem necessary to 
prevent such illegal sales, and in addition the Commissioner shall require a record 
and report of sales. 

SEC. 5. Whenever the Commissioner has reason to believe that any article men 
tioned in Section 4 does not correspond with the descriptions and limitations 
therein provided he shall cause an analysis of said article to be made, and if, upon 
such analysis, the Commissioner shall find that said article does not so correspond, 
he shall give not less than fifteen days' notice in writing to the person who is the 
manufacturer thereof to show cause why said article should not be dealt with as 
an intoxicating liquor, such notice to be served personally or by registered mail, as 
the Commissioner may determine, and shall specify the time when, the place where, 
and the name of the agent or official before whom such person is required to appear. 

If the manufacturer of said article fails to show to the satisfaction of the Com 
missioner that the article corresponds to the descriptions and limitations provided 
in Section 4 of this Title, his permit to manufacture and sell such article shall be 
revoked. The manufacturer may by appropriate proceeding in a court of equity 
have the action of the Commissioner reviewed, and the court may affirm, modify, 
or reverse the finding of the Commissioner as the facts and law of the case may 
warrant, and during the pendency of such proceedings may restrain the manufac 
ture, sale, or other disposition of such article. 

SEC. 6. No one shall manufacture, sell, purchase, transport, or prescribe any 
liquor without first obtaining a permit from the Commissioner so to do, except that 
a person may, without a permit, purchase and use liquor for medicinal purposes 
when prescribed by a physician as herein provided, and except that any person 
who in the opinion of the Commissioner is conducting a bona fide hospital or sana 
torium engaged in the treatment of persons suffering from alcoholism, may, under 
such rules, regulations, and conditions as the Commissioner shall prescribe, pur 
chase, and use, in accordance with the methods in use in such institution, liquor, 
to be administered to the patients of such institution under the direction of a duly 
qualified physician employed by such institution. 



32O Appendices 

All permits to manufacture, prescribe, sell, or transport liquor, may be issued 
for one year, and shall expire on the 3ist day of December next succeeding the 
issuance thereof: Provided, That the Commissioner may without formal applica 
tion or new bond extend any permit granted under this act or laws now in force 
after August 31 in any year to December 31 of the succeeding year: Provided 
further > That permits to purchase liquor for the purpose of manufacturing or selling 
as provided in this act shall not be in force to exceed ninety days from the day of 
issuance. A permit to purchase liquor for any other purpose shall not be in force 
to exceed thirty days. Permits to purchase liquor shall specify the quantity and 
kind to be purchased and the purpose for which it is to be used. No permit shall be 
issued to any person who within one year prior to the application therefor or issu 
ance thereof shall have violated the terms of any permit issued under this Title 
or any law of the United States or of any State regulating traffic in liquor. No 
permit shall be issued to any one to sell liquor at retail, unless the sale is to be made 
through a pharmacist designated in the permit and duly licensed under the laws 
of his State to compound and dispense medicine prescribed by a duly licensed 
physician. No one shall be given a permit to prescribe liquor unless he is a physician 
duly licensed to practice medicine and actively engaged in the practice of such 
profession. Every permit shall be in writing, dated when issued, and signed by the 
Commissioner or his authorized agent. It shall give the name and address of the 
person to whom it is issued and shall designate and limit the acts that are permitted 
and the time when and place where such acts may be performed. No permit shall 
be issued until a verified, written application shall have been made therefor, setting 
forth the qualification of the applicant and the purpose for which the liquor is to 
be used. 

The Commissioner may prescribe the form of all permits and applications and 
the facts to be set forth therein. Before any permit is granted the Commissioner 
may require a bond in such form and amount as he may prescribe to insure com 
pliance with the terms of the permit and the provisions of this title. In the event 
of the refusal by the Commissioner of any application for a permit, the applicant 
may have a review of his decision before a court of equity in the manner provided 
in Section 5 hereof. 

Nothing in this title shall be held to apply to the manufacture, sale, transporta 
tion, importation, possession, or distribution of wine for sacramental purposes, or 
like religious rites, except Section 6 (save as the same requires a permit to purchase) 
and Section 10 hereof, and the provisions of this act prescribing penalties for the 
violation of either of said sections. No person to whom a permit may be issued 
to manufacture, transport, import, or sell wines for sacramental purposes or like 
religious rites shall sell, barter, exchange, or furnish any such to any person not a 
rabbi, minister of the gospel, priest, or an officer duly authorized for the purpose 
by any church or congregation, nor to any such except upon an application duly 
subscribed by him, which application, authenticated as regulations may prescribe, 
shall be filed and preserved by the seller. The head of any conference or diocese or 
other ecclesiastical jurisdiction may designate any rabbi, minister, or priest to 
supervise the manufacture of wine to be used for the purposes and rites in this 
section mentioned, and the person so designated may, in the discretion of the 
Commissioner, be granted a permit to supervise such manufacture. 

SEC. 7. No one but a physician holding a permit to prescribe liquor shall issue 
any prescription for liquor. And no physician shall prescribe liquor unless after 
careful physical examination of the person for whose use such prescription is sought, 
or if such examination is found impracticable, then upon the best information ob 
tainable, he in good faith believes that the use of such liquor as a medicine by such 
person is necessary and will afford relief to him from some known ailment, Not 



Appendices 321 

more than a pint of spirituous liquor to be taken internally shall be prescribed for 
use by the same person within any period of ten days and no prescription shall be 
filled more than once. Any pharmacist filing a prescription shall at the rime in 
dorse upon it over his own signature the word " canceled," together with the date 
when the liquor was delivered, and then make the same a part of the record that he 
is required to keep as herein provided. 

Every physician who issues a prescription for liquor shall keep a record, alpha 
betically arranged in a book prescribed by the Commissioner, which shall show the 
date of issue, amount prescribed, to whom issued, the purpose or ailment for which 
it is to be used and directions for use, stating the amount and frequency of the dose. 

SEC. 8. The Commissioner shall cause to be printed blanks for the prescriptions 
herein required, and he shall furnish the same, free of cost, to physicians holding 
permits to prescribe. The prescription blanks shall be printed in book form and 
shall be numbered consecutively from one to one hundred, and each book shall be 
given a number, and the stubs in each book shall carry the same numbers as and 
be copies of the prescriptions. The books containing such stubs shall be returned 
to the Commissioner when the prescription blanks have been used, or sooner if 
directed by the Commissioner. All unused, mutilated, or defaced blanks shall be 
returned with the book. No physician shall prescribe and no pharmacist shall fill 
any prescription for liquor except on blanks so provided, except in cases of emer 
gency, in which event a record and report shall be made and kept as in other cases. 

SEC. 9. If at any time there shall be filed with the Commissioner a complaint 
under oath setting forth facts showing, or if the Commissioner has reason to be 
lieve, that any person who has a permit is not in good faith conforming to the 
provisions of this act, or has violated the laws of any State relating to intoxicating 
liquor, the Commissioner or his agent shall immediately issue an order citing such 
person to appear before him on a day named not more than thirty and not less than 
fifteen days from the date of service upon such permittee of a copy of the citation, 
which citation shall be accompanied by a copy of such complaint, or in the event 
that the proceedings be initiated by the Commissioner, with a statement of the 
facts constituting the violation charged, at which time a hearing shall be had 
unless continued for cause. Such hearings shall be held within the judicial district 
and within fifty miles of the place where the offense is alleged to have occurred, un 
less the parties agree on another place. If it be found that such person has been 
guilty of wilfully violating any such laws, as charged, or has not in good faith con 
formed to the provisions of this act, such permit shall be revoked, and no permit 
shall be granted to such person within one year thereafter. Should the permit be 
revoked by the Commissioner, the permittee may have a review of his decision 
before a court of equity in the manner provided in Section 5 hereof. During the 
pendency of such action such permit shall be temporarily revoked. 

SEC. 10. No person shall manufacture, purchase for sale, sell, or transport any 
liquor without making at the time a permanent record thereof showing in detail 
the amount and kind of liquor manufactured, purchased, sold, or transported, to 
gether with the names and addresses of the persons to whom sold, in case of sale, 
and the consignor and consignee in case of transportation, and the time and place 
of such manufacture, sale, or transportation. The Commissioner may prescribe 
the form of such record, which shall at all times be open to inspection as in this act 
provided. 

SEC. ii. All manufacturers and wholesale or retail druggists shall keep as a part 
of the records required of them a copy of all permits to purchase on which a sale 
of any liquor is made, and no manufacturer or wholesale druggist shall sell or 
otherwise dispose of any liquor except at wholesale, and only to persons having 
permits to purchase in such quantities. 



322 Appendices 

SEC. 12. All persons manufacturing liquor for sale under the provisions of this 
title shall securely and permanently attach to every container thereof, as the same 
is manufactured, a label stating name of manufacturer, kind and quantity of liquor 
contained therein, and the date of its manufacture, together with the number of 
the permit authorizing the manufacture thereof; and all persons possessing such 
liquor in wholesale quantities shall securely keep and maintain such label thereon; 
and all persons selling at wholesale shall attach to every package of liquor, when 
sold, a label setting forth the kind and quantity of liquor contained therein, by 
whom manufactured, the date of sale, and the person to whom sold; which label 
shall likewise be kept and maintained thereon until the liquor is used for the pur 
pose for which such sale was authorized. 

SEC. 13. It shall be the duty of every carrier to make a record at the place of 
shipment of the receipt of any liquor transported, and he shall deliver liquor only 
to persons who present to the carrier a verified copy of a permit to purchase, which 
shall be made a part of the carrier's permanent record at the office from which 
delivery is made. 

The agent of the common carrier is hereby authorized to administer the oath 
to the consignee in verification of the copy of the permit presented, who, if not 
personally known to the agent, shall be identified before the delivery of the liquor 
to him. The name and address of the person identifying the consignee shall be 
included in the record. 

SEC. 14. It shall be unlawful for a person to use or induce any carrier, or any 
agent or employe thereof, to carry or ship any package or receptacle containing 
liquor without notifying the carrier of the true nature and character of the ship 
ment. No carrier shall transport nor shall any person receive liquor from a carrier 
unless there appears on the outside of the package containing such liquor the follow 
ing information: 

Name and address of the consignor or seller, name and address of the consignee, 
kind and quantity of liquor contained therein, and number of the permit to purchase 
or ship the same, together with the name and address of the person using the 
permit. 

SEC. 15. It shall be unlawful for any consignee to accept or receive any package 
containing any liquor upon which appears a statement known to him to be false, 
or for any carrier or other person to consign, ship, transport, or deliver any such 
package, knowing such statement to be false. 

SEC. 1 6. It shall be unlawful to give to any carrier or any officer, agent, or per 
son acting or assuming to act for such carrier an order requiring the delivery to 
any person of any liquor or package containing liquor consigned to, or purporting 
or claimed to be consigned to, a person when the purpose of the order is to enable 
any person not an actual bona fide consignee to obtain such liquor. 
^ SEC. 17. It shall be unlawful to advertise anywhere, or by any means or method, 
liquor, or the manufacture, sale, keeping for sale, or furnishing of the same, or 
where, how, from whom, or at what price the same may be obtained. No one shall 
permit any sign or billboard containing such advertisement to remain upon one's 
premises. But nothing herein shall prohibit manufacturers and wholesale druggists 
holding permits to sell liquor from furnishing price lists, with description of liquor 
for sale, to persons permitted to purchase liquor, or from advertising alcohol in 
business publications, or trade journals circulating generally among manufacturers 
of lawful alcoholic perfumes, toilet preparations, flavoring extracts, medicinal 
preparations, and like articles: Provided, however, That nothing in this act or in 
the act making appropriations for the Post Office Department, approved March 
3, 1917 (Thirty-ninth Statutes at Large, Part I, Page 1058, et seq.), shall apply 
to newspapers published in foreign countries when mailed to this country. 



Appendices 323 

SEC. 1 8. It shall be unlawful to advertise, manufacture, sell, or possess for sale 
any utensil, contrivance, machine, preparation, compound, tablet, substance, 
formula, direction, or recipe advertised, designed or intended for use in the un 
lawful manufacture of intoxicating liquor. 

SEC. 19. No person shall solicit or receive, nor knowingly permit his employe to 
solicit or receive, from any person any order for liquor or give any information of 
how liquor may be obtained in violation of this act. 

SEC. 20. Any person who shall be injured in person, property, means of support, 
or otherwise by any intoxicated person, or by reason of the intoxication of any 
person, whether resulting in his death or not, shall have a right of action against 
any person who shall, by unlawfully selling to or unlawfully assisting in procuring 
liquor for such intoxicated person, have caused or contributed to such intoxica 
tion, and in any such action such person shall have a right to recover actual and 
exemplary damages. In case of the death of either party, the action or right of ac 
tion given by this section shall survive to or against his or her executor or adminis 
trator, and the amount so recovered by either wife or child shall be his or her sole 
and separate property. Such action may be brought in any court of competent 
jurisdiction. In any case where parents shall be entitled to such damages, either 
the father or mother may sue alone therefor, but recovery by one of such parties 
shall be a bar to suit brought by the other. 

SEC. 21. Any room, house, building, boat, vehicle, structure, or place where in 
toxicating liquor is manufactured, sold, kept, or bartered in violation of this title, 
and all intoxicating liquor and property kept and used in maintaining the same, is 
hereby declared to be a common nuisance, and any person who maintains such a 
common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall 
be fined not more than $1,000, or be imprisoned for not more than one year, or 
both. If a person has knowledge or reason to believe that his room, house, building, 
boat, vehicle, structure, or place is occupied or used for the manufacture or sale of 
liquor contrary to the provision of this title, and suffers the same to be so occupied 
or used, such room, house, building, boat, vehicle, structure, or place shall be sub 
ject to a lien for and may be sold to pay all fines and costs assessed against the 
person guilty of such nuisance for such violation, and any such lien may be enforced 
by action in any court having jurisdiction. 

SEC. 22. An action to enjoin any nuisance defined in this title may be brought in 
the name of the United States by the Attorney General of the United States or 
by any United States attorney or any prosecuting attorney of any State or any 
subdivision thereof or by the Commissioner or his deputies or assistants. Such 
action shall be brought and tried as an action in equity and may be brought in 
any court having jurisdiction to hear and determine equity cases. If it is made 
to appear by affidavits or otherwise, to the satisfaction of the court, or judge in vaca 
tion, that such nuisance exists, a temporary writ of injunction shall forthwith issue 
restraining the defendant from conducting or permitting the continuance of such 
nuisance until the conclusion of the trial. If a temporary injunction is prayed for, 
the court may issue an order restraining the defendant and all other persons from 
removing or in any way interfering with the liquor or fixtures, or other things used 
in connection with the violation of this act constituting such nuisance. No bond 
shall be required in instituting such proceedings. It shall not be necessary for the 
court to find the property involved was being unlawfully used as aforesaid at the 
time of the hearing, button finding that the material allegations of the petition are 
true, the court shall order that no liquors shall be manufactured, sold, bartered, 
or stored in such room, house, building, boat, vehicle, structure or place, or any 
part thereof. And upon judgment of the court ordering such nuisance to be abated, 
the court may order that the room, house, building, structure, boat, vehicle, or 



324 Appendices 

place shall not be occupied or used for one year thereafter; but the court may, 
in its discretion, permit it to be occupied or used if the owner, lessee, tenant, 
or occupant thereof shall give bond with sufficient surety, to be approved 
by the court making the order, in the penal and liquidated sum of not less 
than $500 nor more than $1,000, payable to the United States, and conditioned 
that intoxicating liquor will not thereafter be manufactured, sold, bartered, kept, 
or otherwise disposed of therein or thereon, and that he will pay all fines, costs, 
and damages that may be assessed for any violation of this title upon said prop 
erty. 

SEC. 23. That any person who shall, with intent to effect a sale of liquor, by him 
self, his employe, servant, or agent, for himself or any person, company, or cor 
poration, keep or carry around on his person, or in a vehicle, or other conveyance 
whatever, or leave in a place for another to secure, any liquor, or who shall travel 
to solicit, or solicit, or take, or accept orders for the sale, shipment, or delivery of 
liquor in violation Jof this title is guilty of a nuisance and may be restrained by in 
junction, temporary and permanent, from doing or continuing to do any of said 
acts or things. 

In such proceedings it shall not be necessary to show any intention on the part 
of the accused to continue such violations if the action is brought within sixty days 
following any such violation of the law. 

For removing and selling property in enforcing this act the officer shall be en 
titled to charge and receive the same fee as the Sheriff of the County would receive 
for levying upon and selling property under execution, and for closing the premises 
and keeping them closed a reasonable sum shall be allowed by the court. 

Any violation of this title upon any leased premises by the lessee or occupant 
thereof shall, at the option of the lessor, work a forfeiture of the lease. 

SEC. 24. In the case of the violation of any injunction, temporary or permanent, 
granted pursuant to the provisions of this title, the court or in vacation a judge 
thereof, may summarily try and punish the defendant. The proceedings for punish 
ment for contempt shall be commenced by filing with the clerk of the court from 
which such injunction issued information under oath setting out the alleged facts 
constituting the violation, whereupon the court or judge shall forthwith cause a 
warrant to issue under which the defendant shall be arrested. The trial may be 
had upon affidavits, or either party may demand the production and oral examina 
tion of the witnesses. Any person found guilty of contempt under the provisions 
of this section shall be punished by a fine of not less than 500 nor more than 
#r,ooo, or by imprisonment of not less than thirty days nor more than twelve 
months, or by both fine and imprisonment. 

SEC. 25. It shall be unlawful to have or possess any liquor or property designed 
for the manufacture of liquor intended for use in violating this title or which has 
been so used, and no property rights shall exist in any such liquor or property. A 
search warrant may issue as provided in Title XL of public law numbered 24 of 
the Sixty-fifth Congress, approved June 15, 1917, and such liquor, the containers 
thereof, and such property so seized shall be subject to such disposition as the court 
may make thereof. If it is found that such liquor or property was so unlawfully 
held or possessed, or had been so unlawfully used, the liquor and all property de 
signed for the unlawful manufacture of liquor shall be destroyed unless the court 
shall otherwise order. No search warrant shall issue to search any private dwelling 
occupied as such unless it is being used for the unlawful sale of intoxicating liquor, 
or unless it is in part used for some business purpose such as a store, shop, saloon, 
restaurant, hotel, or boarding house. The term "private dwelling" shall be con 
strued to include the room or rooms used and occupied not transiently but solely 
as a residence in an apartment house, hotel, or boarding house. The property seized 



Appendices 325 

on any such warrant shall not be taken from the officer seizing the same on any writ 
of replevin or other like process. 

SEC. 26. When the Commissioner, his assistants, inspectors, or any officer of 
the law shall discover any person in the act of transporting in violation of the law, 
intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other 
vehicle, it shall be his duty to seize any and all intoxicating liquors found therein 
being transported contrary to law. Whenever intoxicating liquors transported or 
possessed illegally shall be seized by an officer he shall take possession of the vehicle 
and team or automobile, boat, air or water craft, or any other conveyance, and 
shall arrest any person in charge thereof. Such officer shall at once proceed against 
the person arrested under the provisions of this title in any court having competent 
jurisdiction: but the said vehicle or conveyance shall be returned to the owner 
upon execution by him of a good and valid bond, with sufficient sureties, in a sum 
double the value of the property, which said bond shall be approved by said officer 
and shall be conditioned to return said property to the custody of said officer on 
the day of trial to abide the judgment of the court. The court upon conviction of 
the person so arrested shall order the liquor destroyed, and unless good cause to 
the contrary is shown by the owner, shall order a sale by public auction of the 
property seized, and the officer making the sale, after deducting the expenses of 
keeping the property, the fee for the seizure, and the cost of the sale, shall pay all 
liens, according to their priorities, which are established, by intervention or other 
wise, at said hearing or in other proceeding brought for said purpose, as being bona 
fide and as having been created without the lienor having any notice that the carry 
ing vehicle was being used or was to be used for illegal transportation of liquor, and 
shall pay the balance of the proceeds into the Treasury of the United States as 
miscellaneous receipts. All liens against property sold under the provisions of this 
section shall be transferred from the property to the proceeds of the sale of the 
property. If, however, no one shall be found claiming the team, vehicle, water, or 
air craft, or automobile, the taking of the same, with a description thereof, shall be 
advertised in some newspaper published in the city or county where taken, or if 
there be no newspaper published in such city or county, in a newspaper having 
circulation in the county, once a week for two weeks, and by handbills posted in 
three public places near the place of seizure, and if no claimant shall appear within 
ten days after the last publication of the advertisement, the property shall be sold 
and the proceeds, after deducting the expenses and costs, shall be paid into the 
Treasury of the United States as miscellaneous receipts. 

SEC. 27. In all cases in which intoxicating liquors may be subject to be destroyed 
under the provisions of this act the court shall have jurisdiction upon the applica 
tion of the United States Attorney to order them delivered to any department or 
agency of the United States Government for medicinal, mechanical, or scientific 
uses, or to order the same sold at private sale for such purposes to any person hav 
ing a permit to purchase liquor the proceeds to be covered into the Treasury of 
the United States to the credit of miscellaneous receipts, and all liquor heretofore 
seized in any suit or proceeding brought for violation of law may likewise be so 
disposed of, if not claimed within sixty days from the date this section takes effect, 

SEC. 28. The Commissioner, his assistants, agents, and inspectors, and all other 
officers of the United States, whose duty it is to enforce criminal laws, shall have 
all the power and protection in the enforcement of this act or any provisions thereof 
which is conferred by law for the enforcement of existing laws relating to the manu 
facture or sale of intoxicating liquors under the law of the United States. 

SEC. 29. Any person who manufactures or sells liquor in violation of this title 
shall for a first offense be fined not more than 1,000, or imprisoned not exceeding 
six months, and for a second or subsequent offense shall be fined not less than $200 



326 Appendices 

nor more than $2,000, and be imprisoned not less than one month nor more than 

five years. . ... 

Any person violating the provisions of any permit, or who makes any false re 
cord, report, or affidavit required by this title, or violates any of the provisions of 
this title, for which offense a special penalty is not prescribed, shall be fined for a 
first offense not more than 500; for a second offense not less than 100 nor more 
than $1,000, or be imprisoned not more than ninety days; for any subsequent 
offense he shall be fined not less than $500 and be imprisoned not less than three 
months nor more than two years. It shall be the duty of the prosecuting officer to 
ascertain whether the defendant has been previously convicted, and to plead the 
prior conviction in the affidavit, information, or indictment. The penalties provided 
in this act against the manufacture of liquor without a permit shall not apply to a 
person for manufacturing nonintoxicating cider and fruit juices exclusively for use 
in his home, but such cider and fruit juices shall not be sold or delivered except to 
persons having permits to manufacture vinegar. ^ .... 

SEC. 30. No person shall be excused, on the ground that it may tend to incrimin 
ate him or subject him to a penalty or forfeiture, from attending and testifying, 
or producing books, papers, documents, and other evidence in obedience to a sub 
poena of any court in any suit or proceeding based upon or growing out of any 
alleged violation of this act; but no natural person shall be prosecuted or subjected 
to any penalty or forfeiture for or on account of any transaction, matter, or thing 
as to which, in obedience to a subpoena and under oath, he may so testify^or pro 
duce evidence, but no person shall be exempt from prosecution and punishment 
for perjury committed in so testifying. 

SEC. 31. In case of a sale of liquor where the delivery thereof was made by a 
common or other carrier the sale and delivery shall be deemed to be made in the 
county or district wherein the delivery was made by such carrier to the consignee, 
his agent or employe, or in the county or district wherein the sale was made, or 
from which the shipment was made, and prosecution for such sale or delivery may 
be had in any such county or district. 

SEC. 32. In any affidavit, information, or indictment for the violation of this act, 
separate offenses may be united in separate counts and the defendant may be tried 
on all at one trial and the penalty for all offenses may be imposed. It shall not be 
necessary in any affidavit, information, or indictment to give the name of ^the 
purchaser or to include any defensive negative averments, but it shall be sufficient 
to state that the act complained of was then and there prohibited and unlawful, 
but this provision shall not be construed to preclude the trial court from directing 
the furnishing the defendant a bill of particulars when it deems it proper to do so. 

SEC. 33. After February I, 1920, the possession of liquors by any person not 
legally permitted under this title to possess liquor shall be prima facie evidence 
that such liquor is kept for the purpose of being sold, bartered, exchanged, given 
away, furnished, or otherwise disposed of in violation of the provision of this title. 
Every person legally permitted under this title to have liquor shall report to the 
Commissioner within ten days after the date when the Eighteenth Amendment of 
the Constitution of the United States goes into effect, the kind and amount of 
intoxicating liquors in his possession. But it shall not be unlawful to possess liquors 
in one's private dwelling while the same is occupied and used by him as his dwelling 
only and such liquor need not be reported, provided such liquors are^ for use only 
for the personal consumption of the owner thereof and his family residing in such 
dwelling and of his bona fide guests when entertained by him therein; and the bur 
den of proof shall be upon the possessor in any action concerning the same to 
prove that such liquor was lawfully acquired, possessed, and used. 

SEC. 34. All records and reports kept or filed under the provisions of this act shall 



Appendices 3 2 7 

be subject to inspection at any reasonable hour by the Commissioner or any of his 
agents or by any public prosecutor or by any person designated by him, or by any 
peace officer in the State where the record is kept, and copies of such records and 
reports duly certified by the person with whom kept or filed may be introduced in 
evidence with like effect as the originals thereof, and verified copies of such reports 
shall be furnished to the Commissioner when called for. 

SEC. 35. All provisions of law that are inconsistent with this act are repealed 
only to the extent of such inconsistency and the regulations herein provided for 
the manufacture or traffic in intoxicating liquor shall be construed as in addition 
to existing laws. This act shall not relieve any one from paying any taxes or other 
charges imposed upon the manufacture or traffic in such liquor. No liquor revenue 
stamps or tax receipts for any illegal manufacture or sale shall be issued in ad 
vance, but upon evidence of such illegal manufacture or sale a tax shall be assessed 
against, and collected from, the person responsible for such illegal manufacture or 
sale in double the amount now provided by law, with an additional penalty of 
$500 on retail dealers and $1,000 on manufacturers. The payment of such tax or 
penalty shall give no right to engage in the manufacture or sale of such liquor, or 
relieve any one from criminal liability, nor shall this act relieve any person from 
any liability, civil or criminal, heretofore or hereafter incurred under existing laws. 

The Commissioner, with the approval of the Secretary of the Treasury, may com 
promise any civil cause arising under this title before bringing action in court; and 
with the approval of the Attorney General he may compromise any such cause 
after action thereon has been commenced. 

SEC. 36. If any provision of this act shall be held invalid it shall not be construed 
to invalidate other provisions of the act. 

SEC. 37. Nothing herein shall prevent the storage in United States bonded ware 
houses of all liquor manufactured prior to the taking effect of this act, or prevent 
the transportation of such liquor to such warehouses or to any wholesale druggist 
for sale to such druggist for purposes not prohibited when the tax is paid, and per 
mits may be issued therefor. 

A manufacturer of any beverage containing less than one-half of I per centum 
of alcohol by volume may, on making application and giving such bond as the 
Commissioner shall prescribe, be given a permit to develop in the manufacture 
thereof by the usual methods of fermentation and fortification or otherwise a 
liquid such as beer, ale, porter, or wine, containing more than one-half of I per 
centum of alcohol by volume, but before any such liquid is withdrawn from the 
factory or otherwise disposed of the alcoholic contents thereof shall under such 
rules and regulations as the Commissioner may prescribe be reduced below such 
one-half of I per centum of alcohol: Provided, That such liquid may^be removed 
and transported, under bond and under such regulations as the Commissioner may 
prescribe, from one bonded plant or warehouse to another for the purpose of hav 
ing the alcohol extracted therefrom. And such liquids may be developed, under 
permit, by persons other than the manufacturers of beverages containing less than 
one-half of i per centum of alcohol by volume, and sold to such manufacturers for 
conversion into such beverages. The alcohol removed from such liquid, if evapor 
ated and not condensed and saved, shall not be subject to tax; if saved, it shall be 
subject to the same law as other alcoholic liquors. 

Credit shall be allowed on the tax due on any alcohol so saved to the amount of 
any tax paid upon distilled spirits or brandy used in the fortification of the liquor 
from which the same is saved. 

When fortified wines are made and used for the production of nonbeverage al 
cohol and dealcoholized wines containing less than one-half of I per centum of 
alcohol by volume, no tax shall be assessed or paid on the spirits used in such ford- 



328 Appendices 

fication, and such dealcoholized wines produced under the provisions of this act, 
whether carbonated or not, shall not be subject to the tax on artificially carbonated 
or sparkling wines, but shall be subject to the tax on still wines only. 

In any case where the manufacturer is charged with manufacturing or selling 
for beverage purposes any malt, vinous, or fermented liquids containing one-half 
of i per centum or more of alcohol by volume, or in any case where the manufac 
turer, having been permitted by the Commissioner to develop a liquid such as ale, 
beer, porter, or wine containing more than one-half of I per centum of alcohol by 
volume in the manner and for the purpose herein provided, is charged with failure 
to reduce the alcoholic content of any such liquid below such one half of i per 
centum before withdrawing the same from the factory, then in either such case the 
burden of proof shall be on such manufacturer to show that such liquid so manu 
factured, sold, or withdrawn contains less than one-half of i per centum of alcohol 
by volume. In any suit or proceeding involving the alcoholic content of any bever 
age, the reasonable expense of analysis of such beverage shall be taxed as costs in 

SEC. 38. The Commissioner of Internal Revenue and the Attorney General of 
the United States are hereby respectively authorized to appoint and employ such 
assistants, experts, clerks, and other employes in the District of Columbia or else 
where, and to purchase such supplies and equipment as they may deem necessary 
for the enforcement of the provisions of this act, but such assistants, experts, clerks, 
and other employes, except such executive officers as may be appointed by the 
Commissioner or the Attorney General to have immediate direction of the enforce 
ment of the provisions of this act, and persons authorized to issue permits, and 
agents and inspectors in the field service, shall be appointed under the rules and 
regulations prescribed by the Civil Service Act: Provided, That the Commissioner 
and Attorney General in making such appointments shall give preference to those 
who have served in the military or naval service in the recent war, if otherwise 
qualified, and there is hereby authorized to be appropriated, out of any money in 
the Treasury not otherwise appropriated, such sum as may be required for the en 
forcement of this act, including personal services in the District of Columbia, and 
for the fiscal year ending June 30, 1920, there is hereby appropriated, out of any 
money in the Treasury not otherwise appropriated, the sum of $2,000,000 for the 
use of the Commissioner of Internal Revenue and $100,000 for the use of the De 
partment of Justice for the enforcement of the provisions of this act, including 
personal services in the District of Columbia, and necessary printing and binding. 

SEC. 39. In all cases wherein the property of any citizen is proceeded against or 
wherein a judgment affecting it might be rendered, and the citizen is not the one 
who in person violated the provisions of the law, summons must be issued in due 
form and served personally, if said person is to be found within the jurisdiction of 
the court. 



APPENDIX F 

AMOUNTS APPROPRIATED BY CONGRESS FOR THE 
USE OF THE PROHIBITION BUREAU FOR ENFORCE 
MENT OF THE NATIONAL PROHIBITION ACT, FOR THE 
FISCAL YEARS 1920 TO 1929 INCLUSIVE 

(SOURCE: Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. 2) 

1920 (January 17 to June 30) $ 2,000,000 

Deficiency appropriations 200,000 

Total for 1920 2,200,000 

1921- 4,750,000 

Deficiency appropriation (March I, 1921) 1,400,000 

Deficiency appropriation (June 16, 1921) 200,000 

Total for 1921 6,350,000 

1922 6,750,000 

I9 2 3 8,500,000 

1924 8,250,000 

I9 2 5 10,012,330 

1926 9,670,560 

1927 ; 9.306,245 

Supplemental appropriation, 1927 (July 3, 1926). . . 2,686,760 

Total for 1927 1 1,993,005 

1928 11,990,965 

1929 ; ' 11,378,700 

Welsh Act deficiency appropriation (March 4, 1929) 589,010 
Amount authorized by the Commissioner of Prohibi 
tion to be expended from deficiency appropriation 433,910 

Total for 1929 12,401,620 

(The above figures are exclusive of amounts appropriated for enforcement of the 
Harrison Narcotic Act.) 

329 



APPENDIX G 



ARRESTS, SEIZURES, ETC., MADE BY FEDERAL PRO 
HIBITION AGENTS SINCE THE EFFECTIVE DATE OF 
THE NATIONAL PROHIBITION ACT 

(SouRCE: Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. 64) 





PERIOD FROM 
JAN. 17 TO 

TTT'WF 30 


FISCAL YEAR I 


ZNDED JUNE 30 




1920 


1921 


1922 


Illicit distilleries seized 


4,645 


9,746 


8,313 


Illicit stills seized 


4,888 


10,991 


IO,QQA 


Illicit still worms seized 


2,218 


5,182 


IO.2O3 


Illicit fermenters seized 


21,111 


70,014. 


8 1 640 


Gallons of distilled spirits seized 
Gallons of malt liquor seized. . . 
Gallons of wine, cider, mash, 
and pomace seized. .... . . 


137,772.38 
1,637,483.00 

QC, 672.QO 


413,987.32 
4,963,005.27 

4.28,303.88 


382,390.44 
4,187,625.67 

X.OC2 213 88 


Number of automobiles seized. . 
Number of boats and launches 


209 

2 


7 o6 

23 


1,886 

1A. 


Total appraised value of pro 
perty seized 


$1,262,196.67 


$8,181,866.70 


/4 

$C,872 OQ2, OQ 


Number of agents injured. .... 
Number of agents killed. ...... 


o 
o 


13 
14 


28 


Number of persons arrested. . . , 


10,548 


34,175 


42223 





FISCAL YEAR ENDED JUNE 30 


1923 


1924 


1925 


Illicit distilleries seized 


12,219 
14,000 
7,512 
124,401 
457*365-25 
4,803,872.92 

9,085,411.34 
3>977 

134 

$11,478,277-53 
45 
II 
66,936 


10,392 
I5853 

8,211 

124,720 
1,672,743.81 
5,379,528.03 

8,774,916.80 
5>2i4 

236 

$10,843,881.83 
28 
^ 
68,1 16 


12,023 

17,854 
7,850 
134,810 
1,102,787.65 
7,040,537.30 

10,572,933-50 
6,089 

182 

$11,199,664.46 
39 
7 
62,747 


Illicit stills seized 


Illicit still worms seized 


Illicit fermenters seized 


Gallons of distilled spirits seized 
Gallons of malt liquor seized. . , 
Gallons of wine, cider, mash, 
and pomace seized. . , 


Number of automobiles seized. 
Number of boats and launches 
seized 


Total appraised value of pro 
perty seized 


Number of agents injured 
Number of agents killed 


Number of persons arrested. . . . 



330 



APPENDIX G Continued 

ARRESTS, SEIZURES, ETC., MADE BY FEDERAL PRO 
HIBITION AGENTS SINCE THE EFFECTIVE DATE OF 
THE NATIONAL PROHIBITION ACT 

(SouRCE; Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. 64) 



FISCAL YEAR ENDED JUNE 30 



1926 



1927 



Illicit distilleries seized 

Illicit stills seized 

Illicit still worms seized 

Illicit fermenters seized 

Gallons of distilled spirits seized 

Gallons of malt liquor seized 

Gallons of wine, cider, mash, and pomace seized. . 

Number of automobiles seized 

Number of boats and launches seized 

Total appraised value of property seized 

Number of agents injured 

Number of agents killed 

Number of persons arrested 



12,227 
12,248 

6,974- 

130,53 

1,24.7,520,08 

14,220,551.93 

i3>273>738.io 

5.935 
187 



50 
6 



n,88i 

8,024 

173.656 

1,462,532,76 



7,137 

353 



59 

6 

64,986 





FISCAL YEAR ENDED JUKE 30 


1928 


1929 


Illicit distilleries seized 


16,220 
18,980 

217,278 
1,048,636.84 
4,254,029.58 
27,171,567-06 

6,934 
81 

$23,204,345,20 
89 

10 


15,794 
11,542 
7,982 
211,924 
1,185,654.88 
3,312,491.28 
26,393*410.74 

'$9 

94 
6 

66,878 


Illicit stills seized 


Illicit still worms seized 


Illicit fermenters seized 


Gallons of distilled spirits seized 


Gallons of malt liquor seized 


Gallons of wine, cider, mash, and pomace seized. . 
Number of automobiles seized 


Number of boats and launches seized 


Total appraised value of property seized ...... 


Number of agents injured 


Number of agents killed 


Number of persons arrested 





APPENDIX H 



CRIMINAL PROSECUTIONS UNDER THE NATIONAL 

PROHIBITION ACT IN THE FEDERAL COURTS, AS 

SHOWN BY THE REPORTS OF THE DEPARTMENT OF 

JUSTICE, BY CASES 

(SOURCE: Statistics Concerning Intoxicating Liquors, United States 
Treasury Department, 1930, p. 70) 





(JANUARY- 
JUNE), I92C 


1921 


1922 


1923 


Commenced during 
the year 


7,291 

5*095 
43 1 5 
125 

6SS 

4,109 
322 

2,196 
$605,31442 
$507,482.70 



29,114 

21,297 
17,962 

765 

2,570 
16,610 
2,075 

10,365 
$3,360,298.46 
$2,418,117.55 



34,984 

28,743 
22,749 
i,i95 

4,799 

20,571 
3,346 

16,713 
$4,041,456.03 

#2,376,305-20 
$846.95 


49,021 

42,730 
34,067 
1,770 

6,893 

30,654 

4,835 
23,060 

$5,832,389.18 
$4,366,056.00 
$144,528.63 


Terminated during 
the same period. 
Convictions 


Acquittals 


Nol pros or dis 
missed, . , 


Pleas of guilty 
Trials by jury 


Pending close of 
vear 


Fines and penalties 
imposed , 


Realized on fines, 
forfeitures, etc. , . 
Collected without 
prosecution 






1924 


1925 


1926 


Commenced during the year 
Terminated during the same 
period, * 


45,878 

46,609 
37,i8i 
*>754 
7,674 
33,834 
5>2I7 
22,329 
$7,497)235-19 
$5,682,719.87 
$84,052.65 


5>743 

47,925 
38,498 
1,805 
7,622 
35>034 
5,389 
24,684 
$7,681,947.28 
#5>3 12,338.38 
$65,430.10 


44,492 

48,529 
37,oi8 
i>303 
7,58o 

34,233 
4,090 
20,749 

7,494557.09 
$5,231,130.90 
$97,417-88 


Convictions , 


Acquittals r - 


Nol pros or dismissec 
Pleas of guilty. 


1 




Trials by jury , 


Pending close of yeai 
Fines and penalties i 
Realized on fines, for 
Collected without pr< 




cnposed. .. . . 
feitures, etc. 
Dsecution. . . 



l No record. 



332 



Appendices 
APPENDIX H Continued 



333 



CRIMINAL PROSECUTIONS UNDER THE NATIONAL 
PROHIBITION ACT IN THE FEDERAL COURTS, BY 

INDIVIDUALS 





1927 


1928 


1929 


Commenced during the year 
Terminated during the same 


50*250 
ci.Q4.ir 


73>034 
77,7QQ 


74>7*3 

75,298 


Convictions 


36,546 


58,813 


56,546 


Acquittals 


I*$$7 


2,722 


2,666 


Nol pros or dismissed 


1^,84.2 


17,264 


16,086 


Pleas of guilty 


33,430 


54,325 


51,651 


Trials by jury 


4,1QO 


7,072 


4,622 


Pending close of year (by cases) 
Fines and penalties imposed. . . . 
Average fine 


20,173 
%>775 5 22S-48 
1$ 1 57.90 


18,005 
^7,031,109.66 
l$ 1 2O.OO 


19,468 
1^7,363,492.22 
1$ 1 3 o.oo 


Number of jail sentences imposed 
Average sentence (based on every 
conviction) days. 


i 11,818 
144 


1 15,793 
1 34-4 


1 i9o74 
r 47-3 


Average sentence (based on num 
ber of jail sentences given) days 
Per cent of jail sentences 


1136.4 
132.3 


1 I20-7 

^S-s 


^140.4 
*33-7 




*7 o -3 


*75-5 


175.0 











iSuspended, paroled, and probated sentences not included. 



APPENDIX I 



STATE REFERENDUMS ON PROHIBITION QUESTIONS 

SINCE 1920 

(SOURCES : Hearings of a Subcommittee of the Senate Committee on 
the Judiciary > 6gth Congress, ist Session; Editorial Research Reports, 
Washington; New York Times) 



YEAR 



STATE 



1920 


California 


1920 


Massachusetts 


1920 


Missouri 


1922 


California 


1922 


Ohio 


1922 


Massachusetts 


1922 


Illinois 


1924 


Massachusetts 


1926 


California 


1926 


Colorado 


1926 


Illinois 


1926 


Missouri 


1926 


New York 


1926 


Montana 


1926 


Nevada 



1926 Wisconsin 

1928 North Dakota 

1928 Montana 

1928 Massachusetts 

1929 Wisconsin 



QUESTION YES No 

Adoption of state enforcement law 400,475 465,537 

Legalization of light wines and beer 442,215 432,951 

Adoption of state enforcement law 481,880 420,581 

Adoption of state enforcement law 445,077 411,134 

Referendum on 2.75 per cent beer 7*9?505 908,522 

Adoption of state enforcement law 323,964 427,840 

Referendum on light wines and beer 1,065,242 5 1 2, 1 1 1 

Adoption of state enforcement law 454,656 446,473 

Repeal of state enforcement law 502,258 565,875 
Liberalization of state enforcement 

law 107,749 154,672 
Appeal to Congress to modify 

Volstead Act 840,631 556,592 

Repeal of state liquor laws 294,388 569,931 
Appeal to Congress to modify 

Volstead Act 1,763,070 598,484 
Repeal of state enforcement law 83,231 72,982 
Appeal to Congress to summon a 
convention to propose an amend 
ment to the Eighteenth Amend 
ment. 18,131 5,352 
Referendum on 2.75 per cent beer 349,443 177,602 
Repeal of prohibition clause in state 

Constitution 96,837 103,696 
Re-adoption of state enforcement 

law 68,431 80,619 
Instructing state Senators to vote 
for resolution requesting repeal 

of the Eighteenth Amendment 707,352. 422,655 

Repeal of state enforcement law 339,337 196,402 

334 



INDEX 



Actuarial Society of America, 52. 

Agent provocateur. See Under-cover 
work. 

Agents, salary scale of, 78-79; civil ser 
vice regulations, 94-97, 106-107, 189- 
190; number of, 67, no, 236, 255, 
266; cases of corruption, 159-161, 
162-163; standards, 165, 247, 248- 
249; offers of bribes, 166. 

Alabama, state law, 20-21, 73. 

Alcoholism, deaths from, 173. 

Aliens, bill to deport, 89-91. 

American Federation of Labor, on bone- 
dry prohibition, 46, 72, 209; testi 
mony before Congress, 213; on modi 
fication, 293-294. 

American Issue, 27. 

American Lutheran Publicity Bureau, 
88. 

American Thereapeutic Society, 85. ^ 

Andrews, Lincoln C., on medicinal 
liquor, 112; on illegal beer, 113; on 
smuggled liquor, 115; on denaturing 
plants, 118; on diversion of alcohol, 
1 1 8; estimate of stills seized, 121; 
reorganization of staff, 128; on ar 
rests, 153, 265; estimate of men em 
ployed, 162; on .border force, 186; 
on appropriations, 186; enforcement 
program, 186-188; on attitude of 
Congress, 189; policy criticized, 191; 
on local officers, 192; on wood alcohol, 
198; standards for agents, 248; on 
illegal methods, 249; on commercial 
violations, 249; on importance of 
stills, 259. 

Anti-Saloon League, organization of, 
8-9; church support, 9-10; growth, 
10; political methods, 10; literature, 



10-11; on progress of prohibition, n; 
demand for national legislation, 15; 
activity in elections, 16-17; compila 
tion of state laws, 20-22; on war situa 
tion, 27; efforts in behalf of ratifica 
tion, 40, 41; draft of enforcement 
law, 47-48; on enforcement, 51, 63, 
83 ; criticism of courts, 63-64; on ex 
tension of Volstead Act to China, 83; 
on Willis-Campbell Act, 86; on civil 
service, 94-95; on enforcement in 
Iowa, 131; on results of prohibition, 
158; endorsement of Kramer, 164- 
165; on under-cover work, 200; on 
attitude of press, 217; statements in 
New York Times, 219; on unofficial 
polls, 225; on elections to Congress, 
226; on transfer of Prohibition Bureau, 
251-252. See also Wheeler, Wayne B. 

Appropriations for enforcement, for 
first half year, 78; debated, 80, 88, 91, 
98, 105; recommended in budgets, 
105-^06; reluctance of Congress to 
increase, 186, 234-236, 288-290; 
state appropriations, 205-206, 277- 
278; budget in 1930, 280; annual 
appropriations, Appendix F. 

Arrests by federal agents, 153, 264- 
265, Appendix G. 

Arrests for intoxication. See Intoxica 
tion. 

Ashworth, George W., 57. 

Associated Press, addressed by Presi 
dent, 244. 

Association Against the Prohibition 
Amendment, 213. 

Atlantic Monthly, 291. 

Atterbury, W. W., 215. 

Automobiles, and prohibition, 179. 



335 



336 Index 



Babka, John J., 77- 

Baltimore, protest meeting, 46. 

Bar associations, resolutions of, 213- 
214. 

Bargain days, creation of, 155-156; 
penalties imposed, 156-157* 

Beauty shops, 180. 

Beer, per capita consumption of, 12; 
proposal to exempt from Eighteenth 
Amendment, 31; regulation of, 66- 
67; use for medicinal purposes, 84- 
86; new legislation recommended, 
112-113, 186; proposal to legalize, 
293-294. 

Beveridge, Albert J., 191-192- 

Biggs, Dr. Herman, 86, 

Blacklist, organized by brewers, 7, 215. 

Blue laws, 291-292. 

Bone-dry prohibition, state laws, 22. 

Borah, William E., on invasion of dry 
states, 13; on time-limit or ratifica 
tion, 31; on Smith campaign, 229- 
230; on responsibility of states, 270- 
271, 275; on nullification, 292. 

Boston, vote on prohibition, 71; Bar 
Association, 214, 

Boyd, Frank L., 126. 

Breweries, closed as war measure, 41. 

Brewers, tactics of, 5^7; control of 
saloon, 5; political activity, 7; black 
list, 7, 215; denounced as enemies, 
27; year of grace, 32; early leadership 
of opposition, 208-209. 

Bribery. See Corruption. 

Bridge Whist Club, 194-195. 

Britt, J. J., 155- 

Broussard, Robert F., 31. 

Bruce, W. Cabell, 234. 

Building boom, and prohibition, 178- 

179- 

Bureau of Chemistry, 70. 

Business. See Economic effects of pro 
hibition. 

Butler, Nicholas Murray, 232. 

Butler, Smedley D., appointed, 141; 
activities, 142; on enforcement, 143- 
144; return to Marine Corps, 144; 
on enforcement in courts, 145. 

Buyer of liquor, proposal to punish, 30- 
31, 288. 

California, attitude of grape growers, 
52-53; referendums, 222* 



Campbell, Philip P., 84. 

Canada, adoption of prohibition, 40; 
convention with, 114-115. &<? also 
Smuggled liquor. 

Canned heat, 202. 

Cannon, Bishop James, Jr., on enforce 
ment, 80; on Wickersham letter, 242; 
on rebellion, 286. 

Caraway, Thaddeus H., 242-243. 

Catt, Mrs. Carrie Chapman, 287. 

Cellar, Emanuel, 197. 

Census Bureau, on deaths from alcohol 
ism, 173; on deaths from all causes, 
174; on prison population, 176; on 
state expenditures, 205-206, 277. 

Chapin, Daniel L., 126. 

Chemical industry, need of alcohol, 
68, 115-116. 

Cherrington, Ernest H,, 9-10. 

Chicago, fraudulent permits in, 59; 
congestion in courts, 59; vote on pro 
hibition, 71; activity of police, 138- 
140; padlock cases, 150. 

Chicago Tribune, 138. 

China, proposal to extend Volstead Act 
to, 81, 83. 

Churches, temperance work of, 2, 8; 
support of Anti-Saloon League, 9-10. 
See also individual churches. 

Cider, 48-49. 

Cincinnati, vote on prohibition, 71; 
officials convicted, 160. 

Cities, opposition to prohibition, 71. 

Civil service, proposal for, 94-97, 106- 
107; proposal adopted, 189-190. 

Geveland, 71. 

Clyne, Charles F., 59. 

Coast Guard, work of, 67, 114; enlarged 
by Congress, 87, 114* 189* 

Codification of laws, 251. 

Colorado, referendum, 221, 

Commercial cases, 247, 249-250. 

Commission on Law Enforcement and 
Observance, genesis of plan, 237- 
240; appointment of, 241; statement 
of chairman, 241; first report, 251- 
252; proposal for trials without jury, 
252-254; on observance and enforce 
ment, 255-256; second report fore 
cast, 257. See also Wickersham, 
George W. 

Concurrent power, proposed by com 
mittee, 32; adopted, 33, 267-269; 



Index 



337 



debate over state responsibility, 269- 
274. 

Congress, adoption of Webb-Kenyon 
Law, 14; vote in 1914, 16; adoption 
of Food Control Law, 26-27; Eight 
eenth Amendment reported, 28; 
Amendment adopted in Senate, 28- 
32; Amendment adopted in House, 
32-36; concurrent clause adopted, 
33, 267-269; war-time prohibition 
adopted, 41; Volstead Act adopted, 
48-50; early policy of enforcement, 
75-81; Willis-Campbell Act adopted, 
84-86; bill to deport aliens, 89-91; 
diplomatic corps debated, 91-94; 
civil service debated, 94-97, 189- 
190; policy of caution, 98-100; 
division on prohibition, 164, 188, 
226-227; Andrews program, 188-190; 
debate over Coolidge order, 192-193; 
debate over under-cover work, 194- 
196; reapportionment, 227; rural and 
urban representation, 227-228; Jones 
Act adopted, 233; appropriations 
debated, 234-236; policy in 1930, 
288-290; modification debated, 293- 
295. 

Constitutional Liberty League of Mas 
sachusetts, 213. 

Consumption of liquor, 11-13. 

Controller General, 194. 

Coolidge, Calvin, on enforcement, 104- 
105, 108-109; on civil service, 107; 
executive order, 190; defense of order, 
192-193; approval of Jones Act, 
233; on duty of citizens, 246, 286; 
appeal for state aid, 276^277; on chief 
problem of enforcement, 285. 

Corn sugar, 260, 261. 

Corradini, Robert ., 170. 

Corruption, cases of, 57, 58, 159-161; 
in local office, 162; in federal service, 
162-163; bribes offered agents, 166. 

Cost of enforcement. See Appropriations 
for enforcement. 

Courts, federal, congestion in Chicago, 
59; criticized by Anti-Saloon League, 
63-64; prohibition cases in, 79, 145- 
148; congestion in New York, 153- 
154; additional judges requested, 
154; penalties imposed, 154-157; 
bargain days, 155-156; increase in 
prohibition cases, 252-253, 303. 



Courts, state, congestion in, 203-205, 

206. 
Cramton, Louis G, on alien violators, 

90; on diplomatic corps, 91-93. 
Curtis, Charles, 230. 
Customs Service, 67, 114. 

Daisy Day, 46. 

Dalrymple, A. V., 53. 

Dana, Dr. Charles L, 86. 

Dana, Richard H., 96-97. 

Dandelion wine, 120. 

Daniels, Josephus, 143. 

Daugherty, Harry, 146. 

Day, Ralph A., 127. 

Death rate. See Health. 

Delaware, Lackawanna & Western 
Railway, 7. 

Democratic party, failure to endorse 
prohibition, 72; campaign of 1928, 
229. 

Denaturants. See Industrial alcohol. 

Department of Agriculture, 70. 

Department of Commerce, 115. 

Department of Justice, lack of funds, 
59, 79; ruling on medicinal liquor, 
84; on congestion in courts, 147, 1.54, 
184; on variation in penalties, 154- 
155; on Coolidge executive order, 
192; on state aid, 206; on smuggled 
liquor, 236. 

Department of State, 1 14. 

Department of Treasury, statement on 
diplomats, 92-93; defense of under 
cover work, 195-196. See also Mel 
lon, Andrew W. 

Detroit, vote on prohibition, 19, 71; 
drives, 133-134; arrests for intoxica 
tion, 169. 

Dever, William E., warning to police, 
139; on stills in Chicago, 140; on 
leniency of judges, 155; on enforce 
ment, 302-303. 

Dinwiddie, Edwin C., 131. 

Diplomatic corps, 91-94. 

Disclosure law, 202. 

Dispensary system, 4. 

Distilled spirits, per capita consumption 
of, 12. 

Distilleries, closed by law, 40-41. 

Distillers, tactics, 5-6; early leadership 
of opposition, 208-210. 

Doctors. See Medicinal liquor. 



338 



Index 



Doran, James M., on diversion of alco 
hol, 118; on denaturants, 198-199; 
on cost of enforcement, 234, 266; 
on stills, 259-260; on sugar distilla 
tion, 260-261. 

Drinking. See Consumption of liquor 
and Intoxication. 

Drives, origin of, 132; on Canadian 
border, 133-134- 

Druggists. See Medicinal liquor. 

Drunkenness. See Intoxication. 

Dubuque, la., 131-132- 

Dyerville, Cal., 150. 

Economic effects of prohibition, de 
bated, 177-181. 

Edge, Walter E., on use of denaturants, 
197; on modification, 294. 

Eighteenth Amendment, introduced, 
15-16; reported to Senate, 28; de 
bated, 28-31; adopted, 31-32; re 
ported to House, 32; debated, 33-36; 
adopted, 36; ratification, 39-42; 
vote on ratification, Appendix D., 
question of ratification debated, 42- 
45. See also Concurrent power and 
Repeal. 

Einstein, Izzy, 135-137- 

Eliot, Charles W., 58-59. 

Emergency Beer Bill. See Willis-Camp 
bell Act. 

Enforcement agents. See Agents. 

Espionage. See Under-cover work. 

Espionage Law> 26. 

Evidence, purchase of, 193-194. 

Farms, decline in value, 178. 
Federal Council of Churches, 177. 
Feigenspan, 209. 
Fisher, Irving, 179. 
Fitzmorris, Chief of Police, 138. 
Food, importance during war, 25-26, 

29, 40-41. 

Food Control Law, 26-27. 
Fort, Franklin W., on attitude of press, 

217; on home manufacture, 295. 
Fugitive Slave Law, 291, 292. 

Garrett, Finis J., 93. 

Gary, Ind., 159-160. 

General Motors Corporation, 215, 

German- American Alliance, 27. 

Glass, Carter, on transfer of Prohibition 



Bureau, 107; on investigation of en 
forcement, 239. 

Governors 5 Conference^ 104, 241-243. 

Grape Growers Protective League, 53. 

Grasselli Chemical Company, 7. 

Great Britain, treaty with, 114. 

Greene, Jerome D., 291. 

Guthrie, William D., 209. 

Hadley, Arthur Twining, 290, 292. 

Hard liquor. See Distilled spirits. 

Harding, Warren G., vote on Hardwick 
amendment, 31; proposed time-limit 
on ratification, 31; desire to see ques 
tion settled, 76, 301; signature, as 
President, of Willis-Campbell Act, 
86; statements on enforcement, 102- 
104, 108-109; on civil service, 107; 
on state aid, 206-207; on obedience 
to law, 245, 286; on local enforcement, 
265; appeals for state aid, 275-276. 

Hardwick, Thomas W., 30-31. 

Harper's Magazine, 291. 

Harreld, John W., 163. 

Harris, William J., 235. 

Hart, Harold L., 126-127. 

Haynes, Roy A., statements on enforce 
ment, 123-124; reorganization of 
staff, 128; on padlock procedure, 148; 
on corruption in local offices, 162; 
endorsements of, 165; standards for 
agents, 165, 248; on bribes offered 
agents, 166; on economic effects of 
prohibition, 179; articles in New 
York Times, 219-220; on commercial 
violations, 250; on progress of en 
forcement, 283-284. 

Health, effect of prohibition on, 172- 

*75- 

Hefiin, J. Thomas, 34-36, 76. 

Heinz Pickle Company, 7. 

Home brew, kitchen stills, 54~5S; 
methods of manufacture, 70; provi 
sions of law, 120; dandelion wine, 120; 
search and seizure, 187, 202; proposal 
to legalize, 295. See also Stills. 

Hoover, Herbert, on prohibition as war 
measure, 26; campaign of 1928, 230- 
232; proposal for investigation, 237; 
inaugural, 2j8; on obedience to law, 
244, 285-286; address before As 
sociated Press, 244; letter to National 
Congress of Parents and Teachers, 



Index 



339 



244; message to Congress, 244-245; 

program of enforcement, 246-247. 
House of Representatives. See Congress. 
Houston, David F., 108. 
Howard, Clinton, 131, 243. 
Huddleston, George, 90. 
Hughes, Charles Evans, 230, 295. 

Iceland, 87. 

Illicit stills. See Stills. 

Illinois, referendums, 221; rural and 
urban representation, 228. See also 
Chicago. 

Indiana, adoption of state law, 19; pro 
visions of. law, 21 ; penalties imposed, 
156; display of flasks prohibited, 202. 

Immigration service, 67. 

Industrial alcohol, early case of diver 
sion, 60; problem of controlling, 68-69; 
increased production of, 115; efforts to 
prevent diversion, 116; difficulties 
encountered, 116-117; estimates of 
diversion, 117-119; new legislation 
recommended, 187, 290; use of de- 
naturants required, 198; wood alcohol 
defended, 198-199, 200; production 
figures, 236-237; problem discussed, 
262. 

Industry. See Economic effects of pro 
hibition. 

Injunction. See Padlock procedure. 

Intoxication, effect of prohibition on, 
167-172; arrests by police, 169-170. 

Iowa, state law, 21; enforcement of 
Volstead Act, 131; canned heat pro 
hibited, 202. 

Jones Act, 233. 

Jones, Wesley L., on time-limit on rati 
fication, 31; proposal to extend Vol 
stead Act, 81; on threatened boycott, 
87; author of Jones Act, 233. 

Journal of the American Medical As 
sociation, 85. 

Judges, proposal to remove, 63. See also 
Courts, 

Juryless trials. See Trials without jury. 

Kansas, state law, 3. 
Kelly, M. Clyde, 34. 
Kendrick, W. Freeland, 141. 
Kentucky, penalties imposed, 156. 
Kenyon, William S., 29. 



Kitchen stills, 54-55, 70. Set also 
Home brew. 

Kramer, John F., appointment of, 56; 
statements on enforcement, 57, 114, 
122-123, 127-128; endorsed by Anti- 
Saloon League, 164-165. 

Labor, demonstration at Capitol, 46- 
47; proposed strike, 47. See also 
American Federation of Labor. 

Lambert, Dr. Samuel, 86. 

Langley, Ernest, 126. 

License, state systems of, N 4. 

Life insurance policies, 178. 

Literary Digest, 224. 

Little Rock, 160-161. 

Local option, 4. 

Louisiana, penalties imposed, 156. 

Lowman, Seymour W., 249. 

Luxuries, effect of prohibition on, 52. 

McAdoo, William G., 270. 

McBain, Howard Lee, on trials without 
jury, 254; on state responsibility, 274. 

McBride, Francis Scott, 231-232. 

Maine, state law, 21. 

Mandatory prison sentences, 288-289. 

Massachusetts, bill to permit wines and 
beer, 72; penalties imposed, 156; ref 
erendums, 221, 222. 

Maxim, Hudson, 176. 

Medicinal liquor, drugstores raided, 58; 
fraudulent permits, 59; problem of 
trolling, 65-66; ruling of Department 
of Justice, 84; adoption of Willis- 
Campbell Act, 84-86; new legislation 
recommended, 111-112, 186. 

Mellon, Andrew W., on appropriations, 
235; on commercial violations, 250; 
on border patrol, 258-259. 

Methodist Board of Temperance, Pro 
hibition and Public Morals, on pro 
gress of enforcement, 82; support of 
Andrews program, 189; comment on 
press, 217; statements in New York 
Times, 219; on 1928 election, 231. 

Methodist Church, statement of New 
York churches, 88; statement of New 
Jersey churches, 143; comment on 
press, 217. See also Methodist Board 
of Temperance, Prohibition and 
Public Morals. 

Michigan, state law adopted, 19; pro- 



340 



Index 



visions oflaw, 21, 73; rural and urban 

representation, 43. 
Mississippi, state law, 21-22; ratifica 

tion of Amendment, 39; proposal for 

state aid, 58. 

Missouri, referendums, 222. 
Mitchell, William D., 280, 283. 
.Moderation League, Inc., organization 

of, 212 ; figures on intoxication, 167- 

169; testimony before Congress, 213. 
Modification movement, beginning of, 

293; growth of, 293-294; status in 



Montana, referendums, 222. 
Moonshining. See Stills. 
Moore, R. W., 90. 

Morrow, Dwight W,, on repeal, 296, 
299; appeal to temperance leaders, 

2 "'. 

Mortality statistics. See Health. 

Moving pictures, and prohibition, 179. 

Mullan-Gage Law, adoption of, 203; 
enforcement of, 203-204; results in 
New York County, 204-205. 

Music, effect of prohibition on, 52. 

National Civil Service Reform: League, 
on Volstead Act, 94-95; appeal to 
President, 106-107. 

National Congress of Parents and 
Teachers, 244. 

Near-beer, regulation of, 66-67, 112- 
113; quantity produced, 113. 

Nevada, referendum, 221. 

New Hampshire, state law, 21. 

New Jersey, bill to permit wines and 
beer, 72; Bar Association, 214. 

New Orleans, 160. 

New York City, protest meeting, 46; 
illicit stills, 55; police activity, 58; 
diversion of alcohol, 60; federal 
agents, 125-126; activities of Ein 
stein and Smith, 135-137; speak 
easies padlocked, 149-150; congestion 
in courts, 154; penalties imposed, 
156-157; agents dismissed, 161; ar 
rests for intoxication, 169; testimony 
on conditions, 171-172; Bridge Whist 
Club, 194-195; statement of Health 
Commissioner, 197; enforcement of 
Mullan-Gage Law, 203-205; Bar 
Association, 214. 

New York Herald Tribune, on Coolidge 



order, 191; poll of press, 218; on 1928 
campaign, 231. 

New York Medical Association, 85. 

New York State, rural and urban rep 
resentation, 43, 228; bill to permit 
wines and beer, 72; federal agents, 
126-127; resolution on denaturants, 
197; Mullan-Gage Law, 203-205; 
referendum, 221-222. See also New 
York City. 

New York Times* reports of Congres 
sional debate, 37-38; on Coolidge 
order, 191; prohibition news, 219-220. 

Newspaper Enterprise Association, 224- 
225. 

Newspapers, charged with bias, 216- 
217; news of prohibition, 218; edi 
torial policy, 218-219. 

No Beer, No Work, 47. 

Norfolk, Va., poolroom bar, 195. 

North Carolina, state law, 22. 

North Dakota, state law, 21; referen 
dum on repeal, 222. 

Nullification, 290-293. 

O'Connor, Charles R., 126. 

Odegard, Peter, 10. 

Ohio, vote on ratification, 44; referen 
dum, 221. 

Opposition movement, early leadership, 
208-210; individual opponents, 210- 
21 1 ; organized opposition, 212-214. 

Padlock procedure, provisions of Vol 
stead Act, 148-149; wide use of 
method, 149-150; protests against 
* use, 150-151; difficulties encountered, 
151-152; change in law recommended, 
251, 290. 

Palmer, A. Mitchell, on enforcement, 
79; on medicinal liquor, 84. 

Parker, Richard W., 93. 

Patent medicine, 58. 

Pauperism, and prohibition, 179. 

Pennsylvania, license system, 4; in 
dictments for conspiracy, 160; condi 
tions in mining towns, 171. See also 
Philadelphia. 

Pennsylvania Railroad, 215. 

Personnel. See Agents. 

Philadelphia, enforcement in, 140-144; 
arrests for intoxication, 169-170* 

Philippines, 81. 



Index 



Physicians. See Medicinal liquor. 

Pinchot, Gifford, 140-141. 

"Poison alcohol," charges against gov 
ernment, 196-197; government's re 
ply, 197-199. See also Industrial al 
cohol. 

Police, cases of corruption, 159-160; 
arrests for intoxication, 169-170; as 
enforcement agents, 263-264. 

Politics, prohibition issue, 301-303. 

Polls. See Referendums. 

Portland, Ore., Bar Association, 214. 

Presbyterian Church, 200. 

Prescriptions. See Medicinal liquor. 

Press. See Newspapers. 

Prisons, 176. 

Prohibition, early history of, 2-5; 
growth of movement, 8-11; status 
before the war, 17-24; effect of the 
war, 25-27, 29-30,^ 34, 36-39, 40-41, 
42, 45; debated in Senate, 28-32; 
debated in House, 33-36; ratification 
of Eighteenth Amendment, 39-47; 
Volstead Act adopted, 48-50; ap 
pearance of first problems, 53-61; 
sources of illicit liquor, 65-71; op 
position in urban sections, 71-72; 
early attitude of Congress, 76-83; 
Willis-Campbell Act; 84-86; state 
ments of Presidents, 102-105; prob 
lems of enforcement in 1925, 111-121; 
drives, 132-134; congestion in courts, 
145-148, 153-157; padlock procedure, 
148-152; social and economic effects 
debated, 158-182; Andrews program, 
185-190; Coolidge executive order, 
190-193; state legislation, 201-202; 
state aid in enforcement, 203-207; 
opposition movement, 212-214; at 
titude of press, 216-220; referendums 
and polls, 221-225; as issue in 1928 
election, 229-232; Jones Act adopted, 
233; creation of Law Enforcement 
Commission, 237-240; appeals for 
observance, 243-246, 285-286; Hoover 
program, 246-250; first report of 
Law Enforcement Commission, 250- 
256; problem of illicit stills, 258-264; 
responsibility of states debated, 264 
-274; appeal for state aid, 275-281; 
attitude of Congress, 288-290; nullifi 
cation proposed, 290-293; proposals 
for modification, 293-296; proposals 



for repeal, 296-300; positions in 1930, 
300-304. 

Prohibition Bureau, organization of, 
56; first problems, 65-71; proposed 
transfer, 107-108, 251-252; problems 
in 1925, in-i2i; early statements on 
enforcement, 122-124; reorganiza 
tions, 125-128, 289; program in 1926, 
186-187; problems in 1929, 236-237; 
program in 1929-1930, 247; on lack of 
state aid, 277-278. 

Prohibition party, organization of, 3; 
on lax enforcement, 88. 

Proprietary medicines, 58, 65. 

Prosperity. See Economic effects of 
prohibition. 

Public Health Service, 67. 

Public opinion. See Referendums, 

Purchaser of liquor, 30-31, 288. 

Raids, by federal agents, 134-137, 264- 
265. 

Randall, Charles H., 8r. 

Ratification. See Eighteenth Amend 
ment. 

Reapportionment, 227. 

Rebellion, predicted, 300. 

Reconstruction Acts, 291, 292. 

Reed, James A., 20, 31. 

Reed bone-dry amendment, 20, 

Referendums, on state laws, 18, 19; 
on modification and repeal, 221-222; 
on state enforcement laws, 222; un 
official referendums, 223-225. 

Repeal of the Eighteenth Amendment, 
difficulty of, 297; factors favoring, 
298; recommended by Smith, 298- 
299; recommended by Morrow, 299. 

Representation, in state legislatures, 
43; in Congress, 227-228. 

Republican convention, 59. 

Republican party, failure to endorse 
Eighteenth Amendment, 72; cam 
paign of 1928, 229-231. 

"Right of revolution/ 1 255. 

Ritchie, Albert C., 272, 273-274. 

Roach, Sidney C., 90. 

Roosevelt, Franklin D., 241-242. 

Roosevelt, Theodore, 26. 

Root, Elihu, 209. 

Rum Row, problem of, 114; efforts to 
disperse, 133. See also Coast Guard 
and Smuggled liquor. 



342 



Index 



St. Louis, vote on prohibition, 71; Bar 
Association, 214. 

St. Paul, 71. 

Saloon, 5, 10, 298. 

Salvation Army, 171. 

San Francisco, Democratic convention, 
59; vote on prohibition, 71; padlock 
procedure, 149; Bar Association, 214. 

Schneider, George J., 158. 

Schools, 8. 

Search and seizure, 187, 202. 

Seizures by federal agents, 119-120, 
I35 237 259, 260-261, Appendix G. 

Senate. Set Congress. 

Senior circuit judges, recommendations 
of, 1 08; survey of courts, 253. 

Sheppard, Morris, introduction of con 
stitutional amendment, 15-16; op 
position to Hard wick amendment, 30; 
still discovered on farm, 56; on cost 
of enforcement, 77; on proposal for 
investigation, 98-99; on proposal for 
repeal, 297. 

Shevlin, James L., 125-126. 

Slayden, James L., 34. 

Small, John H,, 34. 

Smith, Alfred E., campaign for Gover 
nor, 37; nominated for President, 229; 
proposal to modify Volstead Act, 
294; proposal to repeal Amendment, 
298-299. 

Smith, Moe, 135-137- 

Smuggled liquor, Congress warned of 
smuggling, 57; problem of controlling, 
67-68, 113-115; drives, i33-*34> 
border force needed, 186; new legisla 
tion recommended, 186-187; increase 
reported, 236; closing of border rec 
ommended, 258-259. 

Sons of Temperance, 2. 

South, prohibition sentiment, 211. 

South Carolina, dispensary system, 4; 
state law, 22. 

Southern Baptist Convention, 300. 

Spain, 87. 

States, prohibition laws before the war, 
18-22, 41, 72-73, 257-258; enforce 
ment laws adopted, 202; funds ap 
propriated for enforcement, 205-206; 
lack of support criticized, 206-207; 
referendums, 221-222; peace officers, 
263; duty under concurrent clause 
debated, 267-274; urged to assist 



federal government, 274-276; con 
tribution to enforcement, 277; prob 
lem of enlisting aid, 287-288. 

States' rights, debated in Congress, 
34-36; effort to revive, 296. 

Sterling, Thomas, 95~9& 

Stills, seized by agents, 53-55; problem 
of controlling, 69-70, 119-121; new 
legislation recommended, 187; in 
creasing importance, 259-261, 263, 
289-290. 

Sunday, Billy, I. 

Supreme Court, 209, 271, 272-273. 

Taft, William Howard, veto of Webb- 
Kenyon bill, 14; on transfer of Pro 
hibition Bureau, 108. 

Temperance, early history of move 
ment, 2, 8; decreased consumption of 
hard liquor, 12. 

Tennessee, state law, 22. 

Thompson, William H., 30. 

Tinkham, George H., 95^96. 

Trials without jury, considered in 1921, 
146; proposed by President's com 
mission, 252-254. 

Under-cover work, purchase of evidence, 
193-194; Bridge Whist Club, 194- 
195; Norfolk poolroom-bar, 195; 
plan for importation, 195; debated in 
Congress, 195; defended by Treasury, 
196; defended by Anti-Saloon League, 
200. 

Unemployment, and prohibition, 179- 
180. 

United States vs. Lanza, 271, 272-273. 

United States Brewers' Association, 
statement on temperance, 6; brief 
on Volstead Act, 209. 

United States Commissioners. Set Trials 
without jury. 

Upshaw, William D., proposal to extend 
Volstead Act, 81; on cost of enforce 
ment, 87-88; endorsement of Haynes, 

165. 

Vermont, disclosure law, 202, 

Virginia, state law, 21, 

Volstead, Andrew J,, introduction of 
enforcement law, 48; speech in Con 
gress, 77; proposal to extend enforce 
ment law, 81. 



Index 



343 



Volstead Act, introduced, 48; debated 
in House, 48; debated in Senate, 
48-49; vetoed, 49; adopted over 
veto, 49-50; effort to repeal, 77; 
proposal to extend, 81; provisions for 
padlock procedure, 148-149; use of 
denaturants required, 198; referen- 
dums on modification, 221; amended 
by Jones Act, 233; efforts to modify, 
293-295. 

Voluntary Committee of Lawyers, Inc., 
organization of, 213; on state respon 
sibility, 272. 

Wagner, Robert F., 254. 

War, effect of, 25-27, 29-30, 34, 36-39, 
40-4!, 42, 45- 

Warren, Francis E., 77. 

War-time prohibition, 41, 49. 

Washingtonians, 2. 

Weapons, use of, 247, 249. 

Webb, Atticus, 200. 

Webb-Kenyon Law, adopted, 14; ex 
periment with, 1415. 

Wells, W. Calvin, 58. 

West, prohibition sentiment, 21 1. 

West Virginia, state law, 22. 

Western Union Telegraph Company, 
215. 

Wheeler, Wayne B., on cost of prohibi 
tion movement, 8; on public interest, 
n; on Congressional elections, 16, 17; 
compilation of state laws, 2022; 
on German-American Alliance, 27; 
on time-limit in Eighteenth Amend 
ment, 32; efforts in behalf of ratifica 
tion, 40; on cost of enforcement, 52, 
77> 83 ; on medicinal liquor, 84; on alien 
violators, 89; quoted on civil service, 
96-97; on production of beer, 113; 
on diversion of industrial alcohol, 
130-131; endorsement of Einstein 
and Smith, 137; on line-up in Con 
gress, 164, 1 88, 226-227; endorsement 
of Haynes, 165; on prohibition and 
health, 174; on prohibition and crime, 



176; on economic effects of prohibi 
tion, 178-179; on difficulty of en 
forcement, 185; on use of denaturants, 
200; articles in New York Times, 219; 
on state responsibility, 270. 
Whitman, Charles S., 37. 
Wickersham, George W., on Webb- 
Kenyon Law, 14; chairman of com 
mission, 241; on state cooperation, 
241-243; on trials without jury, 254. 
See also Commission on Law Enforce 
ment and Observance. 

Willebrandt, Mabel Walker, 219. 

Willis, Frank B., 84, 99. 

Willis-Campbell Act, 84-86. 

Wilson, Woodrow, 49. 

Wine, per capita consumption of, 12; 
proposal to exempt from Eighteenth 
Amendment, 31; bills to legalize, 
294. 

Wisconsin, referendum, 221; rural and 
urban representation, 227228. 

Woman's Christian Temperance Union, 
3, 140, 189, 200. 

Woman's National Committee on Law 
Enforcement, 246. 

Women, votes on prohibition, 18. 

Women's Committee for Modification 
of the Volstead Act, 213. 

Women's Committee for Repeal of the 
Eighteenth Amendment, 213. 

Vfood alcohol, percentage doubled, 197; 
use required by Congress, 198; advan 
tages as denaturant, 198; use de 
fended, 198-199. 

Woodcock, A. W. W., 54. 

World League Against Alcoholism, 
figures on intoxication, 167169; on 
police activity, 169170; on cost of 
arrests, 179. 

World War. See War. 

Yellowley, E. C, 127. 

Youngquist, G. Aaron, on local officers, 

263; on federal enforcement, 280-281, 

283. 




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