Law and the River

On the economic and legal geographies of British North America before the war of independence.


Access materials on the [Course Readings] page.


John Seelye, Beautiful Machine: Rivers and the Republican Plan 1755-1825 (1991)


Notes and Materials


On Whiskey

In class, Professor Moglen has mentioned at least two points of intersection between whiskey and American legal history. The first concerns trade on the Mississippi River at the turn of the 19th century. Before the Louisiana Purchase, politicians, merchants, and farmers living near the Mississippi worried that Spanish – and later, French – control over New Orleans would permanently hamper economic development in the newly opened-up western territories. In particular, should the harsh Spanish or French laws limiting trade up-river ever be fully enforced, distillers across Kentucky, Ohio and the western frontier would lose out on their primary trade route. This would have crippled farmers across the western territories, for the corn and grain they grew could not be efficiently sold unless it was reduced to mash, fermented, and distilled.

If the first intersection is mainly economic in nature, the second is certainly political. The Whiskey Rebellion of 1791 was western and southern America’s response to the first federal tax on a domestic product. Needing funds to pay down the nation’s war debt, and pressed by elites worried over societal drunkenness, President Washington signed into law a tax on all domestically produced spirits. The rebellion has its name not because whiskey was the most produced domestic spirit, but because of the lynch-pin economic role played by the whiskey distillers in the western territories (the southern distillers made fruit brandy).

These two intersections had important effects on American law. The intersection between whiskey and the big river had a significant impact on early United States river policy, foreign trade, and land-use law. Washington’s response to the Whiskey Rebellion crystallized the federal government’s tax-collection powers and its ability to suppress violent resistance while simultaneously energizing the political party that would see Jefferson repeal the whiskey tax in 1801. These are, perhaps, unsurprising results of a fledgling nation’s early encounters with foreign rivals and domestic unrest. But, why whiskey?

Whiskey is the result of distilling fermented grain. The grain is separated into kernels, which are then soaked and crushed. The resulting mash heated, yeast is added, and the mixture ferments. The result is then strained into a copper contained known as a still. The still is heated, and liquid distilled, and out comes whiskey.

This process does not seem all that complicated. Indeed, one may wonder why colonial America distilled rum with foreign sugar when local grain was, at least throughout the 18th century, ever abundant. The answer has to do with the timing of colonial expansion and the determination of Scottish monks to master the distillation of their drink of choice.

First, timing. At first, the sugar grown across the Caribbean was seen as a valuable energy source for the workers of Europe. The demand for sugar as a food-stuff encouraged plantation owners to grow more and more sugar. However, sugar was not the most portable of trade goods. It was difficult to store and vulnerable when moved across the Atlantic. Rum – the result of distilling fermented sugar water – had a much higher value-per-volume than sugar and was much easier to transport.

Indeed, rum proved to be hearty enough a commodity to serve as currency in the bullion-poor Thirteen Colonies. This of course encouraged more rum distilling. However, it also exposed the price of rum to monetary fluctuations. The result was liquid inflation – the more rum required to make transactions, the less labor required to have a pint. Thus, the economics of colonial age Atlantic trade encouraged the distillation of rum. Though much of the distillation occurred in the Caribbean islands, American distilleries found their way into the market and were the dominant rum producers for the colonies by the beginning of the Revolutionary War.

The American rum distillers had to import sugar, legally or not, from the Caribbean. This exposed the rum makers to tariffs and other expenses imposed by the great maritime powers of the age. Given the risk inherent in such exposure, why did the American distillers not make whiskey instead?

The answer has to do with how knowledge is transmitted through time. The art of distillation, like so many technologies, originated in antiquity but was lost to most of the Western world until the Renaissance. In between, monks kept the practice alive, distilling spirits for medicinal purposes. Slowly, distillation know-how spread beyond the monastery walls, and hard spirits were drank with growing regularly in Europe’s taverns.

Distillation reached Scotland by the 15th century, and monks there distilled whiskey for both medicinal use and sale. This whiskey, like other spirits of the time, was not aged or diluted. Whiskey distillation spread throughout Scotland in the 16th century after King Henry VIII dissolved the monasteries and the monks were forced to ply their trade in the towns and villages.

Whiskey made the jump across the Atlantic in the 18th century. In 1707, England and Scotland were joined through the Acts of Union. As a result, taxes on Scottish whiskey rose tremendously. This led to the rise of “moonshine” – Scottish distillers would operate homemade stills in the middle of the night to hide the smoke. The product would then be hid until thirst or trade beckoned. The moonshine movement spread knowledge of whiskey distillation across the Scottish population.

When Scots immigrated in large numbers to the Thirteen Colonies in the mid-to-late 18th century they brought this knowledge with them. However, the colonies were thoroughly hooked on rum and the molasses economy by then. Rum had been distilled in the Caribbean since the 17th century, and colonists had developed quite a taste for the sugar-based spirit. It is estimated that each person living in the colonies drank fourteen liters of rum each year.

By the time of the Revolutionary War, whiskey distilleries had popped up in small numbers, primarily on the western frontiers where grain was plentiful and sugar sparse. Farmers in what would become Kentucky experimented with corn mash, thereby inventing “bourbon,” or corn whiskey, which would soon rise to national and even international popularity. Yet, in 1764, no one would have thought that whiskey would soon replace rum as the nation’s spirit of choice.

War with England gave whiskey a chance. Seeking to deprive Colonial distilleries their profits, Colonial citizens their comfort, and Colonial militias their courage, the crown endeavored to keep Caribbean molasses out of North America. Though not entirely successful, the dramatic increase in the price of rum forced thirsty Colonials to find a substitute. The large rum distillers read the tea leaves. Soon, vats of rye and corn mash were fermenting across New England, though production was never enough to meet wartime demand.

After the war, whiskey emerged as America’s spirit. The New England distillers at first returned to producing rum. However, the cost of sugar rose due to British trade restrictions and federal tariffs. Additionally, rum came to be seen more and more as the drink of colonial America, not the new nation. After the war, whiskey continued to be produced in greater and greater quantities. Demand for whiskey would surpass that for rum in the early 1800s.

Unlike the molasses economy, which oriented south (the Caribbean) to north (New England rum distilleries), the whiskey economy oriented west (the western territories on the Mississippi) to east (New England whiskey distilleries, but also overseas demand for Kentucky “Old Bourbon”). But going west to east in post-revolution America really meant going north to south then back up again. Transport over the Appalachian Mountains was significantly more costly than trading through New Orleans. When the city on the delta was open for business, Kentucky distillers and frontier farmers could float their wares down the river for sale. New England distillers could buy produce there to ship around the East Coast, and merchants could purchase Kentucky bourbon for export. New Orleans itself consumed a substantial amount of grain and spirits.

Unfortunately for the distillers, the success of spirits in post-war America gained the attention of a federal government worried about societal drunkenness and desperate to pay off its war debt. The so-called “Whiskey Tax” of 1791 applied to all distilled spirits. Paying the tax was not a problem for the large New England rum distillers. The large distillers enjoyed the benefits of heavy capital and economies of scale. Indeed, the rum lobby had supported the tax, expecting its costs to be borne by whiskey distillers for the benefit of rum producers. They were wrong, but whiskey producers found nothing to like in the tax either.

Frontier and southern distillers were successful, but they were too small, and the infrastructure too undeveloped, for large profits to be quickly accumulated. The cost of production in Kentucky or Georgia was much higher than that in New England. Thus, these distillers were much more reluctant to pay the tax than their New England counterparts. But many distillers were not interested in trade at all. These distillers – farmers, mainly, with a small copper still outside the house – viewed the tax as an unwanted and unjustified intrusion by some far away authority. Frontier farmers who did not make whiskey themselves were worried as well, for taxes on whiskey meant either less demand for their excess corn, higher prices at the tavern, or both. For these Americans, the “Whiskey Tax” threatened the basic economics that sustained life on the frontier or in the deep rural south.

So, why whiskey? Because there was no rum. Because no one figured out how to distill something palatable out of a grain-based mash except for a few Scottish monks, who were then unleashed on the Scottish countryside to teach soon-to-be immigrants how to make moonshine. Because the Scots who distill whiskey in the cities read different Scots than the Scots in the western territories read, or at least read the same Scots differently.

Whatever the reason, we should all give thanks: it could have been vodka.

-- JeffreyGlass - 20 Nov 2016