The Wickershambles that led to the end of Prohibition

April 8, 2010 8 comments Open printer friendly version of this article Print Article

George Woodward Wickersham. Attorney General under President Taft led the commission whose report, infamously called by teetotallers everywhere as the "Wickersham Report" spelled out the death knell for Prohibition. Arrayed against the anti Prohibition Wickersham was half of the nations popular press, including Time Magazine and a virtual nation of Women's Temperance Union tee totallers absolutely committed to the goal of arresting every person who ever took an alcoholic sip of anything, for any reason. The following story is a reprint of the disapproving coverage of the Wickersham Commission by a florid Time Magazine reporter, complete with the kind of spice and invective that one never sees in print today (but always sees on blogs) that makes the story lively and worth reading. It bears noting that Attorney General Wickersham's great grandson is a frequent poster on the metrojacksonville blogs, Chris Wickersham. As you shall see, nothing has changed in almost a hundred years, complete with angry older women, cries of "Imbeciles!" and chairs being thrown at public meetings. Except apparently that the older women may have dramatically changed their minds about the recreational benefits of alcohol.

One afternoon last week there was a great dinging and donging in the belfry of the First Methodist Episcopal Church at Rochester, N. H. Factory workers, puzzled by the sudden outburst, paused in the street on their way home to ask questions. Rev. Jonathan N. Armistead, all aglow with happy excitement, loudly explained: "It's to celebrate the Wickersham Commission report. We just heard about it."

What caused Pastor Armistead to set his bells to ringing was a pamphlet entitled "Conclusions and Recommendations," which the Commission had issued in Washington as a prelude to their full Report. Newsgatherers had naturally reported it at once. It gave a distinctly Dry impression (TIME, Jan. 26). But when the newsgatherers received and ploughed through the whole 80,000-word Report, it became apparent that "Conclusions and Recommendations" had very little to do with what President Hoover's Commissioners on Law Enforcement & Law Observance had really decided about Prohibition after 20 months of study and the expenditure of $500,000. If Pastor Armistead was embarrassed at having banged his bells prematurely, so was many another Dry throughout the land. Despite their "Conclusions and Recommendations," a majority of the Commission had turned Wet.

Compromise. Apparently the ten Commissioners under Chairman George Woodward Wickersham, wrestling with their problem at their offices in Washington's Tower Building, had at last decided they could come nowhere near unanimity on any fundamental "Conclusion" or "Recommendation." except one. That one was: IF & when it is decided to alter Prohibition, let the word "regulate" be inserted in. the 18th Amendment, so that Congress can from time to time alter Prohibition to fit changing conditions. Having voiced that suggestion, and in the absence of a positive agreement having (all except Commissioner Lemann) signed their negative list of "Conclusions & Recommendations," the Commissioners sought to preserve their self-respect by appending to the joint Report their separate, personal opinions and convictions.

6-to-5. Six of the eleven Commissioners, , a majority of one, called for a Change. They were: Henry Watkins Anderson of Virginia, Ada Louise Comstock of Massachusetts, Newton Diehl Baker of Ohio, Montefiore Mordecai Lemann of Louisiana, Frank Joseph Loesch of Illinois, Roscoe Pound of Massachusetts.

A minority of five—Chairman Wickersham, William Irwin Grubb of Alabama, William Squire Kenyon of Illinois, Kenneth Mackintosh of Washington, Paul John McCormick of California—favored further trial of Prohibition-as-is.

Two of the six Modificationists—Commissioners Lemann & Baker—were for outright repeal.

Dry Commissioners Mackintosh, McCormick and Kenyon were ready to shift to Modification if, upon further trial, Prohibition enforcement did not improve.

A proposal for a national corporation to sell liquor was approved by Commissioners Anderson (its author), Loesch and Pound, conditionally endorsed by Commissioners Mackintosh, McCormick and Kenyon.

Findings of Fact. In marked contrast to the Commissioners' obscurity of decision was the clarity and completeness of their fact-finding. Not that the Commission discovered anything which honest-minded citizens have not recognized as a fact for years. But the facts were stated fairly for the first time by an official body. Reviewing a decade of Prohibition they found:

1) Enforcement got off to a bad start which has crippled it ever since.
2) Reform organizations like the Anti-Saloon League and the W. C. T. U. abandoned all efforts to win public support by education and tolerance.
3) "Bribery, extortion, theft, conspiracy, perjury, forgery" among enforcement agents gave the 18th Amendment an irreparably bad name.
4) Without more public support Federal enforcement — so far a failure — was impossible.
5) Abolition of the saloon is Prohibition's one demonstrable triumph.

Said the Commission:

"There is a mass of information before us as to the general prevalence of drinking in homes, clubs, hotels; of drinking parties given and attended by persons of high standing and respectability; of drinking in connection with public dinners and conventions. . . . Taking the country as a whole people of wealth, business men and professional men and their families and perhaps the higher paid working men are drinking in large numbers in quite frank disregard of the declared policy of national prohibition."

After detailing all the sources from which illicit liquor freely flows, the Commission remarked upon the Government's apparent inability "to catch the men higher up." Of speakeasies the Commission said: "The number closed each year is large. But the number does not decrease on that account. There is a thoroughly organized business which replaces its retail selling agencies as fast as they are discovered and closed up. . . . Probably a much greater number of those who patronize speakeasies can afford to do so than was true in the case of the saloon. Thus the closing of the saloon has been a gain even if speakeasies abound."

Prices & the Public. Liquor prices, the Commission found, furnish a fair enforcement index. It reported: "There is significantly uniform evidence that while now and then the pressure of enforcement raises all prices for a time at some one spot, whiskey of good quality is obtainable substantially everywhere at prices not extravagant for persons of means."

Factors producing a hostile public opinion on Prohibition:

1) Attempts to enforce the Volstead Act as something above the law;
2) Dry demands for "abrogation of the guarantees of liberty and sanctity of the home";
3) "High-handed methods, shootings and killings . . . public expressions [by Drys] approving killings and promiscuous shootings and lawless raids";
4) Politics;
5) Popular knowledge that "the wealthy are able to procure pure liquor while those with less means must put up with cheap, crude, deleterious products."

Declared the Commission: "So long as State co-operation is required to make the Amendment effectual, adverse public opinion in some states and lukewarm public opinion in others are obstinate facts which cannot be coerced by any measures of enforcement tolerable under our polity."

Benefits. The major Dry claims of the benefits of Prohibition were not wholly borne out in the Commission's report. It found "a real and significant gain" in industrial efficiency but other things in addition to the 18th Amendment were given credit. On decreases in industrial accidents and increases in savings deposits "nothing is clearly established" as to the part Prohibition played. The Commission found "a clear preponderance" of evidence in favor of certain social gains as reported by welfare workers, but little or nothing in domestic-relation statistics to make a complete Dry case. Economic forces more positive than Prohibition were at work during the decade to raise the standard of living.

Knocked Down. The Commission set up and knocked down various substitutes for Prohibition-as-is. Repeal of the 18th Amendment would be a "backward step" to re-admit the saloon. To permit State option would be nullification. Beer of 2.75% would satisfy nobody who "has developed a taste for intoxicating beverages." Government sale would not be "expedient."

Last Resort: "Education." What could the Commission, with its membership divided, do to improve the situation? It frankly admitted: "More men, more money and more equipment for enforcement would undoubtedly achieve much, but no improvement in machinery will avail without co-operation from the States. This co-operation will depend upon local public opinion." To win that public, opinion the Commission could suggest nothing more definite than "education."

Minor Matters. On several minor points the Commission was firm and explicit,

1) Unlimited prescription of liquor by physicians.
2) Fixing the alcoholic content of cider and fruit juices now outside the law until proved "intoxicating in fact."
3) A 60% increase in the number of Dry agents, investigators, et al.
4) Legal access to wholesale and retail houses handling denatured alcohol products to check diversion.
5) Elimination of independent denaturing plants.
6) No extension of the Federal Search & Seizure law.

Confusion & Dismay. By itself the main report and recommendations would have made consistent sense. That nine men and one woman had agreed on so much relating to Prohibition would have seemed remarkable. What turned the whole affair into a Wickershambles, what spread confusion and dismay, were the personal statements of the several Commissioners, flying in the face of their Report, tending to nullify their formal advice to the President. In view of the Commissioners' undoubted integrity and intelligence, this glaring discrepancy be came the great mystery of the Wickersham Report.

Repealer Lemann. Boldest of all was short, swart Commissioner Lemann (pronounced "lemon"), law professor at Tulane University, onetime president of the New Orleans Bar Association, an independent Wet. He alone refused to sign the full report. Instead he filed a voluminous opinion of his own in which he advocated outright repeal of the 18th Amendment.

Said he:

"Intoxicating liquor is readily obtainable in every city of consequence in the country. ... If the law is not enforceable in cities [where dwell 40% of U. S. population] it cannot be considered enforceable as a national instrument. ... I cannot find any reasonable ground for the expectation that public sentiment, especially in urban districts, can be changed to the extent necessary. . . . Repeal is the only consistent alternative."

Commissioner Lemann poked his finger squarely through the biggest hole in the Commission's suggested method for revising the 18th Amendment. To let Congress "regulate" liquor from time to time would, said he, throw the liquor question into national politics as never before.

Planner Anderson. Most constructive was Commissioner Anderson, big. blond bachelor, able Richmond lawyer, smart Republican politician, long-time Dry. Last summer Mr. Anderson went to Europe, studied first-hand the Bratt system of liquor-control in Sweden, gathered other material on which to devise a liquor-selling system for the U. S. The ''Anderson Plan" was a highlight of the separate opinions which won the endorsement of five other Commissioners.

Under this plan Congress, after revising the 18th Amendment, would set up a bi-partisan National Commission on Liquor Control. Also authorized would be a National Liquor Corporation, privately financed, with dividends limited to 7% and operating under the National Commission's regulations and control. The Corporation would have a complete monopoly of the manufacture, importation and distribution of liquor, which would be stored in its bonded warehouses. If a State chose to sell liquor, it would create a local corporation as a subsidiary of the national corporation. Retail sale would occur through branches of the State corporation to citizens holding permit books. Nothing could be drunk on the premises. Prices uniform everywhere would be fixed by the national corporation scaling upward in proportion to the alcoholic content of the beverage. Drunkenness or misbehavior would be grounds for revoking a citizen's permit book. Purchases would not be solicited; liquor would not be advertised.

Profits in excess of the dividend rate and a 2% amortization reserve would revert from the State corporation to the State and from the National Corporation to the U. S. This money would go into a special fund. With a flash of hope or irony Commissioner Anderson suggested that these funds be "used for educational purposes, especially as to the evils resulting from the use of alcoholic beverages and for the eradication of those conditions which cause excessive drinking."

A Dry State would set up no local corporation, would have the aid of the Federal Government in stamping out drinking.

Commissioner Anderson argued that his system would: eliminate the private profit from illicit liquor traffic, satisfy local public opinion, avert the state of nullification into which Prohibition is now drifting. The Government would enlist the power of economic law to beat the bootlegger. He argued that the U. S., in the Federal Reserve System and the Interstate Commerce Commission, has already applied to Money and Transportation the principle he now proposed for Liquor.

Revisionist Comstock. Commissioner Ada Comstock, tall, warm-hearted president of Radcliffe College, did not support the theory that Prohibition is woman's favorite law. In a terse clear statement she explained:
"Adequate enforcement is impossible without the support of a much larger proportion of our population than it now commands. I ... favor an immediate attempt at change. ... I favor revision of the Amendment rather than its repeal."

Sharp Loesch. Flaying "those murderers and arch criminals" who operate the bootleg business, Commissioner Loesch, Chicago's famed old crime investigator, declared: "Effective national enforcement of the 18th Amendment in its present form is unattainable; therefore steps should be taken immediately to revise the Amendment." He favored the Anderson plan.

Dry Grubb. Commissioner Grubb, a Federal judge from Alabama and a sincere Dry, argued for a further trial of Prohibition-as-is. Said he: "If proper enforcement and observance are not had . . . within a reasonable period or if a better system is shown to exist, it will be time enough to abandon Prohibition and to adopt the better substitute."

"Guts" Mackintosh. That the Commission would have to "go to the guts" of Prohibition was the warning last summer of Commissioner Mackintosh, a Dry (TIME, Oct. 6). Said this onetime Washington jurist: "The control of importation, transportation and manufacture on a large scale is as far as the National Government can go with any hope of success. . . . The majority of this Commission think that . . . reasonably satisfactory enforcement cannot be attained in view of the opposition thereto in the populous centres of the country. . . . The 18th Amendment . . . marked a long step forward. It is now time to take the next step in the same direction."

Hopeful McCormick. Commissioner McCormick, who as a Federal judge in California took the Elk Hills oil reserve away from Oilman Doheny because of fraud, declared he was not yet convinced that the Prohibition situation was "utterly hopeless." He favored a national referendum on Prohibition, conditionally endorsed the Anderson Plan, held that if within one year enforcement does not improve, the 18th Amendment should be revised.

Pounder Pound. Most energetic and hard-working member of the group, the one who got excited and pounded the table, was Commissioner Pound, round-faced dean of the Harvard Law School. Stated he:

"The Amendment and the National Prohibition Act, enacted in an era of enthusiasm, enforced in a decade of enthusiasm, backed by an exceptional machinery for special enforcement . . . seem to me to have had the best chance they are likely to have of showing what they can achieve. . . . There is no reason to suppose that machinery and organization and equipment will change public opinion where public opinion has been an obstacle. . . . This can only be done by a revision of the Amendment."

Wet into Dry. While Wet Commissioner Baker argued for repeal and a referendum, and Dry Commissioner Kenyon for further trial and a referendum, the most curious single opinion remained that of Chairman Wickersham. Now 72, the benign onetime Attorney General, when the Commission was first organized, was loudly acclaimed by Wets as a great lawyer who would see that their viewpoint was fairly considered. Later he even admitted that he was a "moist." When in 1929 he wrote Governor Roosevelt of New York advocating a fairer division of enforcement burdens between State and nation, Drys denounced him as a Wet, asked President Hoover to remove him (TIME, July 29, 1929). Yet somehow the same evidence before the Commission which weakened the Dry convictions of Commissioners Kenyon, Anderson, Mackintosh and McCormick had the opposite effect of turning Chairman Wickersham from Wet to Dry. Going against the tide of his own Commission, its chief submitted the opinion most comforting to extreme Drys. Said he: "A further trial should be made of the enforceability of the 18th Amendment under the present organization with the help of the recommended improvements [60% more men, stricter alcohol control, etc., etc.]. . . . Despite the development of an increasingly hostile public opinion, I am not convinced that the present system may not be the best obtainable."

Chairman Wickersham's only concession to the Wets was a proposal that Congress should pass a repealer of the 18th Amendment and have it submitted to the States as a sort of referendum. He specified that the States should deal with it in conventions, rather than in legislatures, during a nonelection year. The result, he claimed, "would reflect the sober, informed and deliberate opinion of the people."

Mystery Dispelled. The Commission's report had not been out 24 hours when the Washington Herald blared out with a loud story purporting to explain the mysterious discrepancy between what the Commissioners had formally advised the President and what they had expressed as their personal views. President Hoover had learned some weeks ago, said the Herald, that the Commission was going to recommend Modification. Thereupon the President had commanded that no such thing must come to pass, that he must have a Dry report. The Commission had reluctantly obeyed.

Hair-triggered Correspondent Ray Tucker of the reliable Scripps-Howard newspapers quickly gave this story national currency, shocking though its implications were. For many hours many people were on the verge of believing that their President had acted like a dictator, his Commissioners like truckling invertebrates. Questions flew. Lending color to the horrid story were phrases in three of the Commissioners' personal statements which seemed distinctly to refer to a Commission recommendation for immediate revision of the 18th Amendment, a recommendation which had gone—where? Not into the final report. Into the White House scrapbasket? It was further discovered that the President's message to Congress on the report had been drafted many days before Chairman Wickersham left the document at the White House in its final form. Recalled were the persistent rumors of Commission quarrels. Recalled also was a time when George Woodward Wickersham, as U. S. Attorney General, predated an important opinion to help President Taft out of a hole. Alight he not now have obliged another President by wangling a Prohibition report to suit?

"Imbeciles!" With the nation's newspapers roaring or waiting to roar, Chairman Wickersham retired to his apartment and shut himself in. Commissioner Pound, who was reported to have grown so angry at one Commission meeting that he threw a chair across the room, shouted at interviewers:

"It's all a lie! An absolute lie! All that stuff about the President intervening is a lot of rot! Nothing of the kind occurred!"

When the newshawks remained unconvinced, he exploded: "You're a bunch of imbeciles and if you can't understand the English language, I can't teach you!"

No Influence. Not until Wet Senator Tydings of Maryland had offered a Senate resolution to investigate the Commission, did Chairman Wickersham produce a denial. Said he:

"Statements . . . that the President had persuaded the Commission to abandon at the last moment recommendations for a revision of the 18th Amendment . . . are wholly without foundation. At no time has the President in any manner attempted to influence the recommendations of this Commission."

Magic Carpet. After this announcement, the only thing observers could do was sit back and marvel at the good fortune which had brought such a Report to Herbert Hoover. It was not a mere political platform, nailed down to girders of decision and principle. It was a magic carpet upon which any candidate for the Presidency in 1932 could fly now East, now West; now Dry, now Wet. Had President Hoover been so overweening as to ask Chairman Wickersham for a politically ideal report, Chairman Wickersham could not have complied more skilfully.

That the President had not been overweening, had not asked for a magic carpet, seemed conclusively proved by his curious message to Congress, which appeared to nail the Report in place on the Dry side (see p. 7). But next came the White House's quiet act of nail-pulling—the "official spokesman"explanations that the President was "open-minded" after all (see p. 7). The magic carpet was magical once more.