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"Freedom an' whisky gang thegither":

The Problem of Governance in the Early American Republic

By Carl Watner

Imagine that you were the leader of a revolutionary government that had recently and successfully wrested power from its parent country. Imagine that some of your citizens refused to obey the laws that you and your legislature had promulgated. What would you do? Would you ignore their disobedience; or would you send the police and army after them? How would you assert your authority, and maintain the power and legitimacy of your government?

Such a situation faced President George Washington and Secretary of the Treasury Alexander Hamilton after Congress passed a federal revenue law on March 3, 1791. [1] How they responded to this and other early threats to their power illustrates that even newly-founded and limited governments, so-called, share the same predicament as established States. They must collect their revenues regardless of the cost. If they fail to suppress disobedience, they will only be faced with more disobedience, with the end result being an ultimate challenge to their existence.

Over the years, I have published articles describing the western Pennsylvania Whiskey Rebellion of 1794. My purpose in those articles has generally been to demonstrate that our early American government has always had, and always exercised, its sovereign power to tax and seize the property or body of anyone refusing to pay their taxes. [2] What recently renewed my interest in the topic was reading an article on civil disobedience in the Kentucky territory during the same era. [3] As it turns out, resistance to payment of the federal excise tax on whiskey was widespread in all American frontier areas, from northern New York to southern Georgia. Furthermore, as Mary Tachau, author of this study, observes; until recently "this remarkable story of tax evasion" has experienced a near historical blackout and cover-up. [4]

Resistance to the excise was part and parcel of the frontiersman's British heritage and tradition. The inhabitants of the British Isles, especially Irishmen, had distilled their own whiskey for centuries. When a levy on spirits in Ireland was introduced in 1661, "it was totally ignored." [5] Englishmen, too, developed a "hearty dislike" for excise taxes. [6] In the era before modern science, whiskey was valued not only for its intoxicating effects, but for its use as an anesthetic, antiseptic, and common everyday medicine. To the frontier farmer, distilling was not only a natural birthright, but a condition necessary to his economic survival. It was practically the only way to convert his grain into ready money, by transporting it over the mountains to where there was a cash market for his brew. As far as the American frontiersman was concerned, his whiskey and freedom hung together. [7] He owned the seed grain, he owned the land, he labored to harvest the crop, and he used his own equipment to distill the brew. Whose property had he violated; whom had he hurt; and was there any identifiable party to whom he owed money for the right to do as he pleased? "To convert [his] grain into spirits was considered to be as [much] a natural right as to convert grain into flour" for his bread. Why should he be subject to a duty for drinking his grain, rather than eating it? [8]

Throughout much of the 18th Century, vast stretches of the American frontier "were left without the slightest" trace of government authority. [9] To the American frontiersman, London might as well have been in another universe, and the new capitol of the United States, Philadelphia, on another continent. Central government could be safely ignored. Other than attempting to deliver the mail, it had practically no presence on the frontier. It offered little protection from the Indians. In 1791, while Kentucky was still officially part of Virginia, "it was difficult to organize a tax collection system" because tax collectors resigned just about as fast as new ones could be appointed. [10] Most Kentuckians viewed the excise law as so odious that between 1792 and 1796, no lawyer could be found to represent the federal government and prosecute those who failed to pay their whiskey excise. [11] Even the governor of the state refused to pay. [12]

The frontier regions west of the Allegheny mountains had a long history of ignoring governmental authority. During the 1760s, Governor John Penn of Pennsylvania had referred to his western citizens as a "lawless ungovernable crew." [13] After the start of the American Revolution, David Rittenhouse, treasurer of the Commonwealth of Pennsylvania, stated that "adversaries of the Pennsylvania government were loath to pay taxes." He predicted that the likely consequence of non-payment would be "the early demise of the state." [14] Other frontier areas had their own backlash against state and colonial government. In the early 1770s, North Carolina regulators attacked their local courts, and the same thing had occurred in western Massachusetts during Shay's Rebellion of 1786-1787. There, the local state authorities had suppressed the disorder. The case of western Pennsylvania was only different in the sense that it was in closer geographic proximity to federal officials in Philadelphia, and thus a direct and "embarrassing challenge to [their] authority." [15] Hamilton and Washington chose to crush resistance to the federal excise in western Pennsylvania, not only because it was closer to them, but because it would be less expensive than sending troops to North or South Carolina, or Kentucky. As Hamilton observed, "Crush resistance at the most vulnerable point and the more remote regions will fall into line." [16]

Unlike the situation in Kentucky, there were politicians in western Pennsylvania who were willing to serve the federal government and collect the excise. Pennsylvania Congressman William Findley explained this distinction to Governor Mifflin of Pennsylvania in 1792.

"'It is well known,' Findley reported, 'that in some counties, as well of Virginia as of Pennsylvania, men have not, and cannot be induced by any consideration to accept of the excise offices. In those counties there have been no riots nor threatening resolutions; but this arises from the perfect unanimity which subsists in the dislike to the law'." [17] However in western Pennsylvania, the Treasury repeatedly pressed the issue of collection and found John Neville, a well-known state official to represent the federal government. Neville was wealthy by local standards and had originally opposed the federal excise tax when he "was a member of the Pennsylvania assembly when that body adopted a resolution condemning the tax in 1791." When he later was appointed to the office of excise inspector, his neighbors thought that he "was giving up his principles for a bribe and bartering the confidence they had in him for" a federal salary. "He became a catalyst for mounting opposition to the law." [18]

Although all the key political players in the decision to snuff out the Whiskey rebellion were Federalists and supporters of a strong central American government, there were some differences among them as to how government force was to be used. The general Federalist outlook was that any opposition to the whiskey excise was a challenge "to the very roots of authority and order." [19] Federalists believed that every good government "must provide for its own security and preservation," [20] and they saw "a permanent standing army" as a way "to coerce the people and silence them into obedience to authority." [21] President Washington took opposition to the nation's law as a personal affront to himself. "He felt that the excise was a just law," and he viewed any opposition to it as "equivalent to advocating separation from the union, 'the most dreadful of all calamities'." [22] Washington certainly "exemplified the Federalist belief that a display of force was necessary" not only to subdue the rebels, but to show the world that his government was committed to a lasting union" of the states. [23]

In early September 1792, Alexander Hamilton urged President Washington to issue a public proclamation taking a strong stand on the patriotic necessity of paying the excise. As Edmund Randolph, the United States Attorney General (1789-1794), pointed out, the enforcement of the excise law was "a delicate problem with potentially wide-ranging ramifications." [24] The federal government had no soldiers of its own. It had to rely on state militiamen to enforce its laws. Governor Mifflin of Pennsylvania, a Republican, hesitated to commit his state's militia, "and he argued heatedly that out of hatred for the excise, unwillingness to march on fellow citizens, or desire to avoid a long expedition, large numbers of [his] militia might ignore his orders." [25] Instead of sending an army after the resisters, Randolph advocated the use of the civil courts by indicting the tax evaders and trying them in the regular courts. Only if that failed, would he consent to calling out the militia to enforce the law. [26] In contrast to Hamilton, Randolph argued "The strength of a government is the affection of [its] people," not their fear of its army. [27]

President Washington took the position that military force was only to be used as a last resort. His Anti-federalist opponents had adopted the Whig opposition to standing armies. "[O]therwise there would be a cry at once, 'The cat is let out; we now see for what purpose an army was raised'." Washington feared that the use of troops to enforce the law would shift the public argument from the question of law enforcement to the question of standing armies. [28] In its final version, the presidential proclamation of September 15, 1792 was issued as a public broadside and published in the leading newspapers. "It decried all actions 'tending to obstruct the operation of the laws of the United States for raising a revenue upon [distilled] spirits ... subversive of good order, contrary to the duty that every citizen owes his country and to the laws, and of a nature dangerous to the very being of government'." Washington warned all opponents of the government and its excise that they "would be dealt with harshly." [29]

Of all the participants in the discussions about how to enforce the law, Alexander Hamilton was, from the beginning, the most militant. He had originally conceived the idea of the whiskey tax as part of his plan to fund the revolutionary war debt, and as early as July 1792, he had advocated proceeding against the non-payers in western North Carolina. He was dissuaded from this idea by Chief Justice of the Supreme Court, John Jay, who warned that nothing could be worse for the new federal government than a military humiliation at the hands of tax rebels. "No strong declarations should be made unless there be ability and disposition to follow them with strong measures." [30] Nevertheless, Hamilton feared that "if forceful action was not taken 'the spirit of disobedience ... [would] naturally extend and the authority of the government will be prostrate'." [31]

During the two years following the issuance of the federal proclamation little progress was made in satisfying the concerns of the excise resisters. In February 1794, President Washington received, what he perceived to be a treasonous petition of grievances against the national government sent by the members of the Mingo Creek Society in Washington County, Pennsylvania. [32] They sought free navigation of the Mississippi River, government protection from the Indians, and relief from the excise. The following month, John Neville, their regional supervisor for the collection of the excise, was accosted. In July, his house was surrounded and fired upon by a crowd of fifty men. The next day it was torched by a mob of over 400. Several men were killed, but Neville escaped. When this news reached President Washington and Secretary of the Treasury Hamilton in Philadelphia, they conferred with other officials. At a conference on August 2, 1794, Hamilton told the representatives of the Pennsylvania state government that the moment of crisis had arrived. [33] "The immediate question," he concluded, was "whether the government of the Untied States shall ever raise revenue by any internal tax." [34] Hamilton advocated raising a national militia of 12,000 men and marching them to western Pennsylvania to put down the rebellion. As Hamilton put it, "Government can never be said to be established until some signal display has manifested its power of military coercion." [35] President Washington was of a like mind, accepting "Hamilton's premises about the necessity for strict enforcement lest the laws and government itself be undermined, but he was [also] cognizant that force would not only need public support but would also have political overtones beyond the simple enforcement of the law." [36] As a result of this conference Supreme Court Justice James Wilson certified on August 4, 1794 that a state of rebellion existed in western Pennsylvania. Washington put out the call for 12,950 militia men from the states of New Jersey, Pennsylvania, Maryland and Virginia. [37] As Governor Mifflin had predicted, "[d]raft resistance was common," [38] and even after being enrolled, the desertion rate was high. [39]

By the time the national army arrived near Pittsburgh, whatever rebellion may have existed had practically disappeared. "[P]erhaps as many as 2000 'rebels' had fled deeper into the wilderness before the army arrived." [40] An amnesty was declared for those who would swear their loyalty to the government. Ultimately, about 150 suspects were rounded up and about 20 were transported back to Philadelphia for trial. Two were ultimately convicted, and then later pardoned. [41] Washington "believed 'this event having happened at the time it did, was fortunate'. The troops had 'terrified the insurgents,' and the government had taught its enemies within and without the nation about the spirit and power that bolstered the Union." [42] It was Hamilton who first coined the term "whiskey insurrection." In a December 1794 letter he wrote, "Our insurrection is most happily terminated. Government has gained from it reputation and strength." In an earlier letter of late October 1794 he had written that "the insurrection will do us a great deal of good and add to the solidity of everything in this country." [43] If Hamilton learned any lesson from the Whiskey rebellion it was that it was best for the government to never employ an inadequate force in subduing its opponents. "'Tis far better to err on the other side. Whenever the government appears in arms, it ought to appear like Hercules and inspire respect by display of strength." [44] In retrospect, this was certainly the case. "President Washington raised more troops to put down the Whiskey Rebellion than were ever used to fight the Indians on the frontier and more than any force he had commanded in the American Revolution." [45]

The main purpose of raising and marching an army to western Pennsylvania was to demonstrate that the federal government was a permanent and secure fixture in the American political environment. It was successful in the sense that it showed the federal government could flex its military muscle hundreds of miles distant from its center of power, but it failed to insure the collection of the excise tax, for in fact, nonpayment of the tax continued for years after the insurrection was suppressed. [46]. This exercise of national power at the time of the Whiskey Rebellion represents a number of "firsts." It "marked the first time that the federal government used military force to exert its authority [directly] over the nation's citizens." [47] It was also the first time that a sitting president personally commanded the military in the field. The Whiskey Rebellion also marked the first time anyone in the United States was arrested and tried for treason in the federal courts. "These trials established the precedent that armed opposition to the execution of a United States statute was equal to 'levying war' against the United States and thus was within the constitutional definition of treason." [48]

The Whiskey Rebellion also clearly demonstrated the nature of limited, constitutional government. As Albert Jay Nock and Walter Lippmann pointed out, the American revolutionaries wanted to separate themselves from the British empire so they could assume the powers hitherto exercised by the English Parliament. The evidence is clear: the heroes of the American revolution and the Founding Fathers opposed the Stamp Act when they were out of power, but supported the whiskey tax when they were in power. Even most frontiersmen and whiskey rebels weren't against taxes, per se. [49] They had a long history of willingly paying direct land taxes, and simply wanted to lessen their own tax burden by shifting it to the merchants and "large-scale speculator[s] in western lands". [50] The Federal Constitution gave Congress "the unlimited 'power to lay and collect taxes, duties, imposts and excises'. ... The taxing authority of the ... national government ... was no less, and was certainly designed to be even greater, than anything attempted by the British government during the 1760s and 1770s." [51] During the debates over the Constitution, critics pointed out that "the collection of taxes would be enforced ... by [a] standing army." "William Goudy of North Carolina feared that the taxation clause of the proposed Constitution 'will totally destroy our liberties'." [52] Thus, it was with some justice that the Scottish poet, Robert Burns, wrote that freedom and whiskey hang together. Taxation is the linchpin of every government. Without the revenue provided by taxation a government could not recruit, field, and pay its soldiers; without soldiers a government could not enforce its laws.

The problem of governance under the new constitution was certainly a many nuanced one. As the Voluntaryist Statement of Purpose points out, "governments must cloak their actions in an aura of moral legitimacy in order to sustain their power," and the early American politicians certainly understood, recognized, and acted on this insight. The necessity for and the widespread use of force by a government is indicative of its unwilling acceptance by those over whom it rules. "The application of force tells us that many people" will not willingly comply with the law. [53] As George Smith observed: the more force, the less legitimacy; the more voluntary compliance, the less need for force, and the higher the legitimacy level of a given government.

The lessons of the Whiskey Rebellion for the voluntaryist are numerous. First, we must recognize the damaging effects that arise from the government's initiation of force in the conduct of otherwise benign human affairs. Secondly, we see that we must delegitimize the State through education; that violence must not be used to oppose state violence (because the resort to violence only gives the State an excuse to use its armed forces). Finally, we must see that the strength of a free citizenry is not in how many guns it possesses, but in its collective determination to resist. Opponents of the State must have faith in their fellow human beings - that they will not let them stand alone against the physical force of government; that they will stand together and risk individual physical injury in order to prevent collective injury to their social freedoms. [54]

End Notes

[1] Jerry A. Clouse, THE WHISKEY REBELLION: SOUTHWESTERN PENNSYLVANIA'S FRONTIER PEOPLE TEST THE CONSTITUTION, Harrisburg: Pennsylvania Historical and Museum Commission, 1994, p. 19. For a complete chronology of the Whiskey Rebellion see Steven R. Boyd (ed.), THE WHISKEY REBELLION: Past and Present Perspectives, Westport: Greenwood Press, 1985, pp. xi-xii.

[2] Carl Watner, "Forfeiture Laws: A Reminder from the Past," Whole Number 68, THE VOLUNTARYIST (June 1994), p. 6. Also see Forrest Carter, "George Washington and the Whiskey Tax," Whole Number 72, THE VOLUNTARYIST (February 1995), p. 2 (being from Chapter 3 of THE EDUCATION OF LITTLE TREE [1976]). Also see the comments by Joseph Earl Dabney reprinted in THE VOLUNTARYIST, Whole Number 111 (Fourth Quarter 2001), pp. 2-3 excerpted from his book MOUNTAIN SPIRITS, Asheville: Bright Mountain Books, 1974, p. xvi.

[3] Mary K. Bonsteel Tachau, "The Whiskey Rebellion in Kentucky: A Forgotten Episode of Civil Disobedience," 2 JOURNAL OF THE EARLY AMERICAN REPUBLIC (1982), pp. 239-259.

[4] ibid., pp. 239-240.

[5] John McGuffin, IN PRAISE OF POTEEN, Belfast: Appletree Press, 1999, p. 11.

[6] William D. Barber, "'Among the Most Techy Articles of Civil Police': Federal Taxation and the Adoption of the Whiskey Tax," 25 WILLIAM AND MARY QUARTERLY (1968), pp. 58-84 at p. 60.

[7] The title for this article was taken from the last stanza of Robert Burns' poem, "The Author's Earnest Cry and Prayer" to the Right Honourable and Honourable Scotch Representatives in the House of Commons, 1786. My thanks to Jim Russell for commenting on this article and pointing out that "The Scots, being stubborn, refuse to this day to spell whiskey correctly." The subtitle of this article was found in Todd A Estes, LIBERTY AND ORDER: REVOLUTIONARY DEMOCRACY AND THE PROBLEM OF GOVERNANCE IN THE EARLY AMERICAN REPUBLIC, Ph.D. dissertation, University of Kentucky, 1995.

[8] Townsend Ward, "The Insurrection in the Year 1794 ..." 6 MEMOIRS OF THE HISTORICAL SOCIETY OF PENNSYLVANIA (1858), pp. 110-126 at p. 126.

[9] Ronald Hoffman, "The 'Disaffected' in the Revolutionary South," in Alfred F. Young, THE AMERICAN REVOLUTION, DeKalb: Northern Illinois University Press, 1976, pp. 273-316 at p. 292.

[10] Tachau, op. cit., p. 242.

[11] ibid., pp. 244 and 252.

[12] Henry G. Crowgey, KENTUCKY BOURBON: THE EARLY YEARS OF WHISKEYMAKING, Lexington: The University Press of Kentucky, 1971, pp. 96-97.

[13] Clouse, op. cit., p. 13.

[14] Lemuel Molovinsky, "Tax Collection Problems in Revolutionary Pennsylvania," 47 PENNSYLVANIA HISTORY (1980), pp. 253-259 at p. 255.

[15] Thomas P. Slaughter, THE WHISKEY REBELLION, New York: Oxford University Press, 1986. First issued as an Oxford paperback, 1988, p. 120.

[16] ibid.

[17] ibid., p. 151.

[18] ibid., p. 153.

[19] ibid., p. 117.

[20] ibid., p. 209.

[21] Richard H. Kohn, EAGLE AND SWORD: The Federalists and the Creation of the Military Establishment in America, 1783-1802, New York: The Free Press, 1975, p. 282.

[22] Clouse, op. cit., p. 20.

[23] ibid., p. 38.

[24] Slaughter, op. cit., p. 123.

[25] Kohn, op. cit., p. 163.

[26] ibid., p. 164.

[27] ibid., p. 272.

[28] Slaughter, op. cit., p. 122.

[29] ibid., p. 123.

[30] ibid., p. 119.

[31] ibid., p. 121.

[32] ibid., pp. 163-164.

[33] Richard H. Kohn, "The Washington Administration's Decision to Crush the Whiskey Rebellion," 59 JOURNAL OF AMERICAN HISTORY (1972), pp. 567-584 at p. 571.

[34] Slaughter, op. cit., p. 193.

[35] Kohn, op. cit., p. 583.

[36] ibid., p. 571.

[37] Slaughter, op. cit., p. 212.

[38] ibid.

[39] ibid., p. 214. Also see the comments of Kevin Barksdale, "Our Rebellious Neighbors," 111 THE VIRGINIA MAGAZINE OF HISTORY AND BIOGRAPHY (2003), pp. 5-31 at p. 22.

[40] ibid., p. 218.

[41] ibid., p. 220.

[42] ibid.

[43] William Hogeland, THE WHISKEY REBELLION, New York: Scribner, 2006, p. 276.

[44] Paul Douglas Newman, "Fries's Rebellion and American Political Culture, 1798-1800, 119 THE PENNSYLVANIA MAGAZINE OF HISTORY & BIOGRAPHY (1995), pp. 37-73 at p. 65.

[45] Clouse, op. cit., p. 9.

[46] Slaughter, op. cit., p. 226. Also see Mary K. Bonsteel Tachau, "A New Look at the Whiskey Rebellion," in Steven R. Boyd (ed.), THE WHISKEY REBELLION: Past and Present Perspectives, Westport: Greenwood Press, 1985, pp. 97-118 at p. 99.

[47] "Whiskey Rebellion," "Consequences" in www.wikipedia.org.

[48] Clouse, op. cit., p. 41.

[49] Hogeland, op. cit., p. 8.

[50] Slaughter, op. cit., pp. 140 and 202.

[51] Thomas P. Slaughter, "The Tax Man Cometh: Ideological Opposition to Internal Taxes, 1760-1790," 41 WILLIAM AND MARY QUARTERLY (1984), p. 566-591 at pp. 584-585.

[52] ibid., p. 585.

[53] William J. Goode, "Presidential Address: The Place of Force in Human Society," 37 AMERICAN SOCIOLOGICAL REVIEW (October 1972) pp. 507-519 at pp. 511-518. Excerpts reprinted in THE VOLUNTARYIST, Whole Number 79, April 1996, pp. 2-3.

[54] ibid.