“The legal machinations of wine, described here, are a hoot.”
From Demon to Darling: A Legal History of Wine in Americaby Richard Mendelson
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Richard Mendelson brings together his expertise as both a Napa Valley lawyer and a winemaker into this accessible overview of American wine law from colonial times to the present. It is a story of fits and starts that provides a fascinating chronicle of the history of wine in the United States told through the lens of the law. From the country's early support for wine as a beverage to the moral and religious fervor that resulted in Prohibition and to the governmental controls that followed Repeal, Mendelson takes us to the present day—and to the emergence of an authentic and significant wine culture. He explains how current laws shape the wine industry in such areas as pricing and taxation, licensing, appellations, health claims and warnings, labeling, and domestic and international commerce. As he explores these and other legal and policy issues, Mendelson lucidly highlights the concerns that have made wine alternatively the demon or the darling of American society—and at the same time illuminates the ways in which lives and livelihoods are affected by the rise and fall of social movements.
“The legal machinations of wine, described here, are a hoot.”
“A thorough consideration of American wine's legal history.”
“Provides the definitive background for understanding the competing legal, political, economic, and social forces shaping the ongoing evolution of America’s wine culture.”
“Highly readable . . . Should be a must-read for anyone who wants to produce or sell wine in this country.”
“A splendid volume. . . This wonderful book should be agreeable to a great many palates.”
“Illuminating, provocative. . .” A Best Book of 2009
“An engaging style that makes learning how law and wine have intertwined throughout this country’s history an enlightening educational journey.”
“A fascinating work.”
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From Demon to Darling
A Legal History of Wine in America
By Richard Mendelson
UNIVERSITY OF CALIFORNIA PRESSCopyright © 2009 The Regents of the University of California
All rights reserved.
One can scarcely study the history of liquor legislation leading up to the adoption of the Prohibition Amendment without coming to the conclusion that too often we have attempted to impose on law a burden which law by itself is not equipped to carry.
RAYMOND B. FOSDICK AND ALBERT L. SCOTT, Toward Liquor Control (1933)
Since the early days of the republic, Americans have turned to the law to achieve their social goals with respect to wine, devising elaborate systems of legal incentives, subsidies, restrictions, and penalties in an effort to shape behavior. American laws since the early seventeenth century have regulated everything from the manufacture and marketing of wine to its distribution and consumption, and these laws have been almost continuously generated, dismantled, revived, revised, and reimagined.
The content of the laws and regulations regarding wine has varied dramatically as cultural perspectives on alcoholic beverages changed. Over time, wine laws have been used for achieving highly divergent goals, ranging from directly encouraging viticulture in the colonies and the early republic to imposing stiff fines and criminal penalties upon people who distributed wine during statewide, and later national, prohibition. The early colonial governments went so far as to legally require citizens to plant vines; several hundred years later, state and federal governments were dispatching agents to wineries to enforce their permanent closure.
Historically, temperance has been the most important objective of American liquor law, but the meaning of temperance has changed dramatically over time. In the eighteenth century, temperance meant the moderate use of all intoxicating liquors, including beer, wine, and spirits. By the early nineteenth century, it meant the moderate use of fermented liquors and total abstinence from distilled spirits. By the mid-1800s, it meant abstinence from all liquors, including fermented drinks.
These varying conceptions of temperance have been influenced by changing moral, religious, medical, social, and economic factors, which in turn shaped American culture and drinking customs. Key figures in American history have embraced and personified these views of temperance, and they have relied on various legal approaches to achieve their objectives, including the criminalization of public drunkenness, liquor licensing, local plebiscites on whether and when to allow alcoholic beverage sales (known as local option), and prohibition. During the nineteenth century, these laws were challenged repeatedly in the courts on constitutional grounds ranging from free trade to due process. The courts became the battleground for the fight between individual liberties (the right to manufacture wine and drink it) and public welfare (the concept of order and public health).
Despite the support of a domestic wine industry by early American leaders like Puritan minister Increase Mather and President Thomas Jefferson, wine could not escape the drive toward prohibition in the nineteenth century. The failed early efforts at domestic viticulture stymied the development of a wine tradition that might have withstood the onslaught of those who were now advocating abstinence. By the mid-1800s, when technical progress in grape growing and winemaking enabled the production of decent wine, prohibition already was taking hold of the country. Wine became just another form of alcohol, caught up in the crusade against "demon rum," the whiskey trust, and brewery-owned saloons.
The courts, which for a time insisted on free trade among the states, could not thwart the political and ideological zeal of the prohibitionists. Local option led to statewide prohibition and, eventually, National Prohibition. Yet this evolution did not ultimately promote the cause of temperance. Regulating personal behavior was both unpopular and unrealistic, and those who wanted to drink found a way to do so.
EARLY ASPIRATIONS FOR WINE
The earliest wine laws in America were designed by settlers and colonial governments to actively develop and encourage an American wine tradition. The settlers had come to the New World in search of riches and the trappings of a prosperous life, and they viewed wine cultivation as a tangible sign of colonial success.
The colonial governments wasted no time in devising a range of laws and inducements to encourage vineyard development and wine production. One form of support was to arrange and sponsor the immigration of experts from France to advise the settlers in Virginia, Massachusetts, Pennsylvania, and the Carolinas on vine planting and to share technical expertise about viticulture and winemaking. In 1621, the king of England instructed the governor of Virginia "to plant abundance of vines, and take care of the vignerons sent." The first legislature of that colony in 1623 required every man to plant a quarter-acre garden with vines.
The pilgrims and other separatist Puritans who settled in New England and along the Atlantic seaboard accepted the consumption of alcoholic beverages. They regarded fermented beverages, in particular, as "gifts to be revered," safer to drink than water. The Puritans had carried copious amounts of beer and cider with them on their maiden voyages to the New World. Conspicuously absent was wine, a beverage that "found its way to the tables of only the most opulent," just as it had in England prior to the colonial enterprise.
Alcoholic beverages were an integral part of the colonial social fabric. The Puritans believed that alcohol, consumed in moderation, had "rejuvenative powers." Wine, for example, was prescribed by physicians to keep the body warm in cold weather, aid digestion, and ward off fevers. Alcohol also was a stimulant for physical labor and an aid to conviviality.
The most common drinking establishment was the tavern—sometimes referred to as "the ordinary"—which, along with the church, was at the center of community life. Although its main purpose was to cater to the needs of the traveler, the tavern primarily served local clientele, offering food, drink, and various forms of social recreation, from music to political discourse to gambling.
The Puritan "work ethic" extolled the industriousness necessary to promote a domestic wine industry. Yet the Puritans also decried drunkenness as a sin. Increase Mather, the minister of Boston's Old North Church and later president of Harvard University, expressed a commonly held view in his Wo to Drunkards (1673): "The wine is from God, but the Drunkard is from the Devil." Increase and his son, Cotton, preached incessantly against intemperance. They feared that the abuse of alcohol would ruin the Puritans physically and economically and, in so doing, "drown very much of Christianity."
The colonies imposed legal sanctions against public drunkenness to thwart intemperance. Some colonial governments defined excessive drinking in their statutes. In Massachusetts Bay colony in 1672, it was illegal for an innkeeper to permit drinking "above a half pint of wine for one person, at a time, or to continue Tipling above the space of half an hour, ... or after nine of the Clock at night." Even the "Keeper of Wines" was prohibited from allowing anyone to drink to excess in his wine cellars. The drunkard paid a fine for the first offense, double fines for the second offense, and treble fines for the third offense. "If the parties be not able to pay the fines, then he that is found Drunk shall be punished by whipping, to the number of ten stripes; and he that offends in excessive or long Drinking, shall be put into the Stocks for three hours, when the weather may not hazard his life or limbs. And if they offend the fourth time, they shall be imprisoned until they put in two sufficient sureties for their good Behaviour." Many colonies banned liquor sales altogether to habitual drunkards, minors, and Native Americans.
Unfortunately for the Puritans, both the development of a domestic wine industry and the struggle to control drunkenness failed. The English colonists in New York, New Jersey, the Virginias, and the Carolinas, as well as the Germans in Pennsylvania tried earnestly, but unsuccessfully, to make wine from native grapes. In Virginia, the legislature informed the king of England in 1628, "With respect to the planting of vines, they have great hope, that it will prove a beneficial commodity; but the vignerons sent here either did not understand the business, or concealed their skill; for they spent their time to little purpose."
More than a century later, in 1733, the inventor, author, politician, and bon vivant Benjamin Franklin offered instructions in his famous Poor Richard's Almanack on how to make "Wine of the Grapes which grow Wild in our Woods." But the wines were foxy and of poor quality, made drinkable only by adulteration—with sugar, flavorings, and preservatives—and fortification. Cider, made from fermented apples, was far more drinkable and more popular than wine. The settlers tried planting the European grape species known to produce fine wines, Vitis vinifera, which they imported, but those vines died because of excessively cold winters or high humidity that led to mildew and rot. It was not until the 1820s, when American hybrids were introduced, that decent "dry" wines began to be produced.
The battle against public drunkenness was similarly ineffectual because of the allure of "ardent spirits." Rum aficionado Wayne Curtis writes; "Starting about 1700, the colonial taste for home-brewed beer and cider began to fade and was displaced by an abiding thirst for stronger liquors." The nations first rum distillery was established in 1664 on what is now Staten Island, and the production of rum from fermented molasses or sugarcane quickly became an essential industry in colonial America. American rum was exported and celebrated around the world, especially in Europe, and Americans themselves partook liberally of this domestic product. By 1770, the average white inhabitant of the Continental Colonies drank 4.2 gallons of rum per year.
One wonders whether an American wine culture would have been more readily established if the French had won the French and Indian War and not ceded its territory in North America to Britain in 1763. Given the historic importance of wine in everyday French life, perhaps that would have been so. The British favored spirits, particularly gin, and the fortified wines of Portugal and Spain—Port, Sherry, and Madeira—which British traders shipped around the world. Madeira, with its unique burnt flavor from trans-Atlantic shipment in casks exposed to the sun, was preferred by society families in America from colonial times until the mid-1800s.
Beloved as rum came to be in the early American republic, whiskey—distilled from such grains as barley, corn, and rye—became the American alcohol of choice after the Revolutionary War. When the British blockade interrupted the importation of foreign rum and molasses, farmers began to distill their surplus grains into whiskey. These "liquid assets" could easily be shipped or bartered.
According to the historian Thomas Pegram, "Americans between 1780 and 1830 drank more alcohol, on an individual basis, than at any other time in the history of the nation." Liquor was ubiquitous. Workers received daily rations of spirits—"a half gill of rum-and-water at eleven o'clock in the forenoon, and again at four in the afternoon." And there was drinking at every social occasion. In 1790, alcohol consumption in America was 5.8 gallons per person of drinking age—mostly spirits and cider; it had increased to 7.1 gallons by 1810.
Wine was not consumed in large quantities—a mere six-tenths of a gallon per person of drinking age at the end of the eighteenth century. At one dollar per gallon (four times the price of a gallon of whiskey), wine was a luxury. Nevertheless, wine occupied a uniquely privileged role because American leaders actively supported the establishment of an American wine industry and were known to drink it regularly themselves. Domestic vines and wine were exempt from taxation throughout the early republic, and the fledgling liquor industry was protected from international competition by import duties.
The first five presidents of the United States—Washington, Adams, Jefferson, Madison, and Monroe—"were all close friends, enjoyed wine together on innumerable occasions and spoke and wrote much about the moderate beverage." Of them all, Jefferson was the true connoisseur and "the great patron and promoter of American wines for Americans." Born and raised on a farm in Virginia and trained as an attorney, Jefferson later served as minister to France and tasted his way through the wine regions of that country. He promoted wine as a "natural medicine for health" and prescribed for his ailing daughter Maria sherry, which was, in his opinion, "as effectual to prevent as to cure [her] fever." Jefferson drank wine, not spirits; in his later years, he even shunned fortified wines.
Fortified wines, however, had many partisans among early American leaders. The wines had an appealing sweetness, and the extra alcohol helped them to withstand the trans-Atlantic voyage. Chief Justice John Marshall was particularly fond of Madeira. He joined the other justices each year in the traditional importation of specially labeled "Supreme Court Madeira." A fellow jurist commented that Marshall was "brought up upon Federalism and Madeira, and he is not the man to outgrow his early prejudices."
THE CHANGING TIDES OF TEMPERANCE
The rise of a temperance movement in America was deeply linked to the fear many Americans were feeling as their new nation took shape. In the decades following independence from Britain, young America was in the throes of political, demographic, and cultural upheaval. Settlers were moving west, immigrants were streaming in, and new systems of governance were being established. The historian Norman Clark describes the period around the turn of the century as one of "continual surges of migration and immigration, of settlement and dispersion" in which Americans grew terrified of the "frontier country" and the challenges it posed to their traditions and values.
The American Revolution had been guided by a bold ideology of equality, justice, and individual rights. The war was fought in the cause of a more representative, egalitarian social structure, and when independence was achieved, the nation faced the challenge of creating order in the absence of the existing hierarchies. Many native-born Americans feared that without those traditional hierarchies of power and control the nation would descend into chaos. Upper-class Americans feared that the ideology of egalitarianism would undermine the deference they had been granted in the old social structure. Unsurprisingly, wealthy capitalists also supported temperance to promote "industry, sobriety and thrift." For them, "this 'temperate' character type or life style was disciplined, orderly, hard-working, frugal, responsible, morally correct, and self-controlled; it thoroughly fused the Protestant ethic and the ethos of capitalism."
The ideological touchstone for the temperance movement was provided by Dr. Benjamin Rush, celebrated as one of the signers of the Declaration of Independence and as surgeon general of the Revolutionary Army. Dr. Rush's scathing indictment of distilled spirits, An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind, first published in 1784, posed a powerful challenge to accepted wisdom in America about the value and effects of alcohol. Rush attacked the prevailing belief that alcohol had healthy effects on the human body and instead claimed that the habitual use of ardent spirits led to liver disorders, gout, epilepsy, memory impairment, and immoral behavior. His work included a famous "Moral and Physical Thermometer," which associated "degrees" of alcohol with points on a scale of temperance (moderation) and intemperance (excess). Water, milk, and molasses were at one end of the scale, identified with health, wealth, and happiness. Wine, toward the middle of the scale but still clearly temperate, was indicated as inducing cheerfulness and strength and providing nourishment when drunk with meals and in moderate quantities. Spirits were the most intemperate beverages.
Excerpted from From Demon to Darling by Richard Mendelson. Copyright © 2009 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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What People are saying about this
"Provides the definitive background for understanding the competing legal, political, economic, and social forces shaping the ongoing evolution of America's wine culture."The World of Fine Wine
"Highly readable . . . Should be a must-read for anyone who wants to produce or sell wine in this country."San Francisco Chronicle
"An engaging style that makes learning how law and wine have intertwined throughout this country's history an enlightening educational journey."Wine Spectator
Meet the Author
Richard Mendelson is a wine law specialist at Dickenson, Peatman&Fogarty in Napa, California, and Lecturer at the University of California at Berkeley School of Law, where he directs the Program on Wine Law and Policy. He also owns Mendelson Wines.
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