In 1791, tumul­tuous pro­ceed­ings in Philadelphia caught the atten­tion of Kentucky’s farmer cit­i­zens.  The fed­er­al gov­ern­ment, hav­ing assumed the Revolutionary War debts of the states, need­ed a way to raise mon­ey.  Since the government’s only source of rev­enue at that time was import duties, Treasury Secretary Alexander Hamilton con­vinced Congress to pass an excise tax on dis­tilled spir­its.  The “Internal Revenue Act” cre­at­ed an imme­di­ate furor in the West, where it was often said that “every farmer was a distiller.”

At the time, Kentuckians often con­vert­ed their excess corn har­vest to whiskey, a more portable and saleable prod­uct.  Instead of tax­ing wealthy east­ern mer­chants and man­u­fac­tur­ers, it appeared Congress had tar­get­ed the poor west­ern farm­ers’ most mar­ketable com­mod­i­ty.  As a fur­ther insult, the whiskey tax had to be paid in cash by cit­i­zens who were large­ly sub­sist­ing in a barter economy.

Pot still and worm
Pot still and worm (Kentucky Gazette, 1790)

In south­west Pennsylvania, open hos­til­i­ties broke out with refusal to pay the tax and a fierce reac­tion against tax col­lec­tors.  Numerous vio­lent inci­dents result­ed:  assaults, tar and feath­er­ings, house burn­ings, and more.  In 1794 the sit­u­a­tion esca­lat­ed into gun bat­tles with mul­ti­ple fatal­i­ties.  President George Washington, faced with an armed insur­rec­tion, called out the mili­tia to put down the “Whiskey Rebellion.”  That October, an army of 13,000 men, head­ed by Gen. Daniel Morgan of Revolutionary War fame, approached Pittsburgh, and the upris­ing was sup­pressed with­out a shot being fired.

For a long time, it has been assumed that Kentucky gen­er­al­ly, if reluc­tant­ly, com­plied with the inter­nal rev­enue law.  But it turns out that there was a whiskey rebel­lion in Kentucky too. 

Kentuckians were already incensed over the fed­er­al government’s fail­ure to pro­tect them from Indian incur­sions and fail­ure to secure open access to the Mississippi River, the life­line of west­ern com­merce.  Violent inci­dents here were rare.  Distillers sim­ply refused to pay the tax.  The Treasury Department was cer­tain­ly aware that no rev­enues were forth­com­ing from Kentucky, but they were at a loss as to how to force com­pli­ance.  Military action was imprac­ti­cal and could have thrown Kentucky into the arms of Spain.

The chief rev­enue offi­cer for the Kentucky District, Col. Thomas Marshall, could not com­pel state or coun­ty courts to bring law­break­ers to tri­al and had dif­fi­cul­ty find­ing men to serve as tax col­lec­tors.  Marshall declared, “No per­son wor­thy of trust… could be got to accept the job.”

The sit­u­a­tion had a the­o­ret­i­cal solu­tion.  This was a fed­er­al law, and a high­ly respect­ed Virginia attor­ney, Harry Innes, had been appoint­ed judge of the fed­er­al court in Kentucky in 1789.  In prac­ti­cal terms, how­ev­er, vio­la­tors could not be pros­e­cut­ed until a com­pe­tent U.S. Attorney was appoint­ed.  That com­mis­sion went first to William Murray, who refused to bring charges against dis­tillers dur­ing the 15 months he held the office.  It took the Washington admin­is­tra­tion four years to find his replace­ment.  Finally, in December 1796, William Clarke of Maryland accept­ed the appointment.

Judge Harry Innes (1752-1816)
Judge Harry Innes (1752−1816).  Painting by Matthew Harris Jouett.  (Speed Art Museum)

As an out­sider, Clarke received no coöper­a­tion from a deter­mined pop­u­lace.  He proved to be less skilled than his adver­saries, who took advan­tage of every loop­hole in the law.  Of the 231 cas­es Clarke pre­sent­ed in fed­er­al court, not one dis­tiller paid the penal­ties pre­scribed by law.

Judge Innes was a stick­ler for pro­ce­dure and due process in his court.  First, a grand jury had to hear the charges.  If they returned an indict­ment, the case then had to go before a petit jury which required a unan­i­mous vote to deliv­er a guilty ver­dict.  Grand juries ini­tial­ly required 24 mem­bers.  At many court ses­sions, the sum­moned jurors failed to show up. 

All dis­tillers were required to reg­is­ter their stills with the rev­enue col­lec­tor and keep com­plete records of pro­duc­tion.  In Kentucky, they did nei­ther.  At Treasury, Hamilton tried mod­i­fy­ing the rules to achieve com­pli­ance.  He agreed to allow pay­ment in whiskey and to for­give tax­es owed before 1795.  Both failed to result in pay­ment.  He then offered to pay inform­ers, a tac­tic that had worked in Maryland.  But Kentuckians refused to turn in their neighbors.

Finally, in 1798 Innes decreed that no dis­tillers would be called to serve on grand juries, which had an imme­di­ate effect.  The num­ber of cas­es before the court increased dra­mat­i­cal­ly.  Sadly for U.S. Attorney Clarke, these were not fol­lowed by con­vic­tions, as juries refused to return guilty ver­dicts against dis­tillers whose only crime was not pay­ing what they per­ceived to be an unjust tax. 

The bum­bling pros­e­cu­tor often sab­o­taged his own cas­es by fail­ing to fol­low prop­er pro­ce­dures.  For exam­ple, in 1796, Clarke charged one “James Smith” with obstruct­ing a rev­enue col­lec­tor.  The case was con­tin­ued for near­ly two years when a jury con­clud­ed that Clarke had served a sub­poe­na on the wrong James Smith.  Clarke then charged one “James Smith, mer­chant,” but could nev­er bring him to court.

According to one account, Clarke man­aged to earn “the con­tempt of the judge, cen­sure by the Treasury Department, and the embar­rass­ment of his sup­port­ers.”  In 1800, Colonel Marshall arranged for Clarke’s “pro­mo­tion” to ter­ri­to­r­i­al judge in Indiana.

His capa­ble replace­ment, Joseph Hamilton Daveiss, over­saw a rad­i­cal turn­around.  His first case against a dis­tiller result­ed in a con­vic­tion, some­thing Clarke had nev­er achieved.  In all, Daveiss brought 315 cas­es.  Few ever went to juries.  Kentucky dis­tillers got the mes­sage and paid their fines.  Fortunately for those who had not yet been charged, the law was repealed in 1802 dur­ing the Jefferson administration.

Clark County dis­tillers got caught up in the whiskey rebel­lion too.  This will be the sub­ject of the next column.

  • Harry is a Mt. Sterling native who has lived in Clark County since1999. He has a pas­sion for the past and has researched and writ­ten exten­sive­ly about the his­to­ry of this area.