So, er — when WERE brewers banned from using unmalted grain?

Clio, muse of history, suggests I may have been having a giraffe

It’s an excellent idea for a historian never to make a claim that cannot be backed up with actual evidence. In particular, it’s a terrible crime to assume, without verifying. Forgive me, therefore, Clio, muse of history, I have sinned: for many years I have been asserting that British brewers were banned from using unmalted grain when Parliament introduced a malt tax in 1697 to fund William III’s wars against the French. Alas: when I finally got round to doing what I should have done at the start, checking the actual statute, there was no such clause.

Distillers, yes, they were banned under Acts of 1691 and 1697 from using raw or unmalted barley, and told that if they distilled from grain it had to be “malted corn entirely,” though the prohibition on distillers putting unmalted grain into their mash tuns along with malted grain was removed in 1725. And brewers were banned in 1701 from putting “Sugar Honey foreign Grains, Guinea Pepper*, a late invented Liquor or Syrup made from Malt and Water boiled up to the of Melasses and very much resembling the same and commonly called Essentia Bine† [sic], or with Coculus Indiae‡ or any unwholsome Materials or Ingredients whatsoever in the brewing or making of any beer or Ale.” (Indeed, they were banned from brewing with molasses, sugar or honey, on pain of a fine of £100, by an Act passed in 1689.) But no mention of a ban on raw grain for brewers.

There was also a law passed in 1714, in the first year of George I, that banned maltsters and sellers of malt from mixing unmalted grain with malted grain, or face a fine of five shillings per mixed bushel. But again, brewers were not mentioned.

The first actual legislation I have been able to find that insisted beer or ale must be “brewed entirely from Malt and Hops” and without “any Material or Ingredient other than Malt and Hops”, under penalty of £100 was the Beer Duty Act of April 1802. The legislation did not use the expressions “unmalted grain” or “raw grain” or any variation thereon: that only seems to have arrived with the Irish Beer Act of June 1809, which, dealing specifically with brewing in Ireland only, said: “No Brewer or other Person or Persons in Ireland making or professing to make Beer, Ale, Porter or Small Beer for Sale shall use any raw or unmalted Corn in the brewing or making of any Beer, Ale, Porter or Small Beer for Sale.”

Certainly some Irish brewers had been using raw grain in their beers. David Sherlock, who ran a porter, ale and table beer brewery in South King Street, near St Stephen’s Green in Dublin, told a parliamentary inquiry in June 1807 that he used one third of raw barley in his porter, and one third of raw oats in his table beer.  Arthur Guinness II, however, told the same inquiry that brewing with raw grain, while “considerable”, was “an evil” which “must cure itself, as those Brewers who adopted the practice have suffered in their trade.”

Arthur Guinness II – never used raw grain himself, even if other Irish brewers did

The definitive ban on unmalted grain in Great Britain only looks to come in the Beer Licences Act of 1830, Section 17, which declared:

“It shall not be lawful for any brewer of beer for sale in the united kingdom to have in his or her brewery, or in any part of the entered premises, or in any mill connected with such brewery or entered premises, any raw or unmalted corn or grain whatsoever, either whole or unground or ground or bruised; and that all raw and unmalted corn or grain. whether whole or unground or ground or bruised. which shall be found in such brewery or premises or mill, and all malted corn or grain, whether whole or unground, or ground or bruised,. with which such raw unmalted corn or grain may have been or shall be mixed, shall be forfeited and may be seized by any officer of Excise together with all sacks, casks, vessels or packages in which such raw or unmalted corn or grain shall and may be contained, or in which such raw and unmalted corn or grain and the malted corn or grain with which the same may or shall have been mixed shall or may be contained ,and every brewer shall for every such offence forfeit the sum of 200l.”

And yet – there’s always an “and yet”. Despite the apparent lack of legislation specifically banning brewers using raw grain, according to the highly experienced brewing consultant George Blake, writing in 1791 after a career that had begun in Ringwood, Hampshire 26 years earlier, unmalted barley most certainly was banned from the brewers’ mashtuns. In a pamphlet attacking the Irish inventor John Long over his invention of a method for cooling wort artificially (one of the most famous rows in that minor sideroad of scholarship, the history of brewing technology), Blake said:

” I think it necessary to premise previous to any further remarks on this Article that by the writer’s frequently adverting to the term raw corn, it seems as if he had placed the brewery on the footing of the malt distillers, who use raw corn or meal with their malt in the mash tun, which the brewer, were he inclined to do it, is by law prevented, a circumstance the writer may not be apprized of.”

So one highly experienced 18th century brewer certainly believed brewing from raw grain was against the law. All the same, although there were plenty of newspaper reports of prosecutions of brewers by the excise authorities for using “deleterious ingredients” such as grains of paradise, quassia (a bitter-tasting hop substitute from South America) and liquorice (used to colour porter), I have been able to find only one prosecution of a brewer for using raw grain, and that was in January 1811, nine years after the ban in 1802 on “any Material or Ingredient other than Malt and Hops”. Peter Dick, of Robertson’s Close, off Cowgate, Edinburgh, was prosecuted at the Court of Exchequer in the Scottish capital under that Act of 1802 –  42 Geo. III cap 38 for the legally minded – for “manufacturing or preparing from certain ingredients or materials (not being malt and hops) a liquor, to imitate or resemble, or to be used as beer or ale brewed from malt and hops,” namely raw, unmalted barley.

The rareness of such prosecutions is suggested by newspaper reports of the case, which described it as “of great importance to the Revenue,” with the malt tax at that time three shillings and eight pence a bushel, and said it had “excited great interest and expectation,” with “numerous attendance in court.” Unfortunately, just as Dick’s leading counsel rose to address the jury, after “several hours” of witnesses for both sides, one of the jurors, a builder named Nisbet, fell from his seat and was taken out of the courtroom, with a doctor shortly after returning to tell the court that Nisbet would be unable to continue. (In fact he subsequently died.) Since the law insisted on a verdict from all 12 jurors, this “prevented the final decision of the important question, whether brewers can legally make use of unmalted grain.”

The case came back to court in June 1811, when Dick admitted that on the day in May the previous year when two Excise officers called at his brewery on suspicion that he was using unmalted grain, the contents of his mash tun did indeed consist of one third raw or unmalted kiln-dried barley and two thirds malt. However, “Mr H. Cockburn” (almost certainly the Scottish lawyer Henry Cockburn, later Lord Cockburn) for the defence, “in a speech of great ingenuity”, argued that Dick had not broken the law, because while the law allowed brewers to use only malt and hops, at some point in the mash tun raw grain became malt. Cockburn called as a witness “Dr Thomson” (undoubtedly Thomas Thomson, one of Scotland’s leading chemists, and the man – trivia alert – who coined the name “silicon”), who told the jury that unless the raw barley had turned into malt in the tun “the saccharine matter could not be extracted” from it.

Mashing in the 18th century

Dick’s case for the defence was summed up by “Mr Clerk” – probably John Clerk, later Lord Eldin, a leading Edinburgh advocate of the time, and like Cockburn a Whig – who quoted from Robert Burns’s version of “Sir John Barleycorn” (always a good idea to recite Burns at a Scottish jury):

“They filled up a darksome pit
With water to the brim.
They heaved in John Barleycorn,
There let him sink or swim.”

Against two heavyweight (and presumably expensive) defence lawyers, Cockburn and Clerk, the Crown put up to speak for the prosecution Archibald Colquhoun, the Lord Advocate, and Robert Dundas, the Lord Chief Baron. Colquhoun, in his statement to the jury, gave an interesting (for the historian) summation of the annals of legislation on what brewers were and were not allowed to use to make beer and ale, which looks to agree that there was never a specific ban on using raw barley, and the first Act of Parliament that could be interpreted as bringing in such a ban was 42 Geo III cap 38, with its prohibition of any ingredient “except malt and hops”.

Colquhoun’s arguments were that (1) Dick was injuring the revenue by using untaxed raw grain to brew with, and “if this were to be allowed, the brewer would put into his pocket, at the expense of the consumer, the amount of those duties which were intended to supply the exigincies of the State,” which would mean more taxes elsewhere to make up the loss; and (2) that whatever Thomson’s evidence said, what went into the mash tun had to be malt when it went in, not turn into malt when it was in there. Dundas agreed, telling the jurors that Dick had admitted using unmalted barley mixed with malt and “there was an end of all further argument … the Legislature has declared that malt alone shall be used in malting beer.” The jury agreed too, and after only a few minutes found for the prosecution, meaning Dick had to pay a fine of £200, equal to perhaps £14,000 today.

To sum up, then:

● There seems to be no specific legislation in the 18th century banning brewers of ale or beer (or porter) from using raw or unmalted grain or barley in their mashtuns

● Nevertheless it was taken by brewers that, unlike distillers, brewers WERE banned from using raw grain

● An Act of 1802 finally stated that beer and ale must be made from malt and hops only

● A court case in 1811 confirmed that this meant brewers were banned from using raw or unmalted grain

● Irish brewers were specifically banned from using unmalted barley by an Act of 1809

● Brewers in Great Britain were only finally banned from having raw or unmalted barley on their premises by an Act of 1830

● Brewers in the United Kingdom were finally permitted to use raw grain by the Free Mash Tun Act of 1880.

The ability of distillers to use unmalted and thus untaxed grain, incidentally, was the subject of complaints throughout the 18th century, on a variety of grounds, not least that it deprived the revenue of the taxes that would be paid were they to use malt. A newspaper article from 1734 moaned that “the Distillers have found out the Art of drawing their Liquors from unmalted Corn, without one Farthing Duty on it … if the Brewers shou’d grow as cunning as the Distillers, in a little Time farewell Malt Duty.” Of course, technically a proportion of malted grain had to go into the mash tun, to provide the diastase to convert the starches in the unmalted grain into sugars (not that brewers knew the technicalities – diastase was not identified until 1833).

Commentators were also upset that the distillers were able to feed large numbers of hogs from their left-over raw grain once it had been mashed, which was, it was claimed, not possible with left-behind post-mash malted grain. I find that hard to believe: “brewers grains” (sic) were being extolled as animal feed from at least the early 1760s, and in 1765 it was reckoned that for every barrel of porter brewed, brewers were making just over 9½ pence from selling their grains and excess yeast. Distillers’ grains were going to be cheaper, as no tax had been paid on the bulk of the contents of their mash tuns – the ratios used were one part malted grain to anywhere between four and nine parts unmalted grain – and that might be regarded as unfair competition for farmers trying to raise hogs, whose feed costs were inevitably higher. It took until 1797, however, before the excise laws were changed to tax unmalted barley the same as malted barley when used by distillers.

There was, incidentally, I discovered, a brief nine months, after the passing of the Brewers Sugar Act in June 1800, when brewers were allowed to use brown or muscovado sugar (but not molasses or any other variety of sugar) to brew beer with: this was the middle of one of the many wars between the UK and revolutionary/Napoleonic France, which lasted, on and off, 22 years, and at a time when the British government was keen to keep down the price of bread. At the same time, and for the same reason and brief period, distillers were encouraged to brew from molasses, and banned from making their “low wines” from grain. It would be another 46 years before brewers were legally allowed to brew with sugar again.

I’ll confess to being somewhat obsessive about this stuff§: if I can’t discover the answer that makes for a clear, clean narrative, I worry at it like a dog with a horseblanket until either I find out enough to satisfy my itch for knowledge or I finally concede that the answer is NOT out there, and I will have to accept that there is a hole in the story. Thus I spent two days going through 120 years of newspapers on the net, and 120 years of parliamentary legislation, searching for the real story about the ban on brewers using unmalted corn.

Still, like the Princes of Serendip, on the journey I often find other gems I wasn’t looking for. Here’s one I found while trying to discover the truth: A letter-writer identifying themselves only as S.L. wrote to the Gazetteer and New Daily Advertiser, a London newspaper, in December 1765 claiming that “The distress of the brewing trade is now greater than has been known for fifty years past, especially the branch of the porter brewers, malt and hops being excessive dear and their casks also bearing a very great charge … their case is hard, and so is that of the amber and small beer brewers; their families must greatly suffer, unless they have speedy relief.” S.L. insisted that the porter brewers were losing almost 11 (old) pence a barrel, and supplied a table of costs and expenses that is very revealing about the activities of a London porter brewery in the early years of the reign of George III:

40 quarters Ware brown malt at 32s per quarter6400
400lb brown hops at 13d per pound21134
Duty on 100 barrels beer, at 6s 11½d per barrel341510
Coals and wear and tear on 40 quarters of malt brewed into porter, at 14s per quarter2800
100 Barrels of beer started at 28s per barrel14000
Grains and yeast400
Loss to the brewer492

Among the interesting points, the grain bill is 100 per cent (diastatic) brown malt from Ware in Hertfordshire; 40 quarters (something like 4.6 tons in weight) used to make 100 barrels of porter (around 103lb a barrel) suggests, even with the poor extract won from brown malt, an original gravity of 1065 to 1070, and thus an alcohol by volume of probably 6.5 per cent; the porter brewer was using brown, that is, old hops, because he wasn’t interested in aroma, only bitterness and preserving qualities, and brown hops were supposed to add to the colour of porter; the hop rate was a substantial 4lb a barrel; and for every barrel of porter brewed, brewers were making just over 9½ (old) pence from selling their used grains (as animal feed, probably to the many cow keepers in the capital – London was estimated to have 8,500 milch cows in 1795, many being fed on brewers’ grains) and excess yeast (to bakers and distillers). That last may seem a small sum, but would be worth £3,000 a year, perhaps £400,000 in modern money, to, for example, Sir William Calvert at what was then London’s largest porter concern, the Hour Glass brewery on Thames Street, which was making some 75,000 barrels a year in the 1760s.

(* grains of paradise, Aframomum meleguet, a pepper-like spice from West Africa)
(† Later called Essentia Bina, “double essence” in Latin, a colouring agent used in the late 17th century to disguise watered-down brown beer, and in the 18th to colour porter made with pale malt)
(‡ Anamirta cocculus,or India berry, whose highly poisonous seeds simulated intoxication)
(§ Many might delete the word “somewhat”)

14 thoughts on “So, er — when WERE brewers banned from using unmalted grain?

  1. Hmm. Ron posted this quote several years ago, though he didn’t seem to pick up on the significance of the last sentence:

    3753- What reason is there, except the question of revenue, which ought to prevent the State from permitting beer made of raw grain to be manufactured by brewers ?—In the year 1805 we had three brewers, and it struck me, during the time of my experiments, to try whether we could not make beer from raw grain; I made each of those brewers in succession try it; they were extremely unwilling to do it; they said it was absurd and ridiculous; but however they tried it, and found, to their great astonishment, that they not only made beer, but better beer from raw grain than had been done from malt; and after we had done, they set up as brewers, brewed from raw grain, and got all the business of Edinburgh; the consequence was, that the licensed brewers, who brewed from malt, lodged a complaint, an Exchequer trial took place, and the barons of the Exchequer prohibited it, though there was no law.”
    “Report from the Select Committee on the Use Of Molasses in Breweries and Distilleries”, 1836, page 245.

    Did you see that?
    “The barons of the Exchequer prohibited it, though there was no law.”

  2. Excellent, thank you very much indeed. Fascinating. Very glad you spotted it. The man giving evidence there is, of course, Thomas Thomson, the major witness for the defence at Dick’s prosecution in 1811.

  3. Digressing a little, I’m impressed by your use of old-school footnote indicators – although I will confess to a moment’s concern about what you were going to resort to after you’d used the dagger and the double dagger. Traditionally you’d have been able to go back to the asterisk on the next printed page, of course, which made it feasible to work with a fairly limited set of superscripts.

    What’s the name of the squiggly character you used for the fourth footnote, do you know? And is there a canonical fifth footnoting character, or would you have to start again with **?

    1. What Jakob said, although the character viewer on my Mac calls it a “section sign” rather than a “section mark”. My edition of Hart’s Rules is 1983, but agrees on the order of footnote symbols: I must have absorbed that over the years, as I could not have told you that was actually the correct order in which to use them …

      1. (Drifting ever further from malted and unmalted grains:) The Wikipedia page has both section mark and section sign, but my copy of _The Printer’s Terms_ has it as section mark. I think I’d probably call ¶ a paragraph mark rather than a paragraph sign, so this may be a transatlantic difference. One presumes the Mac’s programmers were Californians, though we mustn’t hold it against them…

        (Hart’s was going to be my first port of call, but it wasn’t where I expected to find it on my Very Highly Organised shelves.)

  4. The Edinburgh Excise/ Exchequer Court seemed especially diligent in prosecuting brewers that used raw grain around that time. Another example is that of George Berwick of South Street Brewery St Andrews as reported in The Caledonian Mercury on Page 3, 23 May 1812:(
    As well as being head of a brewing family George was also a magistrate in St Andrews. The family had extensive farming and malting interests in St Andrews and East Neuk of Fife.
    Three of his sons also operated breweries. Alexander Berwick opened a brewery in Gentles Close Edinburgh in 1805, trading as Alexander Berwick & Co he was joined shortly thereafter by his brother William. AB & Co were Edinburgh’s 2nd largest brewery (in term of malt used /output) from c1820 to early 1850s. The brewery was sold to William Youngers in 1858 who re-named it Holyrood Brewery. George’s 3rd son, George jnr operated Liberty Brewery, Elie until its closure in the 1820s

  5. Here’s Hugh Tennent of Glasgow himself in 1833 speaking to another enquiry: “At present there is a very great trade carried-on in this very town by the use of raw grain in the mash-tuns in the place of using barley malt, which they ought by law to do; there is a very great mixture of raw grain, and the regular brewer is not able to compete with the people who make use of this raw grain.”

    Tennent clearly also believed raw grain was prohibited. Given how endemic it must have been, why was it so rarely prosecuted? And what was the charge based on, when it was?

  6. It’s a section mark (apparently also called a silcrow, though I’ve not ever seen that term in the wild). Not all of my publishing style guides have a list, but the (2002) _Oxford Manual of Style_ has *, †, ‡, §, ¶, ǁ as the canonical order of footnote symbols; doubling them up as necessary (so **, ††, &c.). ‘Other symbols are possible, such as the degree mark (°) or star (★). Single and double asterisks are not used in scientific work and probabilities, where they may be confused with notation for statistical significance.’

    1. A fascinating read. So interesting to see raw grain use was prohibited and excise duty based on the malt.
      In Brussels, brewers were allowed 17 units of grain for a brew, and for luxury beers they could chose which ones. So in order to maximise their profit, the highest portion of raw wheat was used with malted barley.
      A very different legislation and thus beer landscape indeed.

      1. Yes, the effect of legislation on beer styles is a fascinating one. How different might British beers be if British brewers could have used unmalted wheat like Belgian ones?

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