Added to Chapter

SERIES · Herbal Histories. Herbal Histories takes one claim about a drug plant — the kind that circulates in a hundred articles without a citation — and goes to the document it is supposed to rest on. Twenty-five issues, each built on primary sources read in the original: statutes, papyri, newspaper columns, parliamentary papers and manuscripts in Dutch, German, Spanish, Portuguese, Latin, Nahuatl, Sanskrit, Arabic, Chinese and Egyptian. Translations are the author's own and are marked as such. When a claim survives the document the issue says so; when it does not, the failure is the story.

On page 906 of the San Francisco Municipal Reports for the fiscal year 1877-78, in the appendix where the city printed its standing orders, a section of the misdemeanour code ends with a bracket.

That bracket is a housekeeping note. The compilers of the code put one beside almost every section, so that a police judge could see at a glance when a provision entered the law and by which order of the Board of Supervisors. Section 60, just above, on Sunday meat markets, carries one: Added to chapter, May 14, 1878, Order No. 1433. Chapter II, twenty pages earlier, carries one against the requirement that county-jail prisoners have their hair clipped: Added to chapter Sept. 7, 1875, Order No. 1,238.

The bracket beside Section 61 says November 1878.

This law is very widely described as the first anti-drug law in the United States, and it is very widely dated to 1875.

Read the sentence slowly, because almost everything interesting about it is in the verbs.

It prohibits keeping such a place. It prohibits maintaining one. It prohibits becoming an inmate — a resident — of one. It prohibits visiting one. And it prohibits contributing, in any way, to the support of one, which reaches the landlord and the lender and the man who advances the rent.

There is no sale in it. No quantity, no purity, no label, no licence, no transaction of any kind. A man who walked into a room where other men were smoking, bought nothing, touched nothing and left, had committed the offence. So had the man who paid the rent on the room from another street. The final clause reaches further still: assembling to inhale the fumes. It is possible to violate Section 61 by breathing.

The penalty is not in Section 61. It is in Section 1 of the same chapter, which fixes the tariff for the whole of it — a fine not exceeding one thousand dollars, or imprisonment in the county jail not exceeding six months, or both.

And the section says nothing whatever about race. Not Chinese, not Mongolian, not Chinatown, not nativity. The text is scrupulously general, and in San Francisco in the 1870s that was not an oversight. It was a technique.

The 1869 compilation of the General Orders, printed nine years earlier, does not contain the word opium anywhere in its several hundred pages. By 1884 Section 61 had settled into the code between a section forbidding any play tending to profane religion and a section forbidding the keeping of swine east of Fillmore Street. It was, and remained, a nuisance provision. The city filed the practice with the pigs.

The Board of Supervisors did pass an order aimed at the Chinese in 1875. It was not this one.

On 7 September 1875, by Order No. 1,238, the Board added a paragraph to the chapter of the General Orders governing the county jail. Every male prisoner committed under sentence was to have the hair of his head cut or clipped to a uniform length of one inch from the scalp, immediately on arrival, and the Sheriff was made responsible for enforcement.

Every male prisoner. No race is named. The provision is as facially neutral as Section 61, and it was written to cut off the queue of any Chinese man sent to the county jail — which, given that the same Board had made it a jailable offence to sleep in a room with less than a set volume of air, meant a great many Chinese men. In 1879 the federal circuit court in California held the ordinance invalid, in a suit brought by a man the reports name Ho Ah Kow, and it was one of the plainest judicial statements of the era that a law written in general terms can be aimed at a class.

The order numbers are the useful thing. The codification records them with dates, all through both chapters, and they run in a straight line. Order 1196 on the last day of 1874. Order 1215 in May 1875. Order 1,238 in September 1875. Order 1299 in June 1876. Order 1412 in November 1877. Order 1433 in May 1878. Order 1471 in November 1878. Order 1481 that December.

An order passed on 15 November 1875 — the date most often given for the opium ordinance — would carry a number near 1,250. There is no arrangement of that series in which Order No. 1471 is an order of 1875.

The date is not invented. It has a source, and the source is a single sentence.

In 1882 Harry Hubbell Kane, a New York physician, published Opium-Smoking in America and China. It is the first book-length American account of the practice and it is still the foundation of nearly everything written about the subject since. On his first page Kane names the first white American smoker — "a sporting character, named Clendenyn," in California in 1868 — and then writes this:

That is the whole of it. Kane does not name the city — it is San Francisco by context. He does not give a date beyond "the latter part of 1875." He gives no order number, quotes no text, and cites nothing. His own California informant, Dr G. A. Shurtleff at Stockton, is vaguer still: the laws against the practice "were municipal ordinances, I think, until last winter."

Kane was writing seven years after the event, three thousand miles away, from correspondence and newspaper clippings. He is precise where he has documents — he prints the California penal code section of 1881 in full, with its page reference — and approximate where he does not. The 1875 date belongs to the second category, and it has been repeated ever since by people who did not have the code in front of them.

The city did. The city assigned Section 61 to 8 November 1878, in a printed codification that dates its 1875 additions by number, and does so on the facing pages.

What cannot be ruled out is that some earlier order existed and was superseded. The Board's Journal of Proceedings is not digitised, and nothing here reaches it. But the codification distinguishes carefully between a section added to chapter and a section as amended, and it calls Section 61 an addition. As of the 1878 printing, the only opium provision anywhere in San Francisco's General Orders is Section 61, and it is three years younger than the story requires.

That claim does not survive, and it does not survive at either date.

Fifteen years before either of them, on 16 April 1860, the New York legislature passed an act to regulate the sale of poisons. Its schedule names opium and its preparations by name. It required the seller to enter the buyer's name and residence in a register, in the presence of a witness, unless the purchase was on a physician's written order; it required a label in red ink reading POISON, with the seller's own name and address; and it made breach a misdemeanour. The same schedule names cannabis indica, which is a small thing and a strange one, and belongs to another article in this series.

Six years after that, New York made it an offence, punishable by forfeiture and as a misdemeanour, to give opium to a patient of the State Inebriate Asylum. Twelve years before that, in June 1848, Congress had passed an act to prevent the importation of adulterated and spurious drugs, which stopped consignments at the custom house that fell below the pharmacopoeial standard, and whose principal target in practice was imported opium.

And in the specific matter of rooms where opium was smoked, San Francisco was not first either. Nevada got there on 9 February 1877 — twenty-one months before Order No. 1471 — with a state statute against the sale of opium and against keeping places of resort for smoking it.

So the claim fails. But something underneath it is true, and it is worth more than the claim was.

Every one of those earlier laws regulates a commodity moving through commerce. Who may import it, who may sell it, at what purity, under what label, into whose register. They are poison laws. Opium sits in them between arsenic and prussic acid, and the harm they are built against is the accidental death and the deliberate one.

Section 61 does none of that. It regulates a room, and the people in it. There is no seller, no buyer, no substance changing hands — only a place, and presence, and support. Nevada's original statute of 1877 reached the keeper; it took an amendment of March 1879 to reach the man who merely resorted there. San Francisco's section reached both from the day it was passed, four months earlier.

That is the defensible version, and it is narrow enough to be worth stating: Order No. 1471 is the earliest American law I can find that made it a crime to be in a place where a drug was consumed, rather than to sell one. It is the ancestor of the premises offence and of the possession offence, and it entered the law of the United States as an addition to a chapter on offensive trades and nuisances.

For the first years there is nothing to count.

The municipal reports for 1875-76 and 1876-77 contain no opium offence in any arrest table, jail register or commitment schedule. The word appears three times in the whole of the 1875-76 volume, all three in the police property clerk's schedule of unclaimed money and property: three Chinese opium pipes taken as evidence in November 1875; a Chinese water-pipe held against the name Ah Ping in January 1876; one opium pipe held against the name Ah Jim in February 1876. Those two names — clerk's renderings, of the kind the register produces by the hundred — are the closest this record comes to a person. Neither man can have been charged under Section 61, which did not yet exist. Pipes were passing through the property room of the San Francisco police before the city had any law against them at all.

From 1878-79 the offence exists and is deliberately not counted. For three years the jail tables carry it inside a single lumped column: Misdemeanor, Vagrancy, Visiting House of Ill Fame, Gambling, Opium, Gaming, Fish Law, Etc. Not until 1881-82 does a discrete line appear — eight commitments to the House of Correction for keeping an opium den — and not until 1883-84 does the Chief of Police break the offence out in his own schedule of arrests.

When he does, the shape of it is immediate.

Fifty-two arrests, then a hundred and seventy-four, then two hundred and fifty-three. And in every year the patrons outnumber the keepers, by three to one and then by six.

Two things about that page are worth holding together.

The first is the dismissal rate. Eighty-seven of two hundred and twenty visiting charges were thrown out. A patrolman quoted in the San Francisco Chronicle in July 1881 explained why: to convict, you had to surprise a man in the act of smoking, "which is necessary in order to secure a conviction," and the rooms had half a dozen ways in and a system for signalling the approach of officers. The tariff for those who were convicted was not the thousand dollars the code allowed. It was twenty dollars in the police court.

The second is the line four rows above. In the same year, the same force made 1,535 arrests for violating the lodging-house law — the ordinance fixing a minimum volume of air per occupant, which San Francisco used against Chinese boarding houses more than against anything else, and which produced six times as many arrests as the opium section ever did. Section 61 was one instrument among several, and not the busiest.

This is where the record stops answering.

The standard account holds that white patrons were arrested alongside Chinese keepers, and that among them were white women. The first half is documented. The second I cannot confirm, and the city's own figures cut against it.

No San Francisco table cross-tabulates the opium offence by ancestry. The Chief of Police gives nativity only in aggregate — in 1884-85, 2,734 Chinese offenders against 20,033 others, across all offences. Sex is broken out only for people who actually served time, and there the answer is unambiguous: of nine committed to the House of Correction on opium charges in 1883-84 and eighteen in 1885-86, every one was a man. If women were being arrested in numbers, none of them went to jail for it.

What survives of the white patrons is anecdote, and the best of it is Kane's. Walking with an officer through a cellar under the sidewalk on Bartlett Alley in 1881, a Chronicle reporter was told that thirteen Chinese men and three white boys had been arrested there during the enforcement of the ordinance. The boys said they were supers at the Adelphi Theatre. They had the habit and no money for an outfit of their own, and had gambled their last ten-cent piece against the chance of going to jail.

That is a real datum and it is a small one: sixteen people, in one room, reported at second hand seven years into the ordinance's life. It is also the only breakdown by ancestry anyone appears to have written down.

The same officer, James Mahoney, gave the Chronicle the more damaging assessment.

Asked how many rooms outside Chinatown people were now smoking in, he answered: "The number probably would not fall under two hundred. You see we can do nothing to prevent it. A man can do pretty much what he likes in his own room." The raids on those rooms failed, he said, because the officers could not prove they were kept as places where anyone could smoke for a consideration, and the cases were dismissed.

Three years of enforcement had not reduced the practice. It had relocated it — out of premises run by Chinese men, where it was visible and prosecutable, into private rooms in down-town lodging houses on Kearny and Stockton and south of Market, where it was neither. Mahoney thought it would now spread upward through the city, into a class of person who would never have gone into Chinatown. He was describing, in 1881, the first American drug law's first unintended consequence, and he was not describing it as a failure. He was describing it as a job well done.

In July 1885 a Special Committee of the same Board of Supervisors surveyed Chinatown block by block and reported to the city that had passed Section 61 seven years earlier.

Among the tables it printed is one headed Opium Resorts in Chinatown: twenty-six premises, by street and number and floor, with the number of bunks in each. Sacramento Street. Clay. Dupont, one of them twenty-four feet below the street. Waverley Place. Spofford. Two on Bartlett Alley, one of which is very likely the cellar Kane's reporter had visited. Six in Dunscombe Alley alone. Three hundred and nineteen bunks in all, which the committee reported were occupied night and day.

The committee was not exposing a secret. It printed the addresses.

The committee's own prose has to be quoted as what it is, which is evidence of what the city said about the people it governed. It described "the spectacle of pallid men in a condition of death-stupor, wrapped in the dirty rags which constitute their bedding," and told its readers that these were the "pest-holes" from which their cooks and servants came, and that "the instinct of the race remains unchanged." Nothing in the report is a description of Chinese San Francisco. All of it is a description of the committee.

Diana Ahmad, writing on the American medical profession and opium smoking in these decades, put the mechanism plainly: physicians in the 1870s and early 1880s "sought to exclude the Chinese from immigrating to the United States because these physicians believed that the Chinese opium smoking habit threatened the moral system of the country," and their conclusions "fed into the anti-Chinese campaign." Section 61 is that argument in municipal form. It does not say so, because it did not have to.

On 4 March 1881 the California legislature added a new section 307 to the state penal code, in nearly the same terms — opening or maintaining a place where opium was sold to be smoked, and visiting or resorting to one. Six years later the state supreme court used it to strike down a Stockton ordinance modelled on the San Francisco original, on the ground that it punished precisely the acts the state statute already punished. The municipal experiment had been absorbed and then made redundant by the thing it started.

Federal law followed, and it followed the racial logic without the neutral drafting. The Act of 23 February 1887 prohibited the importation of opium into any port of the United States by any subject of the Emperor of China — not by anyone else — and forbade American citizens to trade in opium in the open ports of China, with forfeitures running to the United States for the Emperor's benefit. The Act of 1 October 1890 taxed smoking opium manufactured in the United States at ten dollars a pound and provided that no person should engage in the manufacture who was not an American citizen.

And between those two, on 6 May 1882, Congress passed An Act to execute certain treaty stipulations relating to Chinese, which suspended the immigration of Chinese labourers for ten years.

That statute is not this one. It is federal, not municipal; it is immigration law, not criminal law; it regulates entry to a country, not presence in a room; it was passed seven years after the date usually given for Section 61 and four years after the date the record actually supports. Collapsing the two produces a story in which a drug law was an immigration law in disguise, which is both too neat and too small. What the record shows is a single political campaign, sustained across a decade, reaching for whatever legal instrument came to hand — a jail regulation in 1875, an air-space requirement for lodging houses, a nuisance section in 1878, a state penal code section in 1881, a federal immigration statute in 1882, a customs prohibition in 1887. The campaign is continuous. The instruments are not interchangeable, and the difference between them is where the interesting part lives.

Nobody in San Francisco in November 1878 thought they were founding anything.

Order No. 1471 was one item of Board business among many that autumn. The chapter it joined had just been enlarged by an order forbidding the use of language claiming the power to cause the performance of any act, and by another regulating the transport of carcasses through the streets. It went in at the end, as Section 61, the newest thing in the misdemeanour code, and by the next printing there was a section about swine underneath it.

There is no photograph of an arrest under it. No likeness survives of anyone prosecuted under it, and no name — not one, in eight years of arrest tables that eventually run to hundreds of people a year. The city produced a very large paper record of this ordinance and produced it entirely without producing a person. Three hundred and nineteen bunks, counted; twenty-six street addresses, printed; two hundred and twenty arrests in a single year, tabulated by disposal. The two Chinese names that survive anywhere near it belong to men whose pipes were sitting unclaimed in the police property room three years before there was a law to take them under.

What is left is the sentence, and the bracket after it. The sentence has been quoted for a hundred and fifty years, and is now generally quoted as the beginning of American drug prohibition, which it may well be. The bracket has been read by almost nobody, and it says that the beginning happened three years later than we have been telling each other, in the same year and by the same men who were then also legislating about pigs.

The text of Section 61, and its attribution to Order No. 1471 of 8 November 1878, are established from the city's own printed codification in the appendix to the San Francisco Municipal Reports for the Fiscal Year 1877-78, p. 906, read from the page image and not from optical character recognition. The identical text, without the credit line, appears as Order No. 1,587 §61 in the compilations of 1881, 1884, 1890, 1894, 1896 and 1898; Order No. 1,587 was itself a re-codification approved 17 September 1880 by Mayor I. S. Kalloch. The 1869 compilation contains no opium provision.

The dating argument rests on the codification's own credit lines and is a strongly supported inference rather than a proof. It establishes that Order No. 1471 is an order of November 1878 and that Section 61 entered Chapter III then. It does not establish that no opium order was passed in 1875 and later superseded. The Board of Supervisors' Journal of Proceedings, which would settle it, is held at the San Francisco History Center and is not digitised; the San Francisco daily press for 1875 and 1878 is held in the California Digital Newspaper Collection, which returned no responses to any automated request made in the course of this work. Both gaps are recoverable by someone with a reader's ticket, and until they are closed the finding here should be read as: the only documentary date for this ordinance is 8 November 1878.

The 1875 date is traced to H. H. Kane, Opium-Smoking in America and China (New York, 1882), pp. 1-2, quoted above in full. Kane supplies no order number, no text, and no citation. Whether every later repetition descends from Kane is not established; that he is its earliest recoverable statement is.

Arrest and commitment figures are transcribed from page images of the Chief of Police's schedules and the House of Correction exhibits in the municipal reports for 1883-84, 1884-85 and 1885-86, and from the Sheriff's county-jail table for 1882-83. The 1885-86 keeping row does not foot in the original — eight dismissed, twenty-seven convicted and three pending against thirty-three arrested — and is reproduced as printed. Arrest counts are counts of charges, not of persons; nothing here establishes how many individuals they represent, and nothing establishes their ancestry, because the city never recorded it against an offence.

The claim that white patrons were arrested is attributed, resting on the San Francisco Chronicle of 25 July 1881 as quoted by Kane, pp. 10-12. The Bartlett Alley figure — thirteen Chinese men and three white boys — is a police officer's recollection reported by a journalist and printed by a physician in another city a year later. The further claim that white women were arrested is unsupported by anything reached here, and the only sex-disaggregated figures available, the House of Correction commitments, record no women at all.

The comparative statutes are verified from the official prints: the New York poisons act of 16 April 1860, whose schedule names opium (chapter number unresolved, and not cited here for that reason); Laws of New York 1866, ch. 266; the Act of 26 June 1848, ch. 70, 9 Stat. 237; Statutes of Nevada 1877, p. 69, approved 9 February 1877, and its amendment of 3 March 1879, Statutes of Nevada 1879, p. 121; California Statutes 1880, p. 802; California Penal Code § 307, approved 4 March 1881, Statutes of California 1881, p. 34; In re Sic, 73 Cal. 142 (1887); the Act of 6 May 1882, ch. 126, 22 Stat. 58; the Act of 23 February 1887, ch. 210, 24 Stat. 409; and the Act of 1 October 1890, ch. 1244, 26 Stat. 567, at 620-21. The judgment invalidating the hair-cutting order is Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. Cal. 1879); its text was not obtainable here and no words are attributed to it.

Diana L. Ahmad's argument is quoted from her own published summary of "Opium smoking, anti-Chinese attitudes, and the American medical community, 1850-1890," American Nineteenth Century History 1:2 (2000), 53-68; her The Opium Debate and Chinese Exclusion Laws in the Nineteenth-Century American West (Reno, 2007) is the fullest treatment of the subject and was not accessible in full. The standard works on the San Francisco ordinance campaign and on Chinese legal resistance to it — Charles J. McClain, In Search of Equality (Berkeley, 1994); Nayan Shah, Contagious Divides (Berkeley, 2001); Beth Lew-Williams, The Chinese Must Go (Cambridge, Mass., 2018) — could not be read here, and no argument in this article is attributed to them.

Every description of Chinese San Francisco quoted above was written by municipal officers, police, or a hostile press, and is reproduced as evidence of what those parties said. None of it is used as description. The people at the centre of this ordinance left no record of their own that this work could reach, and the article does not pretend otherwise.

The chronology and the claim ledger for this article are published separately, as Added to Chapter — Appendices.

Translations here are the author’s own and are marked as such. Sources are reproduced rather than linked. Claims that failed are printed with the verdict on them.

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