Added to Chapter — Appendices

Federal, at the custom house

26 June 1848

Congress passes an act to prevent the importation of adulterated and spurious drugs, stopping consignments below the pharmacopoeial standard at the port. Its principal target in practice is imported opium. 9 Stat. 237.

State, as a poison

16 April 1860

New York passes an act to regulate the sale of poisons. Its schedule names opium and its preparations — and cannabis indica. The seller must enter the buyer's name and residence in a register before a witness unless there is a physician's written order, and must label in red ink POISON with his own name and address. Breach is a misdemeanour.

State, in an institution

1866

New York makes it an offence, punishable by forfeiture and as a misdemeanour, to give opium to a patient of the State Inebriate Asylum. Laws of New York 1866, ch. 266.

The practice arrives

1868

Kane names the first white American smoker — "a sporting character, named Clendenyn" — in California.

Nothing in the code

1869

The compilation of the General Orders printed that year does not contain the word opium anywhere in its several hundred pages.

The anti-Chinese order San Francisco did pass in 1875

7 September 1875

Order No. 1,238 adds a paragraph to the county-jail chapter: every male prisoner committed under sentence is to have the hair of his head clipped to a uniform length of one inch immediately on arrival, and the Sheriff is made responsible. No race is named. It was written to cut off the queue.

The date the story wants

"the latter part of 1875"

Nothing in the codification corresponds to it. The order-number series is close to linear across four years, and an order of mid-November 1875 would carry a number near 1,250.

Pipes before the law

Nov. 1875 – Feb. 1876

The police property clerk's schedule of unclaimed money and property lists three Chinese opium pipes taken as evidence in November 1875, a Chinese water-pipe against the name Ah Ping in January 1876, and one opium pipe against the name Ah Jim in February 1876. Neither man can have been charged under Section 61; it did not yet exist.

Nevada is first

9 February 1877, amended 3 March 1879

A Nevada state statute prohibits the sale of opium and the keeping of places of resort for smoking it — twenty-one months before Order No. 1471. It reaches only the keeper; the amendment of March 1879 is what reaches the man who merely resorts there, four months after San Francisco's section reached both.

The section

8 November 1878

Order No. 1471 adds Section 61 to Chapter III of the General Orders — "Offensive Trades, Occupations, Nuisances and Misdemeanors Defined." Keeping, maintaining, becoming an inmate of, visiting, or contributing in any way to the support of any place where opium is smoked or where persons assemble to inhale the fumes. The penalty, from Section 1 of the same chapter, is up to a thousand dollars or six months in the county jail or both.

The general terms are ruled on

1879

The federal circuit court in California holds the hair-cutting ordinance invalid in a suit brought by a man the reports name Ho Ah Kow — one of the plainest judicial statements of the era that a law written in general terms can be aimed at a class.

The bracket disappears

17 September 1880

Order No. 1,587, a re-codification approved by Mayor I. S. Kalloch, carries the identical text as § 61 without the credit line — and so do the compilations of 1881, 1884, 1890, 1894, 1896 and 1898. From this printing onward the ordinance circulates with no date attached to it at all.

Absorbed by the state

4 March 1881

California adds section 307 to the penal code in nearly the same terms: opening or maintaining a place where opium is sold to be smoked, and visiting or resorting to one.

Assessed, from inside

July 1881

Officer James Mahoney tells the San Francisco Chronicle that the dens are closed but the habit is not broken, that the number of private rooms now smoked in "probably would not fall under two hundred", and that "a man can do pretty much what he likes in his own room." He is describing the ordinance's first unintended consequence as a job well done.

The 1875 date enters print

1882

H. H. Kane, Opium-Smoking in America and China, pp. 1–2: the practice spread "until the latter part of 1875, at which time … a city ordinance was passed." No city named, no order number, no text quoted, nothing cited.

Exclusion

6 May 1882

Congress passes An Act to execute certain treaty stipulations relating to Chinese, suspending the immigration of Chinese labourers for ten years. Federal, immigration, and not this statute.

Counted at last

1881-82, then 1883-84

A discrete line appears — eight commitments to the House of Correction for keeping an opium den. Two years later the Chief of Police breaks the offence out in his own schedule of arrests. For the three years before that it had sat inside one lumped column with vagrancy, gambling and the fish law.

Enumerated

July 1885

A Special Committee of the same Board of Supervisors prints a table headed "Opium Resorts in Chinatown": twenty-six premises by street, number and floor, three hundred and nineteen bunks, reported occupied night and day, with a Remarks column reading "Filthy" in almost every line. The committee was not exposing a secret; it printed the addresses.

Peak

year to 30 June 1886

Thirty-three arrested for keeping and twenty-seven convicted; two hundred and twenty arrested for visiting, a hundred and twenty-five convicted and eighty-seven dismissed. In the same year the same force made 1,535 arrests under the lodging-house law.

Made redundant

1887

In In re Sic, 73 Cal. 142, the state supreme court strikes down a Stockton ordinance modelled on the San Francisco original, because it punished precisely the acts the state statute already punished.

Federal, and explicit

23 February 1887; 1 October 1890

Importation of opium into any port of the United States is prohibited to any subject of the Emperor of China — and to no one else. Three years later, smoking opium manufactured in the United States is taxed at ten dollars a pound, and no person not an American citizen may engage in the manufacture.

1

Section 61 entered the San Francisco code by Order No. 1471 of 8 November 1878.

Established. Printed in the city's own codification at San Francisco Municipal Reports for the Fiscal Year 1877-78, p. 906, read from the page image and not from optical character recognition. The credit lines are a systematic apparatus, not a stray: Section 60 immediately above carries "Added to chapter, May 14, 1878, Order No. 1433," and the hair-cutting provision twenty pages earlier carries "Added to chapter Sept. 7, 1875, Order No. 1,238."

2

America's first drug law dates from 1875.

Unsupported. The 1869 compilation contains no opium provision at all, and the 1877-78 codification — which dates its own 1875 additions by number on the facing pages — assigns Section 61 to November 1878. The order numbers run close to linear across four years: 1196 at the end of 1874, 1,238 in September 1875, 1412 in November 1877, 1433 in May 1878, 1471 in November 1878. An order of 15 November 1875 would carry a number near 1,250, and there is no arrangement of that series in which No. 1471 is an order of 1875.

3

No opium order was passed in San Francisco in 1875 and later superseded.

Unresolved here. The codification distinguishes carefully between a section added to chapter and one as amended, and calls Section 61 an addition; as of the 1878 printing it is the only opium provision anywhere in the General Orders. But the Board's Journal of Proceedings, which would settle it, is held at the San Francisco History Center and is not digitised, and the California Digital Newspaper Collection 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. Until then the finding should be read as: the only documentary date for this ordinance is 8 November 1878.

4

The 1875 date descends from a single unsourced sentence.

Established as to its earliest recoverable statement — H. H. Kane, Opium-Smoking in America and China (New York, 1882), pp. 1–2, writing seven years after the event and three thousand miles away, from correspondence and clippings. He names no city, gives no date beyond "the latter part of 1875," supplies no order number, quotes no text and cites nothing; his own California informant, Dr G. A. Shurtleff at Stockton, says only that the laws "were municipal ordinances, I think, until last winter." That every later repetition descends from Kane is not established.

5

Section 61 contains no sale, no quantity, no purity, no label, no licence and no transaction.

Established by reading the sentence. It reaches keeping, maintaining, becoming an inmate of, visiting, and contributing in any way to the support of such a place — which takes in the landlord, the lender and the man who advances the rent — and then assembling to inhale the fumes. It is possible to violate Section 61 by breathing.

6

The penalty is a fine not exceeding a thousand dollars, or six months in the county jail, or both.

Established. It is not in Section 61 at all but in Section 1 of the same chapter, which fixes the tariff for the whole of it.

7

The section names no race.

Established by reading it: not Chinese, not Mongolian, not Chinatown, not nativity. The text is scrupulously general.

8

The facial neutrality was a technique, not an oversight.

Reasonable interpretation, strongly supported by the parallel case standing in the same appendix. Order No. 1,238 of 7 September 1875 is equally neutral — "each and every male prisoner" — and was written to cut off the queue of any Chinese man sent to the county jail, which the same Board's air-space ordinance ensured would be a great many. The federal circuit court held it invalid in Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. Cal. 1879); that text was not obtainable here and no words are attributed to it.

9

Section 61 is the first anti-drug law in the United States.

Unsupported, and it fails at either date. Verified from the official prints: the Act of 26 June 1848, ch. 70, 9 Stat. 237, stopping adulterated drugs at the custom house; the New York poisons act of 16 April 1860, whose schedule names opium and its preparations and which required a register, a witness and a red-ink POISON label; and Laws of New York 1866, ch. 266, on opium given to Inebriate Asylum patients.

10

San Francisco was at least first in the narrow matter of rooms where opium was smoked.

Unsupported. 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. Statutes of Nevada 1877, p. 69.

11

Order No. 1471 is the earliest American law that made it a crime to be in a place where a drug was consumed, rather than to sell one.

Reasonable interpretation, and the defensible version of the famous claim. Every earlier law regulates a commodity moving through commerce — who imports, who sells, at what purity, under what label, into whose register — and files opium between arsenic and prussic acid; the harm they are built against is poisoning. Section 61 regulates a room and the people in it. Nevada's 1877 statute reached the keeper; it took the amendment of 3 March 1879 (Statutes of Nevada 1879, p. 121) to reach the man who merely resorted there, four months after San Francisco's section reached both. It rests on a survey that cannot be proved exhaustive, and is stated as the earliest such law this research could find.

12

The offence was not counted for its first three years.

Established from the municipal reports. The volumes for 1875-76 and 1876-77 contain no opium offence in any arrest table, jail register or commitment schedule. From 1878-79 the jail tables carry it inside one lumped column — "Misdemeanor, Vagrancy, Visiting House of Ill Fame, Gambling, Opium, Gaming, Fish Law, Etc." A discrete line appears in 1881-82; the Chief of Police breaks it out in 1883-84.

13

In every year counted, patrons outnumbered keepers — and by a widening margin.

Established from the Chief of Police's schedules for 1883-84, 1884-85 and 1885-86: twelve keeping against forty visiting; twenty-six against a hundred and forty-eight; thirty-three against two hundred and twenty. Three to one, then six. 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.

14

The arrest figures are counts of persons.

Unsupported. They are counts of charges. Nothing here establishes how many individuals they represent, and nothing establishes their ancestry, because the city never recorded it against an offence.

15

Convictions were hard to get and the actual sentence was small.

Attributed report, on a documented base. The dismissal figures are from the printed table — eighty-seven of two hundred and twenty visiting charges thrown out in 1885-86. The explanation is a patrolman quoted in the San Francisco Chronicle of 25 July 1881 as reprinted by Kane, pp. 10–12: an officer had to surprise a man in the act of smoking "which is necessary in order to secure a conviction," the rooms had half a dozen ways in and a system for signalling the approach of officers, and the tariff in the police court was twenty dollars, not the thousand the code allowed.

16

Section 61 was the city's busiest instrument against Chinese San Francisco.

Unsupported. Four rows above it in the same table, the same force made 1,535 arrests in the same year for violating the lodging-house law — the minimum-air-volume ordinance — six times as many as the opium section ever produced. Section 61 was one instrument among several, and not the busiest.

17

White patrons were arrested alongside Chinese keepers.

Attributed report. It rests on one cellar under the sidewalk on Bartlett Alley in 1881: thirteen Chinese men and three white boys, supers at the Adelphi Theatre with the habit and no money for an outfit of their own. That is a police officer's recollection, reported by a Chronicle journalist and printed by a physician in another city a year later, seven years into the ordinance's life. It is also the only breakdown by ancestry anyone appears to have written down.

18

White women were among those arrested.

Unsupported by anything reached here, 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 (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 of the nine committed to the House of Correction on opium charges in 1883-84 and the eighteen in 1885-86, every one was a man.

19

Enforcement did not reduce the practice; it relocated it.

Attributed report, and a strong one, from inside the force. Officer James Mahoney to the Chronicle, July 1881: "We don't pretend to have broken up the habit of opium-smoking. That can't be done by any number of ordinances, no matter how rigidly enforced. We have, however, closed up the opium dens." Asked how many rooms outside Chinatown people now smoked in, he put it at probably not under two hundred, because "a man can do pretty much what he likes in his own room," and said the raids on those rooms failed because the officers could not prove they were kept as places where anyone could smoke for a consideration. He was not describing a failure.

20

The city knew exactly where the resorts were and printed the addresses.

Established. Farwell and Kunkler for the Special Committee of the Board of Supervisors, The Chinese at Home and Abroad (San Francisco, 1885), p. 27, also printed officially at San Francisco Municipal Reports 1884-85, pp. 180-81: twenty-six premises by street, number and floor, three hundred and nineteen bunks, reported occupied night and day. The enumeration was made in the course of a campaign to have the Chinese removed from San Francisco.

21

The Special Committee's prose is a description of Chinese San Francisco.

Unsupported, and it is not used that way. "The spectacle of pallid men in a condition of death-stupor," the "pest-holes," "the instinct of the race remains unchanged" — every description of Chinese San Francisco quoted in this article was written by municipal officers, police, or a hostile press, and is reproduced only as evidence of what those parties said. The people at the centre of this ordinance left no record of their own that this work could reach.

22

The medical profession's anti-opium argument fed the anti-Chinese campaign.

Attributed report. Quoted from Diana L. Ahmad's 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 book-length treatment (Reno, 2007) was not accessible in full, and the standard works on the ordinance campaign and on Chinese legal resistance — McClain, Shah, Lew-Williams — could not be read here; no argument in this article is attributed to them.

23

The opium ordinance and the Chinese Exclusion Act are the same instrument.

Unsupported. The Act of 6 May 1882, ch. 126, 22 Stat. 58, is federal not municipal, immigration law not criminal law, and regulates entry to a country rather than 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. What the record shows is one continuous political campaign reaching for whatever 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.

24

The municipal experiment was absorbed by the state and then made redundant by it.

Established. California Penal Code § 307, approved 4 March 1881 (Statutes of California 1881, p. 34), was in nearly the same terms; in In re Sic, 73 Cal. 142 (1887), the state supreme court struck down a Stockton ordinance modelled on the San Francisco original on the ground that it punished precisely the acts the state statute already punished.

25

Federal law followed the racial logic without the neutral drafting.

Established from the official prints. The Act of 23 February 1887, ch. 210, 24 Stat. 409, prohibited the importation of opium into any port of the United States by any subject of the Emperor of China — and by no one else — and the Act of 1 October 1890, ch. 1244, 26 Stat. 567 at 620-21, taxed domestically manufactured smoking opium at ten dollars a pound and barred anyone not an American citizen from the manufacture.

26

Anyone prosecuted under Section 61 can be named.

Unsupported. Not one name survives, in eight years of arrest tables that eventually run to hundreds of people a year, and no likeness of anyone prosecuted under it. The city produced a very large paper record of this ordinance without producing a person. The only two Chinese names anywhere near it — Ah Ping and Ah Jim — are police property-clerk renderings against pipes held unclaimed in January and February 1876, three years before there was a law to take them under.