America’s First Drug Law

On November 15, 1875, the San Francisco Board of Supervisors passed a landmark ordinance banning opium dens in the City. Here’s the San Francisco Chronicle’s report of the event. The Chronicle article cites the threat of Chinese opium den operators snagging white people as the main motivation behind the ordinance. This is generally regarded as the first real drug-prohibiting legislation ever passed in America.

While opium smoking had been considered a “vice” in San Francisco prior to this ordinance, it was seen as a vice particular to the city’s Chinese residents, and  was not of high concern for the police in the city, who primarily interested themselves in gambling and prostitution when dealing with Chinatown.

In fact, quite the opposite of frustrating the opium market in the city, here’s an 1870 newspaper account of a white man in San Francisco being criminally charged for trying to sell “bogus opium” to a Chinese man. At a certain point in San Francisco’s history, the city not only permitted opium, but it made sure its Chinese residents were getting the good stuff.

Pre-11/15/1875, opium was just another item of commerce that the city had to deal with regulating. Here’s an article from 1870 detailing attempted opium smuggling (opium imports were taxed at a 100% rate, and thus a pretty profitable pursuit for both the customs office to hunt and the smugglers to smuggle). This article opens with a surprisingly understanding line about the Chinese and their opium use:

To a Chinaman, opium is as much a necessity as whisky to a Californian, lager to a German, or poi to a Kanaka.

So, at this point in the drug’s American history, a mere five years before America’s first drug law, it seems as though opium was considered just another commodity, like booze or taro paste – a culturally-specific necessity, even.

What changed?

Between 1870 and 1880, the Chinese population of San Francisco more than doubled. This population boom, which was by no means limited to San Francisco, inspired a fear that amounted to a crisis amongst whites up and down the West Coast. As an illustration of this Chinese-instigated hysteria, one can read a Chicken-Little editorial dourly entitled “The Chinese Question”  that ran in the San Francisco Chronicle only a week before the Opium Den Ordinance passed.

This editorial was of course only one of many such articles, but it summarizes rather well the sense of panic in the white people of the era. Its essential spirit: “Fellow whites  – these Chinese ain’t playing any games, and they aren’t letting up any. We’re going to lose to them, and all we can do is go down swinging.”

Probing outside of newspapers, you can get an interesting look at what was going on in San Francisco at this time through the City’s Municipal Reports. These reports are available online here.

Each year the city bound and published its Municipal Reports. The Municipal Reports were bureaucratic records of city operations. Each department’s record section was prefaced by a brief summary from its respective department head – a quick check-in from the City’s Auditor, Board of Health Director, Coroner, Fire Department Chief, Tax Collector and other such distinguished gentlemen – prepared for the Board of Supervisors.

It can be pretty boring stuff, bureaucrats being bureaucrats and using bureaucratspeak.  However, if you look back into the Chief of Police’s reports for the years surrounding San Francisco’s Opium Den Ordinance, you see some flashes of passionate language, and a valuable glimpse into the legal confusion that is going on in San Francisco with the “Chinese Question.”

For the two years preceding the Opium Den Ordinance, Police Chief of San Francisco was Theo G. Cockrill. Here’s a photo of Mr. Cockrill:

In the preface to his first report from June, 1874, Cockrill matter-of-factly addresses the fact that there are many Chinese immigrants arriving in town, and that his force is doing the best it can to maintain order when the white residents and the Chinese clash. This explanation is delivered as simple, bureaucratic detail. However, after giving this simple account of the situation, he goes on to defend the Chinese in a way you wouldn’t expect from a law enforcement official of the era. From the report:

Most of those here, and arriving, labor for their livelihood, and large numbers go to the country to work on roads and on farms. For their presence and influx the undersigned is not called on to offer reasons or excuses. The political questions involved fall within the province of the legislative department of our government. But so long as they are here I shall give them the most complete protection which my official authority can control or create. The humblest individual who treads our soil, of whatever race descended, and irrespective of the country of his birth, or the language which he speaks, shall not appeal in vain for the protection of the law, which is no respecter of persons.

I can only speculate as to his motivation for writing like this, but, at least to my sensibilities, it almost reads like he is pushing back on some pressure he may have been feeling from the Board to crack down on the Chinese a little harder he thinks he should be. Cockrill seems defensive, and deep into jurisprudence for a simple report. Surprisingly, compared to what he would write the following year, he also seems reserved in this writing.

His report a year later in June, 1875 has an extensive section on the “Vices of the Chinese” that constitutes a full half of the content. I’m going to quote the section in full here, because it solidifies what his first year’s report seems to imply – that he’s being asked to treat the Chinese differently than he treats other San Franciscans, and that he’s not comfortable doing that:

VICES OF THE CHINESE

The Chinese inhabitants have not been allowed to keep brothels on the main thoroughfares of the City, and the streets on which the street railroads run have been kept free from the contamination of their presence.

The passion for gambling exists in great strength in a majority of our Chinese in habitants, and the united efforts of the Police Department, even if discharged of all other duty, would fail to eradicate this desire or prevent its gratification, in some form.

The duties of our Police force are too many and various, and the public interests confided to their care are too important to permit the entire energy of the force to be devoted to the correction of a vice, so deeply seated, in so numerous a class of our inhabitants.

The game of Tan, as played with copper cash, has been broken up wherever found, and has been discontinued; but the same kind of game has been played, in several instances, with beans, buttons, or other similar devices. With the change of implements the difficulty of convicting offenders is greatly increased.

If persons are found using certain devices which are used for gambling, and not used for any other purpose, a strong presumption arises that such persons are gambling, but if the same persons are found using beans, buttons, or other similar devices which are well known to have innocent uses, (although they can be used for a guilty purpose) the presumption that such persons are gambling is much weaker.

The Chinese gamblers are not willing to gamble in the presence of Police officers, and the Chinese patrons of the game are not willing to give evidence on which to convict their countrymen of this offense.

Our Criminal Code invests every accused person with a mantle of innocence of which his accusers must disrobe him before the law will punish his guilt. The wisdom, humanity, and beauty of this provision needs no encomium from me. The sure protection of the innocence of the many cannot be sacrificed for the sake of reaching a few who find under it a precarious shelter from a punishment deserved by their guilt, but which the law will not visit until that guilt is judicially proved. The exercise of arbitrary power and illegally assumed authority have been forbidden by the strongest guarantees which the wisdom of the present, aided by the experience of the past, could devise or suggest. And the law which is no respecter of persons will not permit its ministers to invade the habitation of the poor under circumstances other than those which authorize the visitation of the dwellings of the noblest and the best of those whom our citizens delight to honor. If the games for ten cent stakes, played by the Chinamen, with beans or buttons, cannot be completely suppressed without the use of illegal means, and the assumption of unauthorized arbitrary power by officers who are sworn to obey, and who should not violate the laws, it is better, far better, that a few such offenders should pass unpunished for a misdemeanor, than that justice should be wounded in her temple by those who are appointed to minister before her altars.

Considering the difficulty of procuring the evidence requisite for conviction in such cases, and the inconsiderable character of the crime, the Department has done all that duty required in suppressing and punishing this class of crime, and the numerous arrests made therefor show that the Police have not been inactive.

Whew. That last line translates into modern English as “I’m doing my job as I should do my job. Quit riding me, most honorable jackasses.”

I couldn’t find much other history on Chief Cockrill, but I find his principled stands in policing the Chinese in his city to be fascinating for at least two reasons:

The first reason is that he makes no mention of opium being a big problem for his force in either report, either with the Chinese or with any other citizens. Considering the lengths of his entries and his detail on the Chinese population, to omit something that was apparently a big enough problem to warrant an ordinance less than six months after that second report is noteworthy.

The second reason Cockrill’s approach fascinates me is that it contrasts so starkly with the report of the Police Chief who succeeded him, Henry H. Ellis. Ellis’ first year as chief saw the passage of the Opium Den Ordinance. His take on the Chinese in San Francisco is much more dismissive than Cockrill’s. From Ellis’ first report:

Our Chinese inhabitants are more frequent violators of sanitary and police regulations than any others, and the large number of arrests made among them show that the Police have been active in enforcing the law. The Honorable A. J. Bryant, Mayor of this city, has given me a cheerful and earnest support in enforcing these laws among the Chinese.

That’s it. That’s all Ellis says on the Chinese issue. “Hey – you fellas don’t worry about those shady guys. I’ll handle them.”

I can’t say for sure what changed between 1870, when white men were getting busted for pawning off schwag opium, and 1875, when you could get arrested just for walking into an opium den, but I can say this: When it comes to whatever the legal climate change was that led to America’s first drug law, Theo Cockrill seems like a man caught up the tumult of that change, whipped and rolling around, grasping for a reason and looking for some sense to float on. Henry Ellis, on the other hand, seems like a real comfortable dude on that same water, sipping some Californian whisky and lounging on an inner-tube, just going with the flow, waving at the City’s Chinese as he floats past.

Given the proliferation of similarly motivated opium ordinances following San Francisco’s, one can only assume that Ellis had plenty of company on his lazy river ride.