Anniversary of the Opium Exclusion Act

Free Internet Press

On February 9th, 1909, Congress passed the "Opium Exclusion Act", which was a milestone towards todays laws stopping "illegal" drugs. In truth, it has opened up a serious drug using subculture, illegal drug trade, drug related crimes, and a multi-billion dollar expendature towards the "war on drugs".

The time has come to commemorate the centennial of drug prohibition. One hundred years ago, on March 3rd, 1905. Congress enacted the first federal anti-narcotics law, an act aimed at ending opium commerce in the Philippines. The act marked the first step in a decade-long campaign that would culminate in the enactment of national narcotics prohibition through the Harrison Act of 1914.

Most Americans have now forgotten that drugs were legal for most of the nation's history. At the turn of the last century, Americans could generally buy cocaine, morphine, or heroin over the counter at most any pharmacy. That situation began to change one hundred ago, when a combination of evangelical prohibitionists and Progressive era reformers mounted a successful campaign for federal anti-narcotics legislation.

The movement toward prohibition was not precipitated by any crisis in narcotics use or abuse; indeed, drug use was on the decline by the early 1900s [1]. Nor was it fueled by any widespread public demand for narcotics control; newspapers of the day record far greater interest in alcohol prohibition. Rather, it was initiated by a small but committed band of prohibitionist Protestant missionaries in response to America's colonial venture in the Philippines following the Spanish-American War.

The Far East was at that time the center of the anti-opium movement, an international movement organized chiefly by Protestant missionaries dedicated to halting the traffic in smoking opium in China. When the U.S. acquired the Philippines, there existed a subpopulation of non-native Chinese opium smokers who were patrons of a legal opium trade. Under Spanish rule, the opium trade had been farmed out to state-licensed opium monopolists, taxes from whom generated a substantial portion of the government's revenues. After the U.S. assumed control, Governor William Howard Taft and the Philippines Commission proposed reviving the Spanish tax farming system. This policy had been recommended by the collector of customs in order to enhance revenues and avoid costly anti-smuggling measures.

The proposal was within two weeks of final adoption when it was derailed by a last-minute campaign by Manila's missionaries, appalled at the notion that the U.S. might sanction the opium evil. On May 31, 1903, they contacted Wilbur Crafts, president of the International Reform Bureau, a prohibitionist missionary lobby in Washington, D.C. Crafts dispatched 2,000 telegraphic petitions to prominent supporters calling on President Roosevelt to block the move. Roosevelt, impressed by this outburst of public moral indignation, ordered the Philippines government to withdraw the legislation for further study. Governor Taft appointed a three-man Opium Committee to investigate the situation. The most prominent member of the committee was Charles Brent, the Episcopal bishop of Manila, who was destined to play a key role in future U.S. narcotics policy.

The committee began by investigating the opium situation in other Asian countries. It then issued a muddled report based less on the empirical evidence, whose policy implications were at best equivocal, than on a clear ideological commitment to prohibition [2]. Brent concluded by recommending a policy of "progressive prohibition," in which opium would at first be strictly limited to confirmed addicts, then totally banned (except for medical use) after a three-year transition period. The plan was modeled on the Japanese policy in their Formosan colony, which, however, envisaged a much longer transition period of 30 years. The Committee's report was submitted in August, 1904, but not published until 14 months later.

By that time, the Congress had already adopted its recommendations. On March 3, 1905, it passed "An act to revise and amend the tariff laws of the Philippine Islands, and for other purposes," empowering the Philippine colonial government to "prohibit absolutely the importation or sale of opium, or to limit or restrict its importation and sale, or adopt such other measures as may be required for the suppression of the evils resulting from the sale and use of the drug: and provided, further, that after March 1, 1908, it shall be unlawful to import into the Philippine Islands opium, in whatever form, except by the government, and for medicinal purposes only, and at no time shall it be lawful to sell opium to any native of the Philippine Islands except for medicinal purposes" [Washington Post, "Filipinos Stop Opium, March 10, 1906].

The opium prohibition law had not yet taken effect in the Philippines when Bishop Brent sought to expand its compass. In June, 1906, Brent wrote to President Roosevelt asking the U.S. to call an international conference to support anti-opium efforts in China. Roosevelt concurred, viewing it as a good opportunity for the U.S. to curry favor with the Chinese government, which had been resentful of European meddling in its affairs and had recently launched an anti-opium campaign of its own with crucial assistance from American missionaries. A conference was scheduled in Shanghai, and the State Department appointed three commissioners to represent the U.S. They included Bishop Brent, Dr. Charles Tenney, an ex-missionary and anti-opium advocate, and Dr. Hamilton Wright, an irrepressible and vocal, budding narcocrat who was to become a leading architect of national prohibition. The Shanghai Opium Commission convened in February, 1909, with representatives from China, Britain, the U.S., and other powers with Far East interests. Though lacking treaty authority, it produced a broad consensus among the major powers to limit the opium trade.

As a demonstration of American cooperation, the Congress concurrently enacted a landmark piece of legislation, the Opium Exclusion Act, totally prohibiting the importation of smoking opium into the U.S. The Act, which took effect on April 1, 1909, marked the true beginning of national drug prohibition. From that point on, the U.S. government became progressively involved in the business of suppressing illicit substances. There ensued an escalating government policy of seizures, raids, prosecution, imprisonment, and progressive criminalization. One immediate consequence of the Opium Exclusion Act was a rapid shift in the drug market from smoking opium to morphine, heroin, and other drugs that were still not regulated.

Efforts to pass more comprehensive narcotics legislation bogged down in Congress for the next couple of years, due in large part to objections from the pharmaceutical industry. However, developments proceeded faster in many states, which, unlike Congress in that bygone era, were unencumbered by quaint constitutional limitations on their powers. In 1903, the American Pharmaceutical Association had proposed a model pharmacy bill outlawing sales of cocaine, opiates and chloral hydrate except on prescription, and restricting prescriptions to addicts. Congress followed this suggestion by adopting the APhA pharmacy bill in the District of Columbia in 1906. Fired by Progressive-Era enthusiasm for moral reform, numerous states followed suit. Among the most enthusiastic was California, birthplace of the nation's first anti-drug law, a San Francisco ordinance outlawing opium dens (1875). At the behest of the state board of pharmacy, the California legislature amended the state's poison act in 1907 to prohibit non-medical sales of opium and cocaine. The Board then launched an aggressive campaign, in which it pioneered many of the techniques of modern drug enforcement: hiring undercover agents and informants, entrapping pharmacists into illegal sales, launching sweeps of Chinatown opium dens, seizing contraband in highly publicized raids, pushing legislation to criminalize users and outlaw paraphernalia, and incidentally embroiling itself in corruption and scandal.

The movement for national drug prohibition steamed ahead under Wright's leadership as the State Department pressed for another international conference at the Hague in 1911-2. The U.S. delegation included Wright, Bishop Brent and Henry Finger, who had engineered the California Board of Pharmacy's anti-drug crusade. The Hague Convention, signed Jan. 23, 1912, committed its signatories to restrictions against opium and cocaine. Finger and Wright pressed to have cannabis included as well, but were rebuffed. Congress subsequently went on to pass the Harrison Act, restricting all forms of opium as well as cocaine to prescription use only. Because the federal government lacked clear constitutional authority to regulate non-interstate drug use, Congress adopted the constitutional subterfuge of a tax to regulate drug transactions. The Harrison Act was signed by President Wilson on December 17, 1914, and became effective March 1, 1915. Despite efforts by Wright and Finger, cannabis was not included in the federal law, but was outlawed by many local jurisdictions, such as Massachusetts (1911), California (1913), New York City (1914), et al. [3].

The immediate impact of the drug laws was much as intended; pharmacists and physicians were soon brought into line by a wave of federal arrests. The drug market was further decimated by the onset of World War I, which disrupted international trade routes and sent many prospective young consumers to the trenches. But after the war, drug use rebounded in the heady prosperity of the Jazz Age, while an international criminal market usurped the place of the legally regulated market of pharmacies.

As for the Philippines, the efficacy of the anti-opium law was less than obvious. Predictably, Bishop Brent told the Shanghai Commission that the law was a success, but he failed to present solid evidence. The Philippines Commission asked to reconsider the absolute prohibition deadline of 1908, arguing that the Chinese addict population would eventually die out, but Congress declined. In 1926, H.L. May of the Opium Board of the League of Nations reported that opium was cheap and readily available in the Philippines, and that enforcement was lax and corrupt [4].

In the end, the drug laws were the work of a handful of lobbyists ≠ missionaries, prohibitionists, Progressive era bureaucrats and pharmacy boards ≠ working behind the scenes. Press coverage of their efforts was remarkably scant and generally occurred after the fact. Anti-narcotics bills were approved with little public debate or dissent, and with remarkably little serious consideration to potential adverse effects of prohibition, such as creation of a criminal black market, increased enforcement costs, crime and violence, etc. Such evils would not be widely appreciated until the advent of alcohol prohibition in the 1920s.

Assessed by its results, America's one hundred years' war on drugs ranks as one of the man-made disasters of the 20th century. A century ago, narcotics were a minor problem, rarely discussed as an issue of public concern. Today, drugs have become a major problem with a $40 billion enforcement budget. In the era when drugs were sold over-the-counter, the addiction rate ranged from 0.4% to 1.2% of the adult population [5]. Today, after 100 years of prohibition, the figures range from 1% to 2% [6]. In the days of the free market, drug crime was unknown, aside from occasional illicit opium dens and smugglers [7]. Today, drug criminals comprise over half of federal prisoners, and nearly one-quarter of state criminal offenders. The total number of drug offenders in the prison system is now on the order of half a million, as large as the entire addict population of 1900. Every year, some 20 million Americans commit drug crimes, and nearly half have done so sometime in their lifetime. In sum, the war on drugs ranks as the nation's number one crime-creation program.

The centenary of prohibition is a fit occasion for 21st-century drug reformers to ponder the task ahead. Unlike the movements for alcohol prohibition, women's suffrage, or civil rights, the narcotics control movement never figured centrally in U.S. politics. Prohibition was not the result of a democratic mass movement, but the adoption of new public policy values by influential elites. It remains to be seen how and when drug reformers might effect such a transformation again. One thing is clear, though: success will not come overnight. From the first rumblings of the Philippine missionaries to the final passage of the Harrison Act required a full decade. Prohibition was not made in a day, and will not be unmade quickly. But reformers can take heart from the lesson of one hundred years ago, that a small band of dedicated reformers acting at the propitious moment can make a crucial difference.

by Dale Gieringer