In 1821 – long before the civil rights movement – a free black man living in Washington won an historic victory for racial justice in a court of the District of Columbia.
William Costin was a trusted messenger of the Bank of Washington. His mother, descended from blacks and a Cherokee Indian chief, had been a household slave at Mount Vernon and was believed to be the illegitimate half-sister of Martha Washington. It was “Billy” Costin who boldly challenged a new set of Black Codes intended to stem the migration of free blacks into the relatively hospitable District of Columbia.
As early as 1808, concern about unrest had led the city to enact a law prohibiting “Negroes,” as well as “loose, idle, or disorderly persons,” from being on the streets after 10 p.m. Whipping was the punishment for nonpayment of fines. Two years later, the growing presence of escaped slaves led to additional provisions compelling free blacks to register and to carry their certificates of freedom at all times.
The codes reached their zenith with the Act of April 1821. Among other things, it required free “persons of color” to appear before the mayor with documents signed by three “respectable” white inhabitants of their neighborhood vouching for their good character and means of subsistence. If the evidence was satisfactory to the mayor, the individuals were to post a yearly $20 bond with a “good and respectable” white person as assurance of their “good, sober and orderly conduct,” and to ensure that they would not become public charges or beggars in the streets.
Costin refused to comply. A justice of the peace imposed a fine of five dollars. Costin appealed to the Circuit Court of the District of Columbia. The case came before the legendary chief judge, William Cranch.
It was well established that Washington’s charter gave power to the municipal corporation to prescribe the terms and conditions upon which free Negroes and mulattoes may reside in the city.” Nonetheless, Costin argued that Congress could not delegate powers to the city that were unconstitutional, and that “the Constitution knows no distinction of color.” He insisted he could not be deprived of the privileges and immunities that other long-time residents of the city enjoyed, and he questioned the very concept of racial distinctions, noting that his own ancestors were Cherokee, European and African. Clearly, Costin was a man ahead of his time.
Judge Cranch quickly disposed of the privileges-and-immunities argument. Treating the District as a state, he ruled that the language of Article IV was inapplicable to Costin’s appeal. He said a citizen of one state, coming into another state, can claim only those privileges and immunities which belong to citizens of the latter state, in like circumstances. Costin was not seeking to come to Washington from somewhere else.
Reflecting the tenor of the times, Cranch went on to say, “I can see no reason why (a state) may not require security for good behavior from free persons of color, as well as vagrants and persons of ill-fame.”
But the unfairness of the codes, and their potentially devastating consequences, did not escape Cranch’s attention. He said, “Many (free residents of color) had been long residents of the city, some were born there, had been useful members of society, had acquired property and contributed to the growth and improvement of the city and had paid taxes for the support of the poor.”
Noting that black residents of Washington could not compel any white person to become their surety, Cranch observed bleakly that, “banishment would be the consequence of their inability to give the surety required unless they should submit to repeated imprisonments in the workhouse, and the breakup of their families, the ruin of their business, and the binding out of their children by the guardians of the poor.”
With that, Judge Cranch held that the ordinance could not be applied to Costin and others whose residence in Washington predated the promulgation of the rule. He said, “It would seem to be unreasonable to suppose that Congress intended to give the corporation the power to banish those free persons of color who had been guilty of no crime.”
Costin lived for another 21 years, known as a provocative and passionate advocate for the equality of blacks. He founded a school for black children, which was run by his daughter. Upon his death, former President John Quincy Adams remarked on the floor of the U.S. House of Representatives, “The late William Costin, though he was not white, was as much respected as any man in the District and the large concourse of citizens that attended his remains to the grave – as well white as black – was an evidence of the manner in which he was estimated by the citizens of Washington.”