Thomas Frampton’s article The First Black Jurors and the Integration of the American Jury reads like an exciting book giving us a new perspective on the first black jurors. It helps us better understand the jury as a democratic institution.
We know juries decide few cases—less than 1% of civil cases and less than 4% of criminal cases. And we are still trying to discover why. The question is complicated. At least one scholar has proffered that it may have to do with race—that as the jury has become more diverse, juries have disappeared.
This narrative makes Frampton’s article even more interesting. To understand more about whether diverse juries have led to fewer jury trials, we need to discover when and why juries became diverse. The answers to these questions also help us think about other important rights such as citizenship.
The accepted history tells us the first black jurors served in 1860. They were William H. Jankins and Francis Clough, who lived in Worcester, Massachusetts. Frampton explains that this history is wrong. Through his extensive research of a variety of sources such as court minutes, jury lists, tax rolls, censuses, legislative petitions and marriage rolls, he has found black jurors who served prior to 1860—in 1820, 1843, and 1855. Despite his title “The First Black Jurors,” he also anticipates that other researchers will find the real first black jurors in the future.
In addition to correcting the narrative on the timing of the first black jurors, Frampton shows how the narrative of how black people became jurors has generally been a false one. Instead of Congress and the courts creating the opportunity for black people to be jurors, black people themselves created these opportunities through movements to gain access to the jury box. Additionally, Frampton helps us think differently about the relationship of citizenship and jury service. He writes that we usually think of the recognition of citizenship for black people leading to the right to serve as jurors. His research “inverts” the narrative to serving as jurors leading to citizenship.
Frampton discovered that Andrew Barland in Jefferson County, Mississippi was the “first” black juror. Although Barland served as a juror, as expected of that time, there were many limitations. Frampton describes black jurors as wealthier than other people of color, lighter in complexion, and men. Barland was a light skinned man whose father was white. He had wealth, including owning slaves. However, Barland’s ability to serve was limited. He served at the behest of others who determined whether he was worthy to serve. Frampton describes an interesting set of events where after Barland served as a juror, he was a defendant in a case. In this case, he could not testify because of his race. As a result of that case, Barland later loses his right to be a juror when a court disqualified him saying he was not eligible because he was not a citizen. We hear about the support of white people for Barland to retain his service, including officials like the clerk of the court and the sheriff.
Frampton contrasts Barland with other free people who did not have Barland’s power. They attempted to gain the right to be a juror in different ways and for different reasons. For example, Barland sought the right to be a juror for more personal reasons. Differences aside, Frampton says black jurors seemed to generally understand that the exercise of jury rights evidenced their citizenship.
Abner H. Francis, the next black juror newly discovered by Frampton, lived in Buffalo, New York and served in 1843. He was wealthy like Barland, but he became a juror because of political activism, specifically a large gathering of people of color and a convention of the Liberty Party. Frampton also briefly discusses the service of John Berry in 1855 in Watkins, New York. Berry was also an activist in some ways. Finally, we hear about the jurors most historians mention—William H. Jankins and Francis Clough. They too were activists for black people’s rights.
In this piece, Frampton gives us something interesting to think about—to reframe how we think about juries, their decline and the importance of the right to serve as a juror to the right to citizenship. Black jurors existed prior to when we think they did. Often they came as a result of black activism. We may want to think about whether citizenship leads to jury rights or jury rights to citizenship. Also, we may want to think about whether jury rights are civil or political rights. Finally, Frampton’s work recognizes that historians have thought of citizenship as not existing or barely existing prior to Dred Scott—maybe citizenship did—through service on juries.
We can also think about the when and why of black jury service in this way. If activism as opposed to actions by institutional players such as the legislature or the courts drove diversity in juries, it may be easier to see a link between increased diversity and the decline of juries, especially when we see those institutions contributing to the jury’s decline—see Anderson v. Liberty Lobby, Twombly, Bordenkircher v. Hayes, caps on damages, mandatory minimums, etc.
