Abstract

Excerpted From: Thomas Ward Frampton, The First Black Jurors and the Integration of the American Jury, 99 New York University Law Review 515 (May, 2024) (366 Footnotes) (Full Document)

Despite the centrality of the jury to American law and civic culture--and the extensive scholarship exploring the contours of trial by jury in colonial America--the history of the jury in the United States after the ratification of the Bill of Rights remains “the subject of astonishing scholarly neglect.” In recent decades, the Supreme Court has regularly heard cases challenging the exclusion of Black jurors and its Sixth Amendment jurisprudence has adopted a strongly originalist orientation. Yet jurists and legal scholars have devoted little attention to excavating the manifold ways that white supremacy, Black citizenship, and the institution of the jury have historically shaped one another.

Consider, for example, the subject-matter of this Article: jury service by people of color before the ratification of the Fourteenth Amendment in 1868. When the Supreme Court announces an opinion concerning race and the jury, it invariably opens with the Fourteenth Amendment, the Civil Rights Act of 1875 (barring disqualification from jury service “on account of race”), and subsequent Supreme Court cases like Strauder v. West Virginia. Historians and legal scholars uniformly report that Black jury service was nonexistent until 1860, when two Black barbers in Worcester, Massachusetts first served as petit jurors. But these narratives overlook men like Andrew Barland, a formerly enslaved man--himself a slaveowner as an adult--who regularly served as a grand juror and petit juror outside Natchez, Mississippi in 1820; like Abner Francis, a lifelong activist and organizer in the Colored Convention Movement, who served as a petit juror in Buffalo, New York in 1843; like John D. Berry, later a sergeant in the 5 Massachusetts Cavalry (Colored), who served as a petit juror in a small village in the Finger Lakes region in 1855; and like Joseph Cox, who was wrongfully arrested for his alleged involvement in a Richmond riot while a member of the petit jury venire for the prosecution of Jefferson Davis in 1867. They also do a disservice to the memory of William H. Jankins and Francis Clough, the (invariably unnamed) Worcester barbers, who spent decades battling white supremacy--even though their first jury service actually came six years later than is universally reported.

Recovering their stories, and the ways that these men and others understood jury service to be both a marker and maker of their citizenship in antebellum America, is the most basic aim of this Article. Each Part centers on a particular place and time--Jefferson County, Mississippi, 1820; Buffalo, New York, 1843; Worcester, Massachusetts, 1860; Richmond, Virginia, 1867 the jury-box served as a vector for citizenship claims and as an inflection point for racial anxiety. There were, of course, important differences between these settings: A granular study of these individuals' efforts to serve as jurors (and the resistance they faced) underscores that “freedom for [antebellum] African Americans was highly contingent and to be found in discrete geopolitical zones.” In some places, activists faced de jure bars on Black jurors; in others, no formal legal impediments existed, but custom dictated that Black jurors be omitted from jury lists. But important similarities also emerge. Early Black jurors from Mississippi to Massachusetts “grabbed hold of the rhetoric of rights and citizenship--and took advantage of the opening offered by law and the courts--to claim freedom itself[.]” Like the protagonists of Professor Martha S. Jones's study of antebellum Baltimore, their persistent efforts to serve as jurors within hostile legal environments help illuminate “the everyday ways in which African Americans approached rights and citizenship. ... how people without rights still exercised them.” Noting the pronounced resistance to Black jury service even after ratification of the Fourteenth Amendment, Albert W. Alschuler and Andrew G. Deiss once observed that “the path to citizenship marked only part of the journey to the jury box.” Recentering the forgotten antebellum jurors inverts the relationship: The journey to the jury-box was, first, a core part of the arduous path to citizenship.

As noteworthy as these individuals' stories are, however, each instance of antebellum Black jury service (except for Andrew Barland in 1820s Mississippi) was connected to, embedded in, and the product of collective Black-led efforts to integrate the jury-box. While instances of antebellum Black jury service were rare, campaigns insisting upon Black citizens' admission to the jury-box were not. From the late 1830s onward, Black activists across the country gathered, petitioned, debated, lobbied, and publicly decried their exclusion from the jury-box. And white Americans, even many within anti-slavery and abolitionist circles, opposed them: To paraphrase W.E.B. Du Bois, Black jurors were “a contradiction, a threat and a menace” to an ideology premised on Black unsuitability for republican self-governance. The exceptional occasions where Black men succeeded at being seated as jurors become legible only within the political contexts that allowed such victories: Abner Francis's jury service in Buffalo in 1843 immediately followed two mass gatherings in Buffalo (a National Colored Convention and the Liberty Party's national convention) that focused on racial equality; William Jankins and Francis Clough were added to Worcester's jury lists after two statewide campaigns to reform Massachusetts's jury selection process in the late 1850s. From Ohio to North Carolina, Black activists spent decades collectively demanding admission into “the sanctum sanctorum of justice--the jury box.” A more ambitious aim of this Article, then, is to situate their individual stories within broader antebellum organizing efforts that articulated a radical vision of racial equality in America in the decades before the Fourteenth Amendment (and to emphasize the persistent importance of the jury-box to these campaigns).

This broader perspective offers a different way of thinking about the relationship between race, rights, citizenship, and this central American institution. When the history of Black jury service opens with the ratification of the Fourteenth Amendment or cases like Strauder v. West Virginia, the integration of the jury is, at least implicitly, the work of Congress and the Court. But a narrative that begins several decades earlier--and that ends on the eve of the Fourteenth Amendment's ratification, as this Article does--undermines the centrality of these actors. The movements that fought to integrate the jury shaped ideas of what full Black citizenship would come to mean during Reconstruction and beyond. To be sure, during Reconstruction, the jury-box was opened to Black citizens in ways that it had not been previously. But it was Black citizens themselves, through decades of outside-the-courtroom agitation, who opened it.

None of the foregoing is intended to minimize another critical through-line that links these stories: Class, color, and sex all profoundly shaped the nineteenth-century jury. Nearly all of the forgotten Black jurors profiled in this Article were exceptionally wealthy, particularly as compared to other people of color in their communities. The formerly enslaved Andrew Barland, for instance, would himself become a wealthy slaveowner; when Mississippi stripped him of his ability to serve as a juror in 1824, he protested that he “holds slaves and can know no other interest than that which is common to the white population. ...” We have limited information about their complexion, but those profiled in Parts I, II, and III (as well as John Berry, introduced in Part IV) were all, at various times, described as “mulatto” in bills of sale, census records, newspapers, or other legal documents. And they were all men: While some antebellum Black activists and white abolitionists also argued for the rights of women to serve as jurors, such efforts did not gain traction until well after the Civil War. Even as activists pushed for a democratic remaking of the jury, their victories illuminate how the institution continued to reinforce and entrench other salient hierarchies.

A brief disclaimer concerning the title of this piece. Although this Article identifies people of color who served as jurors decades before the earliest previously known examples--a fact that, by itself, should inspire some humility regarding definitive historical claims--Andrew Barland probably was not “the first Black juror” in American history. I have not attempted to provide a comprehensive account of Black jury service “at the Founding” or in subsequent decades, and further inquiry will hopefully uncover additional examples. Rather, I take my title from the fact that nearly all of this Article's protagonists from the 1840s onward were at one point (erroneously, it turns out) celebrated or reviled as “the first Black jurors.” This project takes up an invitation first floated by Black abolitionist and activist William C. Nell--a colleague of several of the jurors discussed here--who mused in 1869: “The reminiscenses [sic] of colored jurors in the United States” would make an “interesting and instructive” lens through which to understand the fight of Black people to become “citizens equally before the law.”

[. . .]

Few, if any, Supreme Court opinions are more reviled than Chief Justice Taney's 1857 opinion in Dred Scott v. Sandford. His conclusion that neither Scott nor any member of “[t]he unhappy black race” could ever be a “citizen of the United States”--a member of “the political body who, according to republican institutions, form the sovereignty”--is now enshrined as anticanon. In the short term, Dred Scott accelerated the war that would shatter its central holding in just a few years' time; in the long term, we have come to recognize that Taney reached a “morally insufferable” conclusion that “abided constitutional evil.”

But undergirding Taney's legal conclusion were a series of crude and misleading historical claims that still exercise a hold on our collective historical understanding, including when it comes to thinking about the American jury. Scott could not be a citizen in 1857, Taney concluded, because in 1787 and in subsequent decades, “negroes of the African race,” “whether they had become free or not, were [not] then acknowledged as a part of the people ....” Black people were “excluded from civilized Governments” at the Founding, so it followed that they were not entitled to “any of the personal rights so carefully provided for the citizen.” A survey of legislation confirmed that over the subsequent seventy years those of African descent remained outside the American polity; Scott could not be a “citizen” because nowhere “did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights.”

There are uncomfortable echoes of Taney's historical account in how legal scholars treat the American jury prior to Reconstruction. The original source for most, if not all, of the mistaken claims that Black jury service was nonexistent before 1860 appears to be Leon Litwack's groundbreaking North of Slavery, which presented a withering and unrelenting account of northern white racism from the Revolution to the Civil War. But as historian Van Gosse provocatively suggests (critiquing both Litwack and scholarship he helped inspire): “We have all been Taneyites, in effect, reading the Dred Scott decision back into the prior seventy years as an affirmation of what was always-already there. Rather than letting facts speak, scholars have insisted a priori that black citizenship barely, rarely, or never existed.” Of course, white supremacy's violence shaped every aspect of the lives of free people of color, in both the South and the North, in the decades before the Civil War. It shaped the jury. But more recent, probing studies of antebellum Black communities and Black civil rights activism have offered “a far more nuanced--and ambitious--picture of African American life than one might have imagined from reading Litwack.” More searching histories of the jury, too, are overdue.

For Jefferson Davis and his legal team, the prospect of being tried before Black jurors in the former capital of the Confederacy was “almost impossible to conceive.” No doubt they were sincere in their disbelief: Like Taney, their worldview denied that Black citizens were, or ever had been, “a part of the people.” But the very existence of people like Hanson T. Hughes, Francis Clough, John Berry, Abner Francis--and countless others who spent decades fighting to get these men seated as jurors--undermines that narrative. Though we have largely forgotten them, their vision of the jury, and of citizenship, was ascendant on the eve of the Fourteenth Amendment's ratification.

Thomas Frampton, Associate Professor of Law, University of Virginia School of Law.