Guest post by Andrew Prescott, 29 February 2024.

What constitutes an insurrection?

One of the many lawsuits in which the former President of the United States Donald Trump is currently embroiled concerns a ruling of the Supreme Court of Colorado that Trump should be excluded from the Republican primary ballot in Colorado because he is disqualified from holding the office of President under section three of the fourteenth amendment of the United States constitution. Section three stipulates that nobody shall be a member of Congress or hold office in the United States who, having taken an oath to support the constitution of the United States, ‘shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof’.

In the case of Anderson v. Griswold, which sought to prohibit the Secretary of State of Colorado from including Trump in the primary ballot, a district court in Colorado found that, by encouraging the attack on the Capitol on 6 January 2021 in order to prevent a peaceful transfer of power to a new President, Trump had engaged in insurrection or rebellion, but concluded that, since he had never been a governor or member of congress, he had never sworn an oath as an officer of the United States. It turned down the request that Trump be excluded from the ballot. However, the Colorado Supreme Court, in a majority decision, agreed that Trump had engaged in insurrection, but concluded that, by taking an oath to support the constitution as President, he did fall within the scope of section three and was disqualified from running for President.[1]

A key question throughout has been what did the writers of the fourteenth amendment mean by ‘insurrection’? The fourteenth amendment was passed in 1868 shortly after the American Civil War, and section three was intended to prevent supporters of the Confederacy from taking federal and state offices and thereby undermining the reconstruction effort.[2] In support of its interpretation of insurrection, the judgement of the Colorado Supreme Court cites various definitions from dictionaries published at the time section three was drafted such as Noah Webster’s 1860 dictionary which defined ‘insurrection’ as:

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to SEDITION, except that sedition expresses a less extensive rising of citizens. It differs from REBELLION, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one, or to place the country under another jurisdiction.       

Trump appealed against the finding of the Colorado Supreme Court and the US Supreme Court held oral hearings in the case (now known as Trump v. Anderson) on 8 February 2024.[3] Most of the discussion in the Colorado court judgements and in the oral hearing of the US Supreme Court focussed on how an officer of the United States is defined, how section three can be enforced and how far individual states can take actions which affect federal elections. It will probably be these issues which will determine the final outcome of the case. There appears to be little doubt, as both the Colorado courts found, that the events of 6 January 2021 constituted an insurrection or rebellion within the meaning of section three.

Nonetheless, Jonathan F. Mitchell, the lawyer representing Trump, tried his best to deny that this was the case. In the US Supreme Court oral hearing Justice Ketanji Onyika Brown Jackson sensed some confusion as to whether Mitchell accepted that January 6 counted as an insurrection. Mitchell replied that he had never accepted or conceded in his opening brief that this was an insurrection. Mitchell insisted that for an insurrection there needed to be an organised, concerted effort to overthrow the government of the United States through violence. Justice Jackson then asked, ‘So your point is that a chaotic effort to overthrow the government is not an insurrection?’ Mitchell responded:

This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of these things, but it did not qualify as an insurrection as that term is used in section 3.

Questions about what constitutes an insurrection surfaced briefly again in an exchange between Chief Justice Roberts and Jason Murray, the lawyer representing the Colorado voters who brought the original case, about whether different states might have varying definitions of an insurrection. Murray responded that Trump v. Anderson offers an opportunity for the Supreme Court to provide a working legal definition of an insurrection. He commented:

Just like this Court interprets other constitutional provisions, this Court can make it clear that an insurrection is something extraordinary. And, in particular, it really requires a concerted group effort to resist through violence not some ordinary application of state or federal law but the functions mandated by the Constitution itself.

In an exchange with the Colorado Solicitor General Shannon Stevenson, Chief Justice Roberts also raised the question as to what standard is used to define an insurrection:

Maybe they’ve got a stack of papers saying here’s why I think this person is guilty of insurrection, it’s not a big insurrection, something that, you know, happened down – down the street, but they say this is still an insurrection. I don’t know what the standard is for that.        

Such questions about the distinction between insurrection, revolt, and riot are timeless ones, and it is intriguing to find that they also appear in the prosecutions arising from the English Peasants’ Revolt of 1381.

Insurrection in 1381

A rising on the scale of the Peasants’ Revolt posed many challenging and novel problems for the English judicial and administrative machinery.[4] While the general pardon granted to rebels in the parliament of 1381 enabled all those accused of participating in the rising except for the ringleaders to secure pardons for prosecutions at the king’s suit, it was still possible for private individuals to bring what would nowadays be regarded as civil suits for damages suffered by them during the revolt. A large number of trespass actions naming hundreds of rebels were brought by private individuals. Many of these lawsuits never came to trial so minimal details of the alleged incidents are given and we can only establish that they are connected with the revolt because of the mention of such features as the burning of the manorial records. Nevertheless, these actions are one of the best sources for the names of rebels and are vital for the sort of prosopographical research undertaken by the People of 1381 project.

The large number of private actions threatened to overwhelm the courts and many defendants protested that they had been forced to follow the rebels and had participated unwillingly. In February 1383, a statute was passed stipulating that all trespass actions relating to the revolt should begin by the next quindene (that is, 8 July 1383) and ordering that any defendant who claimed that he was present at the time of the rising because of threats against him and had done no harm should be acquitted if he could find three or four trustworthy men, not suspected of involvement in the revolt, to swear an oath that the defendant had been compelled to join the rising.[5]

One case in the year book for 6 Richard II records a discussion between judge and lawyer about the operation of this statute and the definition of insurrection in terms that recall those of the recent exchanges in the US Supreme Court.[6] The case was heard in the Court of Common Pleas in the Easter term of 1383.[7] The plea roll states that John Merssh, a London citizen who in 1384 became a member of the common council of the city,[8] appeared by Thomas Pathorn his attorney and complained that Richard Edwene and Nicholas Edwene junior had on 14 June 1381 assaulted,  wounded, beat and ill-treated his servant John Gateward in the parish of St Alban in Cripplegate ward in the city of London. As a result of this incident, John Merssh claimed that he had lost the services of Gateward for two days, which Merssh claimed had caused him ten pounds worth of damages. Richard and Nicholas appeared in person to answer Merssh’s case against them and appeared not guilty.

There is nothing in the plea roll record which explicitly links this incident to the rising, except that any violent incident which took place in London on 15 June, the day when King Richard met the rebels at Mile End and Archbishop Sudbury, Treasurer Hales and others were beheaded on Tower Hill, is quite likely to have been connected with the revolt.

John Markham, who had recently been made a sergeant at law,[9] one of the elite band of lawyers permitted to plead in the Court of Common Pleas, spoke on behalf of the two Edwenes, seeking to take advantage of the recent statutory provision to swear an oath:

The statute states that if the person who is accused of rebellion can bring four good and suitable persons to excuse him, he shall be excused, which four persons we are ready to bring.   

The Chief Justice of Common Pleas was Robert Bealknap, who had been holding assize sessions at Dartford in Kent just as the revolt broke out,[10] and was a member of the commission against the rebels issued to William Walworth by the king immediately after the death of Wat Tyler.[11] Bealknap therefore had first-hand experience of the rising and the rebels. He immediately urged Markham not to take advantage of the statutory provision for oaths to be taken. Bealknap remarked:

You are not charged with rebellion. For although this event occurred in London, where the rebellion was located, and at the same time, it does not follow that you did it by rebellion, for it could well be that there is a rebellion in some place in a town, and not in another.

Bealknap is here pondering some of the same issues that the US Supreme Court is currently considering. Even if you engage in riotous behaviour while an insurrection is taking place, that does not necessarily mean that you are directly supporting the political and other aims of the rebellion. Where is the boundary between participation in a revolt and opportunistic misdeeds? Bealknap was trying to close down a potential means by which the defendants could be easily acquitted, but he was also pointing out difficulties about implementing a new piece of legislation, in just the same way as the Supreme Court is currently probing the meaning and difficulties of a 150-year old amendment to the US Constitution.

For Bealknap, the difficulty in establishing whether the defendants were participating in a rising was not the only problem with this plea. He went on:

And it is also not imputed to you that you did it by rebellion. But perhaps, if you had pleaded in another case that the commons came and made you go with them against your will, then perhaps in that case you would be in here with your four persons according to the statute, for there the matter of rebellion is plainly proved. But it is otherwise in this case.

In other words, Bealknap held that the provision of the statute only applied if the defendant was explicitly accused of rebellion. But no such case was likely to appear in the Court of Common Pleas, since the writs of trespass used for private prosecutions arising from the revolt did not explicitly accuse the participants of being rebels. This generally only occurred in indictments or appeals at the king’s suit. Bealknap was thus effectively undermining the whole purpose of the statutory provision. Again, there is another striking parallel with the case against Donald Trump because one reason why section three has hitherto been regarded as a dead letter was that Griffin’s Case in 1869 had concluded that action could not be taken under section three without a resolution from Congress, a precedent which Justice Kavanaugh of the Supreme Court seems to think a weighty one. Bealknap was, like Chief Justice Salmon Chase in Griffin’s Case in 1869, shutting down a legislative provision almost before it had begun.

Bealknap did not stop there. The statute specified that the oaths should be made by ‘tres vel quatuor bonos viros et idoneos atque non suspectos’ (three or four good and suitable men and not suspected). Bealknap observed to Markham that if he decided to go down this route ‘you put yourself in another danger – that you [do not] know whom we would rule good and suitable persons’. In other words, it was up to Bealknap to decide whether the men who would swear on behalf of the defendants were in no way suspected of rebellion, and Bealknap felt this would be very difficult to establish in the wake of such a major uprising.

Bealknap’s ruling meant that Richard and Nicholas reconsidered their legal strategy, presumably with Markham’s help, and the case was adjourned while they consulted. When Richard and Nicolas reappeared in court, however, the plaintiff John Merssh did not appear. Merssh therefore lost the case and was in mercy, and Richard and Nicholas were acquitted.

We are thus left at the end of these legal exchanges uncertain as to whether or not Richard and Nicholas were rebels, but the People of 1381 database enables us to finally answer this question after more than 600 years. It reveals that Richard and Nicholas Edewyne junior were both accused of participating in a large-scale attack on property of Sir John Bromwich, until recently Justiciar of Ireland, at Felsted in Essex in which charters, writings and other muniments were taken and carried away and goods and chattels worth £40 were stolen.[12] Richard and Nicholas had apparently joined the rising in Essex before heading to London. The rebels in Felsted also included Nicholas Edewyne senior, presumably the father, suggesting that maybe two younger members of the family headed towards London, leaving the father at home. John Mersshe was the common councilman for Cripplegate ward in London, and the name of his servant John Gateward suggests the possibility that he may have been one of the keepers of Cripplegate, and that this may be the reason why he was attacked, but we have no corroborative evidence for this speculation. 

Roger Bealknap himself was eventually to fall foul of political and legal pressures even fiercer than those confronting Donald Trump. Bealknap assisted in creating the commission appointed by parliament in 1386 to reform the government, an act which King Richard saw as an affront to royal authority. On 25 August 1387, Bealknap and the other justices were presented with a series of questions, asking if the commission was lawful and, if not, how those responsible for it should be punished. The justices answered that it was unlawful and that its creators should be punished as traitors. Bealknap repeatedly refused to seal the answers and finally only did so under threat of death. In the Merciless Parliament of 1388, Bealknap was replaced as Chief Justice of Common Pleas. The justices were tried for their answer to the questions. They pleaded coercion, but were sentenced to death. The justices were pardoned execution, but sentenced to forfeiture and exile to Ireland.

Postscript, 5 March 2024

The Supreme Court issued its opinion on Trump v. Anderson on 4 March 2024. As was widely expected, the Supreme Court unanimously overturned the Colorado judgement. More surprising was that the judgement was concerned entirely with the question of whether states could disqualify candidates in federal elections. There was no mention of the definition of insurrection despite the exchanges in oral hearings, implying that members of the Supreme Court accepted the conclusion of the Colorado courts that the events of 6 January 2021 were an insurrection. If this is the case, it would still be open to Congress to disqualify a Presidential candidate who took part in these events. It seems that the timeless question of what constitutes a rebellion and how participants in it are judged will continue to be one that exercises courts and legislators.

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Author bio: Andrew Prescott is an Honorary Senior Research Fellow in the School of Critical Studies, University of Glasgow. He is a Co-Investigator on the ‘People of 1381’ project. Recent publications include Archives: Power, Truth and Fiction (Oxford University Press, 2023), co-edited with Alison Wiggins. 

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Images: Both from fifteenth-century manuscripts of Jean Froissart’s Chronicles, both courtesy of Wikimedia Commons: a) British Library (London), Royal MS. 18 E. I, f. 165v, b) Bibliothèque Nationale (Paris), MS Fr 2644, f. 159v.

Notes:

[1] The judgement of the Colorado Supreme Court in the case of Anderson v. Griswold is available at: https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf

[2] John Vlahoplus, ‘Insurrection, Disqualification, and the Presidency’, British Journal of American Legal Studies 13:1 (2023): 1-26.

[3] A transcript of the oral hearing of the US Supreme Court in Trump v. Anderson is available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_5he6.pdf

[4] A. Prescott, “‘The Hand of God’: The Suppression of the Peasants’ Revolt of 1381’, in Prophecy, Apocalypse and the Day of Doom, ed. N. Morgan (Donington, 2004), 317-41; “The Judicial Records of the Rising of 1381” (Ph.D. Diss., University of London, 1984).

[5] 6 Ric. II Stat. 2 c. 4-5.     

[6] Year Book of Richard II: 6 Richard II 1382-1383, ed. Samuel E. Thorne with Michelle E. Hager and Margaret MacVeagh Thorne, with commentary by Charles Donahue, Jr (Ames Foundation, 1996), 249-50.

[7] The National Archives [hereafter, TNA] C[ommon] P[leas] 40/489, m. 390.

[8] R. R. Sharpe, Calendar of London Letter Books: Letter Book H (London, 1907), 239.

[9] J. Tait and A. Tuck, ‘Markham, John (d. 1409)’, Oxford Dictionary of National Biography: https://doi.org/10.1093/ref:odnb/18067

[10] TNA, JUST 1/1491 m. 11.

[11] On Bealknap’s life, see John L. Leland, ‘Bealknap, Sir Robert (d. 1401)’, Oxford Dictionary of National Biography; https://doi.org/10.1093/ref:odnb/1809.

[12] TNA, CP 40/485 m. 299d.